Social media platforms have been at the center of attention during times of conflict and crisis, with concerns over disinformation and violent posts spreading rapidly. In recent developments, a top European regulator, Thierry Breton, has issued a warning to platforms like Meta, TikTok, and X (formerly Twitter), urging them to remain vigilant and comply with the region’s rules on illegal online posts under the Digital Services Act. This article critically analyzes the potential impact of such regulations and contrasts them with the First Amendment protections afforded to social media platforms in the United States.
In Europe, the Digital Services Act imposes obligations on large online platforms to implement robust procedures for removing hate speech and disinformation, with potential fines of up to 6% of their global annual revenues for non-compliance. This strong regulatory stance has prompted Breton’s warning to social media platforms operating within the region. However, the situation is markedly different in the United States. The First Amendment protects various forms of abhorrent speech and prevents the government from stifling it. As a result, the U.S. government’s attempts to moderate election misinformation and COVID-19-related content have faced legal challenges, culminating in a recent appeals court ruling that suggested the government violated the First Amendment through coercion.
Unlike Europe, the United States lacks a legal definition of hate speech or disinformation explicitly punishable under the constitution. Kevin Goldberg, a First Amendment specialist, explains that while narrow exemptions exist for speech involving incitement to imminent lawless violence or fraud and defamation, many provisions of the Digital Services Act would not withstand constitutional scrutiny in the U.S. context. The absence of hate speech or disinformation laws and the strong protection of free speech make it unlikely for government officials to exert pressure or influence on social media platforms as seen in the EU.
In the U.S., government requests to social media platforms should clearly distinguish themselves as mere requests and avoid any semblance of enforcement action or penalties. By refraining from issuing threats, governments can navigate the delicate balance between safeguarding free expression and combatting harmful content. New York Attorney General Letitia James provides an example of this approach. In a recent series of letters sent to major social media platforms, James sought information on how they identify and remove calls for violence and terrorist acts following the terrorist attacks in Israel. Importantly, these letters did not include any explicit threat of penalties for non-compliance, aiming to avoid potential legal challenges based on violations of the First Amendment.
As Europe intensifies its regulatory efforts, it remains unclear how these rules will affect social media platforms both within the region and globally. Christoph Schmon, the international policy director at the Electronic Frontier Foundation (EFF), views Breton’s warnings as an indication that the European Commission is closely monitoring the situation. It is entirely possible that social media companies might choose to limit the application of new policies to Europe, given the diverse restrictions on speech they already face in different countries. However, history has shown that the tech industry often applies regulations, such as the European Union’s General Data Privacy Regulation (GDPR), on a more global scale.
Within the context of this increasing regulation, individual users should also have agency over the content they consume on social media platforms. Kevin Goldberg acknowledges that users may wish to filter or exclude certain types of posts from their feeds. Therefore, providing users with the ability to customize their settings according to their preferences can strike a balance between regulating harmful content and respecting individual autonomy.
As disinformation and violent posts continue to spread on social media platforms, regulatory efforts to combat these issues are becoming more prevalent. While Europe has taken a firm approach with the Digital Services Act, the U.S. distinguishes with its strong First Amendment protections. As governments seek to address online harms, it is crucial that regulations are carefully crafted to respect free expression while still combating the harmful effects of certain content. By navigating this balance, social media platforms can better protect their users while upholding the principles of a democratic society.
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