By C. Jewel Garcia
Let us start at the beginning, for better and for worse social media exist. It is a powerful platform for expressing free speech. However, it is also used malignantly and even in dangerous ways.
Social media websites largely do not regulate dangerous and offensive posts. For example, the article Facebook’s race-blind practices around hate speech came at the expense of Black users, new documents show written by Elizabeth Dwoskin, Nitasha Tiku and Craig Timberg explains that even though Facebook has the power to regulate anti-Black, anti-Jewish, anti-Muslim, anti-Arab, and anti-LGBTQIA content by removing it, Facebook has actively decided not to. This is a strategic political move that favors those in the majority while harming those in the minority. As a result, discriminatory, threatening, and dangerous comments and posts still thrive on these networks.
This content can cause real harm to individuals. For example, (as described in the Case of 8,000 Menacing Posts Tests Limits of Twitter Speech by Somini Sengupta) Alyce Zeoli was harassed and given death threats by a man named William Lawrence Cassidy to such an extent that she stayed in her house for over a year and hired body guards for protection. She reportedly “felt constantly attacked and monitored.”
Nevertheless, there is an ongoing debate in the courts on when online conduct becomes unprotected by the first amendment. In Ms. Zeoli’s case this was a debate of whether the speech was considered more similar to a personal note or a town hall announcement. Whatever the outcome of Ms. Zeoli’s case, she was still traumatized by bad social media behavior. Yet, despite the outcome of Ms. Zeoli’s case, when speech is or is not protected will continued to be debated and no clear singular president will be set for some time. In addition, even after the president is set there will still be individuals affected by free speech that is deeply offensive or frightening. Most of these individuals will continue to be individuals from underprivileged and underrepresented groups. As a result, like with the case of public usage of hate speech, the real regulation of bad social media behavior will be societal.
The easiest way for society to incentivize people to behave properly is through financial ramifications. Most jobs today will fire a person for saying inappropriate and offensive things. This helps ensure that these things are not said. It only follows that these restrictions should apply to things being said online. Some companies are already making this financial pressure a reality.
The film and television industry is no stranger to bad behavior. However, naturally now this behavior is pouring over into social media. As explained in Media Moguls Risking It All: Contract Clauses in the Entertainment Business in the Age Of #Metoo written by Rick G. Morris, a notable example of this bad social media behavior is Roseanne Barr making racist postings that got her fired and almost put down a whole television show series. Yet, there has been little talk of how to stop these actions from happening ahead of time. Ethically it is the film and television industry’s duty to try to minimize promoting individuals with bad social media behavior because of the harm it causes and because there are no other clear regulators. Because these attacks usually come in the form of hate speech at the expense of underprivileged groups, it is also the film and television industry’s duty to help stop hate speech and those who perpetrate it or it must face the consequents of a society that shuns them for enabling it. Put simply there is more at stake with bad social media behavior than just ethics. Bad usage of social media by someone involved in a production can cause a whole film or series to be unprofitable, unmarketable, and untouchable.
What is the Film and TV industry to do about social media bad behavior? The answer is simple instate a behavioral clause that specifically addresses and prohibits bad social media use.
What is a behavioral clause you ask? This is a specific term coined in Media Moguls Risking It All: Contract Clauses in the Entertainment Business in the Age Of #Metoo (For one, it is a revamped version of a morals clause that is primarily concerned with bad behavior instead of bad morals.) It basically allows a company or individual employee to have the right to terminate a contract with no strings attached if the employee or company violates current behavioral regulations. Here I am proposing that these behavioral clauses include restrictions on bad social media behavior.
If put into place this will protect both employees, employers, and productions. Employees under contact who face discrimination or harassment will have the chance to leave a production. In addition, employees can leave a production in protest if they see bad behavior they do not want to be associated with. Employers also gain because they have the right to terminate a contract for any bad social media behavior as well. This will help protect the production of films and series.
You may ask, “What about the first amendment?” Here it does not apply because these are private entities and people not the government. However, there is a need for careful writing of these behavioral clauses to ensure that they are not too restrictive. Lawyers should be involved in drafting these clauses to ensure that they do not become discriminatory in themselves.
Nevertheless, with the rise of bad social media behavior, it is in the best ethical and financial interests of the film and television industry to include behavioral clauses. They will not prevent all harms to productions, nor will they protect all harm done to employees, but they are the first and most powerful step in the right direction.
Dwoskin, E., Tiku, N. & Timberg, C. Facebook’s race-blind practices around hate speech came at the expense of Black users, new documents show. The Washington Post, https://www.washingtonpost.com/technology/2021/11/21/facebook-algorithm-biased-race/
Morris, R. G. (2019). Media Moguls Risking It All: Contract Clauses in the Entertainment Business in the Age of #metoo. Spots and Entertainment Law Journal Arizona State University, 9(1) https://heinonline.org/HOL/LandingPage?handle=hein.journals/selj9&div=3&id=&page=
Sengupta, S. (2011) Case of 8,000 menacing posts tests limits of twitter speech. The New York Times, https://www.nytimes.com/2011/08/27/technology/man-accused-of-stalking-via-twitter-claims-free-speech.html