SOCIAL MEDIA, RACISM, AND SPORTS: SOCIAL MEDIA PLATFORMS, NOT GOVERNMENTS, ARE BEST POSITIONED TO CHANGE THE GAME.

• Author: Ayers, Peter M.

1. Introduction

   The widespread introduction of social media into society has revolutionized the way that athletes, fans, and sports teams interact with one another. (1) Perhaps the most impactful change effected by the social media explosion on the sports industry is the direct channel of communication between fans, teams, and players afforded by such platforms as Twitter, Instagram and Facebook. (2) However, sports fans are not the only ones benefiting from the rise of social media platforms. (3) Athletes, in particular, have also been able to capitalize on this newfound avenue for communicating more directly with their fans by leveraging their large social media followings to secure multi-million dollar endorsement deals. (4) Top athletes, such as Cristiano Ronaldo and Lebron James, can receive up to a staggering $44 million dollars per year in endorsements, in part just for promoting a company's products on their social media accounts. (5)

   Although social media has affected the sports industry in many positive ways, drawbacks to the technology certainly exist. (6) For one, social media can provide a constant and unrelenting distraction to athletes which can end up negatively affecting their performance on the playing field. (7) In fact, the distractions that social media platforms provide to athletes have become so prevalent that many high-profile coaches have imposed bans on social media use by players during team activities, or even for entire seasons. (8) Further, while the majority of social media users interact with their favorite athletes and teams in a positive manner, social media has also provided "internet trolls" with the ability to constantly criticize and harass athletes at any hour of the day or night. (9) A particularly troubling form of harassment that many athletes of color have had to endure on social media sites has come in the form of dehumanizing and demeaning racial slurs and taunts. (10)

   Unfortunately, racism in the world of sports is hardly a new phenomenon. (11) However, the shift from racist abuse being hurled across sports stadiums, to anonymous internet trolls posting racial slurs on social media platforms, has added a complicated dimension to the issue of racism in sports. (12) Unlike racism that occurs at live sporting events, where the perpetrators can often be identified and the reach of such comments is generally limited to those in attendance, racism spread anonymously via social media has the potential to be seen by millions of users, from almost anywhere, in an instant. (13) This new dimension of racism in sports has called into question whether social media platforms and governments are doing enough to regulate hate speech directed towards athletes online. (14) As social media sites strive to achieve the sometimes conflicting goals of promoting free speech values and ensuring speech on their platform meets community guidelines, the debate over whether there is too much or too little censorship on social media will inevitably rage n. (15)

2. History

   One of America's core founding principles, the First Amendment's protection of freedom of expression, was intended to allow for the creation of an "uninhibited marketplace of ideas" within society. (16) Prior to the introduction of the internet, print sources, such as newspapers, magazines, and pamphlets, provided the most prominent avenue by which Americans were able to access this "uninhibited marketplace of ideas." (17) In recent years, however, the United States Supreme Court has recognized that cyberspace, and social media platforms in particular, have become increasingly important forums for the exchange of views between individuals. (18) Social media platforms have taken their role as the 21st century's main marketplace for the discourse of competing views seriously, and, for the most part, have allowed American free speech values to guide their platforms' individual speech policies. (19) This section will explore how the current legal framework in the United States, through both constitutional protections and statutory immunization, grants social media platforms enormous freedom in choosing how, and if, they will combat racist content that is directed towards professional athletes by their users. (20)

   1. First Amendment Protections for Social Media Platforms

      1. The State Action Requirement as a Shield Against Private Lawsuits

         The First Amendment states that "Congress shall make no law...abridging the freedom of speech." (21) The Supreme Court later extended First Amendment protections to apply to actions taken by state governments as well as the federal government through the Fourteenth Amendment's Due Process Clause. (22) Given that the courts have only extended First Amendment protections to apply to actions taken by either the federal government or state governments, the First Amendment generally does not place affirmative obligations on private citizens or organizations to ensure that they do not infringe upon an individual's free speech rights. (23) This doctrine is known as the "state action requirement." (24) Nevertheless, the Supreme Court has held that a narrow subset of private actors may owe affirmative obligations under the First Amendment if those private actors exercise "powers traditionally exclusively reserved to the State" or have "a sufficiently close relationship" to the government. (25)

         The Supreme Court first addressed whether a private actor could owe affirmative obligations under the First Amendment in the case of Marsh v. Alabama (26) In Marsh, Grace Marsh, a Jehovah's Witness, was arrested for criminal trespass for distributing religious literature on a sidewalk in Chickasaw, Alabama. (27) The fact that the arrest occurred in Chickasaw was notable because the town was wholly owned by Gulf Shipbuilding Corporation, a private corporation. (28) The Supreme Court reversed Marsh's conviction of trespass holding that a company-owned town that functioned the same as any other traditional municipality could not curtail the First Amendment rights of its residents. (29) Although this ruling could have been read as a sweeping expansion of the obligations owed by private actors under the First Amendment, in the 70 years that have followed the Marsh decision, the Supreme Court has rarely, and only very narrowly, applied their ruling to place affirmative obligations on private actors under the First Amendment. (30)

         Other instances where the Supreme Court has held that private individuals or entities may owe obligations under the First Amendment as state actors can be found in cases where private parties have a sufficiently close relationship to the government in order to justify being designated as "state actors." (31) In these cases, the question courts must ask is "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." (32) Accordingly, evidence that a private actor is subject to extensive government regulation may be persuasive, but by itself, is not sufficient to impose the "state actor" designation on a private party. (33)

         So far, the state action requirement has shielded social media platforms from liability in lawsuits brought by individuals claiming that platforms violated their First Amendment rights by either retroactively taking down content they had previously posted, or by restricting users from posting certain content at all. (34) Despite a number of plaintiffs attempting to argue that social media platforms should be designated as state actors in these situations, trial courts have consistently rejected these arguments. (35) Nevertheless, the Supreme Court has yet to rule on whether social media providers may be treated as state actors within the context of First Amendment protections, so it is possible, although highly unlikely, that social media sites may be determined to owe affirmative obligations to their users under the First Amendment. (36)

      2. The State Action Requirement as a Deterrent Against Federal Regulation

         The state action requirement has not only prevented private parties from holding social media providers liable for censoring their content, it has also aided in deterring the federal government from passing any laws regulating how social media providers determine whether or not to allow users to post certain content on their platforms. (37) Understanding that the federal government is a state actor by definition, and that the First Amendment states that "Congress shall make no law...abridging the freedom of speech," it makes sense that a federal law regulating social media platforms' freedom of expression, or the freedom of expression of the platforms' users, would likely implicate the First Amendment. (38)

         With that being said, the Supreme Court has recognized that not all speech is entitled to the same amount of protection under the First Amendment, and has therefore been willing to allow for government regulation of seemingly protected speech in special circumstances. (39) For example, if the type of speech being regulated is commercial speech or threatening speech that advocates for violence, the Supreme Court has allowed for government regulation in the past. (40) Further, the Supreme Court has held that if a medium displays special characteristics, it may justify greater government regulation of speech that appears on that particular medium. (41)

         However, when tasked with the question of whether the internet in general presented the special characteristics needed to warrant government regulation of speech, the Supreme Court held that it did not. (42) In Reno v. ACLU, the Supreme Court wrestled with the issue of whether provisions of the Communications Decency Act ("CDA"), which protected minors from "indecent" and "patently offensive" communications on the internet, unconstitutionally infringed upon the First Amendment...