Protecting Freedom of Speech – Towards a Multi-Institutional Perspective

After a review of the many legal challenges to freedom of expression throughout the history of the United States, it might generally be accepted that protections for freedom of expression should be upheld in society, without bias of favoritism.

In order to present an idea that these protections may be advanced not only in the Court but originally in society at large, we can focus the discussion about a small number of key elements in contemporary society and on the Internet today:

  • Social Media and other companies developing a presence on the public Internet
  • Governmental policy institutions, including federal lawmakers, federal regulatory organizations such as the FCC, and the courts
  • Civil society – including the public at large and the organized interests of formal non-governmental organizations, policy think tanks, and political action groups
  • Lastly and not least, companies operating in mass communications, such as news media, broader mass media and entertainment organizations, and advertisers

What role can each of these aspects of society provide, for protection of freedom of expression today?

Jack. M. Balkin, for the First Amendment Institute at Columbia University, proposes a central, if also constructive role for social media as institutions in the public sphere. The article highlights three primary roles for social media on the Web:

  • Facilitating public participation in social institutions. This might be considered as represented – in a formal sense – within social media’s roles in facilitating engagements between representatives of formal social institutions and the public at large.
  • Providing an organizational aspect for conversations – one might say, with social media platforms operating as social venues online, there presenting a forum for public communication, moreover with user-created organizational features such as individual channels, topical areas, and content annotations such as “Hash tags” .
  • Moderating and curating content. This might be not in all ways unlike an editorial role for social media – whether managed by way of direct human interaction, or with automated content analysis and content selection, or in some hybrid form of direct and automated methodologies for content curation.

In each of these regards, the roles for social media platforms in supporting free speech might be considered as represented essentially in the technical nature of each social media platform as a form of telecommunication service. Certainly, such platforms might not operate without a commercial incentive, moreover – such as when a social media platform may provide a venue for commercial advertising and commercial promotions, typically with a higher promotional placement for advertisements published in an arrangement with some advertising fee to the social media platform.

Secondly, the idea that a governmental institution may fulfill a legal role in protecting free speech online, this might be evidenced such as in the event of any legal challenge about an issue of free speech. Illustrating the role of the courts in recent years, for instance there are the series of lawsuits filed by Congressman Devin Nunes, around two parody accounts at Twitter. Illustrating the roles of the Congress and the Presidency, there is the example of the Telecommunications Act of 1996 and the more recently disputed Section 230 of the measure, heralded by some as containing “Twenty-six words that created the Internet“.

On the down side, it may appear – at least recently – that a governmental institution may ever face an existential threat from some movement essentially organized – at least in part – within social media platforms, such as with Facebook in the months leading up to the January 6 insurrection in Washington, D.C. In this context, it might seem that civil society had failed in some role of itself. Whether that could have been before or within the duration in which the event had escalated from a protest, then becoming an attack on facilities of Capitol Hill – perhaps the placement of the exact point of social failure could be open to some conjecture. With the Congress still endeavoring to document and to understand the events of that day, it may remind of the resilience of institutions within this quadrature of social media mainstays in contemporary society, namely the resilience of offices of government working to maintain the protections for freedom of speech.

Lastly, what roles may there be for a commercial media institution – within or beyond social media platforms – for protecting freedom of speech in society at large, and freedom of speech online? Within the constitutional limitations of free speech, a commercial institution may endeavor to establish an internal environment in which speech is known to be protected.

If so predisposed, an institution may furthermore endeavor to establish a reputation as a positive advocate for free speech – such as with the Nike corporation providing a form of advocacy in commercial recognition for the protest against systemic racism, by Kolin Kapernic. Of course, such commercial advocates may face hostile responses in the commercial environment – such as with the effective boycotts launched towards Nike after their advertisements, boycotts launched from within certain governmental offices in certain regional areas. Perhaps the letters from the ACLU, in response, may have served to avert further legal disputes about the Constitutionality of such actions by governmental officials.

Albeit perhaps in some ways unconventionally, in the media presence of the Black Star Network (BSN), we see what may be a unique example of a commercial media institution developing a new home for freedom of speech, in essence producing a platform in the form of a culturally independent, culturally relevant venue for broadcasting online. The Black Star Network offers original programming as well as daily analysis, presented candidly, without so many of the political limitations of commercial programming faced in broadcast networks today.

With content distribution via social media platforms, in streaming at YouTube, furthermore directly via the Web and in mobile apps, BSN may provide a forum for social, cultural, and political advocacy, as well as a consistent, independent discussion venue for daily news affecting black lives, peoples of color, and society as a whole. After recent programming changes at CNN, and unexpected shakeups at MSNBC, for instance among the conventional broadcast networks in this year of the Presidential mid-term, the independent venue developed by BSN may find a crucial role in forwarding discussions up to and across the next Presidential election cycle.


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