Rachel Elizabeth VanLandingham (Southwestern Law School) has posted Jailing the Twitter Bird: Social Media, Material Support to Terrorism, and Muzzling the Modern Press (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:
Social media companies such as Facebook and Twitter are vulnerable to federal criminal prosecution under 18 U.S.C. § 2339B, the material support to terrorism statute, for providing a means for terrorists and their sympathizers to glorify and pursue their violence on social media. This Article exposes that vulnerability as well as the material support statute’s conflicts with the First and Fifth Amendments in this context, such as the statute’s chilling effect. In particular, the Article explores how social media providers have responded to threats from the U.S. government by suspending hundreds of thousands of user accounts, effectively censoring constitutionally protected speech. Crucial to this argument is this Article’s broader foundational assertion that social media providers should be seen as today’s fourth estate, and that what this Article identifies as the First Amendment’s “press narrative” should help shield them from this counterterrorism statute.
This Article contextualizes this issue of social media providers and user speech within the classic struggle of state security versus freedom of press and speech in the age of modern transnational terrorism. The material support statute is currently the federal government’s foremost counterterrorism criminal tool, and its constitutional defects raise concerns about censorship during times of war and national insecurity. Addressing these concerns, this Article wrestles with the growing role of social media providers as news providers, the increasing alarm at terrorists’ and their supporters’ use of social media, and the tensions resulting from social media’s unique attributes such as general anonymity of users. It urges greater attention to questions critical for our liberal democracy: how and when to hold social media companies accountable for the speech they allow on their platforms.