How Far does the First Amendment Stretch: Biden and Freedom of Speech
The ongoing lawsuit against the Biden Administration involving concerns over First Amendment rights calls attention to the role of online platforms in debates of censorship and free speech. The lawsuit surfaced last year after several individuals claimed they were the victims of online censorship, as the Biden Administration allegedly urged social media platforms to remove certain content. In July 2023, U.S. District Judge Terry Doughty issued an injunction that would restrict multiple government agencies and officials' communication with social media companies such as Facebook and Youtube. The most recent development in this case surfaced on October 20, 2023, when the Supreme Court lifted the injunction imposed by the lower court. Plaintiffs are still waiting on an official ruling, which will not be judged until hearings are held in early 2024. This lawsuit bears the burden of setting a precedent for future cases calling government censorship over online platforms into question. To better contextualize this lawsuit, it is important to examine other relevant case law and statutes addressing the First Amendment and the right to free speech.
The 1942 case Chaplinsky v. New Hampshire set the precedent of carving out exclusions from the right to free speech. The fighting word doctrine is an example of frequently cited case law regarding freedom of speech. In this case, the Supreme Court found there are some remarks that “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” From there, the Supreme Court concluded that “fighting words” are those by which “their very utterance inflicts injury or tends to incite an immediate breach of the peace.” This ruling situates the charges asserted by Plaintiffs against the Administration in the greater context of unsuccessful attempts to leverage the First Amendment. While the Constitution grants users the ability to post their own beliefs online, this does not guarantee that all speech is protected from prosecution. Analyzing the relevance of the ruling in Chaplinsky could be important in the future of current litigation against the Biden Administration. If the content posted by Plaintiffs in this case is proven to fall into this category, it is possible that Chaplinsky will be relevant in refuting the charges against the Biden Administration.
The case of UWM Post v. Board of Regents of U. of Wis. however, demonstrates how narrowly the rulings of Chaplinsky are actually applied in practice. In this case, UWM Post brought action against the board as a result of their “Design for Diversity” policy. As a result of this policy, students of the University of Wisconsin were prohibited from expressing racist or discriminatory behavior directed at an individual. The “epithet or expressive behavior” must also have demeaned the targeted individual’s “race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age.” Defendants attempted to use the ruling in Chaplinsky to defend the implementation of their policy against arguments of unconstitutionality. This was ultimately unsuccessful, as the court found that the fighting word doctrine did not apply to this case since the Design for Diversity policy did not mention the disturbance of peace or onset of violence, as specified in Chaplinsky. While Chaplinsky set the precedent for lawfully excluding speech from First Amendment protections, UWM Post highlights how narrow the margins of applicability are for this fighting word doctrine. It is not enough for Plaintiff’s posts to potentially have been degrading or discriminatory; the Biden Administration would have to prove the salience of Plaintiff’s content to every single criteria of this doctrine. The ruling in UWM Post could bolster Plaintiff’s case against the Biden Administration, noting that their posts cannot be proven to be the direct cause of a breach of peace or incitement of violence.
Lastly, the Communications Decency Act of 1996 (“CDA”) explains how social media platforms are permitted to restrict their users’ content. Section 230 of the CDA grants immunity to providers of interactive computer services under a Good Samaritan clause. In this provision, interactive computer service providers are permitted to take “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This clause has long since been used to protect platforms like Facebook, Twitter, and Instagram from complaints lodged against them by frustrated users after the removal of their posts. Because the lawsuit against the Biden Administration brings constitutional protections into question, this CDA clause can be used to understand how social media platforms have historically avoided charges on similar grounds. Whether or not the precedent of using this immunity will be enough to defend the Administration’s involvement in the removal of online content is unclear.
Arguments for this case have yet to be heard, and a ruling will not be reached until 2024. Until then, the current lawsuit should still encourage us to think more carefully about what the scope of the First Amendment actually is and whether the current digital age warrants a new interpretation of free speech.