The social media phenomenon seemed at first to represent a magnificent advance for human freedom, extending to the common man the opportunity for expression of his thought to the entire world. Yet what we thought was a new, paradigm-changing degree of liberty is now rapidly being thwarted by vigorous social media censorship carried out in the name of policing offensiveness, and of protecting people from the harm of hearing someone else’s opinion. Social media censors are even expanding their arbitrary enforcement of speech limitations into the realms of political and religious speech. Facebook warnings on RNC ads, YouTube restrictions on PragerU, Twitter censoring President Trump, Facebook “fact-checks”, and now even suspension of Trump campaign ads by Twitter, typify such aggressive censorship. What a stark contrast exists between the heavy-handed intervention by social media censors and the principle underlying the very limited constraints on public speech which the government may impose in accordance with the First Amendment. As the Supreme Court explained just a few years ago in Matal v. Tam:
. . . it is a fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.1
Since social media now sustains our public discourse to a very great extent, the progressive suppression of conservative speech on social media at will is nothing less than a catastrophe. Conservatives must find and implement effective means for fighting internet censorship – quickly.
Attempts to use the First Amendment to curb social media censorship have met with failure: a good example is the recent case PragerU v. Google, LLC.2 PragerU came up against the Court’s “state actor” doctrine, and was unable to make the case that Google is a state actor subject to the First Amendment. David L. Hudson, Jr., writing at the American Bar Association, makes some persuasive arguments for relaxation of the state actor doctrine. However, even these arguments are unlikely to prevail because they do not directly counter the fundamental reason underlying the Court’s consistent philosophy: extension of First Amendment constraints to social media would necessarily entail application of the same extension to any private actor opening his property to public speech.3 The Court is protecting our ability to determine what happens on our own property.
The President’s recent executive order regarding online censorship suffers from the same deficiency, by attempting to define a narrow view of the social media content restrictions permissible under Section 230(c) of the Communications Decency Act in order to limit internet censorship. However, when the new interpretation gets challenged in court, the implications for all other property owners will have to be addressed – and there is nothing in the executive order explaining how those property owners will not be affected by the same narrow interpretation.
While clarifying Section 230 will not overcome the state actor doctrine, striking the law entirely could improve the situation, because 230 actively encourages censorship. The Act is internally incoherent, allowing providers of “interactive computer services” to behave like publishers without bearing the responsibilities of publishers. Although conventional wisdom views the Act as having been essential to the growth of the internet, Congress clearly overshot the mark by generating the creation of unaccountable big tech behemoths. In hindsight, it is rather remarkable, as well as distressing, that Congressional legislation was produced which sponsored corporate irresponsibility and fostered lack of accountability in an arena so fundamental to our liberty. Without section 230, social media would no longer have blanket immunity for conducting publishing activities. One theory predicts social media companies, if not provided immunity, would be incentivized to increase censorship in order to avoid liability. Removing 230 might, however, do just the opposite: before 230 came along, the Court was developing a distinction between internet intermediaries acting as mere distributors and those acting as publishers. Such a distinction places responsibility for internet content appropriately: with the user if the content is presented on a distributor’s website, or with the internet intermediary, if the content is presented on a publisher’s website. Social media providers are then incentivized to forego content moderation if they desire to avoid assuming publisher responsibilities.
Another more powerful approach to social media censorship would involve private sector activity. The mainstream media has operated with an overwhelming bias in favor of progressive versus conservative speech for a long time now, yet no one seriously proposes government regulation of mainstream media speech beyond the status quo. But where are the social media equivalents of the Rush Limbaugh radio show and the One America News Network, which would promote rather than smother conservative content? The time may be right for conservatives to move into social media, especially if the investigations of big tech antitrust issues result in any concrete legislation or regulations.
While we await the conservative version of Facebook, et al., there is another option for reducing bias among interactive computer service providers, one which does not face the First Amendment hurdle. Congress could dust off the principles used to justify regulation of broadband media, and apply them to the internet environment. The Commerce Clause certainly applies to the internet, and if the “airwaves” were deemed to be a public resource for broadcast media, then it is not an unreasonable stretch to view the internet infrastructure as a public resource for internet media. Identification of a scarce attribute associated with the internet infrastructure could then generate a compelling government interest warranting intervention.
Such a scarce attribute does exist, arising from the action of the search engines which provide visibility into the content on the internet. Given the tens of millions of results possible for any given search, realization of a high rank on search results is a very scarce resource indeed. Search engine bias is a subtle form of censorship, as these engines effectively control access to content on the internet. Therefore, the government has a compelling interest: the assurance of unbiased high-ranking internet search results.
Evidence of bias capable of influencing elections has been detected by Epstein and Robertson, and Dr. Epstein has presented both the evidence and a specific proposed solution before the Senate Judiciary Committee. The solution involves making the Google search index a “public commons,” the public availability of which would facilitate the proliferation of competitive search engines, thereby effectively eliminating bias.
Internet censorship is a powerful force limiting liberty, and every possible effective means should be employed in the fight to overcome this form of tyranny. But the the First Amendment is not the answer. Instead, conservative energies should be focused on other initiatives which show promise, such as abolishing the liability immunity created by 47 U. S. 230, supporting the big tech antitrust effort, and bringing internet search engines under government regulation.
Footnotes.
1. U. S. Supreme Court. 2017. Matal v. Tam, 582 U. S. _.
2. Prager University v. Google LLC, U. S. District Court, Northern District of California, 2018, No. 17-06064.
3. Prager University v. Google LLC, 18-15712 (9th Cir. 2020), page 9.