As of May 31, 2019, the U.S. State Department began requesting social media information from visa applicants. The new practice arose from President Trump’s 2017 Memorandum on Implementing Heightened Screening and Vetting of Applications for Visas and other Immigration Benefits. By early December 2019, two organizations (Knight First Amendment Institute and the Brennan Center for Justice) sued to put an end to this policy on the basis that it allegedly violates the First Amendment rights of visa applicants.
The controversy surrounding the social media identification requirement has sparked a great deal of discussion about freedom of speech online and the extent to which the federal government should be able to monitor and even regulate freedom of speech, not just for American citizens in online forums but also for non-citizens seeking U.S. visas.
In other words, visa applicants are not U.S. citizens, but should they still granted the same First Amendment freedoms as if they are? And what are the possible consequences of social media identification requirements for people seeking visas?
To uncover why the State Department’s new practice may be unconstitutional on First Amendment grounds, let’s first examine whether non-citizens are legally granted the same Constitutional rights and what implications this practice may have if it continues.
Visa Applicants and the First Amendment
Although the Constitution was primarily written to protect the rights of American citizens, many of the amendments are intended to cover non-citizens as well, say some Constitutional scholars. They argue that the Bill of Rights was intended to protect citizens and non-citizens alike because the Constitution doesn’t ever say these rights are limited to “citizens;” the Constitution simply says “the people.”
Michael Kagan, Associate Professor of Law at the University of Nevada – Las Vegas, has written extensively about non-citizens’ relationship with the First Amendment, particularly when it involves freedom of speech and freedom of religion. As he wrote in an essay for the Boston College Law Review in 2018:
Speaker identity changes speech in powerful ways, which is why it is dangerous to allow the government to silence certain speakers based on who they are. The Court should recognize that immigrant speech is important enough to be protected by the First Amendment, both for immigrants in the United States and for American citizens who may benefit from hearing what they have to say.
In sum, immigrants and temporary visa holders should maintain the same First Amendment protections as U.S. citizens because denying them said rights would be discriminating against these groups on the basis of identity (non-citizen) and silencing these groups could be enormously detrimental for American society as a whole.
Freedom of Speech Online
The broader question here involves freedom of speech online: why do social media accounts matter in this case? The original purpose of President Trump’s new State Department practice was likely intended as a means for protecting our national security. After all, terrorists commonly use social media as tools for recruitment and propaganda dissemination, which is why asking visa applicants to identify their social media profiles seemingly makes sense at first.
However, this policy can produce a sort of chilling effect on free speech, in which visa applicants no longer share their ideas, opinions and attitudes online in fear of getting denied a visa to the U.S.
For instance, the lawsuit filed by the Knight First Amendment Institute and the Brennan Center for Justice was sparked by the Doc Society and the International Documentary Association’s concerns about filmmakers from around the world being able to express themselves freely, even if their ideas are unpopular. Without access to a U.S. visa, some filmmakers may not be able to continue their investigative reporting and critical documentary work because many filmmakers are reliant on U.S. events to obtain support and resources for their projects.
Beyond filmmakers, it’s simply untenable to require all visa applicants to reveal each and every one of their social media profiles. In some cases, an individual may use a pseudonym to avoid harassment or other serious threats; in other cases, the visa applicant may have expressed an opinion deemed unpopular and/or unsupportive of the current (or future) presidential administration, which could trigger a denial of their visa application.
We don’t know how far-reaching this law may be, which is why we must support the First Amendment for everyone protected under the Constitution, particularly in online environments that are increasingly subject to governmental regulation, such as social media.
Worried about ‘fake news’? You should be. Several new studies, including one by the McCombs School of Business at The University of Texas at Austin, show that for the average person, it’s extremely difficult to recognize incorrect, misleading and outright false stories on the Internet. Even more troubling, researchers at the Massachusetts Institute of Technology found that stories found to be false by six major fact-checking services often spread 10 times faster online than legitimate news stories.
Studies also show that fake news stories with clickbait headlines in many cases are getting more engagement and shares on social media than legitimate news stories. This poses a serious threat to the freedom of the press clause in the First Amendment. That’s because fake news stories are designed to distort public perceptions about real-life events, which has led to problematic consequences such as increased public distrust of media organizations, lower subscription rates for credible news outlets, higher rates of censorship, harassment and even violence against journalists and alarming incidents of people acting upon fake news stories. Remember the “Pizzagate” scandal? In 2016, Russian operatives, Twitter bots and others manufactured the ‘news’ that Hillary Clinton ran a pizza-restaurant child-sex ring. The falsehood went viral, shaping public perception of Clinton. A North Carolina man, acting on the baseless report, went on to fire an AR-15 rifle inside the pizza restaurant in Washington, D.C. that was mentioned in the baseless article.
While misleading and false news continues to appear on the Internet, news by legitimate sources continues to be attacked as ‘fake’ news. By dismissing unfavorable news stories as “fake,” individuals, many of whom have large followings on social media and in real life, are contributing to shape negative public sentiment towards journalists and media organizations.
Discrediting legitimate news stories and/or organizations by labeling them as “fake”, combined with the proliferation and increased sophistication of truly ‘fake’ news is making it increasingly difficult for members of society to discern between fact, “alternative facts,” and fiction. This only furthers public mistrust in otherwise highly credible news outlets and allows an individual’s persuasiveness to outweigh factual reporting published by diligent journalists.
To help combat the growing issue of fake news in our society, be sure to read through FactCheck.org’s guidelines for detecting fake news stories before sharing a questionable news story on social media or dismissing something you disagree with as “fake news.”
Consumer activism, which refers to citizens influencing how goods and services are produced, marketed and delivered to consumers, has been around for years. However, the instantaneous nature of digital communications has expedited the ability for consumers to rally support for their causes and persuade companies to change how they do business.
In other words, consumer activism seeks to change how a good or service is created (especially in regards to ethical and environmental issues) through various means of protest, such as boycotting certain businesses/industries, urging others to stop using a product or service, and spending more money on products/services that are sustainably produced in terms of non-wasteful materials and ethical labor standards.
Just as Citizens United v. FEC found that corporations can assert rights to freedom of speech through monetary means, citizens can also “speak” with their consumption habits and preferences. It’s a fascinating phenomenon that many of us have witnessed yet few have consciously thought about when it comes to its effectiveness and consequences for brands and consumers alike.
To uncover the First Amendment underpinnings involved in consumer activism, let’s explore some present-day examples of it in action:
Modern Examples of Consumer Activism
There are countless examples of consumer activism in the U.S. and abroad, including some of these recent events:
- #DeleteUber (encouraged consumers to delete the ride-sharing app after numerous scandals, such as user data mismanagement and alleged profits from the Trump Administration’s travel ban)
- #DeleteFacebook (encouraging consumers to get rid of their Facebook profiles in wake of controversies like Cambridge Analytica and countless data breaches)
- Blizzard Boycott (gamers fleeing the popular video game company after it censored pro-Hong Kong gamers on its live streams and in its competitions)
- Zara fur ban (the company eliminated all animal fur products from its stores in wake of pro-animal activists’ complaints)
Is Consumer Activism Effective?
Just as early American colonists effectively initiated a revolution with the Boston Tea Party (which involved a boycott of British tea after the government monopolized the tea industry in the thirteen colonies through lowered taxes on British East India Company goods), consumer boycotts are often effective nowadays as well.
As consumers express their demands through their purchasing decisions, companies are forced to adapt to changing preferences in the market. Activists have successfully persuaded numerous companies to adopt more environmentally sustainable manufacturing practices (using more eco-friendly, recyclable materials) and advocated for fairer labor practices and higher wages for workers both in the U.S. and abroad.
Consumer activism isn’t always successful, but it’s nevertheless an important trend that aligns closely with the freedoms of speech and petition outlined in the First Amendment of the Constitution.
Fake news has been around for some time, but it’s been brought to light recently in the context of the 2016 presidential election. But the reality is that — to some extent — misinformation has been around since the beginning.
Social media is perhaps the most egregious venue today, since it has the ability to transmit and amplify information quicker than when we could share information only person to person. This makes it even more important to be vigilant when consuming information online so we can avoid falling prey to false or misleading information and perpetuating it.
Here’s how to do you due diligence:
Check the source.
What is the URL? Some fake news sites will try to spoof credible ones, using a similar URL and logo. For example, ABC News could appears as abc-news.com with a similar logo, to trick people into engaging. Also, look at the website’s “Contact” and “About Us” pages. If there’s no editorial contact or the description of their purpose and mission is vague or missing altogether, that could be a sign that the site lacks legitimacy.
When in doubt, do a quick Google search of the website. Is there a history of bad press about the source? Some sites have been outed as venues for foreign governments to intervene in our elections.
Sometimes bad actors will use outrageous headlines to grab attention and drive traffic.. Before sharing any piece of content, read the piece in its entirety. Does the article have a byline? If so, does the author have a track record of content? Did the writer interview reputable sources and include direct quotes and links to supporting information? Is the writing clean or is it chock full of errors? All of this matters, because legitimate journalists conduct themselves in a legitimate manner, while trolls aren’t concerned with following journalistic standards and practices.
Look at the big picture.
If you’re on the fence about the credibility of a source, do some research. Are other outlets reporting on the same matter? Do you see recurring themes as far as the facts being reported? People or organizations with malicious intentions will create their own narrative and it’s usually not supported by other accounts.
In short, the Era of Fake News requires critical thinking. Everyone could stand to be more cautious about their approach to media consumption. How do you ensure you’re not engaging in fake news? Share your tips on our Facebook Page.
The First Amendment applies to many areas of civilian life, including our educational systems. For example, the courts have recognized that students are guaranteed rights prescribed by the First Amendment.
However, it wasn’t always this way. As our country evolved so did its laws. When adopted in 1791, the First Amendment applied only to Congress and the federal government. So when the public school system was formalized in the 19th century, students could not make First Amendment claims.
This censorship lasted into the 20th century. In fact, the Wisconsin Supreme Court ruled that school officials could take punitive action against two students who had an unflattering poem published in the local newspaper. Why was this permitted? According to the court, “such power is essential to the preservation of order, decency, decorum, and good government in the public schools.” What followed was a dangerous precedent. For example, In 1915, the California Court of Appeals ruled that school officials could suspend a student for challenging the administration.
The 1940s brought some fresh air with the flag-salute case of West Virginia v. Barnette. It was then that the U.S. Supreme Court explicitly extended First Amendment protection to students attending public schools. The Barnette case was rooted in religious freedom. Several students who were Jehovah’s Witnesses refused to salute the flag because their faith discourages them from showing allegiance to any worldly government.
School officials chastised the students and their parents. The students then sued, claiming a violation of their First Amendment rights. This time, the court ruled in the students’ favor, holding that the free speech and free exercise of religion provisions of the First Amendment guarantee the right of students to be excused from this exercise on the account of religious beliefs.
There are more recent cases of violations of free speech in a school setting. Earlier this month, the ACLU sued the Smith County School System in Tennessee because according to the organization, “school officials regularly incorporate prayer into school events and preach to students in violation of the separation of church and state.”
Public schools should be vehicles for education, not religious indoctrination. That’s why we continue to fight for First Amendment rights in and outside the classroom. Will you join us?