The common belief is that social media sites are not subject to First Amendment limitations. This is certainly not the case, and the platforms do not “censor” speech – as that is something only the government can do. Instead, they act as per their editorial discretion. However, that’s not a straightforward technical matter.

According to Seth C. Oranburg (an associate professor in law), the Section 230 immunity allows the platforms to use editorial discretion and not be liable for any third-party content. This includes users’ posts, tweets, messages, comments, grams, videos or hashtags. This basically means that the platforms do not have to be held responsible for any defamatory, inflammatory messages posted by users.

However, social media could still be seen as responsible in part for the January 6, 2021 Capitol riots, as those platforms were used as a communication tool – and the various networks did little to stop it.

William V. Pelfrey Jr. (Ph.D.), a Virginia Commonwealth University professor at the Wilder School of Government and Public Affairs, stated that social media companies need to understand two things: one, actions can have consequences and two, scale matters.

Pelfrey sent an email saying that “a person with 40 followers will be very different than a person having a million.” Review and regulation should consider the potential implications of each post as well as the past history of the poster. It is social media’s ethical duty to examine the posts and remove or ban dangerous content from accounts. Leaders of social media platforms should have been taught that every action has consequences on January 6. Conversely, failing to act – or remove/block a post/tweet – also has consequences. Government regulation will be likely if you continue to ignore your ethical responsibility to protect the public.

One could argue that, although social media platforms don’t have to be restricted under the First Amendment at the moment, they still enjoy many of the protections afforded by it.

Pelfrey stated that “users are free to publish their own content. Social media companies are only the conduit for this content.”

If anyone makes a direct threat to a criminal, the social media company is expected to: 1) remove the post and 2) notify law enforcement. If someone posts, “I am bringing a knife tomorrow to school and I will stab you”, that would be a direct threat to violence and warrants law enforcement intervention.

Yet, these obvious red flags have been ignored, or worse, not heeded, as evidenced by recent mass shootings.

There is also the matter of what politicians or other “authority figures” say about social media. This has often been viewed as exaggeration. It is important to consider whether these comments should be considered more serious.

Pelfrey said that when someone (such as a well-known political leader) says “Voters must raise up, demand change and cast off oppressors,” there’s no clear threat. You could easily interpret this as a call for political action. One could interpret it as an invitation to violence if they so choose. The policies are clear and specific about what types of posts and tweets can be allowed. Social media companies must self-regulate. Some political leaders consider imposing regulations on social media firms because these policies have a subjective nature and are not easily enforced.

Now the question is whether or not social media platforms will respond to these concerns, or will it continue as business as usual. Pelfrey stated that change is possible, but only if companies have to.

He suggested that “Eventually social media companies may be forced to alter, whether through government-imposed mandates, or artifacts, of liability.” Lawsuits against gun manufacturers are a good example. After years of litigation and many lawsuits, juries and courts have held gun companies responsible for their misleading advertising. Social media companies may be sued if they do not act responsibly.

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