There were several rounds of hearings in Congress on censorship through social media platforms. Facebook advocates increased regulation of speech on social media as the preferred solution to ensure freedom of expression while preventing “harmful speech” on social media. You have created a whitepaper entitled “Charting a way Forward – Online Content Regulation” that is full of platitudes but does not provide any helpful hints on how such moderation could actually work.
In 2019, Facebook created an independent oversight body to hear appeals from censored and de-platform users. The board of directors recently made the controversial decision to ban former President Trump from Facebook for two years. Neither Facebook nor the user can object to the results of this forum.
Currently, the terms of use of social media platforms are similar to the doctrine of “voluntary” employment. You can cancel any user at any time for any reason or without giving a reason. At the same time, it has de facto made its dominant position in interpersonal communication a public space.
It is in the interests of the established platforms to propose complex regulations that only they can afford to comply with – and thus stifle potential competition and consolidate their monopoly position. It is in the interests of the political class to resolve the issue of freedom of expression through regulation, as this will trigger a never-ending flow of lobbying money.
What is the best way to reconcile the competing interests of the First Amendment on freedom of expression and freedom of association for private companies?
In April, Supreme Court Justice Clarence Thomas wrote a concurring opinion on a case where former President Trump banned Twitter followers from his official Twitter account. He strongly argues for the possibility that courts could treat social media platforms as either shared carriers or public accommodation. This could provide an alternative way of preventing politically based censorship from relying on arguments in the First Amendment. As my writing pales in comparison – as Judge Thomas said:
… this petition highlights the major legal difficulty related to digital platforms – namely that applying old teachings to new digital platforms is seldom easy.
Today’s digital platforms offer opportunities for historically unprecedented volumes of speech, including government actors. Also unprecedented, however, is the concentrated control of so much language in the hands of a few private parties.
Where, as here, private parties control the possibilities of speech, our law has generally addressed concerns about stifled speech by other legal doctrines that may have a secondary effect on the application of the First Amendment.
First, our legal system and its UK predecessor have long had specific rules governing certain companies known as common carriers, including a general obligation to serve all comers.
… regulations as they apply to modes of transport can be justified, even for industries that have historically not been recognized as modes of transport, if a “business due to the circumstances and its nature … rises”[s] from private to public concern. ”… At this point the“ property of a company is only its instrument, the means of providing the service that has become in the public interest ”.
Telegraphs, for example, because they “resemble”[d] Railway companies and other transport companies “are obliged to serve all customers equally and without discrimination”.
Second, governments have limited a company’s right to expulsion if that company is a public entity. This concept – based on the Common Carrier Law – applies to companies that pretend to be public but do not “carry” any freight, passengers or communications.
Digital platforms presenting themselves to the public are in many ways similar to traditional common carriers. Although digital rather than physical, they are essentially communication networks and they “carry” information from one user to another.
Much like a communication utility, this concentration gives some digital platforms tremendous control over the language … It [Google] can suppress content by de-indexing or downlisting a search result, or distract users from certain content by manually changing autocomplete results … Facebook and Twitter can similarly severely restrict a person’s flow of information.
It doesn’t change the fact that these platforms aren’t the only means of spreading language or information. A person could always avoid a toll bridge or train and instead swim the Charles River or hike the Oregon Trail. However, when assessing whether a company has significant market power, it comes down to whether the alternatives are comparable. For many of today’s platforms, that’s nothing.
Justice Thomas’s thinking has an immediate impact. The Texas Senate passed a law that would give Texans a process to challenge social media platforms for political censorship. However, the bill died in the house.
On May 24, Florida Governor DeSantis signed Senate Bill 7072, which gives Floridians the right to sue social media platforms for damages for unjustified “silence” by political candidates.
Maybe Justice Thomas is on to something?
James Miller
Lyme, CT
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