Political freedom depends on public debate. More than just the setting of regular elections,
Democracy is a system under which the populace should at all times feel that they have unfettered
access to the channels in which to freely express themselves. But access to platforms is one thing,
and the content of that speech is another.

In the words of Justice Oliver Wendell Holmes: ‘The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.’ What is less well-known is that Justice Holmes wrote those words in a unanimous Supreme Court decision ruling that it was a violation of the Espionage Act of 1917 for Defendant to distribute flyers opposing the draft during World War I. Today, the debate continues as to just what state controls over social media forums are acceptable. Or should there be any such oversight at all in a Democracy?

Clear and Present Danger

In Schenck v. United States, 249 U.S. 47 (1919), the Supreme Court case where Justice Holmes carved out his famous exception to the Constitutionally-protected right to free speech, he based his ruling on the notion that Schenck’s anti-war flyers posed a ‘clear and present danger’ to America’s wartime recruitment effort. Interestingly, some legal historians claim that Holmes regretted his holding in Schenk because of its intrusion upon free speech and that this led him to join the minority and dissent in a similar Espionage Act case later that same year.

‘Imminent Incitement to Lawless Action’

Fifty years later Schenk was significantly scaled back in the landmark ruling in Brandenburg v. Ohio, 395 U.S. 444 (1969), where the First Amendment was interpreted to mean that government cannot punish inflammatory speech unless it is used to ‘incite imminent lawless action’. Brandenburg, an Ohio KKK leader, had held a rally wherein he used derogatory language towards Blacks and Jews and advocated the forced expulsion of African Americans to Africa and Jewish Americans to Israel. Brandenburg held that the state was not permitted to forbid or proscribe the advocacy of the use of force or violation of law except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.

Free Speech and Technocracy

A technocracy has been defined as the ‘control of society (or an industry) by an elite of technical experts.’ This raises the issue as to whether America has now become a technocracy given the very powerful role that the high-tech industrial and commercial sector plays in our society—most prominently in the fields of information, communications, and social media.

Whereas at one time the public made its opinions known to readers of the local newspaper by way of the now-archaic ‘Letters to the Editor’ which–unless deemed obscene or otherwise not fit for a family newspaper– were quite likely to be published. Today, anyone from anywhere in the world can put their two cents’ worth of opinion, ideology, or rhetoric—polite and restrained, or inflammatory– before hundreds of millions of readers, subject of course to the ubiquitous ‘Terms of Service’ (TOS) parameters.

Therein lies the fundamental freedom of speech, expression, and flow of information debate

Social Media Gatekeeping

Numerous issues come to the fore when digital regulation is discussed, including such concerns as: ‘who will be the gatekeeper?’, ‘what laws or judicial precedent will govern such oversight?’, ‘are there societal sensitivities and moral conventions that should be weighed?’ and ‘will proscription of a Tweet or posting amount to an undue policing of social media content and a chilling of First Amendment rights?’ The tech behemoths operating today’s exchange-of-ideas platforms have thus far granted unto themselves the unrestricted authority to decide what content will be published and what will not.

And, it is both the granting and the banning of content, devoid of any calculus by Justice Holmes, that worries many observers from across the political spectrum who regard the most liberal interpretation of ‘Freedom of Speech’ to be the hallmark of a Democracy. Or, as phrased by Evelyn Beatrice Hall (pseudonym, S.G. Tallentyre): “I disapprove of what you say, but I will defend to the death your right to say it.”

The Role of the Lawyer

Regardless of whether social media comes to be moderated by government fiat or self-regulation by the industry itself, those engaging in the regulation of speech will need the advice of lawyers well-versed in Constitutional Law, Privacy Law, and other legal disciplines lest well-intended controls morph into the realm of authoritarian censorship. Who, for example, will define what incitement is? What standards will be in place to protect free speech and a vulnerable public from AI bots masquerading as humans? The extent of social media platform abuse by unleashing such bots may even impact the highly publicized multi-billion-dollar sale of Twitter, thus bringing Contract lawyers and high-profile litigation firms into the social media fray.

The digital platforms themselves were granted unprecedented protection from liability—a safeguard enjoyed by no other media in U.S. history—with the passage of Section 230 of the Communications Decency Act granting them immunity from liabilities related to third-party hosted content. But will such insulation from liability continue unchallenged?

Infringement and Take-Down Orders

Aside from the issue of content regulation, there is the issue of liability that falls outside of the Communications Decency Act protections where alleged trademark, copyright, and other IP infringements occur. Although the platform itself might not be held liable for third-party posted content, social media users can be. That point was illustrated when a well-known New York drug store chain innocently posted a picture of an American actress and model walking with their shopping bags, which resulted in a $6 million Tweet-suit. Perhaps such content should have been vetted by social media savvy lawyers beforehand. Even without formal litigation, lawyers are also engaged to file takedown requests over posted content that infringes on an owner’s IP.

In sum, how the moderation and oversight of social media is impacted legally will have a long-term–if not everlasting-effect on the vaunted Fourth Estate of Democracy.

Executive Summary

The Issue

How to democratically deal with content moderation and oversight of the burgeoning social media industry?

The Gravamen

Balancing Constitutional free speech rights with the need to have some regulation over content remains a challenge of much debate.

The Path Forward

Oversight should be the product of sound Judicial precedent heretofore affecting traditional media, coupled with Congressional and industry input.


1. Who

Any lawyer counseling government or industry oversight analysts should start by raising the issue of who can best serve as a gatekeeper of social media regulation. A Congressional oversight board? An industry watchdog akin to what FINRA does for securities regulation?

2. What

What norms will be relied upon for regulation? The possibilities run the gamut from virtually no regulation, i.e., ‘defending to the death the right to publish’, to censors such as Hollywood saw by way of the Hayes Office during the early years of film production.

3. Necessary Skills

Lawyers looking to work in the field of social media can apply their Constitutional Law, Privacy Law, Contract Law, and intersections of several legal disciplines to address the opportunities ahead.

4. Techno Law

From the technical side, lawyers will be called upon who are skilled in Communications Law, AI, and IP prosecution and infringement practice.

Further Reading


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