Freedom of Expression

Freedom of expression refers to the unalienable right of an individual to publicly express their opinions and beliefs in any manner and on any platform. This commonly cited right stems from the First Amendment of the U.S. Constitution, which reads:

"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."

The deeply-rooted nature of the First Amendment sets the framework for a strong cultural backing in the idea of free speech and freedom of expression. However, many social media platforms restrict freedom of expression in practice as a means of policing content that the platform itself deems inappropriate or in violation of predetermined rules or norms. To protect their users and reputation, most social media companies govern users through their terms of service. Yet, the line at which free speech devolves into impermissible speech is blurry, so this kind of policing of content brings about various ethical concerns, including the dissemination of fake news as well as unfair or unequal censorship.

History of Freedom of Expression

The Freedom of Expression is a Campaign led by the Freedom House organization, and a topic supported by the American Civil Liberties Union, or ACLU. The basis for the Freedom of Expression is the Freedom of Speech, in the United States. Freedom of speech is protected by the First Amendment to the United States Constitution. As a form of expression, speech freedoms have been litigated in the judicial system since the First Amendment was adopted into the Bill of Rights in 1791. Courts have found that freedom of expression can be restricted, only in cases where it may cause direct and imminent harm to others. Courts have also ruled in favor of content neutrality, which prohibits the discrimination of expressions just because some in the population may find the content offensive.. These rulings leave the restrictions of expression somewhat up to interpretation, depending on the circumstances of the situation. The First Amendment allows for governments to enact "reasonable time, place, and manner" restrictions and regulations on free speech while including the incorporation doctrine, which prevents further governmental restrictions on free speech. However, private institutions are not protected by the incorporation doctrine and are allowed restriction of free speech, barring laws, allowed to restrict business and private institutional free speech de facto regulation.

History Rewind: Who was Actually Free

It is also important to note that freedom was not a concept open to just anyone. Freedom of speech, expression, and life meant completely different things for different groups. The 15th amendment (granting African Americans the right to vote) was not adopted by America until 1870- nearly 100 years after the first amendment. And even after this period, there were still tactics used to ensure that African Americans had a very difficult time voting, or expressing themselves. So, freedom of speech was not a concept familiar to everyone. While the first and 15th amendments may differ in their definitions and descriptions, the bottomline is that freedom of speech includes voting. Having the voice to decide who can govern you. Speech consists of more than slurs and disagreements with governmental regulations. It is and was a means of personifying people again after slavery and constant discrimination. (History, 2018).

Communications Decency Act (CDA)

The Communications Decency Act of 1996 is the primary set of laws for protecting free speech on the internet. It contains Section 230, 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 protects websites, blogs, forums, and other online platforms from being held legally responsible for the content of their users. CDA Sec. 230 considers platforms and ISPs legal intermediaries, and not the authors or providers of the objectionable content. If CDA did not provide its protections, platforms could be held liable for individual lawsuits regarding each piece of content, meaning they would have to pass on legal costs of compliance to its users and censor its content, hindering the internet's ability to provide crucial information.

Jones v. Dirty World

Dirty World Entertainment Recordings hosts a website that anonymously posts photographs, videos, and comments that are submitted by its users. Before posting the content, the manager of Dirty World, Nik Richie, would edit to remove nudity, obscenity, threats of violence, and racial slurs, along with adding his own comments. Between October to December 2009, Dirty World posted numerous pictures and comments about Sarah Jones, who was a teacher and former NFL cheerleader, regarding her personal life and career. Jones made 27 requests to Richie to remove the content, and after he failed to do so, Jones filed a civil lawsuit against him and Dirty World on claims of libel, defamation, and intentional infliction of emotional distress. The District Court ruled that Dirty World was not protected by CDA Sec. 230 because it was not only the interactive computer service provider, but also became the content provider by 'developing' the inflammatory content. Users were not simply uploading the content; Richie, the website manager, chose which content to post and then added his own comments, which materially contributed to and developed the content. The U.S. Sixth Circuit Court of Appeals overturned the District Court ruling and found that Richie did not 'develop' the content, because selecting posts for publication was not materially contributing to their defamatory nature. The Court ruled in favor of Richie and Dirty World, and established the "material contribution test" to determine if service providers materially contributed and developed content, rather than just providing the platform service.

Politics and Free Speech

Issues revolving around freedom of expression and hate speech arose during the 2016 election. The extremism of this election created a drastic polarization of both democratic and republican political parties in the United States. As Misha Teplitskiy and Feng Shi describe in “The Wisdom of Polarized Crowds,” people have used their freedom of expression in the form of politics even if the content is not related to the political climate. When looking through social media platforms, specifically Facebook and Twitter, it is inevitable to find a political argument taking place, whether it be about current political events or everyday values. Even if politics are uncomfortable to talk about, people have the right to post due to their right to free speech.

Credit: James Devereaux, Foundation of Economic Education.

The issue of political advertising during campaigns is also a topic of contention. While commercial advertising is strictly regulated by the Federal Trade Commission in respect to false claims, especially those regarding health or targeting of vulnerable groups, political advertising is subject to much more lax regulation. The Federal Election Commission oversees political advertising. Currently, online political ads are required to publicly display contracts with the party paying for the advert. That being said, print and television ads are very loosely regulated and simply showing who is behind certain political ads does little to stem misinformation or further harmful polarization.

The 2016 election is an example where extreme polarization occurred with both sides voicing their strong opinions. With the racist remarks made by Donald Trump, the question arose of what deserves to be censored or not as well as what is classified as "hate speech". The term “liberal snowflake” was born as those on the left pointed out the inappropriate comments that should not be said while Republicans stood behind this idea of freedom of expression. This brings up the controversy of what speech should be restricted versus pass as freedom of expression. There is no law or jurisdiction currently in place that legally classifies hate speech as a separate entity than free speech, thus, allowing individuals to speak in a hateful manner and remain unpunished. However, given the context of the speech, if it causes fear or harm, this sort of speech may be subjected to punishment.

Social Media Terms & Conditions

Twitter

Lately, alt-right groups have become more prominent on mainstream social media. Alt-right groups are often criticized for their racist and sexist hate speech and their use of social media as an outlet to express their beliefs to a large audience. David Duke is a well known white nationalist who uses Twitter to express his extreme ideas. Although Duke's speech often disrespects specific people, nationalities, and entire groups, he is technically protected by his right to freedom of expression and will not be censored unless he violates Twitter's terms of service. This indicates that Twitter champions the freedom of expression, regardless if tweets promote violence or hate. Twitter has also received many complaints about verifying the accounts of white nationalists like Duke. A verified user has a blue checkmark next to his name, indicating that the person is in fact who he claims to be and is also a recognized member of the Twitter community.

Facebook

Facebook is another social media platform that often causes political discourse. Politics are often discussed on the Facebook news feed. Many of the strong political opinions on either side of the political spectrum are catalyzed by satirical websites, like the Onion, and biased sources, like Occupy Democrats. Although these sources post exaggerations of the truth or blatant lies, their content cannot be legally removed because they are protected by the right to free speech. Facebook has also been in trouble for the “fake name policy” deeming that a user can be reported for not using their legal name. This puts one’s freedom of expression on the social media platform into question. If someone has gone through a gender transition or feels resentment towards their families, for example, they will tend to change their names to feel comfortable or display their authentic identity in the public sphere of Facebook. The “real name policy” strips away the true identity of a user and ultimately their freedom of expression by allowing other users to paint their profiles rather than themselves. Social media platforms are able pick and choose what qualifies as freedom of expression. This past March, Facebook founder and CEO Mark Zuckerberg expressed the need for a more active role for government regulation of social media platforms. He explains that while individual internet companies should be accountable for monitoring harmful content, there needs to be a more standardized approach to serve as a "common global framework" .

Reddit

Reddit has similarly found itself under constant public scrutiny as the company has, historically, decided to allow openly racist, misogynistic, and homophobic subreddits (subgroups or communities), among others, to exist in favor of protecting Reddit user's freedom of expression and/or right to free speech. However, several of these subreddits have been home to what is considered hate speech, and have prompted or contributed to hateful and dangerous acts offline. For example, white supremacists leveraged Reddit to organize the "Unite the Right" rally in Charlottesville, Virginia (2017), which resulted in multiple casualties, dozens of injuries, and the dissemination of hate speech. Moreover, the existence of subreddits like r/CoonTown, dedicated to discussing and spreading hatred toward black people, as well as r/selfharmpics (which glorified self-harm) were safeguarded by the platform so as to not encroach on its users' freedom of expression. Though Reddit ultimately banned these subreddits, and other pages that were well-known for inappropriate and dangerous behavior - due to the growing belief that they were inciting violence offline - critics of the company maintain that these subreddits were, in actuality, allowed to exist for so long because Reddit simply wanted to avoid alienating large communities of users.

Ethical Concerns

Credit: Tim Bajarin, PC Magazine

Fake News

Along with being able to express ourselves, there is the possibility of false information being spread in the form of “fake news.” The rapid spread of lies online raises the concern of how ethical freedom of expression can be. Shannon Vallor implies in “Social Networking Virtues” that being truthful in what you post online affects how authentic others perceive your online persona to be. Many overexaggerate or lie about themselves on social media with the intentions of gaining popularity. Honesty is connected to how we perceive each other online in relation to our authenticity. Lying on the internet has many consequences, and the credibility of words spread online comes into question with the normalization of “fake news,” affecting our outlooks on important topics like politics.

The rationale behind this can be due to the norms of online communities. Users are more likely to conform to social norms when an audience is present, causing them to be more likely to create lies and act maliciously towards others. Alain Cohn would suggest in his article "Honesty in the Digital Age" that users feel less observed and pay less attention to their actual identities. Displaying one’s freedom of expression online versus in real life differs as there is not a way for one to validate another user’s identity online if they do not know the user personally.

Censorship

Freedom of expression also brings about the notion of censorship, particularly as it relates to social media platforms and the consumption of digital information.

The #FreeTheNipple movement gained significant attention as a result, in part, of the unfair censorship of female breasts (the areola, specifically). In practice, Instagram bans, flags and/or removes content that features female breasts but does not do the same when male nipples are on display. It is fair to argue that Instagram's censorship of the female body is sexist and unfair. Moreover, Instagram's censorship may even be violating the freedom of expression of its female users; that is, revealing one's body is considered a form of self-expression. According to David Shoemaker, individuals should be able to create their own self-identity or represent their digital identity as they please. In theory, users should enjoy absolute control regarding the ways in which they present themselves online (i.e., what information they choose to share). Accordingly, the censorship of one's content ultimately limits his/her ability to construct a desired digital identity.

On the other hand, Kay Mathiesen who has done extensive research on the topics of computer ethics and justice makes the argument for two scenarios during which censorship or restricting the freedom of expression is justified. The first scenario is when the information in question is inherently harmful, because the information may be offensive, have the potential to corrupt the character of the recipient, or accessing the information exploits the human beings who are the subjects of the expression. An example of such form of censorship is child pornography in the US, which is not entitled to First Amendment Protection. The second scenario is when the information in question is instrumentally harmful, due to concerns about the bad consequences that might result from such access. Support for this kind of censorship can be linked to the growing tendencies for criminals and terrorists to produce their instruments of harming themselves. For example, the Boston Marathon bombing of 2013 was caused by a pair of homemade bombs that killed 3 people and injured 260. Therefore, it becomes necessary for contents on sites such as Google and YouTube to be regulated to protect the public from future harms.