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Social Media Censorship and the Law

Social media censorship and United States law have become intertwined. This topic has raised intricate questions about:

  • First Amendment rights
  • Government regulations
  • The role of private companies

Americans are concerned with censorship because it can stifle free expression. This can infringe on the First Amendment's guarantee of free speech.

As people talk and share news on Facebook and Twitter, how these sites limit content has become a big part of the free speech conversation.

The following are some examples of content removed from social media sites:

  • Copenhagen's iconic "Little Mermaid" statue
  • A girlfriend's livestream of the fatal shooting of her boyfriend by a police officer
  • A picture of a cat in a business suit
  • A photo of a plus-size model
  • A meme depicting and identifying a convicted rapist

With the wide range of content taken down by social media companies, it's difficult to determine what is okay to post on social media. The First Amendment's free speech provisions prevent federal, state, and local governments from blatant internet censorship, which includes social media. Yet, social media companies (as with all private, non-governmental interests) have more freedom to restrict content on their sites.

Social media sites must manage information coming from third-party users. But they aren't generally liable for their users' content under Section 230 of the Communications Decency Act. Also, thanks to safe harbor rules in the Digital Millennium Copyright Act, companies receive protection from user's copyright issues. This lets them avoid paying for damages as long as they remove content when told to do so. It also encourages these companies to keep an eye on their platforms. It also encourages companies to take down problematic content.

Content Removal From Social Media Sites

Social media companies engage in "content filtering" or "content monitoring." Sometimes, footage or posts get removed due to user reports. Users may flag content considered inappropriate according to the site's rules. Other content removal depends on newsworthy events.

For instance, scrubbing a user's social media presence is common practice if they're a suspect or have been arrested in a violent event, like a mass shooting. Entities like YouTube use software programs to remove content inconsistent with the platform's views (for example, pro-Isis videos). This is often done before the objectional videos have even aired.

Terms of Service Violations

You can get banned from social media sites in various ways, such as

  • Trolling
  • Sharing self-promotion links
  • Sharing computer-generated spam
  • Posting explicit or violent content

But these practices often overlap with more general terms of service violations.

By using a social media platform, you agree to the company's terms of service (TOS). The TOS are the rules of how a user should conduct themselves on the site. When users violate a company's terms of service, the company can remove your account for any reason. Additionally, companies have the authority to change or alter their terms of service at any time without informing users.

Terms of service violations are not only important because they allow for the removal of content from a website. Violations also trigger the Computer Abuse and Fraud Act.

The Computer Fraud and Abuse Act

The Computer Fraud and Abuse Act (CFAA) is a broad federal law that criminalizes many activities related to computers and computer networks. The CFAA is not only a criminal law—it also gives private individuals and corporations the right to sue to recover damages.

The Act forbids anyone from accessing a computer without authorization. Courts say breaking a company's rules is like breaking into their computers. This law could limit free expression, so some people, including free speech supporters, don't like how social media uses the CFAA.

Social Media Censorship Concerns

Social media firms have a legal right to restrict content on their sites. But this works both ways. Consumers have the right to avoid their services and go to other platforms if they don't like a social network's censorship practices. But platforms like Facebook, Instagram, Twitter, and YouTube dominate the industry, so there are not many other places to go.

The limited choice of social media platforms has raised unfair trade concerns. Some critics believe that social media outlets have a bias against conservatism and suppress content expressing those viewpoints. But, left-leaning political advocates also have issues with social media dominance, which indicates problems that are more than political. Another concern with social media censorship is that it's not always clear why sites remove certain content. To address this, Facebook has started sharing its rules for content removal with its content moderators once a piece of content is flagged.

The rules discuss topics, including:

  • Graphic violence
  • Nudity
  • Sexual activity
  • Hate speech

For instance, Facebook's community standards detail the removal of content used to promote violence against someone, or that threatens someone based on:

  • Race
  • Ethnicity
  • National origin
  • Sexual orientation
  • Gender
  • Gender identity
  • Religious affiliation
  • Disability
  • Disease

Twitter's rules say the same thing but add "age" as another criterion.

Social Media Appeals Processes

If they take down your content, you can appeal the decision with the social media provider. The appeals process for a takedown depends on the social media platform. For instance, Twitter suspends an entire account for violations, even if the offending content was a single tweet. When it comes to Facebook takedowns, the following appeals process will apply:

  1. Facebook will send you an alert if they take your content down.
  2. You can then click "Request Review," and your request will be sent to a Facebook community team member.
  3. Then, they review your appeal within 24 hours. An actual human (not AI software) will review the appeal.
  4. Facebook will restore your content if they determine the takedown was a mistake.

Recent Events in Social Media Censorship and the Law

Congress and state attorney generals have taken a keen interest in state laws regulating social media companies. Congress wants to regulate social media giants like Twitter or Facebook. Former President Donald Trump has been a central figure in these debates. He was banned from several social media platforms in the aftermath of the January 6th Capitol riot. His case sparked discussion about whether banning a sitting president violates freedom of speech rights under the First Amendment.

In recent years, lawmakers in various states have passed state laws attempting to regulate social media content. For example, Florida aimed to stop social media companies from de-platforming political candidates. Texas law imposed restrictions on how large tech companies moderate content.

The Texas law, House Bill 20, aimed to prevent large social media companies from banning users' posts based on their political viewpoints. HB 20 would allow Texans to sue service providers or social media platforms that would “censor" their viewpoints by removing or blocking their content. NetChoice and the Computer and Communications Industry Association sued Texas, arguing that internet companies have First Amendment protection to create content on their platforms. The 5th U.S. Circuit Court of Appeals ruled that the law was not unconstitutional. It disagreed with the plaintiffs, suggesting they were seeking protection to limit free speech rather than preserve it.

In 2022, The U.S. Supreme Court ruled to grant an emergency stay request from big tech industry giants to prevent HB20 from going into effect. The Court's decision overturned the 5th Circuit Court of Appeals ruling.

Get More Information About Social Media Censorship and the Law From an Attorney

The social media laws and regulations that involve content censorship are very complex. If you're affected by social media censorship, you should discuss your situation with an internet/social media lawyer.

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