Can the First Amendment keep up with social media?
Illustration Credit: Alicia Cookson

 “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.”

James Madison wrote those words in 1791 as the opening article to the Bill of Rights, the First Amendment to the Constitution. Strident advocates on every interpretative side of the debate around free speech have ensured that it cannot be overlooked. This is a great thing: every society must encourage and foster open and flourishing debate, in the interest of the freedom of its people. Insidiously concerning, though, is the much less obvious way in which aspects of the above are being tested and subverted.

Not so long ago, Bahtiyar Duysak, an employee leaving his job, temporarily deleted the President’s personal Twitter account. Many of us cheered on the attempt at defiance, gleefully lauding the only apparently effective method of expressing our loathing of Trump’s stances. However, we did not appreciate what this meant. When further tweets were removed for guideline violation we applauded again. Not so many people noticed when Facebook mandated itself to remove unsubstantiated information surrounding Coronavirus. Once more, it seemed like a good idea. The precedent has now been set.

Before any Constitutional Congress was convened or the signing of any important declarations in Philadelphia, Thomas Jefferson laid the foundations of this first principle in the ‘Virginia Statute for Religious Freedom’’ (1777, introduced 1779, ratified 1786). In response to fearful missives concerning religious harassment of the Danbury Baptist Church of Connecticut during his Presidential term in 1802, Jefferson quoted the First Amendment as a reminder that his government would not, and could not, interfere in religious affairs, emphasising the “wall of separation between Church & State.” The irony of the Baptists’ pleas was that their ‘persecutors’ were the Danbury Congregationalists, a fellow Christian sect. Much as the fellow Christians sought protection in their debates against each other, leftist battles leftist and right-winger fights right winger, often as regularly as the two sides debate each other.

“they are not innate or preordained and must be legally protected”

Yet, the debates must be allowed to occur. Because this fundamental tenet of free society was established so early in the nationhood of the United States, we might be forgiven for forgetting, from time to time, that the freedom to speak, to assemble, and to practice each individual’s beliefs is one which is required to be stated. That is to say, they are not innate or preordained and must be legally protected. We may be pardoned when such lapses of memory occur, but we must correct them where we find them. It seems that we have started to forget; not only have the rules for what might or might not be said started to narrow, they are being narrowed unilaterally and without warning.

The past weeks have seen swathes of engagement, knowingly or otherwise, with the precept allowing for peaceable assembly, as well as of petition for Black Lives Matter. Protest, as a form of speech, is old and well-trodden. However, more than 200 years on from ink being laid upon constitutional paper, most aspects of our lives have altered drastically. This argument is often bred alongside the rights granted by the Second Amendment (questions such as ‘ought we allow everyone access to nuclear missiles, if they’re granted them assault rifles?’ are common). However, it is critical in consideration of the First. Much as weapons technology has moved from muskets to armour piercing rounds and drone-controlled strikes, the world of communications barely resembles that methodical, material structure which existed during the time of the Founding Fathers. With Trump’s favoured message delivery platform in mind, Madison, Hamilton, and John Jay might today have drafted The Federalist Tweets, without any paper to hand.

These world-changing leaps leave us in a confusing position the world over, especially in the field of freedoms of speech, and of the press. Private organizations have always been at liberty to moderate and censor their outputs as they pleased. Both Hamilton and Franklin famously pioneered and founded newspapers in both New York and Philadelphia. It would, of course, be absurd to prevent a publication from controlling what it chooses to print, it being understood that any citizen injured by said publication could seek legal recourse against them.

“Every one of us has probably skimmed all too quickly over the terms and conditions…”

For two centuries this served the world well. But the emergence of platforms like Facebook, YouTube, Twitter, and so on, have not so much muddied the waters as started a strong new tide among them. We cannot seem to decide where these sites sit in our social discourse. Gone are the days of street criers and even the circulation of newspapers is unrecognisably low; soundbites and status updates have replaced these, and yet, they are hosted on privately owned websites. Any forum is still well within its legal rights to censor its users. Every one of us has probably skimmed all too quickly over the terms and conditions that allow them this power in our eagerness to get scrolling. Yet, unlike newspapers, publishers, and TV networks, they are not legally liable for the content they accommodate. You can sue someone for online defamation, but you cannot sue whichever website provided the platform for the offending statement.

Realistically, we know how unfair and impractical it would be to hold a site like YouTube, which platforms over 1 billion videos, to account for the content of every clip. Moderation on such a scale would require more manpower than anyone could possibly supply, and the catastrophic slowing of upload rates would likely destroy the platform. However, what separates uploads from becoming public declarations? We are taught from our schools upwards: “don’t post anything online you wouldn’t say in public”, but it is clear that posting regrettable content online is all too common.

Jefferson and the Founding Fathers constructed the wall of separation between God and government, but they could never have predicted this subtle building of a digital-public divide. These companies have it both ways. They are simultaneously able to selectively disseminate information and remain free from the consequences.We all rely on our media for information. This information is at risk. The voice of the people is at risk. Of course, ‘other sources’ are always available but every democracy elects its officials to investigate and adjudicate upon those matters that the people do not have the time or the expertise to process themselves; in the same way, no one can be expected to work through every tweet and message they read with every fact and statistic to hand.

To all intents and purposes, the online sphere is a public one. Now that this is the case, it is not only unfair but dangerous to allow the power of censorship – a power precluded even from the hands of an elected Congress – to organizations without oversight, each harbouring its own unknown agenda. Everyone must therefore decide between treating these platforms like publishers and making them liable for their own output, or as the microphone of the public voice and subject to the same constitutional privileges and prohibitions as the average citizen. In the absence of any practical execution of the former, it seems the decision has been made. Society’s very nature as a society rests upon its ability to communicate. While the technology that system relies on is vulnerable to biased and clandestine censorship, our speech is not truly free.