Social media censorship is a red-hot topic now. Conservatives are outraged by a perceived bias against their content by the likes of Facebook and Twitter; liberals want to avoid hate speech and misinformation by adopting standards; and techies have all but resigned themselves to some level of government regulation.
Each of these groups have it wrong.
There is a simple fix: Require social media companies to adhere to first amendment standards. We don’t need a complex new body of law to govern social media’s treatment of speech. We already time-tested legal doctrines.
First a primer on the first amendment.
The operative language is simple enough: “Congress shall pass no law … abridging the freedom of speech.” Taken at face level, the language is a categorical bar: No speech shall or can be limited. But the courts take a more pragmatic view: fighting words, harassment, true threats, incitements to violence, obscenity, all these categories of speech can be prohibited. Learning the contours of these exceptions to protected speech is the work of lawyers and judges.
But notice who is limited – Congress. As interpreted today, Congress means any government, whether federal, state, county or municipal. No government can bar speech unless the speech falls within one of the prohibited categories. When government does limit speech, it must do so in a “content neutral” manner, not favoring one viewpoint over another.
Social media companies are not government entities. Therefore, they are not subject to first amendment limitations. Facebook and Twitter can be as woke as they wanna be. The Constitution doesn’t reach their editorial decisions.
But wait, you say, don’t these social media giants enjoy special government protections; aren’t they quasi-monopolies enjoying oversized roles in communication, much like electricity companies do the power on which we all rely?
Yes, and yes.
To foster low-cost sharing of ideas, Congress gave social media companies immunity from law suits for what they publish under Section 230 of the Communications Decency Act. The companies get to harvest data, sell the data, profit, and all the while enjoy what no other publisher does – actual impunity for the harm they may do in fostering dangerous speech. They do so while being, in effect, the only game in town for many people. (Twitter’s Jack Dorsey looked like a complete ass when he testified about the choices folks had in choosing social media companies. Really, Jack? You believe Twitter is on par with, well, what exactly?)
What to do about this is much debated now.
Roger McNamee, an early investor in Facebook and mentor to Mark Zuckerberg, is leading the charge for regulation of social media content. He wants standards enacted to prevent hate speech, disinformation and other forms of troublesome speech.
I admire McNamee. His book, Zucked: Waking Up To The Facebook Catastrophe, is the second best book on social media that I have read. (The best is Soshana Zuboff’s, The Age of Surveillance Capitalism. A close third is Jaron Lanier’s, Ten Arguments For Deleting Your Social Media Accounts Right Now. I recommend you read all of these.)
But McNamee is wrong.
We don’t want government regulations of speech, with speech codes and committees deciding what is and is not in conformity with government standards about polite or acceptable speech. Conservatives are right to fear woke overlords in Silicon Valley deleting content the wokesters find offensive. Any censorship regime raises questions about who censors the censors.
The current limitations on speech arising from first amendment jurisprudence are sufficient to govern private enterprises. All that is necessary is for Congress, or state legislatures, to pass a law requiring a social media company to adhere to first amendment standards if they seek to do business in a given jurisdiction.
It’s an easy fix, as a little-used Connecticut employment law statute illustrates.
Connecticut is an employment at will state. That means that employers can hire or fire a person for any reason at all, so long as that reason does not violate the law. Connecticut General States 31-51q makes in unlawful for a private, non-governmental, employer to fire a person because of the person’s speech. Put another way, the statute makes private employers behave like government employers, at least insofar as employee speech is concerned.
I am suggesting a similar fix for social media. Make Facebook and the other social media giants conform to first amendment standards. Folks who believe their speech was targeted, or treated adversely, because of their viewpoints could then bring an action in court. Yes, that would chip away at Section 230 immunity, but so what?
I noticed this week that some social media sites such as Parler are now growing exponentially. Parler promises not to engage in content-based censorship. I’ve signed on to see what that’s like, as have, apparently, thousands upon thousands of others. Maybe Parler will honor its promise to honor free speech; maybe it won’t.
But rather than creating yet another divisive silo on our political landscape, we should just require social media companies to live by the words and doctrines of the first amendment, and require social media companies to face consequences for what they choose to publish.
The last thing we need are private censors regulating the digital public square.