- Conservatives are running social media options. Is it a violation of their free speech rights?
- Republicans react
- Not a First Amendment issue
- Despite cries of censorship, conservatives dominate social media
- Conservative conveyor belt
- How claims go viral
- Rise of the mega influencer
- Are Social Media Companies Biased Against Conservatives? There’s No Solid Evidence, Report Concludes
- Crucial Quote
- Key Background
- What To Watch For
- Further Reading
- Regulating free speech on social media is dangerous and futile
- The First Amendment restricts government censorship
- Mandating ideological diversity is impossible
- Related Books
- Not all speech is protected by the First Amendment
- Libel and slander when it comes to public officials
- When words incite “breach of peace”
- Determining whether something is obscene
- Wrestling with sedition and seditious speech
- Laws attempting to reduce anti-government speech
- Expressive and symbolic speech
Conservatives are running social media options. Is it a violation of their free speech rights?
In the wake of last week’s deadly riot and the storming of the U.S. Capitol building, private media companies have begun drawing a harder line on what and who is and isn’t acceptable on their platforms.
Conservatives have decried the media companies’ actions as censorship and “Orwellian,” but media experts point out that private companies are allowed to manage their own businesses and that the First Amendment only applies to the government’s infringement of speech.
The social media application Parler, which has served as a go-to alternative to for supporters of President Donald Trump, was suspended by website hosting service Amazon Web Services, according to BuzzFeed News, which reported that Amazon suspended the app for breaking its terms of service.
“The app has recently been overrun with death threats, celebrations of violence, and posts encouraging ‘Patriots’ to march on Washington, D.C., with weapons on Jan. 19, the day before the inauguration of President-elect Joe Biden,” BuzzFeed reported.
Apple and Google had already removed the Parler from their application stores, The New York Times reported, saying Parler “had not sufficiently policed its users’ posts, allowing too many that encouraged violence and crime.”
Parler has since filed a lawsuit against Amazon Web Services, The Wall Street Journal reported Monday.
Talk radio giant Cumulus Media, and its syndicated programing branch Westwood One, “has told its on-air personalities to stop suggesting that the election was stolen from Trump — or else face termination,” The Washington Post reported. Cumulus hosts right-wing radio hosts, Mark Levin and Dan Bongino, who “have amplified Trump’s lies that the vote was ‘rigged’ or in some way fraudulent,” according to the Post.
The day after the riot, “indefinitely” banned Trump’s profile through at least Biden’s inauguration on Jan. 20.
On Friday, banned Trump’s account — the president’s preferred means of reaching out to supporters and politicians — because of the “risk of further incitement of violence.”
The crackdown by media companies hasn’t only come from digital and audio platforms.
Book publisher Simon & Schuster canceled Missouri GOP Sen. Josh Hawley’s book contract, citing the senator’s role in Wednesday’s “dangerous threat to our democracy and freedom.” Hawley was a leader among congressional Republicans who objected to Biden’s Electoral College victory and reportedly encouraged those who stormed the Capitol complex.
“After witnessing the disturbing, deadly insurrection that took place on Wednesday in Washington, D.C., Simon & Schuster has decided to cancel publication of Senator Josh Hawley’s forthcoming book, THE TYRANNY OF BIG TECH,” a Thursday statement from Simon & Schuster read. “We did not come to this decision lightly.”
“This could not be more Orwellian,” Hawley said in statement about the canceled book deal.
The senator went on to say it was “direct assault on the First Amendment” and that “only approved speech can now be published.”
“We’ll see you in court,” he added.
Simon & Schuster has in the past published books by right-wing pundits Fox News’ Sean Hannity and conservative radio host Glenn Beck — both who still have active author pages on Simon & Schuster’s website.
“1984.,” posted Charlie Kirk — the president and founder of the conservative student organization Turning Point USA — on — referring to the George Orwell classic novel on the dangers of totalitarianism and technology — and echoing Hawley’s “Orwellian” description.
— Charlie Kirk (@charliekirk11) January 11, 2021
Ohio Republican Congressman Jim Jordan — an outspoken Trump supporter — said of the media crackdown on Monday: “First, Democrats support government shutting down small business during (COVID-19). Now, Democrats support big business shutting down their competition.”
First, Democrats support government shutting down small business during #COVID19. Now, Democrats support big business shutting down their competition.
We’d post this on Parler, but no one could see it.
— Rep. Jim Jordan (@Jim_Jordan) January 11, 2021
On his podcast Monday, Beck pushed a conspiracy of a “profound technological change,” something he said he’d warned listeners about four years ago.
“I told you at the time, high tech will need the government and the government will need high tech. And they will work together to preserve their power and their position. This is what’s happening today,” Beck said.
Fox’s Hannity called Parler the “latest victim in big tech’s sweeping shutdown.”
In Parler’s legal complaint, the social media platform alleges that Amazon kicked them off the web hosting service for “political and anti-competitive reasons” and that Amazon breached their contract with the app, according to The Wall Street Journal.
Not a First Amendment issue
But media companies aren’t breaking the law or infringing on First Amendment rights when they make the decision to ban or censor content on their platforms, according to media experts and researchers.
“As the Congressional Research Service has explained in a report for federal lawmakers and their staffs, lawsuits predicated on a website’s decision to remove content largely fail. That’s because the free speech protections set out in the First Amendment generally apply only to when a person is harmed by an action of the government,” The Associated Press reported.
In a Sunday interview on CBS’ “Face The Nation,” Chris Krebs, former director of the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, said social media censorship isn’t a free speech issue.
“The First Amendment doesn’t apply to private sector organizations. That’s not how this works,” Krebs told CBS’ Margaret Brennan. “That’s government impeding speech and the ability to hear. And that’s not what’s happening here.”
Krebs, who oversaw election cybersecurity, was fired by Trump after the 2020 election for disputing the president’s claims of election fraud, according to the AP.
“These are companies that have their own ability to enforce their standards and their policies,” he added.
Also, Trump’s supporters haven’t been totally silenced on digital media. The New York Times reported that other apps and message boards Telegram, Gab and Signal are still active and have served as additional platforms for the president’s allies to organize future rallies.
Elizabeth Nolan Brown, a senior editor at the libertarian magazine Reason, wrote Monday that Parler was a “tech scapegoat for last week’s attack on the U.S. Capitol.”
“Plenty of digital platforms — including those much bigger and more mainstream than Parler — provide a place for conspiracy theorists, MAGA riot organizers, and threats of violence, as well as the politicians who back and encourage these forces,” she writes. And that only taking such swift action against Parler, and only that app, “feels the Amazon/Apple/Google version of and suddenly banning Trump’s accounts and deleting his post history.”
Despite cries of censorship, conservatives dominate social media
As racial protests engulfed the nation after George Floyd’s death, users shared the most-viral right-wing social media content more than 10 times as often as the most popular liberal posts, frequently associating the Black Lives Matter movement with violence and accusing Democrats Joe Biden of supporting riots.
People also shared conservatives’ most-read claims of rampant voter fraud roughly twice as often as they did liberals’ or traditional media outlets’ discussions of the issue, the analysis found.
The conservatives’ tactics included spinning mainstream media coverage on voting irregularities into elaborate conspiracy theories, sometimes echoed by Trump, that Democratic lawmakers are trying to steal November’s election.
POLITICO worked with researchers at the Institute for Strategic Dialogue, a London-based nonpartisan think tank that tracks extremism online, to analyze data from the institute’s extensive collection of information scraped from multiple social media platforms.
The findings demonstrate how a small number of conservative users routinely outpace their liberal rivals and traditional news outlets in driving the online conversation — amplifying their impact a little more than a week before Election Day.
They contradict the prevailing political rhetoric from some Republican lawmakers that conservative voices are censored online — indicating that instead, right-leaning talking points continue to shape the worldviews of millions of U.S. voters.
“Their stories are captivating, easy to remember and create an outsized footprint online,” said Yochai Benkler, co-director of the Berkman Klein Center for Internet and Society at Harvard University, who published a separate report into how leading politicians Trump and mainstream news outlets were central to spreading misinformation about mail-in voting.
None of that has stopped the president and his GOP allies from hammering the message that tech giants systematically silence and throttle conservative messages — or as the president has charged, “The Radical Left is in total command & control of , Instagram, and Google.”
“Every year, countless Americans are banned, blacklisted, and silenced through arbitrary or malicious enforcement of ever-shifting rules,” Trump said in a September appearance with Attorney General William Barr and nine state AGs to discuss “social media abuses.” In a report this month, Republicans on the House Judiciary Committee put it even more plainly: “Big Tech Is Out to Get Conservatives.”
CEO Mark Zuckerberg, CEO Jack Dorsey and Google CEO Sundar Pichai will face questions on the issue at a Senate Commerce Committee hearing Wednesday, while Zuckerberg and Dorsey will testify in front of the Senate Judiciary Committee on Nov. 17.
The issue has simmered for months, amid a series of incidents in which and slapped fact-check labels on — and, in some cases, deleted — posts from Trump about the election or Covid-19 after deeming them misleading or false. Conservative complaints escalated this month after both companies took steps to reduce the spread of a New York Post article that made uncorroborated claims about Biden’s ties to Ukraine.
“What we are watching — the militarization of social media on behalf of Democrats, and the overt suppression of material damaging to Democrats to the cheering of the press — is one of the single most dangerous political moments I have ever seen,” conservative commentator Ben Shapiro wrote on on Oct. 15.
Conservative political commentator Ben Shapiro | Joshua Blanchard/Getty Images for Politicon
But Shapiro’s own influence appears undimmed. His posts garnered more than 33 million social media interactions such as comments, shares and s over the last 30 days, according to CrowdTangle, an analytics tool owned by . Biden’s page, in contrast, received 19 million interactions over the same period.
Conservative conveyor belt
POLITICO worked with the Institute for Strategic Dialogue’s researchers to analyze which online voices were loudest and which messaging was most widespread around the Black Lives Matter movement and the potential for voter fraud in November’s election.
That included analyzing more than 2 million social media posts across , Instagram, and the message boards Reddit and 4Chan. The posts originated from over 500,000 social media accounts and were linked to keywords and online hashtags associated with both issues.
The researchers collected the data between Aug. 28 and Sept. 25, and ranked the posts by how widely they had been shared and copied from one account to another. The analysis captured discussions from across the political spectrum, but did not include conversations in private channels, invite-only groups, that were off-limits to the researchers.
“You see the same people popping up all the time,” said Ciaran O’Connor, a disinformation analyst at the Institute for Strategic Dialogue. “There’s no evidence of coordination, it’s more groupthink. Anything that attacks Biden or the Democrats is fair game.”
Left-wing voices, including ACRONYM, a liberal campaign group that has funded partisan news outlets in several swing states, have also politicized events for their own gain.
Foreign governments, notably Russia, continue to peddle falsehoods at the American public. A smaller data collection, run by the Institute for Strategic Dialogue between Oct. 20 and Oct.
23 around voter fraud conversations, showed that liberal voices had performed roughly on par with their conservative counterparts.
But in the previous monthlong analysis about Black Lives Matter and voter fraud, the loudest voices belong to conservatives Shapiro, Republican activist James O'Keefe and Charlie Kirk, founder of the advocacy group Turning Point USA.
Aided by well-established conservative media outlets the Western Journal and Breitbart News, as well as new outlets The Post Millennial, these influencers have garnered an outsized audience, stoking claims that the Black Lives Matter movement is inherently violent and that fraudulent ballots are already flooding next month’s election.
At the end of August, for instance, Dan Bongino, a conservative commentator with millions of online followers, wrote on that Black Lives Matter protesters had called for the murder of police officers in Washington, D.C. Bongino’s social media posts are routinely some of the most shared content across , CrowdTangle’s data.
The claims — first made by a far-right publication that the Southern Poverty Law Center labeled as promoting conspiracy theories — were not representative of the actions of the Black Lives Matter movement. But Bongino’s post was shared more than 30,000 times, and received 141,000 other engagements such as comments and s, according to CrowdTangle.
In contrast, the best-performing liberal post around Black Lives Matter — from DL Hughley, the actor — garnered less than a quarter of the Bongino post’s social media traction, data analyzed by POLITICO.
Conservative social media content “is a conveyor belt,” said Karen Kornbluh, director of the digital innovation and democracy initiative at the German Marshall Fund of the United States. She co-authored a recent study into how social media engagement from pages pushing falsehoods — mostly from the right — had skyrocketed.
“There’s a tremendous amount of content that doesn’t catch fire,” said Kornbluh, a former official in the Obama and Clinton administrations. “But when something catches on, it becomes incredibly viral.”
How claims go viral
On Aug. 29, an article in the New York Post dropped a bombshell: Democrats were using mail-in voter fraud to steal the election.
Under the headline “Confessions of a voter fraud: I was a master at fixing mail-in ballots,” an anonymous Democratic Party consultant outlined an alleged yearslong campaign to skew local, state and national elections in favor of liberal candidates.
The Democratic Party issued multiple denials, and an earlier review by the Brookings Institution highlighted extremely low levels of voter fraud across the country. But the Post article soon played a central role in the talking points of conservative influencers, Republican political groups and other influencers promoting the fraud claims on social media, according to POLITICO’s analysis.
A representative for the Post did not respond to POLITICO for comment.
Two days after the article was published, Breitbart News picked up the story in a post that was shared more than 37,000 times.
Other conservative voices, including the talk radio host Mark Levin, similarly promoted it to their large online audiences.
Jon Levine, the author of the Post’s story, was interviewed on Fox News, while Trump’s official campaign republished the article on its page, which has 1.6 million followers.
In total, the Post voter fraud allegations have been shared more than 185,000 times on , garnering 340,000 engagements such as comments and s, CrowdTangle data.
In contrast, the best performing post on this topic from another traditional media outlet — an Axios article highlighting that the I had not seen any evidence of national voter fraud — was shared just 15,000 times on and received just 52,000 collective social media engagements.
POLITICO performed a closer analysis of the voting-fraud allegations, looking at the 100 most-shared posts on the topic and then checking to see if any of the claims could be verified with legal records or mainstream news coverage. None of the fraud charges could be, even if the claims were actual examples of glitches in the election process.
“People who are pushing these narratives use emotionally charged language. They want to elicit interactions,” said O’Connor, the disinformation analyst at the Institute for Strategic Dialogue. “What’s key is that every misleading message has a grain of truth to it.”
Rise of the mega influencer
Most voters outside his network of followers have never heard of Andy Ngo.
But as the editor-at-large of The Millenial Post, an ultra-conservative Canadian news outlet, he has become a key source for rightwing audiences in search of news about the Black Lives Matter movement.
Armed with roughly 800,000 social media followers, Ngo has documented violent attacks, arrests of suspected Black Lives Matter supporters and other minute-by-minute details of the race-based clashes that have spread across much of the country since late spring. His first book, about the left’s “radical plan” to destroy democracy, will be published early next year.
During the month that POLITICO analyzed, a third of Ngo’s roughly 50 posts ranked in the 30 most-shared digital messages about Black Lives Matter. Collectively, his top five messages on , shares, s and retweets, received 35 times more engagement than the most prominent mainstream media post on the topic, from MSNBC’s Joy Reid, POLITICO’s analysis.
Ngo’s posts overwhelmingly portray the recent national racial unrest as a violent movement organized by the antifa movement, a conservative catch-all for left-wing causes that become unruly. He did not respond when approached by POLITICO for comment through his account.
That includes posting viral videos of alleged Black Lives Matter protesters lobbing Molotov cocktails at police officers; documenting the arrests of suspected antifa troublemakers; and accusing leftist groups of taking over large parts of cities Portland, Ore.
Social media political influencers “are reaching larger audiences than ever before,” said Melanie Smith, head of analysis at Graphika, a social network analytics firm that tracks misinformation, adding that Ngo had jumped on previous right-wing bugbears, such as false accusations that Islamic “no-go” zones exist across London.
“He’s a figure who shops around different issues, getting involved when it’s being talked about a lot,” she added. “He’s one of the biggest voices talking about the Black Lives Matter movement.”
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Are Social Media Companies Biased Against Conservatives? There’s No Solid Evidence, Report Concludes
Republicans’ frequent argument that social media companies and have an anti-conservative bias is “a falsehood with no reliable evidence to support it,” New York University researchers say in a new report that argues right-wing voices are actually “dominant in online political debates.”
Then-President Donald Trump speaks to reporters on the South Lawn of the White House on January 12, … [+] 2021. (Photo by Drew Angerer/Getty Images)
Claiming anti-conservative bias on social media “is itself a form of disinformation,” the NYU Stern Center for Business and Human Rights researchers concluded, an analysis of existing studies, social media analytics and anecdotal examples of supposed anti-conservative bias that they found “[tend] to crumble under close examination.”
The report debunks a series of right-wing claims as false or unsubstantiated evidence, such as that “shadow banned” Republicans and disproportionately blocks conservative users, or that Google engineered its search engine to help Joe Biden win the presidential election—an allegation a study whose methods were “highly questionable,” the researchers said.
While it’s “beyond dispute” that most tech company employees are liberal, the researchers noted that most content moderation decisions are made by contractors based outside the U.S., and executives who make high-level decisions “are determined to placate, rather than antagonize, the political right.”
and ’s decision to ban Donald Trump in the final days of his presidency—which he slammed as social media censorship—were “reasonable responses” to Trump violating the platforms’ rules, the study argued, and came after the companies previously gave Trump a “notably wide berth” and tried to “appease him.”
“Social media played a central role in Trump’s 2016 victory,” the researchers noted, arguing that Trump’s claim that social media platforms are biased against him “doesn’t survive scrutiny.”
Leading Republicans push the claims of anti-conservative bias because it “whips up part of the conservative base” despite the fact the claims are false, the report argued, also noting the argument serves as a “handy fundraising tool” for right-wing politicians.
654 million. That’s how many interactions (including s, shares and comments) Trump had on his pages between Jan. 1 and Nov. 3, 2020, according to the report. That number far outpaced other politicians—Sen. Bernie Sanders (D-Vt.
) came in second place with 33 million interactions—and Fox News and Breitbart also had the highest number of interactions among major media platforms.
“If the platforms are trying to suppress conservative views, they’re not doing a very good job,” the researchers said.
“There is a broad campaign going on from the right to argue that they’re being silenced or cast aside, and that spirit is what is helping to feed the extremism that we are seeing in our country right now,” NYU Stern Center for Business and Human Rights Deputy Director Paul Barrett said about the report’s findings. “We can’t just allow that to be a debating point. It’s not legitimate. It’s not supported by the facts.”
Trump and other Republicans have repeatedly argued they’re being treated unfairly by social media companies. “Big Tech is out to get conservatives,” Rep. Jim Jordan (R-Ohio) said at a House antitrust subcommittee hearing in July. “That’s not a suspicion. That’s not a hunch. That’s a fact.
” They have used those claims to push for repealing Section 230 of the Communications Decency Act, a federal statute that shields social media companies from legal liability for the content their users post and allows them to screen out types of content they deem bounds, as well as the people who post it.
The conservative outcry against supposed tech censorship grew stronger after Trump was banned from and in early January, as the president blamed his ban on the company “[going] further and further in banning free speech.
” The anti-conservative bias allegations have gained traction among much of the Republican Party despite being false: a Pew Research poll released in August found 90% of Republicans believe it’s “ly that social media sites intentionally censor political viewpoints that they find objectionable.”
What To Watch For
The NYU report makes a series of recommendations for social media companies and the Biden administration to address the suspicions of anti-right bias, including giving more explanation for content moderation actions, letting users choose between different algorithms and creating a new Digital Regulatory Agency dedicated to social media oversight. The researchers also predict conservatives are unly to actually leave major sites and because of their perceived biases. Conservatives the wide platform those sites offer, researchers said, and “appear to relish wielding the bias-claim cudgel, even though it’s distortions and falsehoods.”
False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives (NYU Stern)
Do , and censor conservatives? Claims 'not supported by the facts,' new research says (USA Today)
Trump Points To Anecdotal Evidence Of Big Tech Bias As He Calls For Congress To ‘Repeal Section 230’ (Forbes)
What Is Section 230—And Why Does Trump Want To Change It? (Forbes)
Regulating free speech on social media is dangerous and futile
Amid recent news about Google’s post 2016 elections meeting, multiple Congressional hearings, and attacks by President Trump, social media platforms and technology companies are facing unprecedented criticism from both parties. According to Gallup’s survey, 79 percent of Americans believe that these companies should be regulated.
We know that an overwhelming majority of technology entrepreneurs subscribe to a liberal ideology. Despite the claims by companies such as Google, I believe that political biases affect how these companies operate.
As my colleague Nicol Turner-Lee explains here, “while computer programmers may not create algorithms that start out being discriminatory, the collection and curation of social preferences eventually can become adaptive algorithms that embrace societal biases.
” If we accept that the implicit bias of developers could unintentionally lead their algorithms to be discriminatory, then, with the same token, we should also expect the political biases of such programmers to lead to discriminatory algorithms that favor their ideology.
Empirical evidence support this intuition; By analyzing a dataset consisting of 10.1 million U.S.
users, a 2014 study demonstrated that liberal users are less ly than their conservative counterparts to get exposed to news content that oppose their political views.
Another analysis of Yahoo! search queries concluded that “more right-leaning a query it is, the more negative sentiments can be found in its search results.”
The First Amendment restricts government censorship
The calls for regulating social media and technology companies are politically motivated. Conservatives who support these policies argue that their freedom of speech is being undermined by social media companies who censor their voice.
Conservatives who celebrate constitutional originalism should remember that the First Amendment protects against censorship by government.
Social media companies are all private businesses with discretion over the content they wish to promote, and any effort by government to influence what social media platforms promote risks violating the First Amendment.
Moreover, the current position of the conservatives are in direct contrast to their positions on “Fairness Doctrine”. As my colleague Tom Wheeler explains here, “when the Fairness Doctrine was repealed in the Reagan Administration, it was hailed by Republicans as a victory for free speech.
” Republicans should apply the same standard to both traditional media and the modern day social media.
If they believe requiring TV and radio channels to present a fair balance of both sides is a violation of free speech, how can they favor imposing the exact same requirement on social media platforms?
Furthermore, the government intervention that they propose is potentially more damaging than the problem they want to solve.
If conservatives believe that certain businesses have enough power and influence to infringe on their freedom of speech, how can they propose government, a much more powerful and influential entity, to enter this space? While President Trump’s administration and a Republican controlled Congress may set policies that would favor conservatives in the short term, they will also be setting a very dangerous precedent which would allow later governments to interfere with these companies and other news organizations in future. If they believe that today’s has enough power and will to censor them, they should be terrified of allowing tomorrow’s government to do so.
The second argument that supporters of regulating social media companies make is that these companies have created monopolies and therefore antitrust laws should be used to break them down and allow smaller competitors to emerge.
While it is true that these companies have created very large monopolies, we should not neglect the unique nature of social media in which users will benefit the most only if they are a member of a dominant platform. The value of a platform for its users grows with the number of other users.
After all, what is the use of if your friends are not there?
If conservatives genuinely believe in the value of competition and free choice, and at the same time believes that a more conservative social media platform would be of value to consumers, they should start a new platform rather than demanding the existing private platforms to become more inclusive of conservative ideas. Just cable news channels are built to promote ideologies of a particular political party, social media platforms could also be built to promote conservative values.
Mandating ideological diversity is impossible
Others argue that social media and technology companies should become more ideologically diverse and inclusive by hiring more conservatives. I believe in the value of ideological and intellectual diversity.
As an academic, I experience it on a daily basis through my interaction with students and colleagues from many different backgrounds. This helps me polish my ideas and create new and exciting ones.
New ideas are more ly to emerge and flourish in an intellectually diverse environment.
However, measuring and mandating ideological diversity is impossible. Ideology is a spectrum, not binary. Rarely anyone agrees with all positions of a single party even if they are a member of it.
Although in an extremely polarized political environment, Americans are increasingly favoring the more extreme ends of the political ideologies in both parties, many of the Republicans do not agree with current immigration policies of President Trump, just many Democrats who do not agree that ICE should be abolished. Un other forms of diversity that promote gender, racial, and sexual equality in the work force, political ideology cannot be categorized within a limited number of groups. While we can look at the racial composition of the employees of a company and demand that they hire a representative sample of all races, it is not possible to demand for a representative sample of political ideologies in the workforce.
Acting to increase ideological diversity would be impossible. A candidate would hesitate to disclose party affiliation to an employer who may use it to make hiring decisions.
What are the chances that a candidate tries to conceal a conservative ideology during an interview for a six-figure-salary job in an overtly liberal Silicon Valley company? If another company wants to become more diverse by hiring conservatives, would liberal candidates be inclined to present as conservative?
The political bias of social media companies becomes more concerning as more Americans turn to these platforms for receiving news and effectively turn them into news organizations. Despite these concerns, I believe that we should accept such bias as a fact and refrain from regulating social media platforms or mandating them to attain a politically diverse workforce.
and Google are donors to the Brookings Institution. The findings, interpretations, and conclusions posted in this piece are solely those of the author and not influenced by any donation.
The First Amendment protects American people from government censorship. But the First Amendment's protections are not absolute, leading to Supreme Court cases involving the question of what is protected speech and what is not.
On the issue of press freedoms, the Court has been reluctant to censor publication — even of previously classified material. In the landmark case New York Times v.
United States, the Court overturned a court order stopping the newspaper from continuing to print excerpts from the “Pentagon Papers”, saying such prior restraint was unconstitutional.
In this June 30, 1971 file picture, workers in the New York Times composing room in New York look at a proof sheet of a page containing the secret Pentagon report on Vietnam. (AP Photo/Marty Lederhandler, reprinted with permission from The Associated Press.)
Censorship occurs when individuals or groups try to prevent others from saying, printing, or depicting words and images.
Censors seek to limit freedom of thought and expression by restricting spoken words, printed matter, symbolic messages, freedom of association, books, art, music, movies, television programs, and Internet sites. When the government engages in censorship, First Amendment freedoms are implicated.
Private actors — for example, corporations that own radio stations — also can engage in forms of censorship, but this presents no First Amendment implications as no governmental, or state, action is involved.
Various groups have banned or attempted to ban books since the invention of the printing press. Censored or challenged works include the Bible, The American Heritage Dictionary, The Autobiography of Benjamin Franklin, Bury My Heart at Wounded Knee, To Kill A Mockingbird, and the works of children’s authors J. K. Rowling and Judy Blume.
The First Amendment guarantees freedom of speech and press, integral elements of democracy. Since Gitlow v. New York (1925), the Supreme Court has applied the First Amendment freedoms of speech and press to the states through the due process clause of the Fourteenth Amendment.
The Supreme Court ruled in Hazelwood School District v. Kuhlmeier (1988) that school officials have broad power of censorship over student newspapers. In this photo, Tammy Hawkins, editor of the Hazelwood East High School newspaper, Spectrum holds a copy of the paper, Jan. 14, 1988. (AP Photo/James A. Finley, used with permission from the Associated Press)
Not all speech is protected by the First Amendment
Freedom of speech and press are not, however, absolute. Over time, the Supreme Court has established guidelines, or tests, for defining what constitutes protected and unprotected speech. Among them are:
Justice Oliver Wendell Holmes Jr. offered the classic example of the line between protected and unprotected speech in Schenck when he observed that shouting “Fire!” in a theater where there is none is not protected speech. Categories of unprotected speech also include:
- libel and slander,
- “fighting words,”
- obscenity, and
Libel and slander when it comes to public officials
Determining when defamatory words may be censored has proved to be difficult for the Court, which has allowed greater freedom in remarks made about public figures than those concerning private individuals.
In New York Times Co. v. Sullivan (1964), the Court held that words can be libelous (written) or slanderous (spoken) in the case of public officials only if they involve actual malice or publication with knowledge of falsehood or reckless disregard for the truth. Lampooning has generally been protected by the Court.
In Hustler Magazine v. Falwell (1988), for example, the Court held that the magazine had not slandered Rev. Jerry Falwell by publishing an outrageous “advertisement” containing a caricature of him because it was presented as parody rather than truth.
On the issue of press freedoms, the Court has been reluctant to censor publication of even previously classified materials, as in New York Times v. United States (1971) — the Pentagon Papers case — unless the government can provide an overwhelming reason for such prior restraint.
The Court has accepted some censorship of the press when it interferes with the right to a fair trial, as exhibited in Estes v. Texas (1965) and Sheppard v. Maxwell (1966), but the Court has been reluctant to uphold gag orders, as in the case of Nebraska Press Association v. Stuart (1976).
In general, rap and hard-core rock-n-roll have faced more censorship than other types of music. In this photo, rap artists DJ Jazzy Jeff (Jeff Townes), left, and The Fresh Prince (Will Smith) are seen backstage at the American Music Awards ceremony in Los Angeles, Calif., Monday, January 31, 1989, after winning in the category Favorite Rap Artist and Favorite Rap Album. (AP Photo/Lennox McLendon, used with permission from the Associated Press)
When words incite “breach of peace”
In Chaplinsky v. New Hampshire (1942), the Supreme Court defined “fighting words” as those that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Racial epithets and ethnic derisions have traditionally been unprotected under the umbrella of “fighting words.”
Since the backlash against so-called political correctness, however, liberals and conservatives have fought over what derogatory words may be censored and which are protected by the First Amendment.
Determining whether something is obscene
In its early history, the Supreme Court left it to the states to determine whether materials were obscene.
Acting on its decision in Gitlow v. New York (1925) to apply the First Amendment to limit state action, the Warren Court subsequently began dealing with these issues in the 1950s on a case-by-case basis and spent hours examining material to determine obscenity.
In Miller v. California (1973), the Burger Court finally adopted a test that elaborated on the standards established in Roth v. United States (1957). Miller defines obscenity by outlining three conditions for jurors to consider:
- “(a) whether the ‘average person, applying contemporary community standards,’ would find that the work taken as a whole appeals to the prurient interest;
- (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by applicable state law; and
- (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.”
Proposals to censor music date back to Plato’s Republic. In the 1970s, some individuals thought anti-war songs should be censored. In the 1980s, the emphasis shifted to prohibiting sexual and violent lyrics.
The Federal Communications Commission (FCC) also sought to fine radio stations for the broadcast of indecent speech. In general, rap and hard-core rock-n-roll have faced more censorship than other types of music.
Caution must be used in this area to distinguish between governmental censorship and private censorship.
Courts have not interpreted the First Amendment rights of minors, especially in school settings, to be as broad as those of adults; their speech in school newspapers or in speaking to audiences of their peers may accordingly be censored.
Advancing technology has opened up new avenues in which access to a variety of materials, including obscenity, is open to minors, and Congress has been only partially successful in restricting such access. Parental controls on televisions and computers have provided parents and other adults with some monitoring ability, but no methods are 100 percent effective.
Censorship often increases in wartime to tamp down anti-government speech. In this 1942 photo, W. Holden White, clips items from U.S. newspapers at the Washington, D.C. headquarters of the office of censorship to determine newspaper compliance with censorship rules prescribed by the office. (AP Photo, used with permission from the Associated Press)
Wrestling with sedition and seditious speech
In general, sedition is defined as trying to overthrow the government with intent and means to bring it about; the Supreme Court, however, has been divided over what constitutes intent and means.
In general, the government has been less tolerant of perceived sedition in times of war than in peace. The first federal attempt to censor seditious speech occurred with the passage of the Alien and Sedition Acts of 1798 under President John Adams.
These acts made it a federal crime to speak, write, or print criticisms of the government that were false, scandalous, or malicious. Thomas Jefferson compared the acts to witch hunts and pardoned those convicted under the statues when he succeeded Adams.
Laws attempting to reduce anti-government speech
During World War I, Congress passed the Espionage Act of 1917 and the Sedition Act of 1918, and the Court spent years dealing with the aftermath.
In 1919 in Schenck, the government charged that encouraging draftees not to report for duty in World War I constituted sedition.
In this case, the court held that Schenck’s actions were, indeed, seditious because, in the words of Justice Holmes, they constituted a “clear and present danger” of a “substantive evil,” defined as attempting to overthrow the government, inciting riots, and destruction of life and property.
In the 1940s and 1950s, World War II and the rise of communism produced new limits on speech, and McCarthyism destroyed the lives of scores of law-abiding suspected communists.
The Smith Act of 1940 and the Internal Security Act of 1950, also known as the McCarran Act, attempted to stamp out communism in the country by establishing harsh sentences for advocating the use of violence to overthrow the government and making the Communist Party of the United States illegal.
After the al-Qaida attacks of September 11, 2001, and passage of the USA Patriot Act, the United States faced new challenges to civil liberties. As a means of fighting terrorism, government agencies began to target people openly critical of the government.
The arrests of individuals suspected of knowing people considered terrorists by the government was in tension with, if not violation of, the First Amendment’s freedom of association.
These detainees were held without benefit of counsel and other constitutional rights.
The George W. Bush administration and the courts have battled over the issues of warrantless wiretaps, military tribunals, and suspension of various rights guaranteed by the Constitution and the Geneva Conventions, which stipulate acceptable conditions for holding prisoners of war.
Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation, such as symbolic speech. In Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of middle and high school students to wear symbolic black armbands to school to protest U.S. involvement in Vietnam. In this photo, Debbie Wallace, left, and Phyllis Sweigert, 17-year-old seniors at suburban Euclid High School in Cleveland, Ohio, display armbands they wore to school in mourning for the dead in Vietnam, Dec. 10, 1965. The girls were suspended from school until Monday. (AP Photo/Julian C. Wilson, used with permission from the Associated Press)
Expressive and symbolic speech
Certain forms of speech are protected from censure by governments. For instance, the First Amendment protects pure speech, defined as that which is merely expressive, descriptive, or assertive. The Court has held that the government may not suppress speech simply because it thinks it is offensive. Even presidents are not immune from being criticized and ridiculed.
Less clearly defined are those forms of speech referred to as speech plus, that is, speech that carries an additional connotation. This includes symbolic speech, in which meanings are conveyed without words.
In Tinker v. Des Moines Independent Community School District (1969), the Court upheld the right of middle and high school students to wear black armbands to school to protest U.S. involvement in Vietnam.
One of the most controversial examples of symbolic speech has produced a series of flag desecration cases, including Spence v. Washington (1974), Texas v. Johnson (1989), and United States v. Eichman (1990).
Despite repeated attempts by Congress to make it illegal to burn or deface the flag, the Court has held that such actions are protected. Writing for the 5-4 majority in Texas v. Johnson, Justice William J. Brennan Jr. stated, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”
When speech turns into other forms of action, constitutional protections are less certain.
In R.A.V. v. St. Paul (1992), the Court overturned a local hate crime statute that had been used to convict a group of boys who had burned a cross on the lawn of a black family living in a predominately white neighborhood.
The Court qualified this opinion in Virginia v. Black (2003), holding that the First Amendment did not protect such acts when their purpose was intimidation.
This article was originally published in 2009. Elizabeth Purdy, Ph.D., is an independent scholar who has published articles on subjects ranging from political science and women's studies to economics and popular culture.
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