Alabama Attorney General Steve Marshall has launched an initiative aimed at what he calls the “growing menace” of censorship by social media giants such as Facebook, Twitter, and YouTube, echoing former President Donald Trump’s complaints about alleged bias.
Marshall has teamed up with Louisiana AG Jeff Landry to gather complaints from social media users about suspensions, content blocking, and other restrictions they have encountered.
“Big Tech is not the Ministry of Truth,” Marshall said in a press release. “It should concern us all when platforms that hold such tremendous power and influence over information wield that power in contradiction of — and with undisguised disdain for — the foundational American principles of free speech and freedom of the press.”
It’s the same message Trump has declared in his longstanding battles with Twitter and Facebook. In 2019, Trump’s White House set up its own complaint tool for people to report what they considered incidents of “tech bias.”
This year, Facebook suspended Trump for two years after he praised participants in the Jan. 6 riot at the U.S. Capitol, calling them “great patriots.” Twitter permanently suspended Trump’s account, which had 88 million followers, saying his tweets about the rioters were likely to incite more violence.
In July, Trump filed a lawsuit against Facebook, Google, and Twitter, claiming he was wrongly censored by the companies.
Marshall said social media companies are trying to silence voices they don’t like and said he wants to determine if they are breaking state or federal laws.
But two law professors and a journalism professor who spoke with AL.com said the Constitution and federal law provides broad protections for social media companies to set their own rules and policies about content.
Bryan Fair, a professor at the University of Alabama School of Law, said the First Amendment guarantees that social media companies don’t need government’s stamp of approval for their rules and decisions about content.
“The government generally doesn’t get to control viewpoints,” Fair said. “And if a social media company has a viewpoint, the government can’t control that viewpoint either. The First Amendment is designed to protect us, individuals, and it includes corporate speakers, from censorship by the government.
“Attorneys General Marshall and Landry may believe that Big Tech is engaged in censorship and that it’s a menace. But there’s nothing that they can do to those companies. Those companies are private actors. And they’re allowed to set the terms of what they want on their sites.”
John Carroll, a professor at Cumberland School of Law and a former U.S. magistrate judge, said the free speech protections of the First Amendment do not mean that social media companies are obligated to allow all viewpoints on their platforms.
“The First Amendment of the Constitution does not apply to these social media companies because they’re private companies,” Carroll said. “The First Amendment only applies to governmental activity. So, the notion that, ‘Facebook censored something I did; that’s a violation of my First Amendment rights,’ is just not true.”
‘Incredibly broad protection’
A 1996 federal law called the Communications Decency Act is at the center of the debate.
Section 230 of that law shields companies that run interactive platforms on the Internet from liability for the content posted by their users. Congress included that protection to foster the growth of the Internet as a forum for information, ideas, and opinions that is “unfettered by Federal or State regulation” the law says.
Section 230 has also been interpreted to give social media companies much leeway in blocking content.
Carroll said a federal court decision in favor of the online company Vimeo provides a good example of the how Section 230 gives social media companies wide discretion in enforcing rules about what they allow and don’t allow.
Vimeo is an online service that allows members to publicize videos. Church United, an organization based in California, set up a Vimeo account in 2016.
In 2018, Vimeo deleted Church United’s account because of the organization’s videos about programs that claimed to change the sexual orientation of gay people. Vimeo said it did not allow videos “that harass, incite hatred, or include discriminatory or defamatory speech.”
Church United claimed Vimeo’s decision violated state anti-discrimination laws and the California constitution. But the district court dismissed Church United’s claim, finding that Section 230 immunized Vimeo from the lawsuit.
Under Section 230, interactive Internet platforms cannot be held liable for good-faith efforts to restrict access to material they consider obscene, excessively violent, harassing, or “otherwise objectionable.”
In March, the U.S. 2nd Circuit Court of Appeals in New York upheld the decision in favor of Vimeo.
Carroll said the case is an example of what he called the “incredibly broad protection” for social media companies when it comes to their content policies.
“As the law presently is written, they’re free to say, ‘OK, this is something that we consider objectionable, we’re not going to post it, or we are going to limit its dissemination.’ And that’s protected by this federal statute,” Carroll said.
A different Internet from the mid-1990s
Carroll said he believes Congress should consider updating the 25-year-old law.
“If you think about the power of the social media companies back in 1996, it was no big deal,” Carroll said. “Now, social media companies are these huge operations that quite frankly drive a lot of political discourse, drive a lot of the political discord. So, I really do think it’s time to take another look at Section 230.”
University of Alabama law professor Fair said he does not see how Congress could restrict social media content policies without running afoul of the First Amendment unless those restrictions only apply to unprotected forms of speech.
“The government can regulate incitement,” Fair said. “The government can regulate obscenity. The government can punish defamatory speech. But I don’t see any of those kind of categories. And absent one of those categories, the presumption is that speech is free from governmental interference.
“Just think about an organization like the Ku Klux Klan. The Ku Klux Klan can say whatever it wants and can express bigotry. And it doesn’t have to express viewpoints of diversity, equity and inclusion. And the government can’t make the Klan do that. So, the same reasoning applies to a group like Facebook.”
In May 2020, Trump issued an executive order directing the Federal Communications Commission to investigate complaints about social media censorship and directing the U.S. attorney general to develop proposed legislation changing Section 230.
“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor content and silence viewpoints that they dislike,” Trump said in the order.
In September 2020, former Attorney General William Barr proposed amending Section 230 to set more specific standards about the categories of content that social media companies can block with immunity. Barr’s proposal would eliminate the category of “otherwise objectionable” and replace it with the categories of promoting terrorism, promoting violent extremism, promoting self-harm, and unlawful.
President Biden revoked Trump’s executive order in May 2021.
Alternative outlets have limited reach
Fair said one recourse for people who think they are being silenced is to find alternative forums.
“They can create their own platforms, they can seek alternate platforms, they can use their own websites and other to express their own views,” Fair said. “Big tech isn’t preventing anyone from speaking. Big tech is simply saying, ‘We’re not allowing certain kinds of speech on our sites. Or certain kinds of disinformation on their sites.’”
A.J. Bauer, an assistant professor in the Department of Journalism and Creative Media at the University of Alabama, said conservatives are finding alternative forums to an extent with the emergence of social media platforms such as Parler and Gettr, “which frame themselves as kind of anything goes, free speech zones, where conservatives can speak with full license, and they’re not going to get canceled or kicked off the site.”
Bauer said those are good options for sharing ideas with like-minded people but they have their limits.
“Those platforms are not going to be a substitute for actually trying to spread those ideas more broadly,” Bauer said.
The power of Facebook, Twitter, and Google comes more from their massive market reach than it does from the absence of government regulation, Bauer said.
Bauer said he thinks it is time to reconsider how the government regulates the Internet and social media. But he said the conflict over access to the mass media and how information and access is controlled goes back decades before the Internet. He does not expect that to change.
“It is time for renewed conversations about how we ought to regulate that industry,” Bauer said. “I’m just not terribly optimistic that any of those new regulations are going to solve the underlying problem, which is fundamentally an issue over who gets access to the public sphere and to what extent they’re able to dominate it. If you’re not dominating the public sphere, you feel you being left out.”
Marshall wants to hear from those who feel left out. He and Landry set up complaint forms on their state office websites.
“I encourage anyone and everyone who has been censored on social media to file a formal complaint with my office,” he said. “The process is simple and straightforward—and will provide us with important information to fight the growing menace of censorship by the great malefactors of tech.”
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