Social Media Can Save Itself & Free Speech Too

Social Media Can Save Itself & Free Speech Too

Five years ago I hosted a public roundtable discussion in Washington with experts in technology, government and media on the troubling viewpoint censorship tactics by Silicon Valley tech giants like Facebook. To settle the problem, I floated a modest written proposal, billed as a Free Speech Charter for the Internet, asking (politely) for Big Tech to voluntarily adopt the free speech rules of the First Amendment laid down by the Supreme Court. I had good reason to believe they got the memo, but I’ve given up waiting for a reply.

Now the rope may be tightening around Silicon Valley. In the last month the digital media universe was all a-flutter over Alex Jones a/k/a InfoWars being blocked by social media. Then came the blockbuster news that Jack Dorsey, CEO of Twitter, will be called to Congress on September 5th to testify on the issue of content censorship (or “moderation” as they call it) on social media platforms.

The takedown of controversial conspiracy auteur Alex Jones and his @InfoWars by Facebook, YouTube and other social media sites was unsurprising. Twitter hesitated at first, then temporarily suspended Jones’s group. Before that, the tweets of Twitter V.P. Del Harvey’s hinted at their eventual strategy, pointing to its history of restricting forms of hate speech. But that “hate” cudgel is a flawed weapon against extreme speech. Pro-Trump acolytes Diamond & Silk blocked by Facebook as “dangerous?” Really?

Social media platforms have similar rules prohibiting hate speech and use them to justify content suppression, mostly against conservative viewpoints, but never with defensible logic. Risk of societal violence you may ask? Not likely. In 1993 when the National Telecommunications and Information Administrations (NTIA) was tasked by Congress to advise on possible regulation, that agency “found little empirical evidence of a causal relationship between telecommunications-based ‘hate speech’ and the occurrence of hate crimes.” I’ve seen no evidence to the contrary, since.

Further, the “hate speech” approach is fatally ambiguous. The NTIA adopted the sad tautology that it “encompass[es] words and images that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity;” in other words, hate speech = speech that is hateful.

If this were simply a question of what the First Amendment permits, we need only look to the Supreme Court’s decision in Snyder v. Phelps,ruling that even the disgusting placards of the Westboro “church” folk were protected.

It is clear that Silicon Valley vessels sailing the currents of the internet are not immune from regulatory collision. The RMS Titanic, the most innovational creation in its field, was still sinkable. Social media companies could be careening toward a federal regulatory iceberg. They need the right set of binoculars and the will to use free speech as their destination.

The conventional sophistry about social media being too precious to be entangled in Washington mandates is evaporating. Mark Zuckerberg’s testimony on Capitol Hill last April was supposed to be about data sharing and privacy violations, but quickly took a turn toward content suppression with both sides of the aisle taking shots. Facebook’s founder seemed to recognize the inevitability of regulation. While the context suggests he was addressing data privacy, it is foolish to ignore the public groundswell against social media’s unfair suppression of viewpoints. Polls by Rasmussen show a majority of Americans want social media to exercise a broad view of free speech rather than blocking controversial expression.

The U.S. Court of Appeals for the D.C. Circuit may have paved the way for regulating social media platforms when it affirmed the well-disputed “net neutrality” rules of the Federal Communications Commission in 2016, governing the conduct of internet service providers (ISPs) who act as gateways for web users. The Court dismissed the First Amendment defense of the ISPs because, it said, those companies merely facilitated the transmission of the speech of others rather than engaging in speech of their own. But, doesn’t that also describe Facebook and Twitter, enterprises that act as conduits for the public expression of their users rather than being transmitters of their own speech?

Still, there is a much better path than turning social media into regulated utilities. The best alternative for free speech of citizen web users, for Silicon Valley, and for the free market innovation economy, is for social media companies to squelch the potential for regulation by voluntarily relying on those limited, well-worn First Amendment free speech exceptions already harrowed by the Supreme Court: offensive sexually explicit content could be excludable under “indecency” rules because minors have easy web access; personal attack messages by the KKK against blacks blocked under the “true threats” or “fighting words” doctrines; jihadist invocations barred as incitements to violence, and so on.

Of course digital platforms would have to give up their vacuous “hate speech” rules, but in return we should give them a reasonable amount of leeway in adjusting Supreme Court doctrine to the dizzying transformation and disruption occurring within cyberspace. The Supreme Court seemed to mirror the wisdom of that kind of approach in last year’s decision vindicating even a convicted criminal’s right to use Facebook in Packingham v. North Carolina where it counseled care in proscribing hard web rules because of the “protean” nature of internet development.

In the aftermath of the sinking of the Titanic, a crewmember on lookout testified in Congress that there were no binoculars in the crow’s nest. Silicon Valley companies should learn the lesson. They have the chance to protect themselves and at the same time don the mantel of free speech heroes rather than callous censors. I suggest that social media platforms start by examining their future through the lens of the First Amendment.

Craig Parshall is a civil liberties attorney serving as Special Counsel to the Washington-based American Center for Law and Justice, and a fiction author whose novels often feature technology themes. His opinions expressed here are solely his own.

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