Posted by: AJ Demers | April 26, 2022

Here Come the Wannabe Constitutional Scholars…Sigh

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When news broke of Twitter’s coming sale, the Internet went nuts. Many casual users deactivated their accounts, while others resolved to stand their ground. Others opted to stay, at least for the time being, and change their privacy settings.

What companies can/can’t do and should/shouldn’t do about problem speech isn’t as clear-cut as people think. When we think of “free speech,” the assumption is that this means anyone can say anything, anywhere, at any time – is this really accurate?

Unlike a few of my fellow social media users, I don’t presume to know the law better than anyone who practices law or occupies a judicial seat. However, it might not hurt to take a look at where the concept of “free speech” as Americans understand it comes from:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Constitution of the United states

Hmmm…..this seems to be a far cry from anyone/anything/anywhere, doesn’t it? Who does it say may not abridge (restrict) speech, the press, or people’s right to assemble? Does this sound like a restriction on the government?

Somehow I think that a social media company doesn’t exactly qualify as Congress. Incidentally, could Congress mean other levels of government?

The American Library Association, on a page that addresses the First Amendment and censorship (which I highly recommend), cites the Fourteenth Amendment as requiring state and local governments to respect free speech as well. Let’s take a look:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Constitution of the united states

Once again, we have restrictions on what the government can and can’t do, presumably not on what privately-owned companies can and can’t do. Where even the Supreme Court has found that there are some forms of speech that are not protected, maybe this should give the keyboard warriors something to ponder.

One of those pesky parts of signing up for a social media site is agreeing to the Terms of Service, which most people probably only skim through if they even bother to read them. Companies being uneven about which of their TOS they decide to enforce is another matter.

What it amounts to is that people who sign up to use a site agree to their TOS. If they have no intention of playing by the rules, maybe rethinking using that site might be a good idea.

Ironically, the exchange on social media that inspired this post involves a person who has flagged inappropriate ads on Craigslist, per their TOS, yet complains about social media sites enforcing theirs. You can’t have it both ways – why is it okay to enforce TOS in one setting that relates to your concerns but not another?

There are some substantial problems with the arbitrary ways some social media sites enforce their TOS, just ask any pet rescue crossposter. When sites rely too heavily on algorithms to decide what is okay, instead of human involvement, there will be a lot of arbitrary blocking.

However, social media users would do well to keep in mind how a site’s TOS may impact their use and what does and doesn’t constitute protected speech. Otherwise, people will just keep barking up the wrong tree and creating more headaches.

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