For the last several years we have seen numerous arguments that social media platforms are

When “Jawboning” Creates Private Liability

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2022-06-22 06:30:18

For the last several years we have seen numerous arguments that social media platforms are "state actors" that “must carry” all user speech. According to this argument, they are legally required to publish all user speech and treat it equally. Under U.S. law, this is almost always incorrect. The First Amendment generally requires only governments to honor free speech rights and protects the rights of private entities like social media sites to curate content on their sites and impose content rules on their users.

Among the state actor theories presented is one based on collaboration with the government on content moderation. “Jawboning”—or when government authorities influence companies’ social media policies—is extremely common. At what point, if any, does a private company become a state actor when they act according to it?

Deleting posts or cancelling accounts because a government official or agency requested or required it—just like spying on people’s communications on behalf of the government—raises serious human rights concerns. The newly revised Santa Clara Principles, which outline standards that tech platforms must consider to make sure they provide adequate transparency and accountability, specifically scrutinize “State Involvement in Content Moderation.” As set forth in the Principles: “Companies should recognise the particular risks to users’ rights that result from state involvement in content moderation processes. This includes a state’s involvement in the development and enforcement of the company’s rules and policies, either to comply with local law or serve other state interests. Special concerns are raised by demands and requests from state actors (including government bodies, regulatory authorities, law enforcement agencies and courts) for the removal of content or the suspension of accounts.”