The First Amendment and the Online Public Forum: A Critical Examination

In the recent article The First Amendment Meets the Virtual Public Square, published in the Journal of Free Speech Law, author Allison Stanger tackles the intricate relationship between the First Amendment, technology, and modern democratic practices, using the controversial deplatforming of Donald Trump as a foundational case study.

Deplatforming of Donald Trump

The article opens with the impactful decision by major social media platforms—Twitter, YouTube, and Facebook—to suspend Donald Trump’s accounts in the wake of the January 6, 2021, assault on the U.S. Capitol. Stanger highlights that while Trump’s accounts were eventually reinstated, the initial actions ignited a nationwide conversation about the appropriateness of such censorship, reflecting profound concerns about free speech in the digital age.

Public Debate and Misdirected Questions

Stanger contends that the ensuing public debate often sidestepped crucial questions. Instead of focusing on whether tech companies should have silenced Trump, she urges a deeper inquiry into the circumstances that allowed these companies to assume such gatekeeping roles in the virtual public sphere.

Supplanting Traditional Media and Social Norms

The article argues that Big Tech has eclipsed traditional media institutions and national social norms, resulting in a landscape where online harassment and the phenomenon of cancel culture thrive. Stanger attributes this to the algorithms that amplify divisive content, thereby threatening reasoned public deliberation.

First Amendment Protections

Stanger underscores a significant limitation within the First Amendment: while it shields citizens from government regulations that stifle freedom of speech, it does not extend such protections against corporate suppression. This gap highlights a critical issue, as corporate actions can considerably shape public discourse and citizen engagement.

Technological Impact on Society

The piece references J.C.R. Licklider’s forewarning about potential negative societal consequences of technological transformation. Licklider had predicted that access to online spaces could evolve into either a right or a privilege, with Stanger positing that the prevailing reality suggests it has become more of a privilege.

Ad-Driven Business Model and Net Neutrality

One of the core criticisms in the article relates to the ad-driven business model of social media corporations. Stanger highlights how this model fosters significant challenges, such as the commodification of privacy and the revocation of net neutrality. The latter has exacerbated disparities in access to online resources, privileging wealthy users with superior internet speeds and access to information.

Implications for Democracy

Stanger warns that these trends pose alarming threats to democratic values and justice. The increasing inequality in online access, compounded by the invasive nature of ad-supported free services, undermines the foundational principle of equal protection under the law.

Supreme Court and Congressional Action

The article concludes by acknowledging that several pivotal cases concerning freedom of speech on social media are currently before the Supreme Court. Stanger posits that decisive action from either the Court or Congress is necessary to reclaim public equality in cyberspace, lest private power continues to solidify its dominance.

Ultimately, Stanger’s analysis sheds light on the pressing complexities arising from the intersection of technological evolution, corporate influence, and fundamental democratic principles. Her call for a comprehensive approach to safeguarding free speech and equal representation in the digital public square resonates amid ongoing discussions over the future of democracy in an increasingly digital age.