A Social Network / First Amendment Question
Mickey Kaus raises the issue of whether Twitter censors posts to protect celebrities ("Paranoid's Corner: Does Twitter Semi-Censor to Protect Celebrities"). I think the issue raised in his post and update could just as easily be attributed to Twitter's reliability as it could to intentional conduct by Twitter, but his post got me thinking about something else. What if the government paid social networks to "censor" certain types of speech?
I use the word "censor" in quotes because that's not really government censorship in the classical sense. The typical definition of censorship is when the government prohibits a private party from saying something. Outright prohibition (whether through judicial action or laws which regulate speech) lies at one end of the spectrum. A law prohibiting certain type of speech is a good example of this. At the other end of the spectrum, the government can try to penalize you for your speech. Firing you from government employment is one example of this, and courts agree that this type of a penalty raises First Amendment concerns. These situations are often treated differently from the circumstance when the government itself is the speaker. Courts agree that government speech does not raise the same First Amendment concerns as government interfering with private speech. It raises other concerns (e.g., Establishment Clause), but that's a separate issue. The government may even subsidize private speech, subject to other considerations such as the Establishment Clause, but this is also not typically viewed through the same lens as outright prohibition or regulation. The case law on this is a maze, and not surprisingly, the Supreme Court is less than unanimous on this issue. But at least some members of the Court adhere to the view that there is a fundamental distinction between funding speech and "abridging" speech. (See this discussion (from 1998) of a case challenging NEA funding on the grounds that it improperly required consideration of "decency". The current wikipedia page for "government speech" contains some good discussion.)
So, how about the scenario where the government pays someone not to speak? Say for example, you regularly protest the war on the street corner on Main Street, USA. The government doesn't like this, and it can't prohibit you or try to regulate your speech, but the government can probably pay you not to speak? (There are cases dealing with whether the government can require you to waive constitutional rights as a condition to receiving certain benefits, but this seems different.) Can the government pay a newspaper not to run a story? How about the government paying Facebook to take down certain types of fan pages. How about the government paying Twitter to filter out certain types of tweets? Most likely this would be politically untenable, because the government could not keep this type of an arrangement secret, but how would this be analyzed from a First Amendment standpoint? Must the government be content-neutral when it engages in this conduct?
These are probably far-fetched hypotheticals, unless you live in certain countries (see "US lawmakers scold tech companies for China censorship"), but they are interesting to think about.
I use the word "censor" in quotes because that's not really government censorship in the classical sense. The typical definition of censorship is when the government prohibits a private party from saying something. Outright prohibition (whether through judicial action or laws which regulate speech) lies at one end of the spectrum. A law prohibiting certain type of speech is a good example of this. At the other end of the spectrum, the government can try to penalize you for your speech. Firing you from government employment is one example of this, and courts agree that this type of a penalty raises First Amendment concerns. These situations are often treated differently from the circumstance when the government itself is the speaker. Courts agree that government speech does not raise the same First Amendment concerns as government interfering with private speech. It raises other concerns (e.g., Establishment Clause), but that's a separate issue. The government may even subsidize private speech, subject to other considerations such as the Establishment Clause, but this is also not typically viewed through the same lens as outright prohibition or regulation. The case law on this is a maze, and not surprisingly, the Supreme Court is less than unanimous on this issue. But at least some members of the Court adhere to the view that there is a fundamental distinction between funding speech and "abridging" speech. (See this discussion (from 1998) of a case challenging NEA funding on the grounds that it improperly required consideration of "decency". The current wikipedia page for "government speech" contains some good discussion.)
So, how about the scenario where the government pays someone not to speak? Say for example, you regularly protest the war on the street corner on Main Street, USA. The government doesn't like this, and it can't prohibit you or try to regulate your speech, but the government can probably pay you not to speak? (There are cases dealing with whether the government can require you to waive constitutional rights as a condition to receiving certain benefits, but this seems different.) Can the government pay a newspaper not to run a story? How about the government paying Facebook to take down certain types of fan pages. How about the government paying Twitter to filter out certain types of tweets? Most likely this would be politically untenable, because the government could not keep this type of an arrangement secret, but how would this be analyzed from a First Amendment standpoint? Must the government be content-neutral when it engages in this conduct?
These are probably far-fetched hypotheticals, unless you live in certain countries (see "US lawmakers scold tech companies for China censorship"), but they are interesting to think about.
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