On August 1, Maryland resident Korryn Gaines began an armed standoff with police after they came to her apartment to serve a traffic warrant and she refused to let them in. And then she began recording the events and posting them online on Facebook and Instagram. Hours in, frustrated officers (who were not wearing body cameras) asked Facebook to turn off the switch to her accounts. . And then officers shot and killed Gaines—leaving no digital record of her death.
Today we work, live and speak in a digital world. Mobile phones and Twitter have replaced megaphones and town greens. But something funny happens on the way to this (digital) forum: we must first step onto private property to make our voices heard. Before your voice is heard online, you must depend on a private company—usually, a social media platform—to faithfully publish your post.
Images on social media have enormous power. Which is why we need to ensure that private companies can’t turn off the switch whenever they choose.
The current vitality of today’s Black Lives Matter movement has in part been fueled by the onslaught of repeated, searing images of police shooting unarmed people of color. Feidin Santana shot the harrowing cell phone of Walter Scott’s killing by a Charleston police officer—and then connected with Black Lives Matter activists on social media to share the video. After Freddie Gray’s death, activists in Baltimore stormed the streets—and their protests on Periscope (so successfully that mainstream media offered a to the best livestreams). The traumatizing videos of Alton Sterling’s killing were by activists on Twitter. No viewer can forget the FacebookLive Lavish Reynolds posted of the shooting death of her boyfriend Philando Castile.
Adjectives cannot capture the horror of these videos or the sickening feeling that results from witnessing the routine killing of Black people by agents of the state. But in addition to being nauseating, tragic, appalling, and graphic, they are something else: indispensable.
These videos leave no plausible deniability about the reality of being policed while Black in America. For too long, Black people have had complaints of abusive policing dismissed as being paranoid and exaggerated. These videos have served as bitter affirmation of long-expressed concerns. This stream of visual proof has contributed to a new civil rights movement for the 21st century. Black Lives Matter activists have added their invaluable voices to the crusade for racial justice and police accountability, their activism powered by hashtags and livestreams. As a result, we have begun to see some glimmers of change in policing policy. For example, the DOJ just issued a about racial bias in Baltimore’s policing, and announced a to track the number of killings at the hands of police.
In short, this revolution is in the televising.
Which is why the Korryn Gaines shooting should make us all stop and think about how it is televised. It is a stark reminder that each of the powerful images and videos that have lent fire to the movement for police accountability relied on a private company to make them public. Periscope, Facebook, Twitter, YouTube—you name it: They set the rules for publishing speech, and set norms for public debate. Social media companies enjoy power over our speech previously held only by government.
Unfortunately, they also a staggering amount of speech. The First Amendment generally does not constrain private companies as it does government, so our constitutional right of free speech offers little protection from digital censorship. And that matters.
In the Gaines case, it’s why Facebook granted law enforcement’s request: the company’s justification for this kind of account shut-off appears to be lumped into the vague category of “emergency disclosures.” Of course, shutting down an account is the opposite of disclosure. What if the officers who stopped and killed Philando Castile had made a request to shut down Ms. Reynolds’ live-feed? The public would have been deprived of a video of immense public concern and impact. For just this reason, the ACLU has been at the forefront of securing the First Amendment right to record police engaged in their public duties. Indeed, the ACLU promotes our own “Mobile Justice App” to help civilian journalists exercise their constitutional right to document police encounters. Social media companies eager to cooperate with law enforcement requests should not be permitted to veto that right.
We must be active consumers, and demand at least three things from our social media platforms in exchange for choosing their services: transparency, consistency, and due process. Our Northern California affiliate has put together a phenomenal to help social media companies to get these balances just right.
- Transparency. Companies must be very clear about what content they either turn over or take down at the request of law enforcement. As internet privacy activist Lauren Weinstein has , customers deserve detailed, granular policies that put them on real notice about whether and when their speech can be silenced, hidden, or shared.
- . Broad company policies that permit interpretation and ad hoc application mean that censorship decisions are political. If social media companies are more likely to grant content takedown requests from law enforcement, that becomes a statement of position in the police accountability debate.
- . You should have a right to know why your speech was censored—and to press an appeal if you think it’s wrong.
These principles are not just vital for preserving the role of speech in assuring justice and accountability, they’re good for the corporate bottom line. We all want a forum for our speech that »ĺ´Ç±đ˛ő˛Ô’t have a secret mute button. And if and when a secret mute button is pushed, social media companies need to know that this will affect their business—and understand that they are choosing a political role, intentionally or not, in the campaign to document and publicize government abuse.
The Gaines situation can serve a clarion call to companies to prepare for exactly this kind of situation—specifically and transparently—so that they don’t risk becoming glorified propaganda wings of the state.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.