2023 Law Week Essay Contest

Law Day Contest Winners:

1st Place - Riley Perantoni (Gulf Breeze High School)

2nd Place - Tyler Carach (Northview High School)

3rd Place - Whitney Bouk (Gulf Breeze High School)

The 2023 Law Week Essay Prompt:

Discourse is a cornerstone of democracy. Participating in civic discussion assists people in increasing political knowledge and efficacy. The marketplace of ideas is an essential part of American democracy. Technology and social media have promoted a surge in discourse around civics and political affairs. A growing concern around discourse on social media include its potential threat to democracy, promotion of terroristic content through algorithms, and the increasing polarization of society which arguably has and may very well lead to social conflict and violence. Section 230 of the Communications Decency Act protects social media companies from being responsible for users’ comments and posts while also granting them the power to decide what should be removed and what should be allowed to stay up. What responsibility, if any, do social media companies bear in promoting freedom of speech while encouraging civil discourse and limiting certain content in the name of public safety? In your answer, consider the many cases being considered by the courts in our country today and discuss where the line of responsibility should be drawn to ensure that civics, civility, and collaboration are prominent features of social media discourse.

By Riley Perantoni, Gulf Breeze High School

Introduction

The digital age poses many questions to us as independent citizens: to what degree the platforms we use may monitor us, profit from us, and most importantly, regulate speech upon us? In service to this last critical question, the avenues by which major social media companies (Facebook, TikTok, Instagram, Twitter, and YouTube) may restrict our speech should be solely confined to halting illegal actions and upholding the safety of users from threats and direct attacks. Otherwise, major social media companies should not, in any capacity, restrict the political opinions or otheiwise protected free speech individuals would carry as if they were speaking in a town square.

A Trip To The Square

Before we take a trip to our local town square, we need a couple of items. First, we need a goal. What are we going to speak about? Don’t worry, it can be about anything -- the helpful First Amendment to the United States Constitution protects the Government from “abridging the freedom of speech”1 of any citizen of the United States. Next, we need to understand who owns the town square. In this case, it is owned by a “common carrier”otherwise known as any entity that offers some service for the general public, whether at cost or otherwise, which is uniform to every individual who uses the service.2 Once we have these two essential things, we can be off towards our town square, ready to speak about whatever ails our mind.

Unless under extremely specific circumstances, this endeavor would go on without a hitch. Yet, let’s replace a couple of words, and refonnat this into the context of sending out a Tweet or a comment on a post; suddenly, for whatever reason, our voices now switch from being universally protected to being able to be deleted, and we are punished for saying our opinion.

Why is this? It revolves around the power that social media companies hold over the online space as some of the newest “common carriers” in the market. To get to the root of establishing our true freedoms of speech on1ine, making sure that we know on1ine forums are the equals to a town square is paramount. Then we must solidify that social media companies refraining from restricting our speech is not forcing them to accept the speech; rather, it is preventing online discrimination based on political opinions. Only after these two keys turn the lock to our minds, can we endeavor to guarantee online speech shall not be abridged.

NOW, IS SOCIAL MEDIA REALLY A “COMMON CARRIER”?

To answer this question, we need to look at two differing cases – NetChoice v. Florida and NetChoice v. Texas. These two cases involve laws passed in Florida and Texas, which bar social media sites from “deplatforming” or “banning” accounts based on their political opinions. 3 4 However, both of these laws were blocked by higher courts with challenges to the idea that these social media sites are common carriers. In the opposition of granting common carrier status to these social media sites, two points arise: contention to their status as a monopoly (which common carriers usually are) and the belief corporations shouldn’t have to post views they disagree with on their “property”.5 These views are promulgated by Ilya Somin, who contends that the results of these two things being ignored would cause less civil engagement as websites would begin to shut down instead of being forced to publish beliefs they vehemently disagree with. To the latter, I must first ask, how many of these major media sources actually publish their own political viewpoints?

Let’s break the sites down one by one. YouTube’s dedication to the political sphere is next to none; their own channel revolves around inviting on new YouTubers to explain their content, possibly with an acquisition deal. Twitter’s new management under Elon Musk does brief political callouts for mildly contentious topics, yet has absolutely no issue with keeping on viewpoints from various political spectrums at full blast. Facebook and lnstagram also focuses more on posting content updates rather than marring itself in the political sphere, showcasing they too have no longstanding publication or opinions on their “property,,. Finally, TikTok matches up closely with YouTube’s channel strategy, shying away from contentious political topics as well.

All of the major media companies, then, can be clearly shown to not utilize their properties for posting their own political views, unlike sources Somin compares them to (such as the Times or Fox News). If they don’t use their own platfonns for posting political standings, then I find it difficult to reason as to how they are publishing things they disagree with -- or anything at all for that matter -- and are instead simply maintaining a virtual meeting place, roundtable, or town square for profit. Overall, Somin,s point comparing social media companies and a newspaper is a faulty one, allowing us to think for a minute as to why these social media companies need to ban any account based on their opinions if they, themselves, do not want to influence their brand to become a hub for a certain political opinion.

To Somin’s fonner point, I can see the argument behind the fact that these social media giants are not complete monopolies - they most certainly have avid competition - but I do not see why the rules of the common carrier cannot still be applied to an oligopoly, which is when a few companies control the entire market. Consider that Facebook and Instagram are both owned by their parent company Meta, which has billions of monthly users as of January 2023.6 Numbers from TikTok and YouTube are in the general ballpark with Facebook and Instagram, with Twitter being d1e lowest at around half a billion monthly users6• This domination by the top 5 regarding reaching out to people is still a very universal medium for people to discuss and communicate on, concentrating influence of more than a fourth of people within the world.

Additionally, most common carriers, like railways, are actually oligopolies, with massive companies owning large swathes of railways, providing services universally for every participant.

Considering the similarities between the two, a similarity should be construed, especially when you realize the small number of requirements (simply an email in some cases, and an age requirement) to sign up for social media. Overall, by definition, these major media corporations seem very alike to not only traditional common carriers but also stand very different from the idea that their platfonns are akin to newspapers or traditionally published media.

Without question, barring individuals from the rights afforded to them by participating in common carriers is critical; regardless of whether the shareholders, executives, or staff of a company disagree with a political point, it must be protected. Under no circumstance should our freedoms be restricted, and social media must be treated as if we were taking a trip down to our local town square; of course, a speaker at the square may completely disagree with you, but the first step should be to recognize that and endeavor to debate, not to silence. For, as General Patton once said, “If everyone is thinking alike, then someone isn’t thinking.”

1 US Const, amend. 1

2 “Common Carrier,” LIi / Legal Information Institute CNex Definition Team, June 2021), https://www.law.comel1.edu/wex common_carrier.

3 N. Leg. 2021 Fla. S.B. 7072 § 1 (2021)

4 Tex. H.B. 20, 87th Leg., R.S., § 1 (2021)

5 Ilya Somin, “The Case against Imposing Common Carrier Restrictions on Social Media Sites,” Reason.com, July 8, 2021, https://reason.com/volokh/2021/07/08/the-case-against-imposing-common-carrier-restrictions-on-social-media-sites/.

6 S Dixon, “Global Social Networks Ranked by Number of Users 2022,” Statista, February 14, 2023, https://www.statista.com/ statistics/272014/global-social-networks-ranked-by-number-of-users/.