WASHINGTON – Today, Constitutional Accountability Center is releasing a new issue brief that explores the intersection of constitutional principles of free speech and equality, and how they translate to social media. It urges social media companies to strike a balance between constitutional values of speech and equality when deciding how to handle harmful content on social media platforms. 

Titled Speech and Its Relationship to Equality: Constitutional Values in the Digital Age, and authored by David Gans, Director of CAC’s Human Rights, Civil Rights, and Citizenship Program, the issue brief explores ideas of equality as a free speech value, how to take account of both speech and equality, as well as guidelines on how social media companies can balance those constitutional values. An excerpt: 

There is a robust debate today over how platforms should regulate speech on social media, almost all of it focusing on whether the platforms’ content moderation policies are consistent with free speech values. This is too narrow in multiple ways. In the first place, free speech values do not exist above other constitutional principles. We must strike a balance between constitutional values of freedom of speech and equality. But most of the debate treats free speech as the only relevant part of our constitutional heritage. In the second place, content moderation policies, while extremely important, are only one piece of the puzzle. We cannot understand how to reconcile our constitutional values without understanding three related and interlocking problems: (1) the many ways the algorithms employed by social media companies have helped to amplify extreme, hateful speech, effectively giving those who spread hate a virtual bullhorn; (2) content moderation policies that empower the companies to silence certain voices, and (3) the social media companies’ lack of transparency about their decision-making processes… [U]nderstanding the constitutional duty to strike a balance between speech and equality can help inform efforts to address the immensely complicated and difficult problems of platform governance. 

CAC’s research on constitutional values in a digital era, in part supported by funding from Google, helps advance “a critically important conversation as the nation heads into perhaps the most momentous election in our lifetimes,” said CAC’s David Gans, author of today’s issue brief. “When confronting lies, hate, and harmful propaganda online—which we can expect to reach a fever pitch in coming weeks—social media companies can and should strive to reflect our whole Constitution’s core values, including free speech, equality, and due process. Striking this balance is never easy, but it is essential if we are to do justice to the fundamental constitutional values we all hold dear.”

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Resources:

Speech and Its Relationship to Equality: Constitutional Values in the Digital Age, CAC Issue Brief, David H. Gans, May 21, 2020: https://www.theusconstitution.org/think_tank/issue-brief-speech-and-its-relationship-to-equality-constitutional-values-in-the-digital-age/

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Constitutional Accountability Center is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. Visit CAC’s website at www.theusconstitution.org.

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