Speaker 1: Welcome to Tech Stuff, a production of I Heart Radios,
Speaker 1: How Stuff Works. Hey there, and welcome to tech Stuff.
Speaker 1: I am your host, executive producer Jonathan Strickland. I'm with
Speaker 1: How Stuff Works and iHeart Radio and a lot of
Speaker 1: all things tech, and boy, how they we have a
Speaker 1: story to talk about today. So in the United States,
Speaker 1: a Court of Appeals upheld a ruling from two thousand
Speaker 1: eighteen that stated that it was a violation of the
Speaker 1: First Amendment for Donald Trump, the President of the United States,
Speaker 1: to block users on Twitter. So in this episode, I'm
Speaker 1: going to tackle the very complicated issue of social media,
Speaker 1: free speech, government communication, and more. And this is not
Speaker 1: going to be a political episode in the sense that
Speaker 1: I am going to espouse a particular political philosophy. So
Speaker 1: in other words, I'm not going to use this episode
Speaker 1: to argue that one political outlook is better than any
Speaker 1: other political outlook. That's I'm not interested in doing that
Speaker 1: on this show ever. So Rather, this is about the
Speaker 1: concept of free speech and why the digital age has
Speaker 1: made it an even more complicated subject than it was before.
Speaker 1: And it was already pretty thorny, So this is sort
Speaker 1: of an unbiased approach to it. Now I'm going to
Speaker 1: start off with the actual news story that prompted this episode,
Speaker 1: and then we'll dive into a deeper look into the
Speaker 1: First Amendment before he transitioned to the complications of applying
Speaker 1: that concept to social media networks. It all stems from
Speaker 1: a lawsuit that was first filed on July eleven, two
Speaker 1: thousand seventeen, in the United States District Court for the
Speaker 1: Southern District of New York. The plaintiffs were Twitter users
Speaker 1: who had been blocked by Donald Trump on Twitter after
Speaker 1: he had taken the position of President of the United States,
Speaker 1: and it meant that they could no longer see what
Speaker 1: he posted, nor would their messages be visible to him.
Speaker 1: The Night Institute at Columbia University would represent this group
Speaker 1: and argue that this amounted to a violation of the
Speaker 1: First Amendment guarantee of free speech. The judge in that
Speaker 1: case found in favor of the plaintiffs, saying that yes,
Speaker 1: this is a violation of their First Amendment, and then
Speaker 1: the government filed an appeal and this case then went
Speaker 1: to the United States Court of Appeals for the Second Circuit,
Speaker 1: and that court upheld the earlier ruling. Now, at this stage,
Speaker 1: the government may either drop the matter and presumably obey
Speaker 1: the court, or it may appeal to the Supreme Court,
Speaker 1: which would be the final arbiter in matters of justice
Speaker 1: in the United States. But the Supreme Court in the
Speaker 1: United States here's only a small percentage of all the
Speaker 1: cases that are submitted to it. It's submitted thousands of
Speaker 1: cases each year, and it will hear something like less
Speaker 1: than three percent of all the cases that have been
Speaker 1: submitted to it. So there's no guarantee that the Supreme
Speaker 1: Court would choose to hear this case, and if it did,
Speaker 1: there's no guarantee that it would find any differently than
Speaker 1: the earlier courts had. So the ruling says the president
Speaker 1: and presumably any elected official cannot use social media to
Speaker 1: communicate matters relating to government activities in any sort of
Speaker 1: official way and still block citizens because that infringes on
Speaker 1: the First Amendment rights of those citizens. So now let's
Speaker 1: start breaking down what all this means before we get
Speaker 1: into how it's really complicated in the digital age. First,
Speaker 1: for those not versed in the Constitution of the United
Speaker 1: States of America, let's have a quick civics lesson the constitution.
Speaker 1: Is the basic foundation of law in the United States.
Speaker 1: It is the bedrock upon which all other law is built.
Speaker 1: Should a law be challenged in court to violate the Constitution,
Speaker 1: the court is to strike down that law. The body
Speaker 1: of the Constitution includes seven articles that lay out the
Speaker 1: basic structure of the American government, and they cover such
Speaker 1: things as the three branches of government. That includes the
Speaker 1: legislative branch that makes the laws. That would be the
Speaker 1: Senate and the House of Representatives. Then you have the
Speaker 1: executive branch that executes the laws and access commander of
Speaker 1: chief in chief of the Armed forces that would be
Speaker 1: the president, vice president that group. Then you have the
Speaker 1: judicial branch that well judges, and they're the ones who
Speaker 1: actually decide if laws are constitutional or not, as well
Speaker 1: as decide the individual cases federal cases that come up
Speaker 1: in courts. And the other articles lay out the basic
Speaker 1: rules that bind states together and establish where the federal
Speaker 1: system fits in with the state system, as well as
Speaker 1: the procedures for the government has to follow to amend
Speaker 1: the Constitution and to ratify it. So that's the basic document.
Speaker 1: Then you have the first ten amendments to the Institution,
Speaker 1: also known as the Bill of Rights, and we're only
Speaker 1: concerned with the First Amendment, which reads as follows. This
Speaker 1: is the actual wording on the Constitution. Congress shall make
Speaker 1: no law respecting an establishment of religion, or prohibiting the
Speaker 1: free exercise thereof, or abridging the freedom of speech or
Speaker 1: of the press, or the right of the people peaceably
Speaker 1: to a symbol and the and to petition the Government
Speaker 1: for a redress of grievances. Now we need to get
Speaker 1: a few other things out of the way. The First
Speaker 1: Amendment only applies to the public sector and the government's
Speaker 1: role in those matters. So, according to the U. S Constitution,
Speaker 1: no government in the States may restrict or deny a
Speaker 1: citizens speech or right to redress grievances. Now that's not
Speaker 1: to say a private sector company couldn't do the same.
Speaker 1: So if I have a business and own some land,
Speaker 1: and I create a whole corporation, I can to some
Speaker 1: extent tell my employees or even customers that certain types
Speaker 1: of expression are not tolerated. This is what allows social
Speaker 1: media platforms to take action and ban users. The First
Speaker 1: Amendment protects against the government violating freedom of speech, but
Speaker 1: it doesn't protect against Facebook or Twitter taking away your
Speaker 1: ability to post on those platforms. Now, this too has limitations,
Speaker 1: since there are other laws, such as anti discrimination laws,
Speaker 1: to make it illegal to act in a discriminatory manner,
Speaker 1: even in the private sector. So if I said, people
Speaker 1: of a certain religion, we're not allowed in my space,
Speaker 1: I'd be violating anti discrimination laws, even though the First
Speaker 1: Amendment itself wouldn't be a factor because I'm not a
Speaker 1: government agent. I'm a representative of the private sector. But
Speaker 1: the anti discrimination laws still cover that particular UH arena.
Speaker 1: So further, in court cases, judges have determined that the
Speaker 1: free him of speech in itself has limitations. It is
Speaker 1: not without its own restrictions, which sounds like a contradiction
Speaker 1: right freedom of speech with restrictions. Well, you have to
Speaker 1: think about the specific cases. So, for one thing, you
Speaker 1: could use your own freedom of expression to restrict someone
Speaker 1: else's same freedoms, such as by intimidating them into silence
Speaker 1: or otherwise harassing them or being a problem. So things
Speaker 1: like threats are not protected by the First Amendment. You
Speaker 1: cannot make threats to people and claim First Amendment protection. UH.
Speaker 1: That is not protected free speech in general. You're not
Speaker 1: allowed to use freedom of speech to harm others. In
Speaker 1: order to get whatever it is that you want. They're
Speaker 1: also not allowed to make claims that you know to
Speaker 1: be false, because that's fraud. Uh. Similarly, you can't make
Speaker 1: claims about people like in libel or slander. It's where
Speaker 1: you defame someone using untrue or uns stantiated information. That's
Speaker 1: not protected by free speech either. Now that's not the
Speaker 1: same thing as saying that it will always be punished.
Speaker 1: It could be punished, but it isn't necessarily going to
Speaker 1: be punished. Really, it's just saying that if you were
Speaker 1: found guilty of acting in that way, you could not
Speaker 1: claim the First Amendment for protection. You couldn't say it's
Speaker 1: my freedom of speech to say these things if in
Speaker 1: fact you were found guilty of committing libel or slander, or,
Speaker 1: as a well known and frequently erroneously attributed phrase goes,
Speaker 1: the right to swing your arm ends at the other
Speaker 1: man's nose. The rights of one person cannot be interpreted
Speaker 1: as such that they infringe upon the rights of another person.
Speaker 1: So you do have rights up to the point where
Speaker 1: you could, uh, you know, act in such a way
Speaker 1: that you're not causing harm to other people. But if
Speaker 1: you start causing harm to other people that's not within
Speaker 1: your because that would be a violation of their rights. Okay,
Speaker 1: So the First Amendment states that the government shall not
Speaker 1: restrict expression, and it further states that Congress cannot restrict
Speaker 1: the rights of citizens to quote petition the government for
Speaker 1: a redress of grievances end quote. These are important concepts
Speaker 1: that come into play with the legal rulings around Twitter
Speaker 1: and other social media platforms. The next complication we need
Speaker 1: to look at is the nature of social media accounts.
Speaker 1: So Donald Trump has had his Twitter account since March
Speaker 1: two thousand nine, which was many years before he became
Speaker 1: president of the United States. So when he established his
Speaker 1: Twitter account, he was a private citizen. He wasn't a
Speaker 1: member of the public sector, and as such, as a
Speaker 1: private citizen, he could block anyone he chose, just as
Speaker 1: any other user can for any reason he or she likes.
Speaker 1: This is not a violation of the First Amendment. As
Speaker 1: a private user, just because people have the right to
Speaker 1: say stuff doesn't mean you're obligated to listen to it.
Speaker 1: At least if you're a private citizen, you're not you
Speaker 1: can ignore it. And we all know how communication on
Speaker 1: the Internet can quickly become little more than a flame
Speaker 1: war or worse. I'm sure many of you out there have,
Speaker 1: at some point or another blocked someone in an effort
Speaker 1: to preserve at least some sense of sanity at one
Speaker 1: time or another. I know that I have. Now, if
Speaker 1: Trump had refrained from using his Twitter account to communicate
Speaker 1: matters of official government business, perhaps this ruling would have
Speaker 1: gone another way. Now, it's impossible to say for certain
Speaker 1: it would have gone another way. It requires a what
Speaker 1: if scenario, and that what if scenario did not happen.
Speaker 1: If Trump as president had operated his Twitter account as
Speaker 1: a private citizen and not included anything that remotely lated
Speaker 1: to his official capacity as president, it would be hard
Speaker 1: to argue that he violated anyone's First Amendment rights by
Speaker 1: blocking them. This would assume a total separation of Trump
Speaker 1: the person and Trump the president, which I think would
Speaker 1: be challenging to argue, but I am no expert on
Speaker 1: that matter. However, the courts have stated that the way
Speaker 1: Trump has used his Twitter account since becoming president has
Speaker 1: an overwhelming amount of evidence that it counts as presidential
Speaker 1: communication to the public. As such, he cannot block members
Speaker 1: of that public from being able to see or respond
Speaker 1: to his messaging. As the First Amendment states, he can't
Speaker 1: prevent citizens from petitioning the government for a redress of grievances.
Speaker 1: Since he uses Twitter to communicate government activities, including such
Speaker 1: stuff as hiring or firing members of his staff, intended
Speaker 1: changes to policies, or announcing executive orders, he has constant
Speaker 1: atitutionally obligated to keep those channels open. Now, this is
Speaker 1: an issue that goes beyond Trump. People from both the
Speaker 1: Republican and Democrat parties have had similar cases brought against them.
Speaker 1: The Secretary of State for Alabama, guy named John Merrill,
Speaker 1: had a lawsuit against him still does have a lawsuit
Speaker 1: against him from plaintiffs who argue that his blocking them
Speaker 1: on Twitter constitutes much the same matter as Trump's case,
Speaker 1: though Merrill disputes this, and that lawsuit has seen no
Speaker 1: resolution as of the recording of this podcast. In two
Speaker 1: thousands seventeen, a Virginia District Court judge ruled against chairwoman
Speaker 1: of the Loudon County Board of Supervisors, h Phyllis Randall
Speaker 1: is her name. She had banned a man named Brian
Speaker 1: Davison from her Facebook page after Davison had left critical
Speaker 1: comments in the messages when she was talking to voters.
Speaker 1: Randall had argued that this was her personal Facebook page,
Speaker 1: it wasn't the official page for her as in her
Speaker 1: role as chairwoman, but the judge stated that she clearly
Speaker 1: was using it in an official capacity because she would
Speaker 1: solicit comment from the voting public in her posts, and
Speaker 1: therefore she could not exclude members of the public from
Speaker 1: that activity. Very recently, Congresswoman Alexandria Ocasia Cortez has been
Speaker 1: sued for blocking Joseph Saladino, a YouTube personality who is
Speaker 1: currently seeking office in the United States, and she blocked
Speaker 1: him on Twitter. Saladino's argument is that the same rules
Speaker 1: that apply to Trump have to apply to all elected officials. Now,
Speaker 1: when we come back, we'll look at some of these
Speaker 1: issues a little more closely and talk about the difficult
Speaker 1: landscape we now find ourselves in. But first I'm going
Speaker 1: to take a quick break. I'm going to guess that
Speaker 1: most of you listening to this podcast have spent a
Speaker 1: decent amount of time on the Internet. You've probably all
Speaker 1: heard the common wisdom, never read the comments. You know
Speaker 1: that the Internet, while it can give us access to entertainment, information,
Speaker 1: channels of communication also facilitates trolling, hate speech, harassment, all
Speaker 1: sorts of unpleasantness. The old adage of ignore them and
Speaker 1: they'll go away hasn't proven to be very effective, particularly
Speaker 1: in an age where some people will go to such
Speaker 1: lengths as do sing, digging up and then sharing private
Speaker 1: information about people, or swatting in which a malicious person
Speaker 1: would give false information to law enforcement officials to initiate
Speaker 1: what amounts to an attack on a person's home or office.
Speaker 1: It can be an ugly world out there, and there
Speaker 1: are lots of different reasons why these things happen, and
Speaker 1: I'll have to have a more in depth discussion about
Speaker 1: that at some point, about the psychology of trolling and
Speaker 1: the culture of trolling and what enables it and what
Speaker 1: feeds it. But that's a matter for a different episode.
Speaker 1: The reason I bring it up here is that the
Speaker 1: ability to block or ban people is for some of
Speaker 1: us what makes it bearable to even use the platforms
Speaker 1: available on the Internet in the first place. And the
Speaker 1: courts recognized this as well. And here's where we encounter
Speaker 1: one of the many sticky points that are hard to resolve.
Speaker 1: Before the break, I mentioned the case of Phyllis Randall,
Speaker 1: the politician in Virginia who was reprimanded for blocking a
Speaker 1: voter on her Facebook page. Now, I should point out
Speaker 1: she only instituted a twelve hour ban, and the judge
Speaker 1: in the case took that into account. And the judge
Speaker 1: also stated that quote government officials have at least a
Speaker 1: reasonably strong interest in moderating discussion on their Facebook pages
Speaker 1: in an expeditious manner. By permitting a commenter to repeatedly
Speaker 1: post inappropriate content pending a review process, a government of
Speaker 1: official could easily fail to preserve their online forum for
Speaker 1: its intended purpose end quote. So, in other words, a
Speaker 1: politician has the right and arguably the responsibility to at
Speaker 1: least block or delete certain comments that pop up because
Speaker 1: they may not be germane to the matter at hand,
Speaker 1: or they may be meant to derail the discussion or
Speaker 1: even attack other people involved in that discussion. These actions
Speaker 1: would quote impinge on the First Amendment rights end quote
Speaker 1: of the other folks who are using that forum. So
Speaker 1: now we're talking about a case by case basis issue,
Speaker 1: and elected official can't ban a voter from participating in
Speaker 1: a public forum, even if that public forum is the
Speaker 1: officials own social media account page, whether it's on Twitter
Speaker 1: or Facebook or whatever, So you can think of that
Speaker 1: as a private platform, but a public forum. This is
Speaker 1: another issue that is a problem here. But the official
Speaker 1: is allowed to moderate comments, but that means the official
Speaker 1: has to be able to determine whether or not a
Speaker 1: comment counts as being relative or being disruptive. Now, we
Speaker 1: need to remember that elected officials, despite occasional evidence to
Speaker 1: the contrary, are human beings. Some of them are awful people. Sure,
Speaker 1: some of them are wonderful people. Some of them may
Speaker 1: not show their awfulness or wonderfulness in their capacity as
Speaker 1: an elected official. But people, as a general rule are
Speaker 1: not super happy when other people disagree with them. Some
Speaker 1: of us, and I'm including myself in this particular category,
Speaker 1: I can get a bit huffy about it. Now, later on,
Speaker 1: when the initial and often irrational reaction has settled, I
Speaker 1: will find myself acknowledging them maybe, just maybe I was wrong.
Speaker 1: That's not a fun realization, But I wish it were
Speaker 1: one that would occur to me earlier in the process,
Speaker 1: because it could have saved me from some nasty exchanges
Speaker 1: that I otherwise could have avoided. I would have ruffled
Speaker 1: fewer feathers, and I would have strained fewer friendships. But
Speaker 1: what I'm really getting at is I could easily imagine
Speaker 1: myself being in one of these situations in which I
Speaker 1: post something as an elected official, and then I see
Speaker 1: a dissenting opinion worded in such a way that I
Speaker 1: consider it an attack or an insult, and so boop,
Speaker 1: I delete the comment. But I can also imagine that
Speaker 1: later on I might cool down and realize, you know,
Speaker 1: maybe the comment was worded in a confrontational way, but
Speaker 1: ultimately that was a voter expressing a point of view
Speaker 1: that's different from my own, but it's no less valid
Speaker 1: than my own. So I imagine that for at least
Speaker 1: some people, being able to be objective and separate the
Speaker 1: critical comments that have validity from the disruptive or insulting
Speaker 1: or irrelevant comments can sometimes be a challenge, And to
Speaker 1: those people, I suggest you get a social media manager
Speaker 1: who isn't the person directly making the statements, but rather
Speaker 1: connect as a more objective judge on the matter. Goodness knows,
Speaker 1: I wouldn't be able to do this for myself, and
Speaker 1: this is one of many reasons why everyone should be
Speaker 1: glad I am not a politician. I also want to
Speaker 1: acknowledge there are plenty of remarkably cool headed people in
Speaker 1: politics who can handle this sort of stuff a billion
Speaker 1: times better than I can. So if an elected official
Speaker 1: in the United States uses a social media platform in
Speaker 1: any capacity related to their office, they should, in theory
Speaker 1: obey these rules. On Twitter that can get a little tricky.
Speaker 1: There are verified accounts, which are great because you know
Speaker 1: for a fact who you're dealing with, since Twitter has
Speaker 1: verified that the account belongs to a particular person, and
Speaker 1: you could say, oh, this is actually a citizen, this
Speaker 1: is someone I cannot block. This person they are sit
Speaker 1: is in. I'm elected official, this person represents one of
Speaker 1: my constituents. Uh, they either are voting for me or
Speaker 1: against me, so they need to have this channel. But
Speaker 1: there are a lot of accounts that could be dummy
Speaker 1: accounts or bots, or even foreign agents attempting to sow
Speaker 1: discord and chaos and more. There are troublemakers who just
Speaker 1: want to stir stuff up, either because they have a
Speaker 1: specific agenda that involves derailing a politician, or because they
Speaker 1: just get a kick out of being a nuisance. And
Speaker 1: then you've got the truly toxic stuff out there. People
Speaker 1: who threaten, intimidate, insult, and harass mercilessly. These are behaviors
Speaker 1: that wouldn't be tolerated in public spaces in the real world,
Speaker 1: So how do you handle it in the online world. Well,
Speaker 1: one thing that could happen is the platforms themselves could
Speaker 1: step up and enforce some of the rules they've said
Speaker 1: are in place. Twitter representatives occasionally talk about forming new rules,
Speaker 1: while several critics have in the past pointed out that
Speaker 1: new rules weren't necessarily needed. Rather, what was needed was
Speaker 1: enforcement of the rules that were already in place. But
Speaker 1: I do want to be fair to Twitter. One of
Speaker 1: the issues the service has had is that it's hate
Speaker 1: speech policy was previously only applied at the individual level,
Speaker 1: So if someone were to direct hate speech at me personally,
Speaker 1: Twitter then could step in and intervene because that would
Speaker 1: be a violation of Twitter's policy. However, if someone were
Speaker 1: to attack a general group of people, like a specific
Speaker 1: race or a religious group, but was not targeting a
Speaker 1: specific individual that was not covered by Twitter's policies, it
Speaker 1: wasn't explicitly against the rules. So the company has since
Speaker 1: revised those rules so that the hate speech rules have
Speaker 1: a more broad application. The platforms, being the private sector
Speaker 1: and offering a service, aren't bound by the same restrictions
Speaker 1: that the elected officials have to comply with. I've used
Speaker 1: this analogy conversations with friends. So imagine for a moment, then,
Speaker 1: an official government facility. Let's say it's a state legislature
Speaker 1: building is actually built on private land, and you are
Speaker 1: the landowner, and you've drawn up in an agreement that
Speaker 1: gives you the right to close that land off to
Speaker 1: anyone you like at any time, and somehow no one
Speaker 1: really noticed or objected to that clause, and it was
Speaker 1: all signed in the agreement, and then one day you
Speaker 1: just arbitrarily decided to shut off access to the legislature building,
Speaker 1: and you prevent lawmakers from going to work. It's a
Speaker 1: rather implausible example, but it's kind of similar to what
Speaker 1: we have with these social platforms, and that raises some
Speaker 1: alarm flags or red warning flags. I guess I should
Speaker 1: say not alarms flags can't alarm very much, but red
Speaker 1: warning flags to the minds of people who see potential
Speaker 1: for problems in the future. With this, now, I can't
Speaker 1: imagine any reality in which Facebook or Twitter makes a
Speaker 1: move to completely remove a government account or the account
Speaker 1: of an elected official. You could make the argument that
Speaker 1: the elected officials themselves wouldn't be allowed to do that either,
Speaker 1: because it would be equivalent to destroying the records of
Speaker 1: public discourse on official matters. So if you happen to
Speaker 1: be an elected official and you've created a Twitter account,
Speaker 1: deleting that Twitter account could be a big problem because
Speaker 1: there's going to be records of communication with actual constituents
Speaker 1: in that account. But the social media networks are in
Speaker 1: the private sector, so they're not bound by the rules
Speaker 1: that the government is. They're not likely to act in
Speaker 1: this way because, for one thing, these are companies operating
Speaker 1: and headquartered in the United States. Both Facebook and Twitter
Speaker 1: and others have been active with lobbyists to try and
Speaker 1: shape policy that favors these companies. It would be a
Speaker 1: bit counterproductive to take such an antagonistic stance against the
Speaker 1: government of their home country. Banning individual users who aren't
Speaker 1: government officials is a little less controversial, though most social
Speaker 1: platforms aren't keen to do that very frequently either. If
Speaker 1: Twitter figures out an account is a duplicate and is
Speaker 1: spreading disinformation or being used to attack people. It can
Speaker 1: ban those accounts, and it certainly has banned plenty of
Speaker 1: empty shell accounts that were created simply for the purpose
Speaker 1: of boosting follower accounts. But in the case of those
Speaker 1: empty accounts, this was an easy call because they didn't
Speaker 1: represent real people and they were creating a fake sense
Speaker 1: of influence. Celebrities who had millions of followers saw those
Speaker 1: numbers reduced dramatically in the wake of these bands, and
Speaker 1: that suggested that a large number of those followers weren't
Speaker 1: real people. But making that call was easy. Going after
Speaker 1: troublemakers appears to be more difficult, or at the very least,
Speaker 1: the platforms seemed more reluctant to take action in those cases.
Speaker 1: Part of that might be due to a fear that
Speaker 1: taking action would result in a backlash against the platforms. Now,
Speaker 1: in an ideal world, from the point of view of
Speaker 1: a company like Twitter or Facebook, the platform would remain unbiased, objective,
Speaker 1: and hands off. It wouldn't interfere at all. It would
Speaker 1: just be a place for discussion, free of responsibility for
Speaker 1: the content of those discussions. Hey, it's not my fault
Speaker 1: if hate speech is going across this platform. I just
Speaker 1: made the platform I didn't make the hate speech, but
Speaker 1: in the wake of various controversies involving misinformation and manipulation,
Speaker 1: that position is largely untenable. Now. There has been a
Speaker 1: fear among organizations like the Electronic Frontier Foundation also known
Speaker 1: as the e f F, that the courts could find
Speaker 1: that a private sector platform like Facebook or Twitter could
Speaker 1: be viewed as a public forum itself, and thus the
Speaker 1: First Amendment restrictions would apply to those platforms as acting
Speaker 1: in that capacity. But in June two thousand nineteen, the
Speaker 1: Supreme Court of the United States made a decision that
Speaker 1: appears to alleviate that concerned somewhat. The case was one
Speaker 1: in which a nonprofit organization was essentially hired by the
Speaker 1: City of New York to operate public access channels in
Speaker 1: the city, and a bull of producers created a film
Speaker 1: for those public access channels, and that led to some
Speaker 1: complaints against the producers, and the nonprofit organization disciplined the
Speaker 1: producers as a result. The producers then sued this nonprofit organization,
Speaker 1: claiming that their First Amendment rights were being violated, and
Speaker 1: this prompted an argument over whether the nonprofit should be
Speaker 1: held to those standards. Is it at all relevant with
Speaker 1: the First Amendment and h on its own. The nonprofit
Speaker 1: isn't a government office or agency. It's a nonprofit organization,
Speaker 1: but it's not it's not related to the government, but
Speaker 1: argued the plaintiffs, since the nonprofit was working on behalf
Speaker 1: of the city, and the city is a government agency,
Speaker 1: it should be held to the same rules that the
Speaker 1: government is. Now that could also apply to social networks.
Speaker 1: They are not created to be channels of communication between
Speaker 1: governments and their citizens. They're just munication channels, period. But
Speaker 1: the Supreme Court had ruled that the nonprofit was effectively
Speaker 1: a surrogate for the government. The same could be argued
Speaker 1: for Twitter or Facebook. However, the Supreme Court didn't rule
Speaker 1: that way. The five conservative judges ruled that the nonprofit
Speaker 1: did not constitute a governmental agent and therefore the First
Speaker 1: Amendment rules weren't applicable. The liberal judges, by the way,
Speaker 1: ruled the opposite way, arguing that the nonprofit was in
Speaker 1: fact effectively a government agent in its role of overseeing
Speaker 1: public access channels. And I could see the merits of
Speaker 1: either side of this argument. It's not that easy. It's
Speaker 1: not It's not something that I could quickly make a
Speaker 1: judgment on I would really have to think on this,
Speaker 1: and it's complicated. Moreover, I can definitely imagine how big
Speaker 1: a mess it would be if the ruling had gone
Speaker 1: the other way and all online platforms suddenly could be
Speaker 1: bound by those restrictions whenever any elected official or any
Speaker 1: government agency was making use of those in official way.
Speaker 1: It's a pretty tough, complicated issue. Now I have more
Speaker 1: to say on the matter, but first let's take another
Speaker 1: quick break. Let's get back to the concept of blocking
Speaker 1: folks on Twitter and how that relates to politics. I
Speaker 1: want to be fair to the judge for the original
Speaker 1: case against President Trump, because the judge recognized that there
Speaker 1: is another option besides whether or not you can ban someone,
Speaker 1: or whether or not you have to endure an enormous
Speaker 1: amount of abuse because you aren't allowed to ban or
Speaker 1: block anybody. The judge stated that officials could mute people
Speaker 1: on Twitter, not block them, but mute them, and muting
Speaker 1: is different from blocking. So when user A blocks User
Speaker 1: B on Twitter, not only will user A no longer
Speaker 1: see any posts from user B, whether they were directed
Speaker 1: at user A or not, User B will no longer
Speaker 1: be able to read any of user a's posts. It
Speaker 1: will be as if each user appeared to stop existing
Speaker 1: in the eyes of the other one, at least on Twitter.
Speaker 1: And that was the crux of one of the arguments
Speaker 1: was that if Trump blocks voters, they can't see what
Speaker 1: Trump is posting. And if Trump is posting in an
Speaker 1: official capacity as president, and those people are voters in America,
Speaker 1: that violates the First Amendment. But let's say User A
Speaker 1: dozen't block User B. Instead user A mutes User B.
Speaker 1: In that instance, user A won't see any of user
Speaker 1: b's posts because they've been muted, but User B will
Speaker 1: still be able to see all of user a's posts.
Speaker 1: The judge stated that this would be like a real
Speaker 1: world setting in which a politician addresses a crowd and
Speaker 1: chooses to ignore someone who is speaking out against that politician. Yes,
Speaker 1: the outspoken person has the right to be part of
Speaker 1: that public forum, and yes, that person also has the
Speaker 1: freedom of expression, but the politician isn't obligated to actually
Speaker 1: pay attention to it. Now, I appreciate that argument. It
Speaker 1: is a little more complicated than that, though, because of course,
Speaker 1: in the public setting, the politician would still be able
Speaker 1: to hear the person who was protesting. They might not
Speaker 1: give it any acknowledgement, they might not pay much attention
Speaker 1: to it, but they'll still be able to hear it
Speaker 1: on Twitter. If you mute someone, you never hear anything
Speaker 1: from them again. So it's not the same thing at all. Right,
Speaker 1: it would be as if you were suddenly able to
Speaker 1: effectively tune out the frequencies of the protester in that
Speaker 1: public setting. So I'm not entirely convinced that this is
Speaker 1: uh a legit argument, but it is what the judge found.
Speaker 1: So according to that original ruling, officials at the moment
Speaker 1: still have an out on Twitter. They can mute voters,
Speaker 1: they just can't block them. So that might work for Twitter,
Speaker 1: but it is a different story on Facebook, where moderation
Speaker 1: is all all about making sure someone isn't trying to
Speaker 1: undermine an entire discussion. Twitter exchanges are more like overhearing
Speaker 1: a few people talking at a party, rather than someone
Speaker 1: standing on the stage and talking to a crowd. As
Speaker 1: it is frequently the case with legal matters that revolve
Speaker 1: around the heart of a country's system of laws. There
Speaker 1: have been battles involving some pretty dark stuff that have
Speaker 1: really tested this subject In two thousand and seventeen, the
Speaker 1: Supreme Court weighed in on another case involving social media
Speaker 1: and First Amendment rights. The case was Packingham versus North Carolina,
Speaker 1: and the crux of the story again, it's pretty darn dark.
Speaker 1: So in North Carolina, the state government passed a law
Speaker 1: that prohibited convicted sex offenders from being allowed to access
Speaker 1: social media websites. The state argued that social media enabled
Speaker 1: and facilitated the very offenses these people had been convicted
Speaker 1: of in the past, but the Supreme Court ruled that
Speaker 1: the law violated the First Amendment and that it would
Speaker 1: effectively criminalize is a lot of otherwise legal activities. In
Speaker 1: that decision, the Court stated, while in the past there
Speaker 1: may have been difficulty in identifying the most important places
Speaker 1: in a spatial sense for the exchange of views, today
Speaker 1: the answer is clear. It is cyberspace, the vast democratic
Speaker 1: forums of the Internet in general and social media in particular.
Speaker 1: Now that argument has prompted some people like David L.
Speaker 1: Hudson Jr. Of the American Bar Association to call for
Speaker 1: a re examination and expansion of the First Amendment with
Speaker 1: regard to the digital space. Hudson argues that platforms like
Speaker 1: Facebook and Twitter have the ability to manipulate and sensor
Speaker 1: public discourse on a level equal to or perhaps beyond
Speaker 1: that of government agencies. That the First Amendment is not
Speaker 1: expanded to include such platforms, that these protections guaranteed by
Speaker 1: the Amendment will be moot because everyone's going to be
Speaker 1: communicating in those places and the Amendment doesn't apply there.
Speaker 1: So he says, we've got to change that. Now. Obviously
Speaker 1: that's not a point of view that everyone shares. Not
Speaker 1: everybody thinks that these private entities or entities in the
Speaker 1: private sector should be held to those restrictions, but it
Speaker 1: does show how this concept is really complicated and thorny. Recently,
Speaker 1: after I recorded a short radio segment about this subject,
Speaker 1: the producer for that segment suggested something I thought was
Speaker 1: really interesting. He suggested that perhaps we'll see a future
Speaker 1: in which social media networks create special verified accounts for
Speaker 1: government use only or government used to the public, and
Speaker 1: these accounts will by default have certain features disabled on them,
Speaker 1: such as the ability to block a Twitter account. Presumably,
Speaker 1: these accounts would have some sort of indication akin to
Speaker 1: a verified Twitter check mark, to let people know they
Speaker 1: represent actual official government accounts, and I certainly see the
Speaker 1: value in that, though even with such a system in place,
Speaker 1: it would still be the responsibility of the public officials
Speaker 1: to make certain they weren't using their of have it
Speaker 1: accounts in a way that could be seen as part
Speaker 1: of their public role, or else they would be held
Speaker 1: to the same restrictions. Now, from a personal perspective, I
Speaker 1: do think that if you are in a public office
Speaker 1: in the United States, and if you operate one or
Speaker 1: more social accounts in a way that is meant to
Speaker 1: engage with the public you represent in a way that
Speaker 1: relates to your public role, you should not be able
Speaker 1: to block people from seeing what you post. I can't
Speaker 1: imagine a scenario where you could hold a public forum
Speaker 1: but then say, oh, but these members of the public
Speaker 1: aren't allowed to hear or see anything that happens in there.
Speaker 1: Only this other select group of the public will get
Speaker 1: that privilege, because if it's a public forum, it has
Speaker 1: to be public for everyone. This matter, by the way,
Speaker 1: is far from settled. I'm sure we'll continue to see
Speaker 1: complications in the digital space regarding the freedom of speech
Speaker 1: and the government's responsibilities in that space, and will probably
Speaker 1: see more actions like the time departing Twitter contract worker
Speaker 1: on his last day at Twitter set into most in
Speaker 1: the deletion of President Trump's Twitter account. You might remember
Speaker 1: when that happened. Now. In that case, according to the
Speaker 1: departing employee, he did it as sort of a gesture.
Speaker 1: He didn't think it was actually gonna happen. People had
Speaker 1: flagged Trump's account as having violated the terms of service
Speaker 1: of Twitter. So this former employee, just as before he
Speaker 1: was ready to clock out for his last day, initiated
Speaker 1: the process needed to delete Trump's account. And he had
Speaker 1: stated he never thought it would go so far as
Speaker 1: to actually happen, that somehow there had to be protections
Speaker 1: in place to prevent it without further authorization. So he
Speaker 1: did it as sort of a symbolic gesture, thinking nothing
Speaker 1: would happen. But it actually did end up deleting President
Speaker 1: Trump's account, though only temporarily. It's these sorts of actions,
Speaker 1: by the way, that lead to advocates arguing that the
Speaker 1: social media networks have a huge responsibility to those who
Speaker 1: utilize the services. Hopefully, this episode has highlighted how challenging
Speaker 1: this issue is, and for people outside the United States,
Speaker 1: illuminated some of the arguments behind the whole thing and
Speaker 1: why it's such a big deal. Um, I'm not entirely
Speaker 1: convinced that there is a right way to move forward.
Speaker 1: I think no matter what we choose, it's going to
Speaker 1: be a solution that is not going to be satisfactory
Speaker 1: for all parties involved. I think the courts have ruled
Speaker 1: in the right way, and I do think it should
Speaker 1: apply to politicians across the board, not just ones that
Speaker 1: are of one party or another. Uh. I also think
Speaker 1: that we have to have some means that they can
Speaker 1: take in order to avoid being, you know, attacked. Politicians
Speaker 1: are people too. I don't know how many of you
Speaker 1: out there have had to withstand online attacks. It is
Speaker 1: never a pleasant experience, and it can be really, really demoralizing.
Speaker 1: It can certainly create real sense of trauma. I have
Speaker 1: friends in the space who have had real hard times
Speaker 1: dealing with this stuff. I've been pretty fortunate. I've dealt
Speaker 1: with a little bit of harassment, but nothing on the
Speaker 1: scale of some of my colleagues, and that's not even
Speaker 1: being a publicly elected official. So there needs to be
Speaker 1: a balance. Obviously, social media is going to continue being
Speaker 1: a major communications channel moving forward. It's not likely that
Speaker 1: we're going to see people back off of it. But
Speaker 1: I honestly don't have the answer to this. UM. I
Speaker 1: think that we're making steps in the right direction, but
Speaker 1: I don't know that we're ever going to come up
Speaker 1: with the perfect solution. But what do you guys think?
Speaker 1: And if you have any suggestions for future episodes, you
Speaker 1: should reach out to me and let me know about those.
Speaker 1: You can email me the addresses text stuff at how
Speaker 1: stuff works dot com or pop on over to our
Speaker 1: website that's text stuff podcast dot com. You're gonna find
Speaker 1: links to where we are on social media over there,
Speaker 1: and uh, I promise I probably won't block you. You
Speaker 1: will also find an archive of all of our previous
Speaker 1: episodes and a link to our online store, where everything
Speaker 1: you purchase goes to help the show and we greatly
Speaker 1: appreciate it. And I will talk to you again really soon.
Speaker 1: Hext Stuff is a production of I Heart Radio's How
Speaker 1: Stuff Works. For more podcasts from my heart Radio, visit
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