Litigating social media platforms: editorial judgment and the First Amendment

by Mark Dzula

Description

Currently, there are major legal battles over who has the right to regulate content on social media. Should companies make decisions about what to publish or have the ability to limit what goes out on their platforms? Or should government have the ability to determine which companies are protected by the First Amendment and to what extent? 

A key distinction in these cases is the difference between a newspaper/publication (which is beholden to a certain set of laws) and a social media platform. In which ways are these entities similar? In which key ways are they different? Based on these differences, how should laws and the First Amendment apply?

The challenge in these cases is to strike the correct balance between the role of legislation, the rights and responsibilities of the companies, and the reach of the First Amendment. By examining these tensions, students will learn about all three aspects of this challenge and will come away with a better sense of how governments and companies may work to strengthen democratic values online.

Objectives

• Students will examine laws that are being challenged in the Supreme Court, especially in the case between Florida v. NetChoice.
• Students will consider the differences between newspapers and social media sites to understand the laws that apply.
• Students will research and weigh the role of precedent to predict how the Supreme Court may rule in this case, including work with primary source documents.
• Students will write persuasive arguments to back up a position in ruling for either NetChoice or Florida and weigh in on the appropriate balance between companies’ rules or governmental legislation as they seek to uphold the First Amendment and create effective and constitutional policies.

Common Core State Standards

CCSS.ELA-LITERACY.RI.9-10.8	Delineate and evaluate the argument and specific claims in a text, assessing whether the reasoning is valid, and the evidence is relevant and sufficient; identify false statements and fallacious reasoning.
CCSS.ELA-LITERACY.RI.9-10.7	Analyze various accounts of a subject told in different mediums (e.g., a person’s life story in both print and multimedia), determining which details are emphasized in each account.
CCSS.ELA-LITERACY.RI.9-10.4	Determine the meaning of words and phrases as they are used in a text, including figurative, connotative, and technical meanings; analyze the cumulative impact of specific word choices on meaning and tone (e.g., how the language of a court opinion differs from that of a newspaper).
CCSS.ELA-LITERACY.RI.9-10.6	Determine an author’s point of view or purpose in a text and analyze how an author uses rhetoric to advance that point of view or purpose.

Length

Two eighty-minute blocks, with HW in between

Materials / resources

• Social media companies and common carrier status: a primer by John Villasenor via the Brookings Institution
• Social Media Companies Want to Co-opt the First Amendment. Courts Shouldn’t Let Them, an opinion piece in the New York Times by Jameel Jaffer and Scott Wilkens from the Knight First Amendment Institute at Columbia in the New York Times
• Can we regulate social media without breaking the First Amendment? Podcast interview with Jameel Jaffer for The Verge
• Florida petition to Supreme Court over social media regulation
• Supreme Court docket files for Ashley Moody, Attorney General of Florida, et al., Petitioners v. NetChoice LLC, dba NetChoice, et al.. 

Day 1 step-by-step

1. Opening activity: Working with a partner, ask students to compare and contrast newspapers and social media sites.
2. Quick share out and probe deeper: do students know how liability laws between social media sites and newspapers differ? Group read: Social media companies and common carrier status
3. Using the distinctions between newspapers and social media sites, as well as an understanding of common carrier status, go over the outline of the pending Florida v. NetChoice case. Overview of timeline, litigants, and potential political points of view at play in this case.
4. Gut check, independent writing: Before researching primary source documents and opinion pieces, what do you think? Who should win the case and why? What aspects of the First Amendment are at stake in this case?
5. Introduce Supreme Court Docket Files and give an overview of the type of documents included.
6. HW: students are encouraged to browse all documents but are assigned one document to summarize in depth. Note:
   1. Who the authors are
   2. What their point of view and main argument is
   3. Some legal reasoning supporting their argument (including cases and precedent)
   4. Political contextualization: where are these arguments coming from? What may be their larger implication or importance? 

Day 2 step-by-step

1. Students summarize their summaries, class takes notes as students present, and are encouraged to ask each other questions.
2. Based on the summaries, students build agreement on what’s at stake in the case, teacher notes this on the board, or via projection
3. In-class reading: Social Media Companies Want to Co-opt the First Amendment. Courts Shouldn’t Let Them
4. Partner work: What do we make of Jeffries arguments? How does he align with the documents and arguments presented in the docket? How might we compare and contrast between writing for a publication and briefing the Supreme Court?
5. Assignment: Using primary and secondary source materials, write a persuasive argument about who should win the case and why. Consider your audience and be able to counter possible counter-arguments to your point of view. Arguments should be as concise as possible, no longer than 2-3 typed double-space pages.

Teacher notes: 

This can be a sprawling project since the arguments are current and wide-ranging. Noting the use of precedent will be important to understanding how the Supreme Court might question its litigants in a hearing and make a decision. This project could be modified by having more summaries of materials available, but would take the students further from engaging with primary source materials. 

A lesson on the use and challenges of primary source materials may be useful for framing and context. 

A lesson or previous practice with persuasive writing in legal settings may also help students feel prepared to execute the lesson well.

This lesson could be extended by requiring the students to go much further in-depth with their research. Another class could be devoted to a mock hearing, with role play with students acting as judges (and assuming their POVs) and well as litigants (assuming their POVs).