YOU WANT TO TWEET ABOUT IT BUT YOU PROBABLY CAN'T: HOW SOCIAL MEDIA PLATFORMS FLAGRANTLY VIOLATE THE FIRST AMENDMENT.

• Author: Williams, Amanda Marie

1. INTRODUCTION

   Social media offers its users the ability to converse with friends a world away, to share ideas with entire populations of people that one has never met, and to express thoughts instantly and have those thoughts be seen around the world. (1) Its many platforms allow people to share thoughts as short as 280 characters (2), photographic examples of a life well-lived, or express ideas of magnitude great or small--all without failsafe mechanisms in place to prevent the publication of information that some may find offensive. (3) As a result, social media websites like Facebook, Twitter and Instagram have implemented "community standards" (4) as a means of regulating the content on their platforms. (5) Most social media websites have written polices explaining what content is appropriate on their platforms, and even sometimes acknowledge that speech that may typically garner First Amendment Protections is restricted. (6) These policies are written (7), but the community standards requirements tend to be enforced arbitrarily (8) . These standards tend to ban things that these social media giants deem unacceptable, such as hate speech directed at a private or public figure, organized hate groups such as the Westboro Baptist Church, or sexual activity and nudity (9), even if that speech has garnered First Amendment protections elsewhere. (10) However, social media sites, since their inception, have been places where the general public has had the power to express divergent thoughts and ideas." The nature of social media (12) necessarily invokes the First Amendment and concerns for free speech. (13) The balance between allowing people to express themselves in whatever manner they see fit and not chilling constitutionally protected speech is one that cannot be overstated. However, with this freedom of expression exists tension between the rights an individual has and the broader interest of promoting the safety and wellbeing of a society's citizens. (14) An analysis of what level of protection the First Amendment provides to social media is subject to many considerations, such as the type of speech being conveyed, what platform is being used, and who is making the speech. (15) Ultimately, whether it was intentional or not, social media platforms have created public forums, and so any content based restrictions on the material that is shared on their sites that falls outside of traditional First Amendment exceptions is a violation of the right to free speech.

3. FIRST AMENDMENT JURISPRUDENCE

   "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (16) The First Amendment, in all its glory, does not address many of the things that First Amendment jurisprudence would later encompass.' (7) It does not mention true threats, hate speech, fighting words, false statements of fact, or even obscenity. (18) The founding fathers would not have been able to fathom the ways in which speech would later be conducted, and the many mediums it would later encompass.' (9) There are delicate balances that must be considered when allowing people to express themselves in a manner that is not harmful to society, which is an issue that has only arisen as technology expands and grows. However, at its core, the First Amendment's purpose is to encourage the exchange of ideas and concepts. (20) The concept of free speech allows citizens of the United States of America to express their ideas to many, including groups who may not be receptive to it. These conflicting views cause tension between different ideas - but that can often be the best way to seek the truth. (21) In fact, the exchange of ideas promoted by the First Amendment is the first safeguard to democracy. (22) It allows for people and the press to convey information about a political figure, a new idea or government scheme, or any other thing that people care about without the fear of prosecution. (23) However, the First Amendment is not a universal safeguard that allows people to say whatever they choose without consequence. (24) There are several categories of unprotected speech that are well recognized under First Amendment jurisprudence that are critical to understand before the First Amendment's application to the nuance of social media can be evaluated. (25)

4. EXCEPTIONS TO THE FIRST AMENDMENT: TRUE THREATS, HATE SPEECH, OBSCENITY, AND PROFANITY

   Before the concept of free speech in the age of digital media can be analyzed, there must be an understanding of current First Amendment doctrine. While generally the First Amendment exists to offer protections to the concept of free speech, there are notable exceptions. (26) "Some words 'by their very utterance' cause injury or incite an immediate breach of peace, and they do not receive constitutional protection." (27) One of these categories is "true threats", or words where "a speaker expresses a 'serious' intent 'to commit an act of unlawful violence to a particular individual or group of individuals.'" (28) One of the main concerns with this aspect of First Amendment jurisprudence is that there is a level of subjectivity when considering what is a "serious intent." (29) The courts have, while not able to coalesce on one standard, essentially applied one of two means of analyzing truly threatening language. (30) Using the first standard, which is the strictest, courts analyze whether the speaker knew his speech was likely to be perceived by a reasonable person as threatening and was intended to be threatening. (31) However, some courts "require the government to prove only that the defendant knowingly made a statement that 'was not the result of mistake, duress, or coercion' and that a 'reasonable person' would regard as threatening." (32) But until recently (33), a majority of courts applied the less strict standard. (34) This standard focuses more on the objectiveness of the threat and less on the subjective intent of the person making it. (35)

   This difference in the importance of intent and the weight the court lends it is critical to analyzing the true threat doctrine in a social media context. (36) Under the majority rule, if someone made a statement that a reasonable person would consider threatening, but did not intend for that statement to be a threat, it would still be a violation of the First Amendment. (37) For example, if someone conveyed what they meant to be a joke, but a reasonable person found it threatening, the person who made the alleged joke could be found in violation of the First Amendment. (38) This distinction lends itself to a level of subjective interpretation that the courts have struggled with, especially in the age of social media. (39)

   Social media poses unique problems for First Amendment considerations because it can be difficult to determine the intention of a user. If a person posts language that was meant to be humorous or satirical but comes across dangerous or threatening, social media content regulations may flag this information as unallowable. For example, "the internet has long been home to viral memes that allude to suicide ideation and depressive [behavior]." (40) Recently there has been an uptick in memes that joke about topics such as suicide, clinical depression, or even threats to kill others. (41) However, most people who create or share these memes do so as a form of gallows humor. (42) In fact, suicide memes may be a form of therapy that help people who are seriously suffering from depression. (43) Amanda Purington, a specialist in computer mediated communication notes that "these more supportive communities gives people a place to give voice to these [depressive] feelings, and that can be pretty cathartic." (44) She goes on to note that "these kinds of memes can decrease the stigma about talking about mental health issues." (45) This is but one example of how social media regulation, by its nature, is open to subjectivity in its enforcement. It will be difficult to discern what "kill yourself meme is simply gallows humor, and what is a legitimate threat. The same issues arise in the sphere of obscenity, when people want to share nude photographs or videos (46), or even in the political arena with the exchange of ideas. The regulation of content on social media allows the platforms power that the United States Supreme Court decided in The Slants case was inappropriate for the government to hold: "speech may not be banned on the ground that it expresses ideas that offend." (47)

   In addition to issues with the subjectivity of content, social media presents issues with the subjectivity of intent. Similar to the gallows humor that is so prevalent, posts on social media are often up for ambiguous interpretation of their intent. In Elonis v. United States, Elonis was in the midst of a divorce, and his wife left him with their two children. (48) Elonis, a Facebook user, took to posting "crude, degrading, and violent material about his soon-to-be exwife", as well as violent song lyrics and images that appeared threatening. (49) These posts made Elonis' wife extremely frightened, and a state court granted her a restraining order against him, which led to Elonis posting more concerning material on Facebook, including what appeared to be a threat about organizing a school shooting to "[make] a name for [him]self." (50) In its analysis, the Court found issue with the lower court's conviction resting only on how Elonis' posts "would be understood by a reasonable person", which was not consistent with the touchstone for most criminal conduct, which is "awareness of some wrongdoing." (51) Ultimately, "[f]ederal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state." (52) And because...