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As rowdy rioters outside the Capitol building on January 6 turned into a violent mob that overran security forces and forced elected officials into hiding, the nation was gripped by many questions. They were the classic questions that come with any breaking news event: who, what and why? Who were these people? What were they trying to accomplish? And why did they feel the need to use violence to accomplish it?

In the days since the attack, we are starting to find answers to most of these questions. In large part, the mob was made up of people who had bought into a web of lies that had been woven over many years in the dark and not-so-dark corners of the internet. These lies had been fed by influential social media personalities and politicians who at best turned a blind eye to the falsehoods and at worst indulged them on their own social media platforms. Some even went so far as to make direct appeals toward violence. We’ve also learned that Capitol police were woefully underprepared to handle a threat that many of the rioters had publicly posted about online. 

But as we have received answers to our initial questions, additional questions have cropped up in their absence. In the days immediately following the riot, the leaders of various social media platforms took center stage as they suspended or outright banned the most prolific posters of misinformation, including Former President Donald Trump. Many conservatives cried foul at this move and claimed that big-tech was suppressing free speech and censoring the American people.

But although the free speech debate hit a tipping point this January, it has in many ways been part of our collective consciousness for several years. Protests in Ferguson, Charlottesville, Portland and Minneapolis have called into question where the line should be drawn between what constitutes the peaceful exercise of a person’s First-Amendment rights and something illegal. Tweets by the former president and his cabinet in the wake of this year’s election have led us to wonder what speech is protected and what needs to be regulated in defense of truth and in service of our democracy.

In the pages that follow, the Viewfinder editorial team will take on these and other questions in hopes of bringing clarity to a chaotic conversation and helping our readers make sense of a complex situation. In short, we will exercise our First Amendment right in order to help you do the same.

What forms of speech are protected?

Written By: Cole Berndsen

The First Amendment of the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment establishes five forms of freedom. These five freedoms include freedom of speech, religion, press, assembly and the right to petition the government. This amendment was passed by Congress on September 25, 1789, and ratified December 15, 1791.

Basically, the vast majority of speech is protected, including things like what’s going on in the sports world, coverage of current trends and even gossip about how Mike’s wife is cheating on him. It can also include things like offensive jokes, statements of extreme political opinions and the dumbest takes that can be found on Twitter.

However, certain forms of speech are not protected, especially those that lead to violence. An example of this would be, say, during a riot, someone with a megaphone screams “GET HIM!” while pointing at someone and then a mob forms to pursue, beat and/or kill that person. If someone’s words lead to immediate violence, then that person can be held liable for inciting violence.

However, if no violence is committed but someone is saying violent things, then no legal action should be taken. For example, if someone is holding a sign that says, “kill cops,” then unless cops are subsequently killed, that person should not be in any legal trouble for holding that sign.

Although this speech is provocative, it is not subject to censorship. And this is for good reason; censorship rarely solves the problem. Instead, the best way to counter any kind of extreme speech or misinformation is with your own speech. Debunk it, discuss it, ridicule it, whatever. Getting rid of that kind of speech only emboldens the speaker.

When it comes to extreme forms of speech on the internet, there is a way to determine if any illegal activity is taking place. This is called the Brandenburg test.

The Brandenburg test was named after a KKK leader named Clarence Brandenburg, who was initially convicted of criminal syndicalism (basically advocating violence) for an inflammatory speech given to his fellow Klansmen. His lawyers managed to have his sentence overturned (after the case went to the Supreme Court in Brandenburg v. Ohio) by arguing that the court couldn’t prove that Brandenburg’s words would be imminently acted upon.

The Brandenburg test examines many things within speech, such as what words were said, the context they were used in and where they were used. It also looks at the people involved, their histories, their social standings and any power they might have (like a high-ranking position in business or law enforcement, for example). The point of the test is to take everything about the situation into consideration and make a reasonable judgement as to whether or not any imminent lawless action is taking place.

I’ll give a couple dumbed-down examples. Take the phrase, “I’m going to kill you,” which sounds ominous on its own.

Situation 1: The phrase was sent via Xbox Live message by a 12-year-old to another 12-year-old because he got beat in a game of Call of Duty. Chance of imminent lawless action: minimal at most. Is this 12-year-old going to commit murder? Most likely not. It passes the Brandenburg test, and the police can move on.

Situation 2: The phrase was sent via private Facebook message to a girl by her ex-boyfriend who was released from prison for assaulting her and has a long history of violence against her. Uh, oh. Chance of imminent lawless action: I would say pretty high, so the police might want to get in on that one.

Those were just examples on opposite ends of the spectrum. Obviously, not all situations are going to be as black-and-white as those two, and properly using the test requires a level of nuanced thinking and understanding of culture, especially given how people conduct themselves online.

Freedom of speech is an important element in our country. While we have a constitution that explicitly protects our right to free speech from the government, it is up for the people themselves to decide if certain ideas are worth listening to or not. Many people across the world don’t have that freedom, such as the Hong Kong protestors in 2019, Saudi dissident Jamal Khashoggi, and even in countries like the U.K., where a man was fined 800 pounds over an offensive joke he made on a YouTube video for causing “gross offense.”

Now is a time for more dialogue, not less.

Whom is the First Amendment designed to protect, and whom does it protect us from?

Written By: Megan Marshall

The First Amendment of the United States Constitution is designed to protect certain freedoms of all citizens, residents and visitors. This protection is only applied to individuals in United States territory. The First Amendment has no age limitations; it protects young and old alike. One does not have to be a citizen to be protected by the First Amendment, meaning that noncitizens are shielded while in our country. The First Amendment doesn’t stand on either side of the aisle and can be used by any political party to advocate social or political change.

The First Amendment prevents the government from limiting we, the people, in certain ways. It also prevents the government from requiring anyone in the U.S. to say something they may not want to say or keeping anyone in the U.S. from hearing or reading the words of others.

Although it seems like the First Amendment fully protects us, there are some ways that it doesn’t. For example, it can protect individuals from employers discriminating against religious views, but it doesn’t prevent private employers from setting their own rules. This means that private employers can restrict employee speech in the workplace. For example, a private workplace can restrict an employee from discussing religion and politics with customers. Even though private employers can restrict employee speech, they cannot use speech as a pretext to violate other federal laws preventing from discrimination in regards to religion, sex or race. Public employers such as law enforcement departments, however, are government actors and are subject to limitations of the First Amendment.

When exercising First Amendment rights, be mindful that it protects us from government interference but not from private individuals or organizations. The use of censorship happened recently when private companies such as Twitter, Facebook, Instagram and YouTube banned Trump from his accounts. 

On January 8, a couple days after the Capitol riot, Twitter permanently banned Trump from using his @realDonaldTrump account. Facebook and Instagram are also keeping Trump under an indefinite ban from his accounts. On January 26, YouTube suspended its partnership with former New York City mayor Rudy Giuliani for communicating false information and claims about the “stolen” election. By suspending Giuliani’s partnership, YouTube prevents him from receiving ad revenue, subscriptions and donations.

The First Amendment only acts as a restraint on the government and cannot stop social media platforms from censoring users. Because platforms such as Facebook and Twitter are private, it gives them the ability to take down posts and suspend users from their accounts. The first line in the First Amendment states that Congress shall make no law restricting freedom of speech, press and religion. The First Amendment gives individuals zero protection from censorship by private companies or employers that are not a part of the government.

If private employers could not censor, employees and individuals could say whatever they wanted whenever they wanted. In the context of social media, this means social channels would have the potential to be filled with misinformation and harassment. Likewise in the workplace, instead of consumers hearing, “Thank you and have a nice day” from the person giving them service, they could hear all about their religious or political views or be susceptible to foul language and poor customer service. Employees could get the same treatment from customers and the customers would not be subject to refusal of service.

There are countries that do not have robust free speech protections such as China and North Korea. If the United States Constitution allowed the government to censor, the world would look a lot different.

The right to assemble would be prohibited. This means we, the people, would not have the right to protest rallies and marches. The right to petition the government would result in strategic lawsuits against individuals or groups that reach out to government agencies about issues such as pollution, education or economics. The U.S. government could impose an official form of religion, preventing other forms of religion from being practiced. Lastly, speech and press would look different. Political expression could be punishable by law. Opinions concerning abortion, race, women’s rights, workers’ rights and climate change could all have consequences.

The First Amendment is not limitless, but it does establish important rights. Know your rights, and practice them.

Does social media censorship violate limit free speech rights?

Written By: Nerma Turan

On Friday, January 8, Twitter posted an article titled “Permanent Suspension of @realDonaldTrump.” In this article, Twitter addressed the fact that Trump would be permanently banned from using the social media platform due to the risk of fueling further violence after the Capitol riot. On Friday, January 8, Twitter posted an article titled “Permanent Suspension of @realDonaldTrump.” In this article, Twitter addressed the fact that Trump would be permanently banned from using the social media platform due to the risk of fueling further violence after the Capitol riot. Twitter stated, “After assessing the language in these Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.”

This stand by Twitter led many Americans to wonder if the President’s freedom of speech was being violated. The short answer is no. 

So why was Twitter able to ban the then-president of the United States from posting on its platform? It could do so because social media platforms such as Twitter and Facebook are considered private entities. This means that they can make their own policies regarding the content that is allowed on their sites. In a Washington Post article called “No, Twitter is not Violating Trump’s Freedom of Speech,” reporter Amber Phillips discussed why social media companies aren’t controlled by the government in terms of the content that they authorize.

“The First Amendment was designed to prevent Congress or the states from blocking people’s freedom to express themselves,” Phillips wrote. “In fact, you could argue that it protects the right of a company such as Twitter to decide for itself what content to allow.”

Facebook and Instagram soon took similar actions to Twitter and banned Trump from their social platforms. A social network can regulate these sorts of things so long as the company is following its own terms of service. Users must agree to these terms when signing up for the platforms.

For example, Twitter has a help page that lists “The Twitter Rules.” These are safety rules that its users must abide by to appropriately participate in the public conversation. According to Twitter, the following are forms of speech that are not allowed on the platform: violence, terrorism, child sexual extremism, abuse, harassment, hateful conduct, self-harm, sensitive media, adult content and illegal goods or services. Twitter also does not allow users to post other people’s private information, impersonate someone else or violate copyright law. Similar rules apply to other social media sites and align with the First Amendment for the safety of all users and people.

There are people who believe that these social media platforms should not censor posts but rather allow for full freedom of expression. David L. Hudson, Jr., associate professor of legal practice at Nashville School of Law, wrote an article to this effect for the American Bar Association. The article is titled “In the Age of Social Media, Expand the Reach of the First Amendment.” In it, Hudson said it’s problematic that private entities such as Facebook and Twitter can censor their users’ posts according to their own standards.

According to Hudson, there are two reasons to protect freedom of expression within the First Amendment — the marketplace of ideas and individual self-fulfillment.

“… the marketplace of ideas, is a persuasive metaphor in First Amendment law that posits the government should not distort the marketing and engage in content control,” Hudson wrote. “It is better for people to appreciate for themselves different ideas and concepts.”

He went on to claim that people need to be allowed to express themselves freely “to become fully functioning individuals.” By social media platforms censoring posts, individuals can’t grow because they do not get to partake in the marketplace of ideas and individual self-fulfillment. 

For now, private social media platforms will continue to function according to their own policies — as is their legal right. This means that they will censor posts that do not follow their guidelines, which are intended to protect the people and organizations that use their platforms. Although these platforms do not permit complete freedom of speech for users, one could still argue that protecting against things like violence, threats, and harmful language are in the public’s best interest.

Are social media companies responsible for content posted by users?

Written By: Caleb Grizzle

Social media platforms have faced a lot of backlash lately on how they handle misinformation or inflammatory rhetoric from users. But does the responsibility of managing this content fall on their shoulders?

Hateful speech and misinformation is known to spread rather quickly. In 2017, Ali Velshi, a long-tenured journalist, shared that of the top 20 fake news stories spread in 2016 on Facebook, they received more engagements on social media (by more than a million overall) than the top 20 true stories of 2016 shared on Facebook. This suggests that misinformation is spreading like wildfire on social networks.

Many social media companies have started to provide report buttons and false information filters designed to flag potential misinformation. Additionally, sites such as Parler have been removed from app stores, and conservative commentators and other right-leaning media personalities have been tagged with false information filters on Facebook, Twitter and elsewhere after creating posts deemed by site moderators as crossing the line into the realm of disinformation and conspiracy theories. Some have even been removed from the platforms completely, which has brought the issue of free speech into question. Many conservatives have also contended that these filters or “safeguards” are biased toward certain political views.

Those claiming free speech infringements must contend with the fact that privately owned social media networks are not considered part of the public domain. They are operated by private companies and utilize private servers. Because of their private status, these companies are tasked with a responsibility to protect users from dangerous misinformation or hateful speech. If social media platforms offered no filters or moderation of their content, there would theoretically be an onslaught of misinformation, inflammatory rhetoric and vulgar content shared. This can be prevented in some respects through content filters, fact checking and stricter terms of agreement upon ones’ account creation. I do think that social media platforms and private servers such as Amazon Web Services should have some structure in place to offer filters for misinformation and inflammatory speech. This is largely because the alternatives to private moderation are not any more attractive.

There are those that propose the government should regulate social media content. But this option also heads down a slippery slope of misplaced power or harmful events occurring due to unmoderated content. Government regulation of social media platforms could stifle healthy discussion about our government and truly threaten free speech.

There is not a perfect solution to this issue of moderation and content filtering when applied to social media; however, it is important to remember that free speech has never truly existed on private platforms like Facebook, Twitter and even conservative sites like Parler. These platforms have always been privately owned and operated; therefore, the people who are calling for free speech to be restored are asking for something that never existed in the first place. 

The weight or blame of misinformation and inflammatory content should not fall on one company or one person. Instead, the responsibility falls on everyone involved with the social media platforms. Users who think before posting, sharing and liking, and users who report misinformation or inflammatory speech can begin to provide a healthy new direction for social media platforms during this immensely divisive climate.

Is protesting a form of free speech? When does a protest cross the line?

Written By: Camden Blowers

Across the United States and throughout the world, protesting is a well-established form of free speech. One of the most well known protests dates back to December of 1773 with the Boston Tea Party. The protest was a demonstration by the American colonists who were infuriated at Britain for imposing taxation without representation.

The American colonists proceeded to dump 342 chests of tea imported by the British East India Company into the harbor. The Boston Tea Party influenced our founding fathers and laid the groundwork for modern day protest a means of bringing about awareness and change. 

Now, bringing it to the 21st century, protests are as prevalent as ever, but the actions and motivations of protestors are under intense scrutiny. Many Americans are shutting down and infringing the rights of others to protest and to exercise their right to free speech. This can be seen with the recent Black Lives Matter protests that were happening all over the United States in the summer of 2020.

After the killing of George Floyd, a father and husband who resided in Minneapolis, Minnesota, by a member of the Minneapolis Police Department (while several others looked on), many Black Americans and others made a promise to themselves and Floyd’s family to never let another one of their own to be unjustly killed. This promise was followed by protests that erupted in major cities across the United States. A combination of hate, grief and frustration among protestors coupled with resistence and condemnation from law enforecement and politicians led to some of the calm and peaceful protests turning violent. Buildings were set on fire, windows were smashed in and police and SWAT teams were getting into physical and harmful altercations with the protestors, infringing on protestors’ right to freedom of speech.

What once was a movement that brought attention to the horrible death of a Black man and the unjust treatment of Black Americans and people of color turned into a political problem centered on the question “when does a protest cross the line.”

As stated above, the First Amendment guarantees the “right of the people peaceably to assemble.” This is where the line is drawn for when a protest crosses the line. Once a protest becomes violent and the harm of others on either side is inflicted, then it ceases to be peaceful.

This January, another high-profile protest took place at the Capitol Building in Washington D.C. Many Republicans gathered to protesting what they deemed an “unfair election.” This started out as a peaceful protest that soon turned violent and crossed that line of free speech protections.

At it’s start the protest was peaceful, but soon the Capitol was breached. Many of the protestors stormed the building/ Once inside, they vandalized the property of some political leaders. Some brought in weapons and threatened to injure elected officials.

While the protestors had a right to bring awareness to their desire for a recount of votes the line was crossed when physical harm was being threatened and restricted property was breached.

Protesting has been a powerful tool throughout U.S. history and all over the world to bring awareness to issues that are called for change to be made. The line that is drawn is when the protesting becomes violent and leads to harm. While Americans can point fingers at who can and can’t protest and for what reason, as long as the demonstrators stay within the frame of peaceful protesting, their words and causes will continue.