English 103 Fullerton College

1. UNDERSTANDING SOCIAL MEDIA & FREE SPEECH
ENGLISH 103 ANGELA HENDERSON, FULLERTON COLLEGE

2. FREEDOM OF SPEECH
1791
Bill of Rights
1919
Clear and Present Danger Doctrince adopted by Supreme
Court. Justice Oliver Wendell Holmes writes majority opinion
establishing clear and present danger rule in Schenck vs. United
States. In his opinion, Justice Holmes used “the now classic
example of an individual falsely shouting “Fire” in a theater as an
example of speech that was “substantively evil.” Elizabeth R.
Purdy
1946
Marsh vs.Alabama
The cases realtes to a “company town” no longer in existence but
sets precedence for defining constitutionally a public space.
Although Freedom of Speech can be traced back to Socrates in 399BC, in America its first roots are in the First Amendment of the US Bill
of Rights which guarantees four freedoms: of religion, speech, the press and the right to assemble. On September 25, 1789, Congress
transmitted to the state Legislatures twelve proposed amendments to the Constitution. Numbers three through twelve were adopted by
the states to become the United States (U.S.) Bill of Rights, effective December 15, 1791.
The Constitution affords Americans with free speech, “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.”
We are not allowed to express any opinion that offends, threatens, or insults groups, based on race, color, religion, national orientation, or
disability (hate speech)

3. DOES SOCIAL MEDIA SITES HAVE THE LEGAL RIGHT TO CENSOR
SPEECH?
 Is Facebook, Twitter, and other social media sites violating the First Amendment of the
Constitution?
 NO. The First Amendment only limits governmental actors—federal, state, and local
According to David L. Hudson, Jr. writing for the American Bar Association: “traditional
legal doctrine provides that private actors are not constrained by the Constitution
generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy
and protects us from excessive governmental interference.”

4. WHAT IS SECTION 230?
 In the days following the Capitol Insurrection and Twitter and Facebook banning Trump, Republicans and
Democrats began calling for changes to Section 230.
 Some questions to ask: What is it? Does it apply in this situation? What are the risks in amending Section
230?
 Section 230 is part of the Telecommunications Act of 1996.
 Section 230 — originally enacted by the Communications Decency Act and also referred to as C.D.A. 230 —intended to
regulate pornography, says that internet platforms will not be held liable in court for things that their users say online. It
has some exceptions — notably, it does nothing to shield platforms from liability under federal criminal law — but at its
core, the law is a simple, common-sense policy: If I go online and post something illegal, I should be the one held
responsible, not the message board where I posted it. Source: Elliott Harmon, “Changing Section 230 Would Strengthen the Biggest
Tech Companies” The New York Times https://www.nytimes.com/2019/10/16/opinion/section-230-freedom-speech.html access 1/23/2021.
 It also states: “that private companies have the right to remove content that violates their guidelines and values.”
Source: Rahel Philipose, “Explained: What is Section 230, the law used to ban Trump from Twitter?” 1/9/2021
https://indianexpress.com/article/explained/donald-trump-twitter-section-230-7146371/

5. SHOULD CONGRESS REGULATE SOCIAL MEDIA SITES
 “One of the core purposes of the First Amendment’s Free Speech Clause is to foster “an uninhibited marketplace of
ideas,” testing the “truth” of various ideas “in the competition of the market.” Social media sites provide one avenue
for the transmission of those ideas. The Supreme Court has recognized that the internet in general, and social media
sites in particular, are “important places” for people to “speak and listen,” observing that “social media users employ
these websites to engage in a wide array of protected First Amendment activity.” Users of social media sites such as
Facebook, Twitter, YouTube, or Instagram can use these platforms to post art or news, debate political issues, and
document their lives. In a study conducted in early 2018, the Pew Research Center found that 68% of U.S. adults use
Facebook, 35% use Instagram, and 24% report using Twitter. These sites not only allow users to post content, the sites
also connect users with each other, allowing users to seek out friends and content and often recommending new
connections to the user. On most social media platforms, users can then send content to specific people, or set
permissions allowing only certain people to view that content. Through human curation and the use of algorithms,
these platforms decide how content is displayed to other users. In curating this content, social media sites may also
edit user content, combine it, or draft their own additions to that content. These platforms are generally free to users,
and make revenue by selling targeted advertising space, among other things. Thus, social media sites engage in a
wide variety of activities, at least some of which entail hosting—and creating—constitutionally protected speech.” –
Free Speech and the Regulation of Social Media Content

6. SOCIAL MEDIA AND FREE SPEECH: WHAT ARE THE CRITICAL
QUESTIONS?
 Should the Constitutional First Amendment be changed?? According to David L. Hudson, today, speech takes place
online much more so than it does in traditional public forums, such as public parks and streets. People communicate
on social networking sites, such as Facebook and Twitter, more than in any offline venues. The U.S. Supreme Court
recognized this reality last year in Packingham v. North Carolina (2017): ‘While in the past there may have been
difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is
clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.’
(Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).”
 Should Section 230 be updated or rewritten? Facebook, Google and Twitter may be willing to have the conversation
now prior to the Capitol Siege according to David McCabe of The New York Times.
 Facebook, Reddit and Twitter may become the world’s biggest source for news. Does this mean it should be treated
like a newspaper?
 Should the government treat online communication media (Facebook, Google and Twitter) a public space applying
free-rights provisions under Marsh vs. Alabama?

7. RESOURCES
 Bowman, Kristine. Marsh vs. Alabama (1946). First Amendment Encyclopedia. https://www.mtsu.edu/first-
amendment/article/571/marsh-v-alabama Accessed 2/15/2021.
 First Amendment. History.com editors. September 25, 2019. https://www.history.com/topics/united-states-
constitution/first-amendment
 Hudson, David L. “In the Age of Social Media, Expand the Reach of the First Amendment.” American Bar
Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-
ongoing-challenge-to- define-free-speech/in-the-age-of-socia-media-first-amendment/ accessed
1/23/2021
 Purdy, Elizabeth. “Oliver Wendell Holmes, Jr.” The First Amendement Encyclopedia.
https://www.mtsu.edu/first- amendment/article/1337/oliver-wendell-holmes-jr accessed 1/23/2021
 U.S. Bill of Rights. Oak Hill Publishing Company. ConstitutionFacts.com