Freedom of Expression/Limitations - Restrictions/Private curtailment

Freedom of Expression

Is this right at times curtailed by private actors?

Freedom of expression exists at the core of the United States of America and the freedoms it guarantees to its people. Beyond a core tenet in America, freedom of expression holds a defining place in democracies around the world, shaping their culture and development. Article 19 of the International Covenant on Civil and Political Rights, adopted by the United Nations in December 1966, explains how freedom of expression “shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice” (U.N. General Assembly 1966, art. 19). With such importance, infringement upon this freedom can be extremely contentious. In US history, this context has resulted in the development of the State Action Doctrine as delivered by the Supreme Court. According to the State Action Doctrine, “the US Constitution in general, and its individual rights in particular, apply only to state action, not to private action” ("State Action" 2017). In understanding the question of whether private actors curtail freedom of expression, the State Action Doctrine responds with a definite yes. This understanding has been developed through a series of court cases, creating a precedent that allows for private actors to breach free expression.

In United States v. Cruikshank, the Supreme Court ruled “the 14th Amendment's Due Process and Equal Protection Clauses applied only to state action, and not to violations of civil rights by individual citizens.” (United States v. Cruikshank, 1875). This landmark decision took place following the Colfax Massacre wherein “300 white Democrats, many of them former Confederate soldiers,” were hoping “to dislodge an armed cadre of 150 freedmen and white Republicans who had barricaded themselves inside” in order to protect an election (Pusey 2021, 72). Due to the absence of civil rights protections in Louisiana, where the Colfax Massacre occurred, the state bore no responsibility and could not prosecute individuals for violating others' rights. This case is relevant to understanding how freedom of expression can be curtailed by private actors. It set a precedent that allowed private actors to infringe upon others' rights, such as voting, because of the state's lack of responsibility.

While legal precedents focus on the ability to discriminate, freedom of expression remains relevant because the freedoms “of speech, of the press, of association, of assembly and petition,” that comprise expression can be subject to that discrimination (ACLU, 2002). Further legal contributions exist along with social media usage statistics that present high percentages of US adults using various platforms. A Pew Research report found that 83% of US adults reported they ever used Youtube, 68% used Facebook, and 47% used Instagram (Pew Research Center, 2024). The private actors that run social media companies are able to curtail freedom of expression aided by Section 230 of the 1996 Telecommunications Act. This provided “immunity to those that screened or removed offensive or indecent material that was posted on their sites by third parties” (First Amendment Encyclopedia, s.v. "Communications Decency Act and Section 230"). Originally created to “prevent minors from gaining access to sexually explicit materials on the internet,” the Telecommunications Act of 1996 has granted media platforms the ability to tailor violations of freedom of expression. Instagram, a social media platform used by just under 50% of Americans, explains their terms for content removal within their community guidelines (Pew Research Center, 2024) They “may remove entire posts if either the imagery or associated captions violate their guidelines,” some of those violations being nudity, promoting hate speech, and bullying amongst others (Instagram Help Center, n.d.). With laws and legal precedents to support infringement and equal opportunity and anti-discrimination policies protecting people’s freedoms, private actors are certainly able to curtail freedom of expression, but with limitations.

References

ACLU. 2002. “Freedom of Expression.” American Civil Liberties Union. March 1, 2002. https://www.aclu.org/documents/freedom-expression.

"Communications Decency Act and Section 230." First Amendment Encyclopedia. Accessed June 24, 2024. https://firstamendment.mtsu.edu/article/communications-decency-act-and-section-230/#:~:text=To%20encourage%20internet%20service%20providers,their%20sites%20by%20third%20parties.

Instagram Help Center. s.v. "Privacy Settings." Accessed June 24, 2024. https://help.instagram.com/477434105621119#.

Pusey, Allen. "Colfax Massacre Convictions Tossed: March 27, 1876." ABA Journal 107, no. 1 (February-March 2021): 72. Gale Academic OneFile. Accessed June 20, 2024. https://link.gale.com/apps/doc/A653471522/AONE?u=anon~c9675132&sid=bookmark-AONE&xid=4c07453e.

Pew Research Center. "Social Media Use in 2024." Pew Research Center. January 31, 2024. Accessed June 24, 2024. https://www.pewresearch.org/internet/wp-content/uploads/sites/9/2024/01/PI_2024.01.31_Social-Media-use_report.pdf.

"State Action." Max Planck Encyclopedia of Comparative Constitutional Law. Last modified February 2017. https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpeccol-e473#:~:text=The%20state%20action%20doctrine%20of,action%2C%20not%20to%20private%20action.

U.N. General Assembly. 1966. International Covenant on Civil and Political Rights. Treaty Series, vol. 999, p. 171. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

United States v. Cruikshank. 92 U.S. 542 (1875).