Free Speech or Censorship?

AdobeStock_283452126_Editorial_Use_Only-300x189It doesn’t take long on the internet to find extremist language, hate speech, and accusations of censorship. Often these are all found within the same post. Business owners have free speech rights, but free speech from any employee can expose a company to liability for false statements. It is important for business owners to create clear corporate policies about employee communications both on company websites and personal social media channels.

The Current Legal Standard

Current case law on this issue dates back a few decades. In 1964, the Supreme Court decided New York Times Company v. Sullivan, a First Amendment case involving published criticism of public officials. The Court found that Sullivan had indeed proven that the New York Times had published inaccurate statements about his office and subordinates. The fact that the statements were false did not, however, support his case for libel. The Court enacted a new standard of “actual malice.” This new rule means that an official must prove the false statement was published with the knowledge that it was false – or with gross recklessness – to sustain a libel case. Unless this legal definition of “actual malice” exists, the false statements are protected as free speech under the First Amendment.

The Challenges of Applying the Sullivan Standard to Social Media

A recurring problem in the law is applying and adapting old legal standards to new technologies. While some of the legal principles remain the same, the new functions and features of updated technologies do not always allow for a uniform application of existing legal principles. There is perhaps no more direct and violent example of this problem than free speech on the internet. Social media use has redefined human communication in recent years with a significant impact on local laws,  and has even affected presidential elections and impeachment. Social media users have already complained of censorship when their posts are removed by platform administrators. This type of censorship is, of course, different from censorship by the government, but the two can become inextricably linked. For example, government officials maintain accounts on public social media channels. Issues related to free speech are raised when they block users or delete comments, one of many examples of the problem of free speech on the internet. Courts have not yet created clear legal standards for private companies that wish to censor online expression, and the problem is becoming urgent and ever-growing with the rise of hate speech and extremist language in the digital world.

The Implications for California Business Owners

So, what are business owners supposed to do? The competing interests of free speech and public safety have infiltrated every part of digital life – even the web pages of private business owners. By working with an experienced attorney, your business can create effective strategies that protect your legal rights while limiting potential liabilities. The experienced California corporate lawyers at Structure Law Group, LLP are skilled in protecting the free speech rights of all business owners. Call (408) 441-7500 to schedule a consultation or contact us online.