Electronic Frontier Foundation
Most people get their news from the internet. Censorship of the news is a serious threat to a free society. Yet censorship on the internet is a complex affair. In the United States, this revolves largely around section 230 in the Communications Decency Act. This is the same section for which President Trump produced an executive order in May 2020 and over which he vetoed a Defence Spending Bill in December 2020 – an odd move for a Republican President. Now, making use of the immunity provided by this law, Twitter and Facebook have banned the President from their platforms.
The U.S. Constitution protects Americans from censorship by their government. It does not protect them from censorship by publishers, the people who own media companies. Publishers can be choosy about what they print or broadcast so that they are not sued for harming someone’s reputation. However, the Supreme Court ruled in New York Times v. Sullivan that the publisher has to intend to harm someone to be open to lawsuits. In addition, publishers can lose their broadcast licence for publishing false or harmful information. With section 230, social media companies (or “interactive computer services”) are not considered to be publishers. More specifically, they cannot be sued for the content their users post online nor for any censorship the social media companies carry out in the name of “Communications Decency”. The law was passed 25 years ago in recognition of the new volume and speed of information on the internet. Needless to say, giving an incentive to some of the richest companies in the world no longer sits well with many.
Part of the problem is the size and influence of social media companies. One proposal is to offer automatic immunity to small and medium sized social media companies and to have the industry leaders prove to the Federal Trade Commission on a regular basis that they are being responsible and unbiased in their removal of objectionable material. The economic and social consequences of this are hard to figure out. Initially, Silicon Valley would lawyer up and ward off lawsuits. Eventually, the terms and conditions of each social media account would change and possibly the process by which material is reviewed and posted by the company. This advantage to smaller companies could offset the tendency for social media startups to establish a monopoly in any new form of online expression.
Another part of the problem lies with the very business model that has driven online innovation. Providing users with immediate and familiar information or feedback feels good. People will skim over and actually watch advertisements to get at these services. The consequences for the marketplace of ideas are only too easy to see. Each of us has a personally tailored reality, whether we are searching for socks, news or opinion. This has accelerated the process of driving us into camps of mutually misunderstood world views. Social media companies should not only be responsible and unbiased about the posts that they take down, they should also make us aware of how limited a range of ideas we are sampling from. Search engines and suggested reading and viewing algorithms should be made more random when it comes to commodities that are not for sale. No one benefits when policies about immigration, education and policing are focused through the same filters as music, clothes and electronics. Social media companies should be made to show that they treat the marketplace of ideas differently from the marketplace of things. Of course, some items- like MAGA hats – will defy classification as ideas or things and, ultimately, these companies cannot be held acccountable for our actions. Still, for the privelege of using the comunal investment that is the internet, they should show some community mindedness.