Navigating Free Expression in the Digital Age: The Role of Social Media, Terms of Service, and Government Regulation

There are certainly a multitude of sector-specific issues in regard to free expression in our ever-growing digital age. One group that feels the effects both the benefits and drawbacks of these are private internet and social media companies. In a 2020 essay written by Jack Balkin, he insightfully states that “Social media companies are key institutions in the 21st century digital public sphere. A public sphere doesn’t work properly without trusted and trustworthy institutions guided by professional and public-regarding norms. The goal of regulating social media is to create incentives for social media companies to be responsible and trustworthy institutions that will help foster a healthy and vibrant digital public sphere.”

One way that social media regulation impacts an individual private user is through a contract that the user agrees to abide by. This is what is referred to publicly as a Terms of Service. As stated by Contracts Council, “Terms of service, often abbreviated as ToS, are legal agreements between service providers and their clients or users. Terms of service are typically published on a company’s website for user to review and agree to before using the service.”
These terms of service are used by many of the main popular social media platforms: YouTube, Facebook, X (formerly Twitter), Instagram, Snapchat, and Discord.

Now more than ever it is possible for a journalist or digital content creator to grow and maintain an audience and following. A presence on digital channels is crucial to increasing brand awareness. However, with social media comes a lot of risks that need to be managed. Moderating on these platforms is all about understanding your demographics’ wants and needs, with diplomacy and grace. It’s undeniable that these days brands need to take advantage of an online space to better connect and interact with their consumers but it takes more than posting an update now and then.

The government is another important factor to consider. Policymakers need to always take into account what the First Amendment stands for and protects. “The First Amendment guarantees our right to free expression and free association, which means that the government does not have the right to forbid us from saying what we like and writing what we like; we can form clubs and organizations and take part in demonstrations and rallies. With that in mind, although free expression is a protected right, the intersection of freedom of speech used by a citizen on their personal social media platform may be subject to legal scrutiny. Some of the biggest questions about potential new platform regulation today involve content of this sort: material that does not violate the law, but potentially does violate platforms’ private Terms of Service (TOS). This speech may be protected from government interference under the First Amendment or other human rights instruments around the world. But private platforms generally have discretion to take it down.

One drawback that I can theorize that exists within civil society, the media, journalists and other researchers is a tendency to align oneself with personal biases. News media, social media, and search engines have become so biased, politicized, and personalized that we are often stuck inside filter bubbles, where we’re only exposed to information and ideas we already agree with. Free expression on a global level, in my opinion, becomes weaker when open conversations and exchange of different ideas are being quieted. Most people believe other groups have an easier time exercising their free speech rights without consequence than they do. For example, Democrats see conservatives as having an easier time, while Republicans believe minority groups, such as Black, Hispanic, Asian, or LGBTQ people, have an easier time than whites, conservatives, or people like them.

I believe one way each aforementioned group in this blog post can safeguard free expression by having a dedicated moderation team or review board. Speech that does not incite violence against another individual should be protected free speech, and having digital spaces that opposing viewpoints can freely express themselves is both a manifestation and result of that freedom.
“Free speech in a diverse, pluralistic society needs citizens to experience and engage with others, even if we find those engagements uncomfortable, offensive, or even crass. Without that exposure, we’re tempted to shutout everything and anything we disagree with because it feels alien and wrong.”