#FirstAmendment – Social Media Legality

Corporate Use of Social Media: A Fine Line Between What Could-, Would-, and Should-be Posted

Introduction

In recent years, social media has taken a hold on nearly every aspect of human interaction and turned the way we communicate on its head. Social media apps’ high speed capability of disseminating information instantaneously have affected the way many sectors of business operate. From entertainment, social, environmental, educational, or financial, social media has bewildered the legal departments of many in house general counsels across all industries. Additionally, the generational shaft between the person actually posting for the account versus their supervisor has only exacerbated the potential for communications to miss their mark and cause controversy or adverse effects.

These days, most companies have social media accounts, but not all accounts are created equal, and they certainly are not all monitored the same. In most cases, these accounts are not regulated at all except by their own internal managers and #CancelCulture. Depending on the product or company, social media managers have done their best to stay abreast of changes in popular hashtags, trends and challenges, and the overall shift from a corporate tone of voice to one of relatability–more Gen-Z-esque, if you will. But with this shift, the rights and implications of corporate speech through social media has been put to the test.

Changes in Corporate Speech on Social Media

In the last 20 years, corporate use of social media has become a battle of relevance. With the decline of print media, social media, and its apps, have emerged as a marketing necessity. Early social media use was predominantly geared towards social purposes. If we look at the origins of Facebook, Myspace, and Twitter it is clear that these apps were intended for superficial uses—not corporate communications—but this all changed with the introduction of LinkedIn, which sparked a dynamic shift towards business and professional use of social media.

Today social media is used to report on almost every aspect of our lives, from disaster preparation and emergency responses to political updates, to dating and relationship finders, and customer service based tasks, social media truly covers all. It is also more common now days to get backlash for not speaking out or using social media after a major social or political movement occurs. Social media is also increasingly being used for research with geolocation technology, for organizing demonstrations and political unrest, and in the business context, for development in sales, marketing, networking, and hiring or recruiting practices.

These changes are starting to lead to significant conversations in the business world when it comes to company speech, regulated disclosures and First Amendment rights. For example, so far, there is minimal research on how financial firms disseminate communications to investor news outlets via social media and in which format they are being responded to. And while some may view social media as an opportunity to further this kind of investor outreach, others have expressed concerns that disseminating communications in this manner could result in a company’s loss of control over such communications entirely.

The viral nature of social media allows not just investors to connect more easily with companies but also with individuals who may not directly follow that company and would therefore be a lot less likely to be informed about a company’s prior financial communications and the importance of any changes. This creates risk for a company’s investor communications via social media because of the potential to spread and possibly reach uniformed individuals which could in turn produce adverse consequences for the company when it comes to concerns about reliance and misleading information.

Corporate Use, Regulations, and Topics of Interest on Social Media

With the rise of social media coverage on various societal issues, these apps have become a platform for news coverage, political movements, and social concerns and, for some generations, a platform that replaces traditional news media almost entirely. Specifically, when it comes to the growing interest in ESG related matters and sustainable business practices, social media poses as a great tool for information communication. For example, the Spanish company Acciona has recently been reported by the latest Epsilon Icarus Analytics Panel on ESG Sustainability, as having Spain’s highest resonating ESG content of all their social networks. Acciona demonstrates the potential leadership capabilities for a company to fundamentally impact and effectuate digital communications on ESG related topics. This developing content strategy focuses on brand values, and specifically, for Acciona, strong climate-change based values, female leadership, diversity, and other cultural, societal changes which demonstrates this new age of social media as a business marketing necessity.

Consequentially, this shift in usage of social media and the way we treat corporate speech on these platforms has left room for emerging regulation. Commercial or corporate speech is generally permissible under Constitutional Free Speech rights, so long as the corporation is not making false or misleading statements. Section 230 provides broad protection to internet content providers from accountability based on information disseminated on their platform. In most contexts, social media platforms will not be held accountable for the consequences resulting therefrom (i.e. a bad user’s speech). For example, a recent lawsuit was dismissed in favor of the defendant, TikTok, and its parent company, after a young girl died from participation in a trending challenge that went awry because under § 230 the platform was immune from liability.

In essence, when it comes to ESG-related topics, the way a company handles its social media and the actual posts they put out can greatly affect the company’s success and reputation as often ESG focused perspectives affect many aspects of the operation of the business. The type of communication, and coverage on various issues, can impact a company’s performance in the short term and long term hemispheres–the capability of which can effectuate change in corporate environmental practices, governance, labor and employment standards, human resource management and more.

With ESG trending, investors, shareholders, and regulators now face serious risk management concerns. Companies must now, more publicly, address news concerning their social responsibilities, on a much more frequent basis as ESG concerns continue to rise. Public company activities, through Consumer Service Reports, are mandated in annual 10-K filings and disclosures by the SEC, along with ESG disclosures thanks to a recent rule promulgation. These disclosures are designed to hold accountable and improve environmental, social, and economic performance when it comes to their respective stakeholders’ expectations.

Conclusion

In conclusion, social media platforms have created an entirely new mechanism for corporate speech to be implicated. Companies should proceed cautiously when covering social, political, environmental, and related concerns and their methods of information dissemination as well as the possible effects their posts may have on business performance and reputation overall.

Can Social Media Be Regulated?

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

The advent of Smart-Phones in the late 2000s, coupled with the CDA, set the stage for a society that is constantly tethered to the internet and has allowed companies like Facebook, Twitter, YouTube, and Amazon to carve out niches within our now globally integrated society. Facebook alone in the 2nd quarter of 2021 has averaged over 1.9 billion daily users.

Recent studs conducted by the Pew Research Center show that “[m]ore than eight in ten Americans get news from digital services”

While older members of society still rely on news media online, the younger generation, namely those 18-29 years of age, receive their news via social media.

The role Social Media plays in the lives of the younger generation needs to be recognized. Social Media has grown at a far greater rate than anyone could imagine. Currently, Social Media operates under its modus operandi, completely free of government interference due to its classification as a private entity, and its protection under Section 230.

Throughout the 20th century when Television News Media dominated the scenes, laws were put into effect to ensure that television and radio broadcasters would be monitored by both the courts and government regulatory commissions. For example, “[t]o maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election.”

What these laws and regulations were put in place for was to ensure that the public interest in broadcasting was protected. To give substance to the public interest standard, Congress has from time to time enacted requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.

The Federal Communications Commission (FCC) authority is constrained by the first amendment but acts as an intermediary that can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees. The Supreme Court has continuously upheld the public trustee model of broadcast regulation as constitutional. The criticisms of regulating social media center on the notion that they are purely private entities that do not fall under the purviews of the government, and yet these same issues are what presented themselves in the precedent-setting case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969. In this case, the court held that “rights of the listeners to information should prevail over those of the broadcasters.” The Court’s holding centered on the public right to information over the rights of a broadcast company to choose what it will share, this is exactly what is at issue today when we look at companies such as Facebook, Twitter, and Snapchat censuring political figures who post views that they feel may be inciteful of anger or violence.

In essence, what these organizations are doing is keeping information and views from the attention of the present-day viewer. The vessel for the information has changed, it is no longer found in television or radio but primarily through social media. Currently, television and broadcast media are restricted by Section 315(a) of the Communications Act and Section 73.1941 of the Commission’s rules which “require that if a station allows a legally qualified candidate for any public office to use its facilities (i.e., make a positive identifiable appearance on the air for at least four seconds), it must give equal opportunities to all other candidates for that office to also use the station.” This is a restriction that is nowhere to be found for Social Media organizations.

This is not meant to argue for one side or the other but merely to point out that there is a political discourse being stifled by these social media entities, that have shrouded themselves in the veils of a private entity. However, what these companies fail to mention is just how political they truly are. For instance, Facebook proclaims itself to be an unbiased source for all parties, and yet what it fails to mention is that currently, Facebook employs one of the largest lobbyist groups in Washington D.C. Four Facebooks lobbyist have worked directly in the office of House Speaker Pelosi. Pelosi herself has a very direct connection to Facebook, she and her husband own between $550,000 to over $1,000,000 in Facebook stock. None of this is illegal, however, it raises the question of just how unbiased is Facebook.

If the largest source of news for the coming generation is not television, radio, or news publications themselves, but rather Social Media such as Facebook, then how much power should they be allowed to wield without there being some form of regulation? The question being presented here is not a new one, but rather the same question asked in 1969, simply phrased differently. How much information is a citizen entitled to, and at what point does access to that information outweigh the rights of the organization to exercise its editorial discretion? I believe that the answer to that question is the same now as it was in 1969 and that the government ought to take steps similar to those taken with radio and television. What this looks like is ensuring that through Social Media, that the public has access to a significant amount of information on public issues so that its members can make rational political decisions. At the end of that day that it was at stake, the public’s ability to make rational political decisions.

These large Social Media conglomerates such as Facebook and Twitter have long outgrown their place as a private entity, they have grown into a public medium that has tethered itself to the realities of billions of people. Certain aspects of it need to be regulated, mainly those that interfere with the Public Interest, there are ways to regulate this without interfering with the overall First Amendment right of Free Speech for all Americans. Where however Social Media blends being a private forum for all people to express their ideas under firmly stated “terms and conditions”, and being an entity that strays into the political field whether it be by censoring heads of state, or by hiring over $50,000,000 worth of lobbyist in Washington D.C, there need to be some regulations put into place that draw the line that ensures the public still maintains the ability to make rational political decisions. Rational decisions that are not influenced by anyone organization. The time to address this issue is now when there is still a middle ground on how people receive their news and formulate opinions.

How Defamation and Minor Protection Laws Ultimately Shaped the Internet

Kyiv, Ukraine – September 5, 2019: A paper cubes collection with printed logos of world-famous social networks and online messengers, such as Facebook, Instagram, YouTube, Telegram and others.

The Communications Decency Act (CDA) was originally enacted with the intention of shielding minors from indecent and obscene online material. Despite its origins, Section 230 of the Communications Decency Act is now commonly used as a broad legal safeguard for social media platforms to shield themselves from legal liability for content posted on their sites by third parties. Interestingly, the reasoning behind this safeguard arises both from defamation common law, and constitutional free speech laws. As the internet has grown, however, this legal safeguard has gained increasing criticism. However, is this legislation actually undesirable? Many would disagree as section 230 contains “the 26 words that created the internet.”

Origin of the Communications Decency Act

The CDA was introduced and enacted as an attempt to shield minors from obscene or indecent content online. Although parts of the Act were later struck down for first amendment free speech violations, the Court left section 230 intact. The creation of section 230 was influenced by two landmark court decisions of defamation lawsuits.

The first case was in 1991, and involved an Internet site that hosted around 150 online forums. A claim was brought against the internet provider when a columnist of one of the online forums posted a defamatory comment about his competitor. The competitor sued the online distributor for the published defamation. The courts categorized the internet service provider as a distributor because they did not review any content of the forums before the content was posted to the site. As a distributor, there was no legal liability, and the case was dismissed.

Distributor Liability

Distributor Liability refers to the limited legal consequences that a distributor is exposed to for defamation. A common example of a distributor, is a bookstore or library. The theory behind distributor liability is that it would be impossible for distributors to moderate and censor every piece of content that they disperse because of the sheer volume, and the impossibility of knowing whether something is false or not.

The second case that influenced the creation of section 230, was Stratton Oakmont, Inc. v. Prodigy Servs. Co., in which the court used publisher liability theory to find the internet provider liable for the third party defamatory postings published on its site. The court deemed the website a publisher because they moderated and deleted certain posts, regardless of the fact that there were far too many postings a day to regulate each one.

Publisher Liability

Under common law principles, a person who publishes a third-party’s defamatory statement bears the same legal responsibility as the creator of that statement. This liability is often referred to as “publisher liability,” and is based in theory that a publisher has the knowledge, opportunity, and ability to exercise control over the publication. For example, a newspaper publisher could face legal consequences for the content located within it. The court’s decision was significant because it meant that if a website attempted to moderate certain posts, it would be held liable for all posts.

Section 230’s Creation

In response to the Stratton-Oakmond case, and the ambiguous court decisions regarding internet services provider’s liability, members of Congress introduced an amendment to the CDA that later became Section 230. The Amendment was specifically introduced and passed with the goal of encouraging the development of unregulated, free speech online by relieving internet providers from any liability for their content.

Text of the Act- Subsection (c)(1)

“No Provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Section 230 further provides that…

“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”

The language above removes legal consequences arising from content posted on their forum. Courts have interpreted this subsection as providing broad immunity to online platforms from suits over content of third parties. Because of this, section 230 has become the principal legal safeguard from lawsuits over sites content.

The Good

Section 230 can be viewed as being one of the most important pieces of legislation that protects free speech online. One of the unique aspects of this legislation is that it essentially extends free speech protection, applying it to private, non-governmental companies.
Without CDA 230, the internet would be a very different place. This section influenced some of the internet’s most distinctive characteristics. The internet promotes free speech and offers the ability for worldwide connectivity.
The CDA 230 does not fully eliminate liability or court remedies for victims of online defamation. Rather, it makes only the creator themselves liable for their speech, instead of the speaker and the publisher.

The Bad

Because of the legal protections section 230 provides, social media networks have less of an incentive to regulate false or deceptive posts. Deceptive online posts can have an enormous impact on society. False posts have the ability to alter election results, or lead to dangerous misinformation campaigns, like the QAnon conspiracy theory, and the anti-vaccination movement.
Section 230 is twenty-five years old, and has not been updated to match the internet’s extensive growth.
Big Tech companies have been left largely unregulated regarding their online marketplaces.

The Future of 230

While section 230 is still successfully used by social media platforms, concerns over the archaic legislation have mounted. Just recently, Justice Thomas, who is infamous for being a quiet Justice, wrote a concurring opinion articulating his view that the government should regulate content providers as common carriers, like utilities companies. What implications could that have on the internet? With the growing level of criticism surrounding section 230, will Congress will finally attempt to fix this legislation? If not, will the Supreme Court be left to tackle the problem themselves?

Cancel Culture….. The Biggest Misconception of the 21st Century

Cancel Culture refers to the popular practice of withdrawing support for (canceling) public figures and companies after they have done or said something considered objectionable or offensive.

Being held accountable isn’t new.

If a public figure has done something or has said something offensive to me why can’t I express my displeasure or discontinue my support for them? Cancel culture is just accountability culture. Words have consequences, and accountability is one of them. However, this is nothing new. We are judged by what we say in our professional and personal lives. For example, whether we like it or not when we’re on a job hunt we are held accountable for what we say or may have said in the past. According to Sandeep Rathore, (2020, May 5). 90% of Employers Consider an Applicant’s Social Media Activity During Hiring Process, employers believe that social media is important to assess job candidates. This article explains that these jobs are searching your social media for certain red flags like, anything that can be considered hate speech, illegal or illicit content, negative comments about previous jobs or client, threats to people or past employers, confidential or sensitive information about people or previous employers. Seems like a prospective employer can cancel you for a job for things you may have done or said in the past. Sound familiar?

You ever been on a first date? Has your date ever said something so objectionable or offensive that you just cancel them after the first date? I’m sure it has happened to some people. This is just another example of people being held accountable for what they say.

Most public figures who are offended by cancel culture have a feeling of entitlement. They feel they have the right to say anything, even if it’s offensive and hurtful, and bear no accountability. In Sarah Hagi, (2019 November 19). Cancel Culture is not real, at least not in the way people believe it is, Hagi explained that Cancel Culture is turned into a catch-all for when people in power face consequences for their actions or receive any type of criticism, something that they’re not used to.”

What harm is Cancel Culture causing?

Many cancel culture critics say cancel culture is limiting free speech. This I don’t get. The very essence of cancel culture is free speech. Public figures have the right to say what they want and the public has the right to express disapproval and displeasure with what they said. Sometimes this comes in the form of boycotting, blogging, social media posting etc. Public figures who feel that they have been cancelled might have bruised egos, be embarrassed, or might have their career impacted a little but that comes as a consequence of free speech. A Public figure losing fans, customers, or approval in the public eye is not an infringement on their rights. It’s just the opposite. It’s the people of the public expressing their free speech. They have the right to be a fan of who they want, a customer of who they want, and to show approval for who they want. Lastly, Cancel Culture can be open dialogue but rarely do we see the person that is on the receiving end of a call out wanting to engage in open dialogue with the people who are calling them out.

No public figures are actually getting cancelled.

According to AJ Willingham, (2021 March 7). It’s time to Cancel this talk of cancel culture, “people who are allegedly cancelled still prevail in the end”. The article gives an example of when Dr. Sues was supposedly cancelled due to racist depictions in his book, but instead his book sales actually went up. Hip Hop rapper Tory Lanez was supposedly cancelled for allegedly shooting female rapper Megan the stallion in the foot. Instead of being cancelled he dropped an album describing what happened the night of the shooting and his album skyrocketed in sales. There are numerous examples that show that people are not really being cancelled, but instead simply being called out for their objectionable or offensive behavior.

Who are the real victims here?

In AJ Willingham, (2021 March 7). It’s time to Cancel this talk of cancel culture, the article states “there are real problems that exist…. to know the difference look at the people who actually suffer when these cancel culture wars play out. There are men and women who allege wrong doing at the risk of their own career. Those are the real victims.” This a problem that needs to be identified in cancel culture debate. To many people are are prioritizing the feelings of the person that is being called out rather than the person that is being oppressed. In Jacqui Higgins-Dailey, (2020, September 3). You need to calm down : You’re getting called out, not cancelled, Dailey explains “ When someone of a marginalized group says they are being harmed, we (the dominant group) say the harm wasn’t our intent. But impact and intent are not the same. When a person doesn’t consider the impact their beliefs, thoughts, words and actions have on a marginalized group, they continue to perpetuate the silencing of that group. Call-out culture is a tool. Ending call-out culture silences marginalized groups who have been censored far too long. The danger of cancel culture is refusing to take criticism. That is stifling debate. That is digging into a narrow world view”.

Blurred Boundaries: The multidimensional convergence of Social Media’s Impact on Privacy, Speech and Employment Law

Are employees and employers operating in a universe without realizing the density of the fog that obscures the boundaries of the employee-employer relationship in cyberspace because the Supreme Court prefers to decide cases on narrower grounds?

Due to narrow rulings, examining decisions beyond employment law may yield analysis that can serve as temporary guideposts for employers and employees while monitoring the developing landscape.

Over a decade ago, the unanimous Supreme Court did just that. In City of Ontario, Cal. v. Quon, the Court avoided addressing the employee privacy issue by deciding that employer acted reasonably, thereby justified their non-investigatory search of an employer-issued pager in 2002. The employee brought an action for deprivation of civil rights under 42 U.S.C. § 1983. The § 1983 claim requires a governmental actor to deprive a constitutional right while acting under the color of law. The government, as the employer, issued a policy covering emails and Internet usage, but it was not specific to text messages. However, a supervisor verbally put all employees on notice that text would be considered emails, despite the difference between the technology used during transmission. Some of the non-work-related messages sent during working hours were sexual. Despite both the District Court and the Court of Appeals for the Ninth Circuit decided that the employee had an expectation of privacy in the text messages, the Supreme Court avoided addressing that issue while finding the search constitutional.

Since most of today’s labor force has never carried a pager, the more relevant aspect of this decision is the Court forecasting the “rapid changes in the dynamics of communication and information transmission” which may be evident “in the technology itself but in what society accepts as proper behavior.” How right they were, I could not have predicted the explosion of technology. Because emerging technology’s role in society was unclear, detailing the constitutionality of other actions could have been risky. Last month this preference was reinforced. However, definitive holdings could have become the foundation upon which employers and employees could make educated decisions while technology’s role in society becomes more evident. Like an airplane flying out of cloud cover, suddenly the landscape becomes visible.

The Court had the foresight that cell phone communications would become essential in self-expression that it would require employers to communicate clear policies. However, the challenge lies in setting clear policies when privacy and protected speech boundaries are not clearly defined but obscured in the fog created by balancing tests established in other speech cases.

One such landmark ruling is the 1969 “school arm-band case” during the Vietnam War. In Tinker v. Des Moines Independent Community School Dist., the Court separately analyzed the time, place, and type of be¬havior/communication. Tinker’s substantial disruption analysis requires that the prohibition on speech needs to be due to something other than just the desire to avoid discomfort and unpleasantness.

The Court in Young v. American Mini Theatres, Inc. established that speech cannot be suppressed just because society finds the content offensive. Likewise, in Skinner v. Railway Labor Executives’ Ass’n, the Court also found that the amendments to the constitution also applied to the government when performing non-criminal functions.
Likewise, the Court ruled in Treasury Employees v. Von Raab that not only did the Fourth Amendment apply to the government as an employer but that the issue of privacy applies to private-sector employees as well.

More recently, Justice Stevens addressed a public employee’s expectation of privacy in his concurring opinion in Quon. He highlighted the significant issue: there “lacks tidy distinctions between workplace and private activities.” Today’s social media and society’s view have further blurred the boundaries to the point of non-existence.

Just last month, the Supreme Court had an opportunity to establish bright lines that would have further clarified the legal landscape of social media. The rule could have applied to the employer-employee relationship. In Mahanoy Area School District v. B.L., the Court held that the school violated the student’s free speech rights because the school’s special interests did not overcome the student’s right to freedom of expression. The decision was based primarily on the time of the speech, the location from where B.L. made it, the content, and the target audience. The school’s interests also focused on preventing disruption in the facility.

Justice Alito, in his concurrence, explains that it is not prudent to establish a general First Amendment rule for off-premise student speech but rather to examine the analytical framework. While this approach serves the parties of this case and is of some value to other students, it is so narrowly tailored that it may have little precedence in other speech disputes.

Rather than a bright-line rule, the Court is building a boundary fence around the First Amendment one panel at a time. While the legal community functions within this ever-changing reality, society pays the burden until clarity is achieved.

The Court’s lesson from Mahanoy might be that regulations on student speech raises serious First Amendment concerns; school offi¬cials should proceed cautiously before venturing into this territory. That same caution may be prudent for both the private sector and public sector employers. Social media’s impact is not limited to situations where a person’s post impacts their employment. One example, among many, is Amy Cooper, the Central Park 911 caller, who was immediately fired for racism and later charged with filing a false police report. She has since filed a civil suit against her employer.

Unfortunately, the Court’s preference to dispose of cases narrowly while avoiding addressing all the possible issues creates tension between different interpretations until the Court adds the last panel completing the boundary fence around the First Amendment. Until then, we will have to consider how the courts will decide issues within the employment arena, such as the termination of Amy Cooper or any law enforcement officer firings due to social media posts.

Will the Courts find that employees, like students, do not “shed their constitutional rights to freedom of speech or expression” at the workplace gate in the era of social media?

Tag: #FirstAmendment

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