Anthony Fauci, Censorship, Clarance Thomas, Common Carrier, Communications Decency Act, Eugene Volokh, Facebook, First Amendment, Good Samaritan Provision, Hosting Function, LinkedIn, Luigi Zingales, Mark Zuckerberg, Network Externalities, Philip Hamburger, Public Accomodations, Section 230 Immunity, Sheryl Sandberg, Supreme Court, Trump Administration, Vivek Ramaswamy
I’m probably as fed up with social media as anyone, given the major platforms’ penchant for censoring on the basis of politics, scientific debate, religion, and wokeism (or I should say a lack thereof). I quit Facebook back in January and haven’t regretted it. It’s frustratingly difficult to convince others to give it up, however, and I’ve tried. Ultimately, major user defections would provide the most effective means of restraining the company’s power.
Beyond my wild fantasies of a consumer revolt, I will confess to a visceral desire to see the dominant social media platforms emasculated: broken up, regulated, or even fined for proven complaints of censorial action. That feeling is reinforced by their anti-competitive behavior, which is difficult to curb.
Are There Better Ways?
While my gut says we need drastic action by government, my head tells me … not … so … fast! These are private companies, after all. I’m an adherent of free markets and private property, so I cannot abide government intrusions to force anyone to sponsor my speech using their private facilities. At the same time, however, our free speech rights must be protected in the “public square”, and the social media companies have long claimed that their platforms offer a modern form of the public square. If they can be taken at their word, should there be some remedy available to those denied a voice based upon their point-of-view by such a business? This seems especially pertinent when access to “public accommodations” is so critical to the meaning of non-discrimination under current law (not that I personally believe businesses should be forced to accommodate the specific demands of all comers).
In a lengthy and scholarly treatment of “Treating Social Media Platforms Like Common Carriers”, Eugene Volokh states the following about U.S. Supreme Court case law (pg. 41):
“Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.”
The Common Carrier Solution
Volokh’s article is very detailed and informative. I highly recommend it to anyone hoping to gain an understanding of the complex legal issues associated with the rights of big tech firms, their users, and other interested parties. His article highlights the long-standing legal principle that so-called “common carriers” in telecommunications cannot discriminate on the basis of speech.
Volokh believes it would be reasonable and constitutional to treat the big social media platforms as common carriers. Then, the platforms would be prohibited from discriminating based on viewpoint, though free to recommend material to their users. He also puts forward a solution that would essentially permit social media firms to continue to receive protection from liability for user posts like that granted under Section 230 of the Communications Decency Act:
“… I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options as to any of their functions: (1) Claim common carrier status, which will let them be like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and- takedown basis).”
Economist Luigi Zingales emphasizes the formidable network externalities that give the incumbent platforms like Facebook a dominance that is almost unshakable. Zingales essentially agrees with Volokh, but he refers to common carrier status for what he calls the “sharing function” with Section 230-like protections, while the so-called “editing function” can and should be competitive. Zingales calls recommendations of material by a platform part of the editing function which should not be granted protection from liability. In that last sense, his emphasis differs somewhat from Volokh’s. However, both seem to think an change in the law is necessary to allow protections only where they serve the “public interest”, as opposed to protecting the private interests of the platforms.
The most destructive aspect of Section 230 immunity is the so-called “Good Samaritan” clause aimed at various kinds of offensive material (“… obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”), which the social media platforms have used as “a license to censor”, as Philip Hamburger puts it. Here, Eugene Volokh and others, including Supreme Court Justice Clarence Thomas, assert that this provision should not receive a broad interpretation in determining immunity for content moderation decisions. In other words, the phrase “otherwise objectionable” in the provision must be interpreted within the context of the statute, which, after all, has to do with communications decency! (Here again, I question whether the government can legitimately authorize censorship in any form.)
Arm of Government?
Viewpoint discrimination and censorship by the platforms is bad enough, but in addition, by all appearances, there is a danger of allowing companies like Facebook to become unofficial speech control ministries in the service of various governments around the world, including the U.S. Here is Vivek Ramaswamy’s astute take on the matter:
“… Facebook likely serves increasingly as the censorship arm of the US government, just as it does for other governments around the world.
In countries like India, Israel, Thailand, and Vietnam, Facebook frequently removes posts at the behest of the government to deter regulatory reprisal. Here at home, we know that Mark Zuckerberg and Sheryl Sandberg regularly correspond with US officials, ranging from e-mail exchanges with Dr. Anthony Fauci on COVID-19 policy to discussing “problematic posts” that “spread disinformation” with the White House.
If Zuckerberg and Sandberg are also directly making decisions about which posts to censor versus permit, that makes it much more likely that they are responsive to the threats and inducements from government officials.”
Even LinkedIn has censored journalists in China who have produced stories the government finds unflattering. Money comes first, I guess! I’m all for the profit motive, but it should never take precedence over fundamental human rights like free speech.
There is no question of a First Amendment violation if Facebook or any other platform is censoring users on behalf of the U.S. government, and Section 230 immunity would be null and void under those circumstances.
Elections … Their Way
On the other hand, we also know that platforms repeatedly censored distribution of the Trump Administration’s viewpoints; like them or not, we’re talking about officials of the executive branch of the U.S. government! This raises the possibility that Section 230 immunity was (or should have been) vitiated by attempts to silence the government. And of course, there is no question that the social media platforms sought to influence the 2020 election via curation of posts, but it is not clear whether that is currently within their rights under Section 230’s Good Samaritan clause. Some would note the danger to fair elections inherent in any platform’s willingness to appease authoritarian governments around the world, or their willingness and ability to influence U.S. elections.
Pledge of Facebook Allegiance
Some of our domestic social media companies have become supra-national entities without a shred of loyalty to the U.S. This article in The Atlantic, of all places, is entitled “The Largest Autocracy on Earth“, and it has a sub-heading that says it all:
“Facebook is acting like a hostile foreign power; it’s time we treated it that way.”
The article reports that Facebook’s Mark Zuckerberg has promoted the mantra “company over country”. That should disabuse you of any notion that he cares one whit about the ideals embodied in the U.S. Constitution. He is a child consumed with dominance, control, and profit for his enterprise, and he might be a megalomaniac to boot. If he wants to host social media relationships in this country, let’s make Facebook a common carrier hosting platform.