When Words Incite Breach Of Peace
In Chaplinsky v. New Hampshire , 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.
A Federal Ruling Means A Supreme Court Showdown On Big Tech Censorship Is Ahead
Ask questions or post content about COVID-19 that runs counter to the Biden administrations narrative and find yourself censored on social media.
Thats precisely what data analyst and digital strategist Justin Hart says happened to him. And so last week the Liberty Justice Center, a public-interest law firm, filed a suit on his behalf in California against Facebook, Twitter, President Joe Biden and United States Surgeon General Vivek Murthy for violating his First Amendment right to free speech.
Hart had his social media most recently locked for merely posting an infographic that illustrated the lack of scientific research behind forcing children to wear masks to prevent the spread of COVID.
In fact, much science indicates that kids arent at risk and arent spreaders. Study after study repeatedly shows that children are safer than vaccinated adults and that the masks people actually wear dont do much good.
The lawsuit contends that the federal government is colluding with social media companies to monitor, flag, suspend and delete social media posts it deems misinformation.
It can point to White House Press Secretary Jen Psakis are in regular touch with Big Tech platforms regarding posts about COVID. She also said the surgeon generals office is flagging problematic posts for Facebook that spread.
The Problem With Censoring Political Speech Online Including Trumps
In January, many online platforms decided they no longer wanted to host President Trumps speech. Google, Twitter, Facebook, Pinterest, and other social media services announced they would no longer distribute Trumps hateful, demeaning, outrageous speech or anything else he might have to say. Many people were pleased. Others, including the ACLU, expressed concern that a few of these companies namely Facebook, Google, and Twitter wield such enormous power over online speech that, if they used it against people with fewer outlets than the president of the United States, the companies could effectively silence them.
The Florida law is clearly unconstitutional. The Supreme Court struck down a strikingly similar law, also in Florida, nearly 50 years ago, in a case called Miami Herald v. Tornillo. The law at issue in Tornillo required newspapers that published criticisms of political candidates to then publish any reply by those candidates. In other words, it forced private publishers to carry the speech of political candidates, whether they liked it or not.
Given the importance of protecting political speech by political figures, the biggest platforms should strive to allow as much political speech as possible and avoid account-level punishments. And, if they decide to censor candidates, they should have a consistent plan in place for preserving the offending speech for transparency, research, and historical record purposes.
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Why Social Media Companies Can Censor Trump And Why Your Boss Can Censor You
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In response to the January 6, 2021 assault on the U.S. Capitol by Trump supporters, various social media companies suspended or banned President Trump from using their platforms.
For example, on Wednesday night because some of his Tweets violated Twitters rules, such as its Civil Integrity or Violent Threat policies. Twitter said that his account would be locked until 12 hours following his removal of three specific Tweets and that continued Twitter policy violations could result in a permanent suspension of his Twitter account.
On Thursday, where he announced that the blocks placed on President Trumps Facebook and Instagram accounts were to continue for the next two weeks at a minimum, until the peaceful transition of power is complete.
Then on Friday, President Trumps account due to the risk of further incitement of violence.
Many people have questioned whether Twitter and Facebook could do this and if such censorship constituted violations of President Trumps First Amendment rights. Lets examine this question and see how its answer affects free speech rights in the workplace.
Free Speech Rights on Social Media
The most prominent free speech protections come from the First Amendment of the Constitution of the United States. But what many people seem to forget is that these protections only protect individuals from federal and state action .
Texas Social Media ‘censorship’ Law Goes Into Effect After Federal Court Lifts Block
A law intent on blocking censorship of social media posts based on political views is currently under review in the U.S. Supreme Court.
A Texas law prohibiting large social media companies from banning users’ posts based on their political viewpoints will go into effect after a federal appeals court lifted a block placed on the statute on Sept. 16.
The video above is from a previous report.
NetChoice and the Computer & Communications Industry Association sued Texas after the law, known as House Bill 20, was passed in 2021, arguing that internet companies have a First Amendment right to curate content posted on their platforms and decide which types of speech they saw fit to be there.
In its ruling, the 5th U.S. Circuit Court of Appeals disagreed with the plaintiffs’ argument that the law was unconstitutional, saying they were seeking protection to “muzzle free speech.”
“Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say,” the ruling says.
The CCIA said the ruling forced tech companies to give equal treatment to all manners of speech, including extremist views.
Texas Attorney General Ken Paxton, who has defended the law, celebrated the court’s decision. “I just secured a MASSIVE victory for the constitution & Free speech in fed court #BigTech CANNOT censor the political voices of ANY texan!”
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Laws Attempting To Reduce Anti
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 Schencks 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.
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.
Awhat Can I Do If I Am Censored By A Government Official On Social Media
First, be sure to screenshot the censorship or otherwise document any censorship. Next, you should contact the public official for more information, and ask for your access to be restored, as your constitutional rights are being violated. Ask for their social media policy. Finally, point the official, or their office, to these resources, if they still refuse.
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There Are A Few Ways To Identify Whether An Account Is Operating As A Government Actor
Although it depends on the facts, there are three basic types of social media usage to watch out for:
If a social media account is clearly maintained as an official page by a government actor, such as using an official title or the name of an agency, its generally considered the official account .
In other cases, a page can shift from a personal account to an official one when an officeholder and other government actors treat it as an official government account .
Finally, accounts may appear to be personal in name and recognition, but a public official uses it as though it were an official government account. This can occur in at least three different ways:
When public officials are engaging as government actors, they are not allowed to censor you based on your viewpoint.
If a public official uses social media as a government actor in the above ways, the official cannot exclude people for having differing viewpoints. This means they cant block users, delete specific comments, or restrict access in other ways on the basis of the viewpoints expressed.
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 likely to emerge and flourish in an intellectually diverse environment.
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Ahow To Determine If An Officials Social Media Account Is Being Used As An Extension Of Their Office:
- The official identifies as a government official on the account.
- The official posts announcements about their policies, responsibilities, or actions to communicate and interact with constituents and voters.
- The official uses the account to seek or encourage comments about what legislation they should bring or support.
- The official uses the account to call official meetings or declare orders within their authority.
- The official encourages public discussion on their account or page.
- The official allows users to ask for government services on their account.
- The page lists or otherwise indicates the officials title.
Join Our Small Business Community That Supports Free Speech
We invite other small business owners and entrepreneurs to make your voice heard by joining Free Speech Community and commit to stop advertising and spending with those companies that are intolerant of opposing ideological views and suppressing speech. Collectively we can make a difference. Learn more and connect with us to help your voice be heard: Free Speech Community
Christopher Marston
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What Are Public Officials Obligations To You When They Use Social Media
The answer depends on whether theyre speaking as private individuals or as government actors.
Private individuals can censor you, but government actors cannot generally censor you based on your viewpoint. However, the boundaries are not always cut-and-dry.
People who hold public office still have their own First Amendment rights. When theyre speaking as private individuals, they can express their views like anyone else, including on social media. The First Amendment protects their right to limit their audience or curate the messages on their personal social media accounts, just like it protects any other member of the public.
But when officials act on behalf of the government, they are subject to the limits that the First Amendment imposes on them as government actors. If a public official invites comments on a social media page concerning public matters or otherwise intentionally designates it as a space for public discussion, the social media page may become a limited or designated public forum. Where public forums are involved, public officials cannot exclude people from accessing the page just because the official disagrees with them.
Tampa Bay Buccaneers Need To Make A Move Amid Offensive Lines Struggles
Therefore, as a general rule, free speech protections do not protect individuals from censorship by a private entity, whether its from a church, employer or social media company. This gives companies like Twitter and Facebook the right to create their own rules that can restrict the speech of its users in almost any way it sees fit.
But while this is the law, this isnt always what companies do. For example, for much of President Trumps term, he has violated both Twitter and Facebook policies in ways that should have resulted in account suspensions or bans. Yet, until very recently, none of those things happened.
Why? Well, the simple answer is that Trump is the President of the United States. The more complicated answer probably adds other considerations, such as politics, public perception and company profitability.
The bottom line is that President Trumps First Amendment rights were not violated. When Facebook and Twitter suspended and banned his accounts, it was an instance of private, not government action.
Its this private versus government action that also allows many employers the right to restrict the free speech rights of their employees.
First Amendment Rights for Private Sector Workers
Third, there is a state law that protects the employees speech in a particular way. California, Washington, D.C. and Colorado are jurisdictions that prohibit some forms of discrimination because of an employees political affiliation or activities.
Practical Considerations
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OPINION:
On Thursday of last week, White House press secretary Jen Psaki revealed that the Biden Administration is actively monitoring to flag problematic posts related to the coronavirus for censorship.
In terms of actions that we have taken or were working to take, I should say, from the federal government. Weve increased disinformation research and tracking within the Surgeon Generals Office. Were flagging problematic posts for that spread disinformation, said Ms. Psaki.
The following day, the press secretary elaborated on the White Houses position, saying that users who post misinformation should be banned on every social media platform. When asked by a reporter, President Biden even went as far as to accuse and other social media platforms of killing people.
This coordinated attempt by the White House to dictate and coerce private companies into what can and cannot be published on their platforms is a blatant violation of freedom of speech. No matter where one stands on the subject of COVID-19 vaccinations or the pandemic, this merging of government and corporate power is undemocratic.
Similar effects can be observed when de-platforming is targeted against far-right groups. A study found that Reddits decision in 2015 to ban various hate groups led to less hate speech on the site. It was found that users who participated in the banned subreddits left the site, while those who remained dramatically reduced their hate speech usage.
Our Understanding Of Free Speech Is Too Limited
The free speech debate has once more been ignited by news of Elon Musks plans to , his promise to reduce content moderation and, more recently, speculation he might pull out of the deal if Twitter cant prove the platform isnt inundated with bots.
Musks approach to free speech is typical of how this issue is often framed: in terms of content moderation, censorship and matters of deciding what speech can enter and stay on the platform.
But our research reveals this focus misses how platforms systematically interfere with free speech on the audiences side, rather than the speakers side.
Outside the social media debate, free speech is commonly understood as the free trade of ideas. Speech is about discourse, not merely the right to speak. Algorithmic interference in who gets to hear which speech serves to directly undermine this free and fair exchange of ideas.
If social media platforms are the digital equivalent of a town square committed to defending free speech, as both and Musk argue, then algorithmic audiencing must be considered for speech to be free.
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In The Age Of Social Media Expand The Reach Of The First Amendment
The First Amendment only limits governmental actorsfederal, state, and localbut there are good reasons why this should be changed. Certain powerful private entitiesparticularly social networking sites such as Facebook, Twitter, and otherscan limit, control, and censor speech as much or more than governmental entities. A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.
While this article focuses on social media entities, the public/private distinction and the state action doctrine are important beyond cyberspace. The National Football Leagues reaction to Colin Kaepernick and other players taking a knee during the playing of the National Anthem is a pristine example of private conduct outside the reach of the First Amendment under current doctrine. But the nature of those protests couldnt seem more public and cries out for a re-evaluation of the state action doctrine and the importance of protecting speech.
Speaking of speech, two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications dont require governmental presence. Powerful private actors can infringe on free expression rights just as much as public actors.