Social Media Platforms are not Speakers
Ohio State Technology Law Journal (Forthcoming)
55 Pages Posted: 15 Oct 2022
Date Written: September 30, 2022
Many authors have assumed that social media platforms make use of their own First Amendment rights when they moderate content and amplify messages written by others on their platforms. This vision relies on the fact that platforms should be seen as ‘speaking’ through their ranking decisions and their removal decisions. This is because companies – through their written software, built by their engineers – are said to communicate their editorial choices and predictions for users.
This article argues, on the contrary, that social media platforms are not speakers, and more precisely that their recommendation and content moderation system is not speech for the purpose of the First Amendment.
Building on a sociological theory of First Amendment coverage and taking into account the social context that surrounds interactions between social media platforms and users, this article seeks to debunk the ideas on which authors rely in claiming that social media platforms have First Amendment rights when they host and amplify content. It argues that such a claim is based on a misconception of what social media platforms do when they curate the content produced by their users and a misconception of the role of algorithms in that process. It first shows that in most cases, social media platforms are not comparable to editorial mediums such as magazines or parades. It then shows that in most cases, social media platforms cannot be seen as speaking through the algorithmic recommendation system. Finally, it offers the view of social media platforms as a technical medium that is integral to the forms of interaction that happen between users. If social media platforms are not speakers, they are still proprietary of the space they put at the disposal of their users. As such, the service they provide can be regulated through contract law and consumer law, as soon as the State does not target the interactions between users - that are covered by the First Amendment.
Keywords: First Amendment, Social Media Platforms, Content moderation, Amplification, Algorithms
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