5 takeaways:

➀ Three requirements are needed to prove incitement, which isn’t protected under the First Amendment. Speech must be “directed to” and “likely to” cause imminent lawless action, and it must actually cause such action, said Seth Berlin, an attorney with Ballard Spahr. Directed to prompts these questions: “Were you trying to do it?” “Was your speech intending to incite lawless action?” Likely to asks, “In the circumstances, was it likely that would be the result?” Lastly, imminence involves a reflexive or gut response to what’s going on around you and asks, “What if I inspire somebody to actually go out and engage in violence?” For a deeper explanation of the incitement legal test, Berlin suggested reading this op-ed, which argues that Donald Trump’s actions probably did not constitute incitement under the legal test due to speech ambiguity.

➁ The First Amendment restricts the government’s curtailing of speech, not private actors’ enforcing rules on acceptable speech. Social media firms like Facebook and Twitter are private entities and not subject to the First Amendment. Therefore, they may ban speech or speakers that violate their usage policies. . “It’s their choice as private actors under the First Amendment,” Berlin explained. This protection also extends to blogs and online news sites under Section 230 of the Communications Decency Act of 1996, said Jillian York, director of International Freedom of Expression at the Electronic Frontier Foundation. “If I’m a website owner, and I don’t moderate my comments, I can’t be held liable if somebody is in there posting incitement or other types of speech,” she said.

➂ Does the First Amendment protect reporters’ unpublished notes or materials? It depends. Many states have “reporter’s privilege” or shield laws that protect reporters disclosing sources and unpublished materials, Berlin said. Whether the protection applies depends on whether you’re in state or federal court and the type of proceeding. Different rules are in place for grand jury, criminal and civil proceedings. Remember that there is no federal shield law, so it’s important to be familiar with the shield laws in your state and know the level of protections that you have as a reporter. Visit the Reporter’s Privilege Compendium to compare the laws in various states.

➃ Social media companies need to take greater responsibility, experts agreed. Disinformation online is at a “higher level than it’s ever been,” especially in politics, said Michael Posner, former United States Assistant Secretary of State for Democracy, Human Rights and Labor. Posner cited fake posts about Pope Francis endorsing Trump and the Stop the Steal campaign. Mark Zuckerberg has said that Facebook shouldn’t be the “arbiter of truth of everything that people say online.” Posner said this stance creates an environment where people are “mobilized to act in ways that are wrong and often illegal” as during the events on Jan. 6. Social media companies need to be more aggressive in moderating certain content that can undermine democracy, he said.

➄ Pay attention to social media algorithms. Facebook’s goal is to keep users online, feeding them curated content that the algorithm predicts will align with their beliefs and preferences, Berlin said. “It’s in the engagement business, not in the truth business,” he said. People also gravitate toward content that sparks fear and hate, according to Posner. Algorithms pick up on that and push out “emotionally evocative” content to try to keep users online, he added. Monitor the content on your newsfeed and see if you can identify trends and uncover algorithms.

Did you know that in 2019, 29% of Americans couldn’t identify a single First Amendment freedom? Yet this may be changing as more Americans perceive these freedoms as under threat, said Lata Nott, executive director of the First Amendment Center. See her briefing to journalists here.

Speakers:

Seth Berlin, Attorney, Ballard Spahr

Michael H. Posner, Jerome Kohlberg Professor of Ethics and Finance, Professor of Business and Society, Director, Center for Business and Human Rights

Jillian C. York, Director for International Freedom of Expression, Electronic Freedom Foundation