Social Media Platforms and Free Expression: an Introduction

• Publication year: 2022

Social Media Platforms and Free Expression: An Introduction

Eric J. Segall

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Social Media Platforms and Free Expression: An Introduction

Eric J. Segall^*

On Friday, October 8, 2021, the Mercer Law Review hosted a virtual Symposium on "Social Media Platforms and Free Expression." This important topic could not be timelier. With the Right calling for regulation of Facebook and Twitter in order to stop the removal of conservatives from their platforms,¹ to the direct effect of social media on our elections and our politics,² the worldwide spread of this technology has brought with it new and difficult legal issues regarding freedom of expression and social harms. Congratulations to the Mercer Law Review for addressing these controversial and complex questions.

Professor Gary Simson's presentation suggested that the combination of this new technology regarding expression and the elasticity of free speech rules do not provide easy answers to the legality of government attempts to regulate the internet.³ Professor Simson summarized some of the grave dangers caused by the instant availability of expression of all forms on a worldwide basis. Two of the many problems posed by this new technology are the use of social media platforms by wrongdoers to cultivate hatred and negative stereotypes against vulnerable groups and the use of these platforms by many different organizations and people to confuse and mislead the public on

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important matters of public policy. Professor Simson argued that it is time for the Supreme Court of the United States to reconsider some of its more rigid free speech doctrines to accommodate the need to battle the negative aspects of social media while also maintaining a robust commitment to the freedoms of speech, expression, and association.

Professor RonNell Andersen Jones discussed the issues surrounding Justice Gorsuch and Thomas' recent suggestions that the Court reconsider the landmark case New York Times v. Sullivan.⁴ This decision required that public officials, and as held in subsequent opinions, public figures, must show actual malice or a reckless disregard of the truth before prevailing in a defamation suit. Professor Jones suggested that some critics of the case, other than the Justices, are concerned about the threats to democracy that have accompanied widespread social media disinformation.⁵ But Professor Jones argued that this threat is not a Sullivan problem and reconsideration of Sullivan is also not a solution. This is because much of the falsity on social media is not defamatory. In any event, to the extent social media publishes wholly invented, consciously distributed lies...