A criminal defense lawyer’s perspective on social media and free speech.
If you are facing charges because of a post you’ve allegedly posted to social media, you need the help of an experienced internet crimes defense attorney.
First Amendment Defined
How is Facebook subject to free speech rights in the First Amendment? Social media companies are under extreme pressure to balance protecting their users’ free speech rights and guarding against hate speech, misinformation, and other imminently dangerous communications or posts. Because the issue is so politically divisive, finding a generally acceptable balance is almost impossible.
The First Amendment to the United States Constitution prohibits:
Making any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to assemble peaceably, or prohibiting the petitioning for a governmental redress of grievances by the United States Congress, the legislative branch of the United States Federal government. – The United States adopted the First Amendment on December 15, 1791.
Big Tech, Facebook, and Free Speach
As big tech companies like Facebook become embroiled in false narratives, fake news stories, and hateful communications, the line becomes blurred between government and private oversight of “free speech.” Social media platforms serve as public forums where individuals discuss current events. But in reality, the platforms are more like independently run bookstores than public libraries. They set and enforce internal policies and regulations to keep content safe. For example, a bookstore might voluntarily choose not to carry books about making bombs or how to commit benefits fraud. Unlike the government, companies such as Facebook have no obligation to uphold all of the First Amendment’s guarantees of free speech and expression.
U.S. Supreme Court to Hear Important Case Involving Free Speech and Facebook
Freedom of speech does have limits, even on Facebook. For example, you cannot yell “fire” in a crowded movie house. Facebook has added a new area of concern relative to freedom of speech issues that the courts have started to address. On June 16, 2014, the United States Supreme Court agreed to hear the case of Elonis v United States. During a contentious divorce case, Mr. Elonis resorted to Facebook to express his frustrations and anxiety over the divorce and his life in general. The posts on Facebook had to do with Mr. Elonis musing about killing his ex-wife and others. There were also posts of rap music lyrics on the topic of killing. Mr. Elonis insisted he meant no harm by these posts. He was charged under federal law for the electronic transmission of a threat across state lines and served almost four years in federal prison.
The issue before the United States Supreme Court is “[w]hether, consistent with the First Amendment and Virginia v Black, a conviction for threatening another person under requires proof of the defendant’s subjective intent to threaten, as required by the 9th Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont’ or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.”
The defendant asserts that a “reasonable person” standard is incorrect because of the high potential for misinterpretation in social media by people that do not know the defendant. Some people argue that the standard should be “subjective intent” – has was merely expressing his frustration and not purposefully threatening anyone.
The decision, in this case, will have far-reaching implications for free speech on Facebook and generally in our social media-focused world. Stay tuned!!
Crimes Committed on Social Media
Michigan and the United States charge people with crimes committed on social media or crimes facilitated through social media accounts. Increasingly, the government scours social media, such as Facebook, Instagram, Snapchat, and TikTok, to find evidence. Free speech does not include speech or expression used to commit a crime. Crimes charges based on social media posts can include, but are not limited to, the following:
- Online Threats, Stalking, Cyberbullying
- Fraud or False Pretenses
- Selling or Marketing Fraudulent Merchandise and other White-Collar Crimes
- Romance Fraud
- Posting of Illicit Images
- Racial, Religious, or Gender-Based Bias and Hate Crimes
Government Oversight of Private Social Media Accounts
Your social media accounts are not entirely private, even with privacy settings enabled. In most instances, Facebook, Twitter, Instagram, and other social media companies will share your information and private messages with law enforcement agencies, regardless of whether they have a warrant.
To combat terrorism, several federal agencies routinely collect and analyze millions of pieces of information about innocent Americans. Very little oversight exists for this activity. In many instances, the government collaborates with private companies to collect massive amounts of data, exposing individuals’ personal information to unknown operators who may use it for illicit purposes.
The government’s collection of social media data is mainly unregulated. And it generally provides investigators with little helpful information. In many ways, it is similar to searching for a needle in a haystack. Unfortunately, this massive government surveillance is largely unregulated, even though it poses a grave threat to our civil liberties, especially the rights of free assembly and free speech protected by the First Amendment, the prohibition against unreasonable searches protected by the Fourth Amendment, and the right to equal protection under the law protected by the Fourteenth Amendment.
Defenders of Free Speech – Michigan Criminal Defense Attorneys
If you or someone you know faces criminal charges, our attorneys understand how to employ all of the protections in the United States Constitution. For decades, we’ve utilized the protections of the constitution to defend clients and legally attack governmental overreach or abuse. If you want to have the best defense against a felony or misdemeanor charge, it is crucial that you contact an attorney who is an expert in constitutional law, such as free speech, and familiar with social media platforms, such as Facebook. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have decades of criminal and constitutional law experience. You need an expert to help you when your freedom is in jeopardy. Call us for a Free Consultation.
Call us today at (248) 263-6800 for a free consultation or complete a Request for Assistance Form. We will contact you promptly and find a way to help you.
We will find a way to help you and, most importantly,
we are not afraid to win!
History of Facebook
On February 4, 2004, Mark Zuckerberg, a Harvard sophomore, introduced “The Facebook,” a social networking site he had created to facilitate communication among Harvard students. Over a thousand people had registered by the following day, and that was just the beginning. The goliath website, now known as Facebook, swiftly grew to become one of the most important social media companies in history. With billions of monthly active users, Facebook is among the most valuable businesses on Earth.
From there, Facebook expanded globally, growing from a little startup to one of the most significant institutions of the early 21st century. The business has not always been free of controversy. Facebook has been under fire not only for facilitating the spread of false material and phony accounts but also for selling the data of its users and for failing to protect it sufficiently. Nevertheless, Facebook continues to rule the social media business, bringing in by far the most advertising money and holding onto more than half of the market.
Frequently Asked Questions
Can social media companies limit free speech?
Individuals are shielded against governmental censorship by the First Amendment. Since social media networks are independent businesses, they can regulate whatever content users publish on their platforms.
Is Facebook subject to freedom of speech?
The First Amendment does not regulate Facebook. The First Amendment protects free expression on public property or in forums that belong to the general public or the government. A sidewalk or a public park could be located on this land. However, it does not safeguard free expression in a closed setting, such as a corporate website like Facebook.
Why is there no free speech on social media?
The right to express oneself on social media is protected from government control; hence there is no First Amendment right to do so. Federal courts have actually determined that social media platforms have a First Amendment right to ban users they choose to restrict. Once more, the First Amendment guards against censorship by the government, not censorship by for-profit organizations.
Can I sue Facebook for blocking my freedom of speech?
You can file a lawsuit against Facebook, but you will lose and face the possibility of sanctions for filing a frivolous lawsuit. Concerning private social media businesses, you lack any constitutionally protected right to free speech.