Beyond Trump’s Lawsuits, There Is An Appropriate Way To Regulate Social Media
The lawsuits brought by former President Donald Trump and his allies against Facebook CEO Mark ZuckerbergMark Elliot Zuckerberg The Speaker of the House of Wisconsin signs subpoenas during an election audit., Twitter CEO Jack Dorsey and Sundar Pichai, CEO of Google (link broken) have been largely vilified as a legally fragile political ploy to raise funds and motivate its base ahead of the next congressional elections. They are and will almost certainly be dismissed by the courts as being legally flawed. But they also raise fundamental questions about the role of social media in today’s information ecosystem that deserve full dissemination.
The key argument in business is that Section 230 of the Communications Decency Act is an unconstitutional delegation of power to social media platforms. Section 230 was deliberately enacted by Congress, as appropriate, to induce, encourage and promote social media companies to remove objectionable but constitutionally protected speech from their systems. But, the argument goes, Congress cannot do it itself and could not delegate it to a government agency. The government has a role to play in regulating illegal speech, but not legal speech, however objectionable it may be. Thus, section 230 amounts to an unconstitutional delegation of power to individuals.
This argument is legally wrong. He misunderstands what section 230 does. Social media platforms already have the right to post or not to post legal material. They have it by default unless a specific law affirmatively modifies this right. But there’s no law forcing social media companies to broadcast anyone’s speech. There is no right of access, no “must wear” rule for social media as is the case for the distribution of broadcast stations by cable companies. Thus, section 230 does not turn social media companies into government actors by granting them a legal right to control the content of their systems.
It might be a good idea to give citizens a right of access or, failing that, to treat social media companies like public carriers. But they don’t have that status under the current law. Even justice Clarence thomasClarence ThomasClarence Thomas Warns Against “Destroying Our Institutions”, Defends Supreme Court Supreme Court Back In Courtroom For Arguments The Hill’s Morning Report – Presented By AT&T – Supreme Court Leaves Law On texas abortion stand MORE did not find a common carrier requirement in the current law in its opinion from several months ago. He only argued that if Congress sent him a law treating social media companies like common carriers, forced to carry all legal speech, he would be inclined to find it constitutional. Accordingly, the lawsuits are ripe for a motion to dismiss.
Interestingly, judicial House Republicans seem to recognize this. They released their agenda to put the brakes on Big Tech the same day Trump and his allies filed their complaints. Part of their plan calls for a similar right of access to social media, but it does so through a reform of Section 230 rather than an interpretation of the law as it currently exists.
However, social media commuting is a bad idea. That would mean treating social media as if it were phone companies, forced to retrieve and forward all legal messages from their followers. This mandate to spread all legal messages would render social media companies incapable of tackling the legal but harmful hate speech, terrorist material and disinformation plaguing their systems.
A better approach would be to build on the broadcasting regulatory model that remains in place to some extent today. Congress and the Federal Communications Commission have required broadcasters to broadcast public interest programming responsive to the needs of their local communities, including information programs; they should run ads for political candidates at the lowest rates and without censorship; they had to air educational programming for children. Until its repeal in the 1980s, broadcasters duty of fairness, to disseminate divergent views on controversial issues of public importance. On the negative side, broadcasters faced stricter rules for content, such as indecent broadcasts, which might be legal in some media but not at points of distribution.
The regulation of broadcasting is found halfway between the full editorial freedom enjoyed by newspapers and magazines and the very limited freedom of choice. public carriers like telephone companies. As a social media regulatory model, it would require platforms to transmit certain content and refrain from transmitting other content. Outside of these areas, however, companies would have full editorial freedom to broadcast or not to broadcast its users’ material.
A major challenge facing policymakers is how to adapt this public interest accountability approach to the case of social media companies to ensure that it provides the necessary content moderation without diminishing the discussion to a great extent. variety of political perspectives. The real value of the business carried by the elders President TrumpDonald Trump Ambassador to Afghanistan on whether Afghans will trust an American president again and its allies is that they could very well spark further debate and discussion about this public interest approach among policy makers.
Mark MacCarthy is a Senior Fellow at the Institute for Technology Law and Policy at Georgetown University and Senior non-resident researcher at the Center for Technological Innovation at the Brookings Institution. He is the former vice president of public policy for the Software and Information Industry Association in Washington. Follow him on Twitter: @Mark_MacCarthy