Facebook CEA Mark Zuckerberg testifies before Congress. (Photo Credit: Getty Images)
The following is an opinion contribution and reflects the author’s views alone.
The conversation surrounding free speech in the United States has increasingly revolved around internet as a forum welcoming of all speech and expression. As internet access and popularity has grown, much of the American populace has gradually come to rely on the internet as a source and platform for a diverse catalogue of content. The internet’s growth has raised new questions surrounding regulation of increasingly influential media providers’ conduct. Should social media companies which supply content forums be allowed to regulate and censor the speech that their users wish to put out? While American jurisprudence would seem to imply that, as private entities, they should be afforded this right, the American politicians have been divided over how much autonomy social media companies should have over their own platforms. However, regardless of such divisions, a common sense approach to private ownership shows that corporations do and should have the authority to regulate their own property.
Historically, Congress has taken a hands-off approach to social media regulation in the interest of preserving the autonomous freedom of the internet. Congress has stated, quite correctly, that the internet has “flourished, to the benefit of all Americans, with a minimum of government regulation.” Furthermore, Congress has repeatedly declined to pass legislation tightening governmental controls on internet companies. The Supreme Court has generally followed their lead, repeatedly refusing to hear cases dealing with social media regulation. Despite precedents by the legislative and judicial branches, both major 2020 presidential candidates have indicated a more involved stance. They have ignited a fierce debate about the what role social media companies truly occupy as hosts and moderators of content considered false or harmful.
Donald Trump, who has built a legacy decrying the mainstream media as bias, signed an Executive Order in May calling for the FTC to define limits on the protections granted to social media companies by the Communications Decency Act (CDA). Section 230 of the CDA provides “Good Samaritan” protections for social media companies acting in “good faith” to regulate content, shielding them from liability due to that regulation. President Trump’s order reflects his concern that social media companies, namely as Twitter, Facebook, Instagram, and YouTube, might not have been acting in good faith, and it asserts that these companies must be thoroughly examined to see whether their conduct warrants the protections granted to them.
Vice President Joe Biden has also been quick to criticize the protections granted to social media companies as hosts of misleading content. Despite voting yes on the 1996 Telecommunications Act, which included the CDA, Vice President Biden has derided the privileges contained in it for social media companies he believes engage in “irresponsible” behavior. He accused Mark Zuckerburg of knowingly allowing “opponents” of the United States to post malicious ads on Facebook. He went so far as to state that Zuckerburg was aware that Russians were, “using their platform, to try to undermine American elections” and should be considered “civilly liable.” He further characterized such behavior by Facebook as “close to criminal” and stated that the idea that Zuckerburg could be considered to have committed a criminal offense was “very possible.” The former vice-president has also been unequivocal in his opposition to aspects of the CDA: “Section 230 [of the CDA] should be revoked, immediately should be revoked, number one. For Zuckerberg and other platforms,” he said.
With one incumbent presidential candidate passing executive orders to curtail the protection of social media companies due to their alleged unfair practices and the his chief campaign competitor advocating for the wholesale repeal of such protections, it is important to reflect on the rights inherent to private companies to self-regulate their platforms. Companies, as confirmed in Citizens United v. FEC, are legally considered to be persons for many purposes and, therefore, have a constitutionally protected right to free speech. This speech includes both the right to say what you wish—excepting incitory and obscene speech—and the right to not say what you wish. Facebook and Twitter, despite providing public forums where many individuals have the opportunity to interact digitally, do not give up the rights inherent to a private entity by virtue of the fact that they permit their service to be used in a public way.
When Trump accuses the mainstream media of bias against him, he may very well be right, but the fact is that private entities having biases isn’t illegal. Moreover, the First Amendment gives them the right to be biased in their presentation of facts and opinions. Twitter has no more duty to be fair in its presentation of opinion than a private citizen, as long as it acts in good faith. And given the wide berth afforded to social media companies to regulate media they find “objectionable, whether or not such material is constitutionally protected,” the likelihood of any of the most popular social media companies meeting this standard is quite low.
The protections of the CDA extend not only to large social media corporations like Facebook and Twitter, but also to those who inherit delegated regulatory power. This includes independent moderators and users and pages which compile the speech and opinions of others. Groups like TigerConfessions and BlackIvyStories, to the extent given to them by the hosting social media company, are also afforded the right to present bias and self-regulate the media they decide to provide to their users. Recent decisions by these groups and those like them to allow or prevent conversations on certain subjects have been met with a great deal of pushback by parts of the Princeton and Ivy League. Controversy over the policing of conversations surrounding contentions subjects and individuals have resulted in accusations of bias, censorship, and libel on the part of these hosts.
Most notably, two accusations in the last year regarding Princeton students using racial slurs sparked fierce debate over the role of these anonymous group hosts in regulating the course of conversation of these topics. Questions on whether posting these accusations (even with disclaimers regarding their validity) were legal or not, whether social media groups should be hosting debates on unproven accusations, and whether the regulation of opinions on one side or the other of debate were allowable, plagued social media for months.
While the legal question is settled—until, perhaps, a President takes action on it— the moral questions are not so easily answered. Open debates on topics such as these in public forums, which contain hundreds and thousands of members, inevitably result in hearsay, falsehoods, and agendas gaining traction. All of these which have the potential to spread misinformation and harm the reputations of participants. Conversely, unadulterated and unmoderated debates allows for the intersection of individuals of diverse beliefs to engage in discourse on important topics and produces the most substantial set of opinions to be parsed through.
Arguments for regulated versus open debate ultimately are really a question of values. What threshold must be met for misinformation to be considered intolerable? The purveiling answer has supported a flexible, laissez-faire approach to social media regulation. It has argued that every entity ought to police their own forum as they see fit, and every individual engage in those forums which best reflect their desires. This is the approach Congress has taken in passing legislation. By leaving everyone to attend to their own speech, you allow an environment for individuals to independently decide which opinions are fit to share.
I certainly empathize with those who believe in regulating harmful and counterproductive speech. However, our liberal democracy demands that we must respect the right of individuals and corporations to present bias or misleading information. This liberty is necessary to foster productive thought and debate. If freedom only demanded that we respect those with whom we share values, society would face no challenges. But society does face challenges. Allowing freedom of thought—including regulations of online private platforms—is hard. It is a sacrifice. It is a concession and recognition that we are not infallible and that our opinions might be wrong. And even further, that even if we are right, it is worth giving people the liberty to be wrong. This is gamble on personal freedom that America was founded upon. Today, more than ever, we ought to remember and cling to our core American ideals, that each individual is afforded freedom.
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