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Law Review Symposium Focuses on Social Media and First Amendment

WMU-Cooley Law School’s Law Review took an in-depth look at social media and the First Amendment during its annual symposium on July 14.

The virtual symposium featured panelists the Hon. John G. Browning, partner, Spencer Fane law firm; Abby Corbett, shareholder, Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.; Stephanie C. Krent, attorney, Knight First Amendment Institute at Columbia University; Jesse Panuccio, former U.S. associate attorney general; and Caitlin Vogus, deputy director, Free Expression Project Center for Democracy & Technology. WMU-Cooley Professor Ret. Brig. Gen. Michael C.H. McDaniel moderated the event.

During the symposium, panelists discussed how social media has evolved from its infancy and how it plays a role in First Amendment rights and values.

“The First Amendment’s inclusion in our Constitution represents a foundational judgement and the ends it secures – free speech, free press, free association among others – are of paramount importance to our society,” said Panuccio. “I think a critical question to ask, as we think about the First amendment in social media, is whether social media is advancing or harming First amendment ends and First amendment values.”

Corbett, who advises local governments and public and private entities on constitutional law and governmental affairs issues, including First Amendment issues, shared how social media regulation is a balancing act, especially in today’s government and political spheres.  

“Speech isn’t just about me talking, it’s about the benefit to democracy,” Corbett said. “One thing I definitely advise clients on in terms of regulating content and comments on their own official (public branded) pages is have a well-vetted, written social media content guidelines document. It’s also good to have more than one social media designee.”

Krent, who focuses on government transparency, surveillance in the federal prison system and social media censorship at Knight First Amendment Institute, discussed how the institute’s lawsuit against former president Donald Trump for blocking Twitter users was a stepping stone in for future cases.

“At the time we filed (2017), this area of law was very unsettled and very new,” said Krent. “And right now, courts in every circuit in this country have accepted the general principle that we were fighting for in that case and what other early social media blocking cases were all about.”

Krent went on to say: “Official use of social media can implicate the First Amendment – specifically when you have a public official who has opened up what the courts call an interactive space – what we all commonly know as the comment thread – and that when public officials are opening those comment threads for every member of the public to come and talk – those comment threads become digital public forums and people are entitled to their full First Amendment protection when they’re participating in those forums.”

Vogus, whose work focuses on online speech and First Amendment rights, content moderation, and Section 230 of the Communications Decency Act, which protects freedom of expression and innovation on the internet, explained that many courts have held that social media platforms have a First Amendment right to exercise editorial discretion, which protects their right to moderate content.

“I think social media users’ free expression rights should be at the center of the conversation when we’re thinking about social media and the First Amendment,” Vogus said during the symposium. “Giving the government the power to tell social media companies that they cannot remove certain types of content or most post certain types of content, it removes users’ ability to make choices and decisions about which types of platforms best suit their need and where they want to speak online.”

Additionally, Vogus discussed Section 230 of the Communications Decency Act and how it relates to today’s social media platforms.

“In general, it’s this liability shield for content posted by a third party,” she said.

Browning acknowledged many in nearly every part of the political spectrum, including some in the tech industry, believe Section 230 needs to be amended, and there are signs of that in the court system.

“Section 230 was enacted before there was internet, before there were social media platforms,” Browning said. “No one could ever fathom what we would have now in terms of the ‘Wild West’ of the internet, and what social media platforms do and are capable of doing. This idea of fitting social media into Section 230, Section 230 is woefully under equipped to address many concerns with regard to social media.”

The full symposium can be viewed on WMU-Cooley’s official YouTube channel on the WMU-Cooley Community Conversations Playlist here

Jul 20 2022