One Possible Solution to Free Speech in Social Media

There have been several rounds of congressional hearings on the topic of censorship by social media platforms. Facebook has been advocating increased regulation of social media speech as the preferred solution to ensuring free speech, while also preventing “harmful speech” in social media. They have produced a white paper entitled “Charting a way Forward – Online Content Regulation,” which is chock full of platitudes, but gives no helpful guidance on how such moderation might actually work.

In 2019, Facebook created an independent Oversight Board, to hear appeals from censored and de-platformed users. The Oversight Board recently made the controversial decision to ban former President Trump from Facebook for two years. Neither Facebook nor the user can appeal the findings of this board.

Currently, the terms of service of social media platforms are akin to the doctrine of “at will” employment. They can terminate any user at any time, for any reason, or no reason. Yet at the same time, their dominant position in interpersonal communications has made them the de facto public square.

It is in the interest of the incumbent platforms to propose complex regulations, with which only they can afford to comply – thus stifling potential competition and locking in their monopoly positions. It is in the interest of the political class to solve the issue of free speech through regulation as it will precipitate a never-ending flow of lobbying money.

What is the best way forward to balance the competing First Amendment interests of free speech and the freedom of association for private businesses?

In April, Supreme Court Justice Clarence Thomas wrote a concurring opinion, in a case about former President Trump blocking twitter followers from his official Twitter account. He lays out a cogent argument for the possibility that courts could treat social media platforms as either common carriers or places of public accommodation. This could prevent politically based censorship in an alternative fashion to relying on First Amendment arguments. Since my writing pales in comparison – as Justice Thomas said:

…this petition highlights the principal legal difficulty that surrounds digital platforms – namely, that applying old doctrines to new digital platforms is rarely straightforward.

Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.

Where, as here, private parties control the avenues for speech, our law has typically addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect on the application of the First Amendment.

First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.

…regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when a “business, by circumstances and its nature… rise[s] from private to be of public concern.” … At that point, a company’s “property is but its instrument, the means of rendering the service which has become a public interest.”

Telegraphs, for example, because they “resemble[d] railroad companies and other common carriers,” were “bound to serve all customers alike, without discrimination.”

Second, governments have limited a company’s right to exclude when that company is a public accommodation. This concept – related to common carrier law – applies to companies that hold themselves out to be public but do not “carry” freight, passengers or communications.

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another.

Much like with a communications utility, this concentration gives some digital platforms enormous control over speech…. It [Google] can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results… Facebook and Twitter can greatly narrow a person’s information flow through similar means.

It changes nothing that these platforms are not the sole means for distributing speech or information. A person could always choose to avoid a toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s platforms, nothing is.

Justice Thomas’s thinking is having an immediate impact. The Texas State Senate passed a bill that would have establish a process for Texans to challenge social media platforms over political censorship. However, the bill died in the House.

On May 24th, Florida Governor DeSantis signed into law Senate Bill 7072 which gives Floridians the right to sue social media platforms for monetary damages for being unfairly “silenced,” requires that the platforms post the content moderation guidelines, and prohibits the de-platforming of political candidates.

Perhaps Justice Thomas is on to something?

James Miller
Lyme, CT

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