Graphic of American flag, shadows of people, Lady Justice

Social Media and Democracy after the Capitol Riot

By Seth C. Oranburg, Associate Professor of Law

Social media clearly played a role in the riots at the Capitol that occurred on Jan. 6. Those riots were deeply troubling for all who love America and the freedoms for which it stands. But the reactions by corporations to cancel social media accounts and even entire social media platforms are troubling, too. We must now face the reality that we have entrusted some of our most fundamental civil liberties to corporations that have obligations only to their shareholders, not to democracy.

"We the people" are guaranteed freedom of speech in the public square. But we do not enjoy those same freedoms on the private social media networks that have replaced the town hall. As more and more of our communications and daily lives happen on private property-and make no mistake that Facebook's website is its private property-we increasingly trust corporations to protect our "inalienable" rights.

It may surprise many that Twitter, Facebook, Instagram, YouTube, TikTok, Reddit and Discord are social media platforms that are not subject to First Amendment constraints because they are not state actors. These platforms do not "censor" speech, in the technical sense, because only governments can censor. Private actors merely exercise editorial discretion-and they may do so virtually at will.

Moreover, these platforms are allowed to exercise editorial discretion without incurring liability for third-party content (users' tweets, posts, grams, videos, hashtags, threads, etc.) thanks to so-called Section 230 immunity, which holds that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This means social media platforms like Twitter are not liable for defamatory or inflammatory tweets posted on their platforms.

What, then, constrains social media platforms? Revenue and quarterly earnings reports drive corporate decision making. Platforms need to keep social media users plugged in, so users view as many advertisements as possible. Sometimes referred to simply as "eyeballs," users are targeted by armies of digital marketing teams whose only job is to keep things interesting.

After the Capitol riots, some cheered when Twitter suspended Donald J. Trump, or when Amazon suspended Parler from its web services. (Parler has since sued Amazon, although this suit is likely to be lost due to Amazon's immunity and discretion.) But some worry about what this means for civil rights. The American Civil Liberties Union-an organization that called for Trump's impeachment-expressed that these suspensions "should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions."

These actions are certainly counter to the "free and open internet" principles that Google, Amazon, Facebook and other tech giants have espoused since their founding. In fact, they argued that internet service providers should "treat every bit equally," giving the same bandwidth to C-SPAN (which broadcasts public hearings) and PewDiePie (a popular YouTube personality whose videos contain misogynist and racist slurs). Now that the tech giants won the battle (but not the war) for so-called "net neutrality," they are using their vast "editorial discretion" to decide which speech is promoted, and which is silenced.

On Jan. 11, Adam Mosseri, Facebook's head of Instagram (yes, Facebook owns Instagram) tweeted, "We're not neutral. No platform is neutral, we all have values, and those values influence the decisions we make." This admission begs the question, what if social media corporations value wealth and power, and that influences their decisions as to who may speak and who may not? And if so, how do we protect democratic freedoms in a world where speech is dominated by social media corporations? These are questions we will have to answer in the 2020s, if American democracy is to survive.