Home Freedom of the Press Regulating Social Media: Careful What You Wish For

Regulating Social Media: Careful What You Wish For

Should we fully entrust the government to unilaterally determine what we can and cannot read online?

The flood of complaints about bias and censorship on social media websites has been relentless of late, and coming from across the political spectrum.  It has spawned numerous calls for platforms to be reined in by the federal government, whether through judicial edict, executive branch regulation, or congressional legislation.  All with the intent that no speaker has his or her First Amendment rights infringed upon.

Tech Company Algorithms Are Regulating Speech

One of the latest examples of alleged efforts by the tech giants to squelch speech is the story of The Western Journal, a conservative publication with a reported audience at one time of more than 36 million people – more than most of the nation’s largest news organizations.  After tech companies altered their algorithms that in effect curtailed access to the Western Journal’s website, traffic getting there slowed considerably, as The New York Times described in a recent article.

As The Times wrote:

“[S]ilicon Valley’s efforts to crack down on clickbait and disinformation have pummeled traffic to The Western Journal and other partisan news sites.  Some leading far-right figures have been kicked off social media platforms, after violating [tech company] rules against hate speech and incitement. Republican politicians and activists have alleged that the tech companies are unfairly censoring the right, threatening conservatives’ ability to sway public opinion and win elections.”

Ben Shapiro, editor-in-chief of the Daily Wire, is convinced that social media companies’ “impartial” algorithms disproportionately crack down on conservative material.  It’s “not necessarily out of malice,” Shapiro wrote last year, “it’s probably due to the fact that our major social-media sites are staffed thoroughly with non-conservatives who have no objective frame of reference when it comes to the news business.”

Others disagree.  They believe that much of the “conservative material” is so-called disinformation and should be removed from social media.

Trump’s Attempt to Regulate Speech

Social media companies are not the only ones who seek to block speech, nor is only conservative speech blocked.  President Trump, who himself decried “bias, discrimination and suppression” by social media companies, tried to block Twitter users because they were critical of the President and his policies.  Several people, including a doctor, a professor and a police officer, sued Trump, arguing that his once private Twitter feed was now akin to a town square (a public space where people gather to exchange ideas), where the First Amendment forbids him from censoring his critics.

A federal appellate court agreed in Knight First Amendment Institute v. Trump.  The court held that the president – but not Twitter – is governed by the First Amendment’s anti-censorship rules because he transformed his Twitter account into an official White House mouthpiece.  Accordingly, the court said, the President’s Twitter feed should be treated the same as a government public forum. The First Amendment “does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

The court found that blocking people and “preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded [them] from a public forum, something the First Amendment prohibits.”

If the President cannot block his critics on his Twitter account, neither can other government officials who use Twitter to conduct official business.  Shortly after the court’s decision in the Trump case, two critics of Rep. Alexandria Ocasio-Cortez, D-N.Y., sued her for blocking them on her Twitter account.

Public vs. Private Actors

Noted media lawyer Susan Seager explained why government officials cannot block users but social media companies can:

“The courts have repeatedly ruled that their platforms are run by private businesses, not government actors, and operate outside the reach of the First Amendment’s censorship rules.  In this way, social media companies are like The Los Angeles Times or Fox News – they have the right to control their content . . . and can make rules governing what they consider to be appropriate online conduct and regulating things such as hate speech.”

Still, some scholars have argued that given their ubiquitous presence in modern human discourse, social media platforms such as Twitter, Facebook, and Google News should themselves be treated as public forums – akin to a public street or park – and thus allowing their users to avail themselves of First Amendment protections.  That is, not to be unfairly censored.

This notion was advanced by former U.S. Supreme Court Justice Anthony Kennedy in a 2017 First Amendment case, Packingham v. North Carolina.  Kennedy wrote that cyberspace, and social media in particular, was among the “most important places . . . for the exchange of views.”  He observed that the greatest battleground for free expression in this day and age occurs online with social media.

First Amendment scholar and author David L. Hudson, Jr., expounded upon this idea in an article published by the American Bar Association.  He wrote:

“The First Amendment only limits government actors – federal, state, and local – but there are good reasons why this should be changed.  Certain powerful private entities – particularly social networking sites such as Facebook, Twitter, and others – can limit, control, and censor speech as much or more than governmental entities.  A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.”

Hudson continued: “[W]hen an entity like Facebook engages in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage in self-fulfillment – just like when a governmental entity engages in censorship.”

Hudson’s advocacy pre-dated the U.S. Supreme Court’s June 2019 decision in Manhattan Community Access Corp. v. Halleck.  That ruling may well doom efforts to have the court system expand the First Amendment’s reach to social media sites.

In Halleck, two film producers requested that their employer, the Manhattan Neighborhood Network, air a documentary on MNN’s public access cable channel.  The documentary was aired once, but further airings were cancelled. The producers sued, arguing that MNN’s decision violated their First Amendment rights.

The producers argued that because New York City outsourced operation of its public access channels to a private entity, the cable channel should be treated as a “state actor” that must comply with the protections of the First Amendment.

In a 5-4 decision written by Justice Brett M. Kavanaugh, the Supreme Court disagreed.  “A private entity [that] opens its property for speech by others is not transformed by that fact alone into a state actor,” and thus is free to censor users. “The Free Speech Clause prohibits . . . governmental abridgment of speech,” the Court wrote. “The Free Speech Clause does not prohibit private abridgment of speech.”

Social media sites almost certainly will cling to this opinion should the courts attempt to impose First Amendment requirements on them.

Will Trump Take Executive Action?

President Trump, of course, has been a frequent critic of large technology companies and suggested they need to be regulated by the government.  He hosted a “social media summit” at the White House in July 2019, which featured 200 chiefly conservative social media voices. The president criticized Twitter for reducing his follower count, while others complained of censorship by Facebook and Google.

Shortly thereafter, several news outlets obtained a draft White House executive order calling on the Federal Communications Commission to develop new regulations clarifying how and when the law protects social media websites when they decide to remove or suppress content on their platforms.  The draft order also calls for the Federal Trade Commission to account for these policies when it investigates or files lawsuits against companies engaged in allegedly discriminatory practices. The draft order has been posted here.

The idea is that these federal agencies would seek to verify that social media platforms operate with political neutrality when they moderate content.  If they fail a political neutrality test, they could forfeit the protections afforded under Section 230 of the Communications Decency Act. That provision shields websites from liability created by the posting of content from third parties.

It is, frankly, difficult imagining that the commissioners of the FCC and FTC would actually want any hand in regulating the content of private social media platforms.  Or how they could objectively do so.

The efficacy of the draft executive order, moreover, has been criticized by thinkers on the left and the right.  “Although ostensibly offered in service of free speech, the order would almost certainly increase censorship instead,” wrote Billy Binion on reason.com. “Revoking those [Section 230] protections would not encourage the free flow of content online.  It would hamper it, as moderators would inevitably move toward cracking down on any potentially defamatory post.”

And, according to some, such an order is blatantly unconstitutional, as it would have federal government officials dictating the speech of private actors.

A Legislative Solution?

Akin to the draft executive order have come calls for a new application of the old Fairness Doctrine to the Internet.  That policy, enforced from the 1940s through the 1980s, required broadcast stations to present controversial issues of public importance and to do so in a matter that was – in the FCC’s view – honest, equitable, and balanced.  In effect, it was a policy that allowed the federal government to require certain editorial decisions of private entities. Conservatives rejoiced when the Fairness Doctrine was ended during the Reagan Administration. It led, in part, to the massive growth of conservative talk radio in the 1990s.

The Congressional Research Service recently published a detailed report for Congress analyzing the myriad issues affecting social media free speech and potential mechanisms to curtail the ability of social media platforms to quell speech. It suggested three possible frameworks for analyzing restrictions:

  • Treating social media sites as state actors who are bound to follow the First Amendment when they regulate protected speech, as noted at the outset of this article;
  • Viewing social media sites as analogous to special industries like the broadcast media subject to federal government regulation; and
  • Treating social media sites like news editors, who generally receive the full protections of the First Amendment when they make decisions about whether and how to present users’ content.

Politicians of all stripes have threatened to regulate the industry.  “I don’t want to vote to have to regulate Facebook, but by God I will,” said Sen. John Kennedy, R-La., at a congressional hearing last year.  Added Speaker of the House Nancy Pelosi, D-Calif., more recently, “The era of self-regulation is over.”

Some are touting the Fairness Doctrine as the solution.

Others are more leery.  “The belief that government regulation of internet content providers will be effective and minimally-invasive is rooted in a poor understanding of the history of broadcast regulation,” wrote Paul Matzko at cato.org. “That history actually suggests the opposite, that these regulations will be ineffective, highly-intrusive, and will create significant unintended consequences.”

The tools used by a Republican administration to suppress liberal speech could just as easily be used by a Democratic administration to suppress conservative speech, and vice versa.  “This is a crucial test for any proposed government regulation,” Matzko warned. “Do not imagine only the utility that your side or your interests might gain from its application; think also about the damage that could be done by the other side through that rule when they inevitably take their turn in power.  If that prospect scares you, then reconsider the regulation.”

Matzko added:

“If there is one key lesson from the history of the Fairness Doctrine to bear in mind, it is that good intentions paved the road to regulatory hell.  It is entirely possible that rules meant to promote good information and discourage hate speech could be twisted to promote disinformation and protect hate speech. . . .  Among the ideals that America was founded upon was the immodest proposition that the best response to bad speech is more speech, not censorship.”

Others go further by suggesting that government regulation is not just bad public policy, but likely unconstitutional.  As Niam Yaraghi wrote for the Brookings Institution last year:

“Conservatives who support policies to regulate media and technology companies argue that their freedom of speech is being undermined by social media companies who censor their voice.  Conservatives who celebrate constitutional originalism should remember that the First Amendment protects against censorship by the government. Social media companies are all private businesses with discretion over the content they wish to promote, and any effort by government to influence what social media platforms promote risks violating the First Amendment.”

Another legislative solution has been offered by Sen. Josh Hawley, R-Mo.  Like other proposals, Hawley’s sweeping bill would eliminate protections for Facebook and other major social media sites unless they agree to federal audits to prove they aren’t politically biased.  In a statement, Hawley said, “Tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability, in exchange for providing a forum free of political censorship.”

As with conservative and liberal critics alike, the editorial board of Hawley’s home-state newspaper, The Kansas City Star, begged to differ:  “[Hawley is] simply wrong,” the paper wrote. “Section 230 does not say protected companies must provide viewpoint-neutral public forums. Nor could it: The First Amendment protects citizens from being forced to repeat things with which they disagree.”

Ensuring Free Speech for All

If the judiciary is unlikely to impose First Amendment principles to private social media platforms, and if executive and legislative efforts themselves run afoul of the First Amendment, what, then, is the solution to ensuring free speech for all?

In a 2018 white paper, the New York University Stern Center for Businesses and Human Rights suggested one option based on its research:  moderation from the social media companies themselves, with limited government involvement. Hillary K. Grigonis described this approach on digitaltrends.com.

As Grigonis wrote:

“The [Stern Center’s] white paper suggests that social networks enhance their own governance, continue to refine the algorithms, use more ‘friction’ – like warnings and notifications for suspicious content – expand human oversight, adjust advertising, and continue to share knowledge with other networks to reach those goals.”

David French of the National Review similarly has suggested that social media platforms voluntarily adopt First Amendment-based speech policies wherein the rules and regulations are viewpoint neutral.

Finally, The Western Journal, the publisher that found its web traffic decimated by algorithm changes by social media sites, seems to have come up with its own means of adapting.  A new company started by officials associated with The Western Journal intends to release a smartphone app called Feedme, as The New York Times reported.  Feedme will allow users to import public content from social media platforms, but decide which of the content they see rather than relying on tech companies’ algorithms.  In theory, the app will allow The Western Journal to broadcast anything to its Facebook followers without interference from big tech.

In other words, a market solution.

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