Tag Archives: First Amendment

Why A Twitter Block May Violate The First Amendment

The New York Times article covering the letter written by the Knight First Amendment Institute at Columbia University lays out a fascinating case for how the President’s blocking of Twitter users may violate the First Amendment.

The vast majority of times someone claims their First Amendment rights were violated on social media it is correctly pointed out that the First Amendment doesn’t usually apply.  Platforms like Facebook and Twitter and others aren’t subjected to the same limitations as the government–the First Amendment covers government, not private, action.  We’ve seen instances where Facebook removes posts or pictures and someone cries “First Amendment!” and someone else (maybe me) says “Nope.”  There are some interesting theories on why the First Amendment might apply to broad platforms such as Facebook.  But for now the more mainstream view is that the First Amendment doesn’t apply to platforms.

But the First Amendment does apply to government, including the President.  And as the letter spells out, the President’s decision to block certain users on Twitter could face legal challenges.  This is because blocking a user on Twitter does more than just hide that user’s tweets–it also stops that user from seeing the blocking account’s tweets or searching for them.

If blocking an account on Twitter only allowed blocker to not see the content, the analysis might be simpler.  The President can, for example, cancel his subscription to a newspaper he doesn’t like.  But blocking a user does more than that–it actually prevents that user from seeing the content in the first place.

Granted, there are workarounds.  You can create another Twitter account.  You can log out of your existing account on Twitter and just use a web browser to see public (like the President’s) posts.  But that kind of analysis doesn’t defeat the initial issue of government censorship.  If the government stops one person from speaking, does it matter that others can say the same thing?  Yes, the message gets out, but that one person has had their rights violated.

This is a novel approach to a common social media function, no doubt due to the new and often tumultuous political/social media world we live in today.  Will it force the President to unblock accounts?  Will it compel Twitter to create a new function that silences tweets without blocking the user?  Bear in mind that back in 2013, Twitter changed the block feature to allow blocked users to see posts from people who blocked them.  After public outcry, largely from people who claimed they blocked users for harassment and didn’t want their harassers to continue to see their content, Twitter quickly reversed that change.

Will this latest issue force a politician or a platform to change?  Stay tuned.


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Filed under First Amendment, Laws, Social Content, Twitter

Is Social Media Creating Cyberbullies?

It’s true. They do.

You can’t go a week these days without hearing about a case of cyberbullying.  If you sought the cases out you could find a new story every day.  Many of these stories have resulted in justice for the bullied, like the woman bullied on the school bus who ended up getting a vacation and the bullies were punished.  But too many of these stories still end in tragedy (I’m not going to link any here, you can search for yourself if you’re looking for some bad news).

Some say that social media has helped bring these cases to light or helped the victims.  Social media certainly can have some advantages here–bullied individuals can make meaningful connections so they realize they aren’t alone or they can show the public what bullies have been doing to them in private.  Certainly the notion of bullying has been around long before social media, so connecting more people can help address this problem even if it isn’t a total solution.

But I also have to wonder if social media is also contributing to the problem by creating more cyberbullies in the first place.

The Internet and social media are, at their cores, speech.  And the cornerstone of every western democracy (which still drives most social media activity) is free speech.  But that central right of free speech comes with costs.  One of those costs is offensive speech.  We do set limits after which speech can become something that we are no longer willing to legally protect (libel, slander, harassment, threats, coercion, etc.).  But even beneath these limits there is a huge amount of speech that is protected but unsavory–we call that offensive speech.  Offensive speech is protected and it should be–after all, the speech behind most political change will be considered offensive by some.  But at some point even a huge piling of offensive speech can become something more, something that we don’t need to protect.  That’s where the merely offensive turns into cyberbullying, even though the exact line is hard to draw.

But until the speech turns into something that society doesn’t want to allow, for the most part it is protected as free speech.  And one part of free speech is the right to be anonymous.  There’s a long history of the right to anonymously criticize a government or corporation being protected.  But that history is usually told through decisions made by the speaker.  Hundreds or even dozens of years ago people wrote critical pamphlets or essays or books and didn’t sign their name, or signed a fictitious name instead.  That anonymity was by intent.  The anonymity that social media allows is primarily one by design.

As the Internet grew from nascent connected communities like dial-up BBS sites and Usenet groups, real names were rarely used because of technical reasons.  Systems allowed only a certain number of characters for your ID, if they allowed letters at all (one of the early, large networks, CompuServe, only had 7 to 9 digits as your user ID and email address).  Putting in your real name wasn’t possible and it didn’t matter.  You adopted a nickname or handle and joined the community.

Gradually, more and more sites created their own techniques for logging in or establishing a permitted identity, but they rarely (if ever) required you to actually authenticate yourself.  Meaning you created an ID with a name and verified that was your account but there was no attempt to authenticate your name.  This authentication problem is something I’ve blogged about before but the importance here is jumping ahead several decades and seeing the social media world we have wrought.

In an effort to get people to join sites as quickly as possible, we have made signing up as easy as possible.  Easy means fast.  Fast means not authenticated.  Sites don’t care if you are who you say you are–that you use their site and accept their terms are good enough.  We have created a world where the vast majority of content is anonymous.  Some of it may be truly anonymous, as in not even a username is attached as an author.  Other content may have a user identity connected to it but we have no idea who the person may be.

There are some well known psychological impacts to having this amount of anonymous activity.  Generally it’s known as disinhibition and it has some scary sounding factors like dissociative anonymity (knowing their activity cannot be traced back to them, users will behave differently online), solipsistic introjection (communications from other people, seen just as text on a screen, can be interpreted as just a voice within a user’s head–a voice which they can then respond to without regard for social norms), and asynchronicity (users may post more heated content because they know they will post it and then never have to revisit the content or site again).

Social media certainly has the ability to connect people in meaningful ways. But as it becomes a more widely used method for communicating it also comes with some dangers.  It didn’t create the original problem, but social media might be making it worse.  Lawmakers are already struggling with how to properly address cyberbullying and otherwise offensive posts.  There’s a great article from the BBC about a current wave of prosecutions over social media content, but even better is the video embedded in the article that talks about different categories of offensive behavior and what is appropriate to prosecute.

But have we made the problem of cyberbullying worse by continuing to propagate social media sites that have anonymous or unauthenticated accounts?  Gawker came under fire for recently unmasking the true identity of a controversial user at Reddit.  The immediate response from the Reddit community was to flame Gawker for infringing on free speech, particularly the right to speak anonymously, and then to ban all Gawker links from Reddit.  Apparently they missed the hypocrisy in their response, but deep down is something bigger.

When this user was unmasked he practically begged the author not to reveal his name.  He knew it would have real world repercussions based on the content he had posted and the people he had riled up over the years.  Perhaps without social media he would have found other, similar outlets for his kind of activity–but did social media make it worse?

Are we creating a new generation who are even more disconnected from other people and simply see words on a screen rather than feeling people behind them?  Social media is about conversations and should be about bringing people together.  Could it be the technology that allows me to connect to someone I would have never met in real life is the same thing that disconnects me from people who work next to me?

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Filed under Authentication, Cyberbullying, First Amendment, Identity, Informal Tone, Privacy, Social Platforms

The Biggest Social Media Legal Issue Is Getting Judges To Understand Social Media

If you know the difference between this and email then you know more about technology than most of the Supreme Court.

The blogosphere lit up last week when news hit that a federal judge in Virgina held that clicking Like on Facebook did not constitute speech and, as such, was not entitled to protection under the First Amendment.  If you really want to get into the merits of this issue then Eugene Volokh, a legal scholar much smarter than I am, has a concise blog post on this point.  I expect we’ll see the case reversed within the next year (which will likely be buried because, really, how interesting is it to read an article that says “Court reverses mistake”?).

What I think is more important is this: as social media evolves the biggest legal issue social will likely face is the legal system itself.  All three branches of our government were not designed to work quickly.  They can move quickly, when pressed, but the systems created by our founding documents and subsequent legislation give more importance to thoroughness than expeditiousness (a word I really like because it’s a longer way of saying faster).  That can be a very good thing as we don’t want to overreact to issues and add to the problem.

However, as recent incidents have shown us, it is an issue when our lawmakers and law-interpreters don’t understand the technology at the heart of these problems.  Now their lack of understanding is contributing to the problem.  A judge in California held in 2011 that CAN-SPAM, the legislation that applies to commercial email and requires clear subject lines and opt-out links, applies to Facebook posts.  Another court in New York held that information stored in RAM (your computer’s temporary storage device) should be preserved pending the outcome of a case.  Even the Supreme Court had difficulty understanding the difference between a pager and email.

It’s not that technology is now changing our society–that has always been true.  What is so dramatically different with social media and technology today is the rate at which the technology is changing.  Within the last few centuries you could expect to see major technology shifts perhaps once a generation.  Carriage to automobile.  Airplane to jet.  Phonograph to radio.  But once we made the big switch from analog to digital, suddenly all bets were off.  Now we see major technology changes every few years.  Children born today won’t know VHS tapes, DVDs, or perhaps even Blu-Rays as we transition to streaming videos and digital downloads.  Those three major transitions took 15 years total.

To some extent, it’s difficult to blame the judges for not understanding the technology.  This is a new world and even if they had the time to learn everything new I’m not sure they could.  I’m not sure anyone could.

However, it is still their obligation to learn about things they are ruling upon.  And before a judge makes so sweeping a statement as to say that clicking Like isn’t speech, perhaps they should learn what that activity entails or how it compares to the wealth of precedent the Supreme Court and others have already found to be speech.  For example, here are some of the activities that have been found to be speech:

Perhaps the judge thought that clicking Like was too easy, too simple to be speech.  Or perhaps he thought that people don’t really mean Like when they click the button–that certainly seems true of some people who seem to click Like on a page only to blast the owner.

But cutting against that is the overall usage of the Like button.  The vast majority of Facebook users are selective in clicking the Like button.  Perhaps it is editorial control, perhaps because they know by clicking the button they are handing over information and endorsement possibilities to Facebook and the page owner.  Either way, that’s a choice and a statement.  And none of that was considered by the judge.  Instead, the judge just said that clicking Like wasn’t speech and moved on without further analysis.

Social Media is just a term we’ve used to describe the fundamental shift in technology.  We have gone from technology enabling faster methods of analog communication to creating completely new forms of digital communication and interaction.  This is a content revolution.  And while it is understandable that older systems may have difficulty comprehending this new wave, it is not excusable.

We have many problems to solve during this transition to the full social media world–issues like privacy and authentication and security.  What we don’t need is another, larger problem: that the people who make the rules don’t even understand the game.

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Filed under Facebook, First Amendment, Laws, Social Media Lawyers, Social Platforms