First amendment and big tech: Legal scholars debate if US free speech laws apply to Big Tech

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  Quantumrun Foresight
• February 26, 2022

Insight summary

The debate over how social media platforms manage content has sparked discussions about the role of the First Amendment (free speech) in the digital age. If these platforms were to uphold First Amendment principles, it could lead to a significant change in content moderation, creating a more open but potentially chaotic online environment. This shift could have far-reaching implications, including the potential for increased misinformation, the emergence of self-regulation among users, and new challenges for businesses trying to manage their online presence.

First Amendment and big tech context

The scale at which public discourse takes place on social media has raised questions over how these platforms curate and censor the content they distribute. In the US, in particular, these actions appear to conflict with the First Amendment, which protects free speech. Legal scholars are now debating how much protection Big Tech companies in general, and social media companies in particular, should receive under the First Amendment.

The US First Amendment protects speech from government interference, but the US Supreme Court has typically upheld that private actions are not similarly covered. As the argument goes, private actors and companies are permitted to restrict speech at their discretion. Government censorship would have no such recourse, hence the institution of the First Amendment.

Big tech and social media provide another frequently-used channel for public discourse, but the problem now arises from their power to control what content they show on their platforms. Considering their market dominance, restriction from one company may mean being silenced on several platforms.

Disruptive impact

The potential extension of First Amendment protections to private companies like Big Tech could have profound implications for the future of digital communication. If social media platforms are obligated to uphold First Amendment principles, it could lead to a significant shift in the way content is moderated. This development could result in a more open but also more chaotic digital environment. Users would have to take on a more active role in managing their online experiences, which could be both empowering and overwhelming.

For businesses, this shift could present new challenges and opportunities. While companies might struggle to manage their online presence amidst a flood of unmoderated content, they could also leverage this openness to engage with a broader range of voices and ideas. It's important to note that this could also make it harder for businesses to protect their brand image, as they would have less control over the content associated with them on these platforms.

As for governments, the international nature of social media platforms complicates the enforcement of any US-based legislation. While the First Amendment could be applied to users within the US, it would be nearly impossible to enforce these protections for users outside the country, leading to a fragmented online experience, where the level of content moderation varies depending on a user's location. It also raises questions about the role of national governments in regulating global digital platforms, a challenge that will likely become more pressing as our world becomes increasingly interconnected.

Implications of the First Amendment for big tech

Wider implications of the First Amendment for big tech may include:

• Potentially looser standards for content moderation depending on which side of the argument prevails.
• Greater amounts of all possible forms of content on social media platforms.
• The potential normalization of extremist views in public discourse.
• The proliferation of niche social media platforms that cater to specific political or religious viewpoints, assuming First Amendment laws are weakened by future regulators.
• Content and discourse in countries outside the US evolving based on the outcomes of future social platform regulation.
• A shift towards self-regulation among users could emerge, leading to the development of new tools and technologies that empower individuals to curate their own digital experiences.
• The potential for unchecked content leading to an increase in misinformation, impacting political discourse and decision-making processes on a global scale.
• New roles focused on online reputation management, affecting labor markets within the tech industry.

Questions to consider

• Given the global reach of Big Tech and social media, do you feel it is right for them to be guided by laws from just one country?
• Are in-house content moderators employed by social media companies enough to meet their First Amendment obligations? 
• Do you believe social media companies should be doing more or less content curation?
• Do you think legislators are likely to put laws into effect that will extend the First Amendment to social media?