Are Internet platforms distorting our political discourse by silencing conservatives? If they were, could Congress pass a law forcing them to play fair?
The first question is hard to answer, because we don’t have nearly enough information to see the big picture and know what speech platforms are taking down. For the most part, we only find out when the speakers themselves learn that their posts or accounts have disappeared, and choose to call public attention to it. But the idea that platforms’ rules are biased – and that this undermines democracy – isn’t new, and it isn’t unique to conservatives. Last year, for example, seventy social justice groups signed a letter to Facebook saying that African Americans and other minority groups were being unfairly silenced while the platform turned a blind eye to racist speech.
The question about potential regulation is even harder. It’s difficult to imagine a future Internet where platforms don’t enforce their own rules – and in the process silence a fair amount of speech that, under the U.S. First Amendment, is clearly legal. Many would say there is a moral imperative for platforms to take down legal-but-offensive or harmful speech – including seriously disturbing material like Holocaust denial tracts and suicide how-to videos. In any case there is a clear commercial reason for platforms to weed out content of this sort, since it alienates both users and advertisers. That means we are unlikely to get away from some form of the current situation: platforms enforcing discretionary rules that ban legal speech, and users disagreeing vehemently with the platforms’ choices.
Legally, platforms have very free rein to take down user speech. At least two dozen people have tried suing platforms for taking down their posts or accounts. (Eric Goldman’s blog is the best place to track those, BTW.) The platforms keep winning those cases. Among other things, courts have held that forcing them to host speech against their will would violate the companies’ own First Amendment rights.
Could the law change – could Congress mandate platform “fairness” among political perspectives? As a Constitutional matter, the answer might well be no. Any law that took away platforms’ discretion over content removals would, per the cases so far, violate the companies’ First Amendment rights. Powerful Supreme Court precedent – and legal interpretations supported by conservative judges like Supreme Court nominee Brett Kavanaugh – supports the platforms’ argument. A law regulating platforms’ content removals could also very easily violate ordinary Internet users’ First Amendment rights, by effectively using government power to pick winners and losers among our tweets, Facebook posts, or YouTube videos.
Congress could try, of course. We’ve been down this road before. Twentieth century FCC regulations mandated things like “fairness” and “equal time” for opposing political opinions on broadcast media. Fairness requirements for Internet platforms would presumably look something like those older laws, but on steroids – with untold volumes of detailed regulations, and untold floors of federal office buildings for the regulators who enforce them. Like those older rules, new Internet speech laws would be fiercely litigated, with both private companies and individual speakers saying the laws violated their First Amendment rights. Setting Constitutional questions aside, many critics of today’s platforms might embrace such a regulatory approach as an improvement over the status quo. But it’s strange to hear political conservatives asking for it, particularly given their historical opposition to many of the FCC rules.
The “platform fairness” conversation in D.C. has generated a lot of sound and fury. It remains to be seen what, if anything, it actually signifies.
A shorter version of this post appeared on Vox