The First Modification Is No Excuse for Letting Social-Media Firms Do No matter They Need

These efforts to justify Trump’s deplatformation by reference to the internal language policies of social media companies – and in particular Facebook’s willingness to have this decision reviewed by an independent, court-like oversight body – suggest the project of platform self-regulation traction is gaining in importance. The important question for internet users in the US and around the world is whether the self-regulation of platforms is sufficient to protect the vital democratic and expressive freedoms that are dear to the American tradition of free speech.

There are reasons to be skeptical that self-regulation will be enough. Perhaps the main reason is the fact that, despite their presumably sincere commitment to freedom of expression, social media companies are ultimately for-profit companies that provide a forum for speeches to make money. Will they protect freedom of expression even if it conflicts with corporate profits? Conversely, outside of the extraordinary circumstances of the Capitoline Invasion, will they really suppress harmful language that brings readers to their platforms? History suggests that the answer to both of these questions is no. Certainly the often ad hoc and inconsistent decision-making that the platforms demonstrated in the 2020 election campaign alone matters.

With all of this in mind, it is worth considering a third option that has been used in the past and could be used again to protect freedom of expression from private power: laws that dictate that the private media corporations rule the mass public to adhere to the basic rules of non-discrimination and often procedural obligations. Even as the first amendment went further into privacy than it is today, statutory non-discrimination and procedural requirements were the main legislative tools to ensure that the private corporations controlling the telegraph and telephone lines, radio and television radio waves, and radio waves controlled cable networks did not use their power to discriminate against certain political issues or otherwise undermine the vitality of public debate. The best known and most controversial example of these laws was the Fairness Doctrine, which imposed extensive, if vague, non-discrimination obligations on radio, television and to some extent cable television companies from the 1930s to the late 1980s. when Ronald Reagan’s FCC picked it up. The Fairness Doctrine, however, is just one example of a much wider range of media non-discrimination laws, many to this day ensuring that, as a Senator put it in 1926, the “few men” control the “large public” vehicles “of Radio and television do not limit the range of ideas and viewpoints that the public can hear.

In this context too, political attitudes have changed considerably. For much of the 20th century, conservatives were the ones who railed against the constraints federal laws like the Fairness Doctrine placed on private media companies, and liberals and progressives defended those policies against attack. Today, however, many conservatives argue for the need to impose statutory non-discrimination obligations on social media companies, while many liberals express concern about the restrictions such bills would place on the freedom of private companies.

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