With respect to free speech, the good is prior to the right: the goods achievable by the practice of free speech are the reason for protecting speech, and the protection should be shaped with those goods in mind.1outhern California Law Review, Volume 96; J.D. 2023, University of Southern California, Gould School of Law.
On January 6, 2021, a mob of 2,000 to 2,500 supporters of then-President Donald Trump rushed into the Capitol building and disrupted a joint session of Congress in response to the former president’s allegations of vote fraud on Twitter.2Capitol Riots Timeline: What Happened on 6 January 2021?, BBC News (June 10, 2022), http://www.bbc.com/news/world-us-canada-56004916 [http://perma.cc/4WLN-CA96]. Soon afterward, Twitter banned President Trump’s account on its platform. To justify the ban, a spokesman expressed concerns regarding the risks of keeping President Trump’s commentaries live.3Kate Conger, Mike Isaac & Sheera Frenkel, Twitter and Facebook Lock Trump’s Accounts After Violence on Capitol Hill, N.Y. Times (Jan. 14, 2021), http://www.nytimes.com/2021/01/
06/technology/capitol-twitter-facebook-trump.html [http://perma.cc/6RFB-HZBN]. The spokesman stated, “[o]ur public interest policy—which has guided our enforcement action in this area for years—ends where we believe the risk of harm is higher.”4Id. Facebook and Instagram followed Twitter’s actions by barring former President Trump from posting on their social network platforms for twenty four hours.5Id. While some responded by pressing for more regulations to prevent future potential spread of misinformation and violent insurrections, others met the social media companies’ actions with criticism, alleging that these companies silenced “conservative viewpoints and ideas.”6Jameel Jaffer & Scott Wilkens, Social Media Companies Want to Co-Opt the First Amendment. Courts Shouldn’t Let Them., N.Y. Times (Dec. 9, 2021), http://www.nytimes.com/2021/12/09/opinion/
social-media-firstamendment.html?partner=slack&smid=sl-share [http://perma.cc/YS7A-EXK3]. Within the broad range of responses were the Florida and Texas legislatures’ criticism of these companies’ actions. To express their disapproval, the two states passed legislation prohibiting social media companies from certain behaviors such as deplatforming a candidate in office.7See Decoder, Can We Regulate Social Media Without Breaking the First Amendment?, Verge (Dec. 16, 2021, 7:00 AM), http://www.theverge.com/22838473/social-media-first-amendment-regulation-section-230-decoder-podcast [http://perma.cc/AY4T-65RA] (explaining the Texas and Florida regulations on social media companies and discussing the arguments made in criticism of the regulations). For example, the 2021 Florida legislature enacted Senate Bill 7072, which created three Florida statutes: section 106.072, section 287.137, and section 501.2041.8NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1085 (N.D. Fla. 2021), vacated in part, 34 F.4th 1196 (11th Cir. 2022); Fla. Stat. §§ 106.072, 287.137, 501.2041 (2022). The statutes were met with vigorous disapproval from major social media companies and unsurprisingly resulted in a lawsuit filed by NetChoice and the Computer & Communications Industry Association challenging the statutes’ constitutionality.9NetChoice, LLC, 546 F. Supp. 3d at 1082; see Jaffer & Wilkens, supra note 6 (discussing both parties’ arguments presented before the court and their flaws).
In response to the district court’s grant of a preliminary injunction enjoining enforcement of the Florida statutes, Jameel Jaffer—the executive director of the Knight First Amendment Institute at Columbia University—and Scott Wilkens—an attorney at the Knight Institute—raised an interesting point:
The companies are right that the laws violate the First Amendment, but some of the arguments they are making are deeply flawed. If these arguments get traction in the courts, it will be difficult for legislatures to pass sensible and free-speech-friendly laws meant to protect democratic values in the digital public sphere . . . . [T]he companies’ arguments would make it almost impossible for legislatures to enact carefully drawn laws that protect the integrity of the digital public sphere. They would make it difficult for legislatures to impose even modest transparency requirements on the companies, to require the companies to share data with academic researchers or to require them to provide explanations to users whose posts are removed or . . . accounts are suspended.10Jaffer & Wilkens, supra note 6.
The discussion poses a pressing question: Is limited government regulation of private entities, particularly social media companies, justified to protect the integrity of public discourse on social media platforms? Although the First Amendment is ordinarily thought to apply only to government actions, is the fundamental value of free speech rights so essential to also warrant government regulation of private entities? This Note attempts to address these issues and argues that the societal interest of free speech values calls for government regulation of private social media companies to protect the integrity of the public squares of the twenty first century.
