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The Case against Social Media Content Regulation

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The Case against Social Media Content Regulation

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https://cei.org/studies/the-case-against-social-media-content-regulation/

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Reaffirming Congress' Duty to Protect Online Bias, "Harmful Content," and Dissident Speech from the Administrative State

View Full Document as PDF Executive Summary
As repeatedly noted by most defenders of free speech, expressing popular opinions never needs protection.

Rather, it is the commitment to protecting dissident expression that is the mark of an open society. On the other hand, no one has the right to force people to transmit one's ideas, much less agree with them.

However, the flouting of these principles is now commonplace across the political spectrum.

Government regulation of media content has recently gained currency among politicians and pundits of both left and right. In March 2019, for example, President Trump issued an executive order directing that colleges receiving federal research or education grants promote free inquiry. And in May 2020 he issued another addressing alleged censorship and bias by allegedly monopolistic social media companies.

In this political environment, policy makers, pressure groups, and even some technology sector leaders- whose enterprises have benefited greatly from free expression-are pursuing the imposition of online content and speech standards, along with other policies that would seriously burden their emerging competitors.

The current social media debate centers around competing interventionist agendas. Conservatives want social media titans regulated to remain neutral, while liberals tend to want them to eradicate harmful content and address other alleged societal ills.

Meanwhile, some maintain that Internet service should be regulated as a public utility.

Blocking or compelling speech in reaction to governmental pressure would not only violate the Constitution's First Amendment-it would require immense expansion of constitutionally dubious administrative agencies. These agencies would either enforce government-affirmed social media and service provider deplatforming-the denial to certain speakers of the means to communicate their ideas to the public- or coerce platforms into carrying any message by actively policing that practice. When it comes to protecting free speech, the brouhaha over social media power and bias boils down to one thing: The Internet- and any future communications platforms-needs protection from both the bans on speech sought by the left and the forced conservative ride-along speech sought by the right.

In the social media debate, the problem is not that big tech's power is unchecked. Rather, the problem is that social media regulation-by either the left or right- would make it that way. Like banks, social media giants are not too big to fail, but regulation would make them that way.

American values strongly favor a marketplace of ideas where debate and civil controversy can thrive. Therefore, the creation of new regulatory oversight bodies and filing requirements to exile politically disfavored opinions on the one hand, and efforts to force the inclusion of conservative content on the other, should both be rejected.

Much of the Internet's spectacular growth can be attributed to the immunity from liability for user- generated content afforded to social media plat- forms-and other Internet-enabled services such as discussion boards, review and auction sites, and commentary sections-by Section 230 of the 1996 Communications Decency Act. Host takedown or retention of undesirable or controversial content by "interactive computer services," in the Act's words, can be contentious, biased, or mistaken. But Section 230 does not require neutrality in the treatment of user-generated content in exchange for immunity.

In fact, it explicitly protects non-neutrality, albeit exercised in "good faith."

Section 230's broad liability protection represented an acceleration of a decades-long trend in courts narrowing liability for publishers, republishers, and distributors. It is the case that changes have been made to Section 230, such as with respect to sex trafficking, but deeper, riskier change is in the air today, advocated for by both Republicans and Democrats. It is possible that some content removals may happen in bad faith, or that companies violate their own terms of service, but addressing those on a case-by-case basis would be a more fruitful approach. Section 230 notwithstanding, laws addressing misrepresentation or deceptive business practices already impose legal discipline on companies.

Regime-changing regulation of dominant tech firms- whether via imposing online sales taxes, privacy mandates, or speech codes - is likely not to discipline them, but to make them stronger and more impervious to displacement by emerging competitors.

The vast energy expended on accusing purveyors of information, either on mainstream or social media, of bias or of inadequate removal of harmful content should be redirected toward the development of tools that empower users to better customize the content they choose to access.

Existing social media firms want rules they can live with-which translates into rules that future social networks cannot live with. Government cannot create new competitors, but it can prevent their emergence by imposing barriers to market entry.

At risk, too, is the right of political-as opposed to commercial-anonymity online. Government has a duty to protect dissent, not regulate it, but a casualty of regulation would appear to be future dissident platforms.

The Section 230 special immunity must remain intact for others, lest Congress turn social media's economic power into genuine coercive political power. Competing biases are preferable to pretended objectivity. Given that reality, Congress should acknowledge the inevitable presence of bias, protect competition in speech, and defend the conditions that would allow future platforms and protocols to emerge in service of the public.

The priority is not that Facebook or Google or any other platform should remain politically neutral, but that citizens remain free to choose alternatives that might emerge and grow with the same Section 230 exemptions from which the modern online giants have long benefited. Policy makers must avoid creating an environment in which Internet giants benefit from protective regulation that prevents the emergence of new competitors in the decentralized infrastructure of the marketplace of ideas.

Introduction

[A]t some level the question of what speech should be acceptable and what is harmful needs to be defined by regulation.1

-Facebook CEO Mark

Zuckerberg, to reporters after meeting with French President Emmanuel Macron in Paris, May 10, 2019

Congress shall make no law ... abridging the freedom of speech, or of the press.

-U.S. Constitution, Amendment I

As repeatedly noted by most defenders of free speech, expressing popular opinions never needs protection. Rather, it is the commitment to protecting dissident expression that is the mark of an open society. On the other hand, no one has the right to force people to transmit one's ideas, much less agree with them.

However, the flouting of these principles is now commonplace across the political spectrum. Government regulation of media content seemed unthinkable not so long ago, yet it has recently gained currency among politicians and pundits of both left and right. In March 2019, for example, President Trump issued an executive order directing that colleges receiving federal research or education grants promote free inquiry.2 And in May 2020 he issued another addressing alleged censorship and bias by allegedly "monopolistic" social media companies.3

In this political environment, policy makers, pressure groups, and even some technology sector leaders- whose enterprises have benefited greatly from free expression-are pursuing the imposition of online content and speech standards, along with other policies that would seriously burden their emerging competitors.

Examples of what many wish to regulate include political neutrality, bias, harmful content, bots, advertising practices, privacy standards, election "meddling," and more.4

The current social media debate boils down to competing interventionist agendas. Conservatives want social media titans regulated to remain neutral, while liberals tend to want them to eradicate harmful content and address other alleged societal ills.

Meanwhile, Google and Facebook now hold that Internet service should be regulated as a public utility.

Either blocking or compelling speech in reaction to governmental pressure would not only violate the Constitution's First Amendment-it would require immense expansion of constitutionally dubious administrative agencies.5 These agencies would either enforce government-affirmed social media and service provider deplatforming-the denial to certain speakers of the means to communicate their ideas to the public-or coerce platforms into carrying any message by actively policing that practice. When it comes to protecting free speech, the brouhaha over social media power and bias boils down to one thing: The Internet needs protection from both the bans on speech sought by the left and the forced conservative ride-along speech sought by the right. So do future communications platforms.

As all-encompassing as today's social media platforms seem, they are only a snapshot in time, prominent parts of a virtually boundless and ever-changing Internet and media landscape. The Internet represents a transformative leap in communications not because of top-down rules and codes governing acceptable expression, but because it has radically expanded broadcast freedom to mankind. More is published in a day than could formerly be produced in months or even years.6

How Public Policy Has Protected Online Free Speech In the early days of the commercial Internet, different moderating policies of firms like Prodigy and Compuserve raised serious concerns over who could be held liable for defamation, libel, and other harms: Would the responsible party be the host or the person who wrote or uploaded the content?7 This was a question ultimately resolved by Congress rather than the courts.

Much of the Internet's spectacular growth can be attributed to the immunity from liability for user- generated content afforded to social media platforms-and other Internet- enabled services such as discussion boards, review and auction sites, and commentary sections-by Section 230 of the 1996 Communications Decency Act.8 Host takedown or retention of undesirable or controversial content by "interactive computer services," in the Act's words, can be contentious, biased, or mistaken. But Section 230 does not require neutrality in the treatment of user-generated content in exchange for immunity. In fact, it explicitly protects non-neutrality, albeit exercised in "good faith." The law reads that providers will not be held liable for:

[A]ny action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.9

In other words, you can say it, but no one is obligated to help you do so. Jeff Kosseff, Assistant Professor of Cybersecurity Law at the U.S. Naval Academy and author of The Twenty- Six Words that Created the Internet, maintains that without Section 230 "the two most likely options for a risk-averse platform would be either to refrain from proactive moderation entirely, and only take down content upon receiving a complaint, or not to allow any user-generated content."10 Similarly, Internet Association President Michael Beckerman argues, "Eliminating the ability of platforms to moderate content would mean a world full of 4chans and highly curated outlets-but nothing in between."11 (The online message board 4chan has become infamous for its bare-bones moderation and toleration of bigoted content.) None are required to act in a fair or neutral manner, and government cannot require them to do so.12

Section 230's "broad liability shield for online content distributors"- in the words of Mercatus Center scholars Brent Skorup and Jennifer Huddleston-represented an acceleration of a decades-long trend in courts narrowing liability for publishers, republishers, and distributors more generally,13 as well as a concept of "conduit immunity" imparted to intermediaries.14 It is the case that changes have been made to Section 230, such as with respect to sex trafficking.15 But deeper, riskier change is in the air today, advocated for by both Republicans and Democrats.16 It is possible that some content removals may happen in bad faith, or that companies violate their own terms of service, but addressing those on a case-by-case basis would be a more fruitful approach. Section 230 notwithstanding, laws addressing misrepresentation or deceptive business practices already expose companies to legal discipline. Still, some officials have called for using laws barring deceptive business practices to charge social media platforms with making false statements about viewpoint neutrality.17

Regime-changing regulation of dominant tech firms-whether via imposing online sales taxes,18 privacy mandates,19 or speech codes-is likely not to discipline them, but to make them stronger and more impervious to displacement by emerging competitors.20 Given the proliferation of media competition across platforms and online infrastructure, none can be considered essential, much less monopolistic, as some critics claim.

However, regulation can backfire and turn them into such. For example, Facebook CEO Mark Zuckerberg acknowledged, in testimony to Congress in 2018, that privacy regulation would benefit Facebook.21 That sentiment was reiterated by Facebook policy head Richard Allan, who favors a "regulatory framework" to address disinformation and fake news.22

From a given corporation's perspective, such concessions are strategically more favorable alternatives to the threatened corporate breakups, large fines, or even personal liability for management.23 While LinkedIn and Reddit leaders have cautioned against social media regulation,24 several leading tech corporate chiefs-including Apple's Tim Cook, Twitter's Jack Dorsey, Snap, Inc.'s Evan Spiegel, Y Combinator's Sam Altman, and former Instagram CEO Kevin Systrom-have expressed support for regulating elements of big tech, in social media and elsewhere.25 None has been as prominent and unambiguous in support for top-down regulation as Facebook's Zuckerberg, who in a March Washington Post op-ed called for governments to bar certain kinds of "harmful" speech and require detailed official reporting obligations for tech firms. This proposal is in direct conflict with the protections of Section 230.26

Conservatives fixated on social media bias are reluctant to appreciate the immeasurable benefit they receive from Section 230.27 It has never acted as a subsidy to anyone, applying equally to all-publishers, like newspapers, have websites, too. Even if biases by some platforms were a valid concern, there is no precedent for the reach conservatives enjoy now.28 Those who complain of bias or censorship on YouTube-such as Prager University, for example-pay nothing for the hosting that can reach millions and stand to benefit from similar freedom. Just this year, the Ninth Circuit Court of Appeals ruled that, "[D]espite YouTube's ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment."29 This disintermediation-the rapid erosion of the influence of major media gatekeepers-has enabled the growth of a more diverse of the media landscape, thanks in large part to the collapse of barriers to entry, including cost.

Most ominously, conservatives fail to appreciate the dangers of common cause with advocates of content or operational regulation on the left.

Given the ideologically liberal near-monoculture at publicly funded universities, major newspapers, and networks, the vast preexisting administrative apparatus in the federal government-and in management and corporate culture for most of Silicon Valley, for that matter-it is the left that has more to lose from not regulating the Internet as the sole cultural medium not largely dominated by liberal perspectives.

Nothing is more fully open to independent or dissenting voices than then Internet; regulation would change that. For that reason alone, tomorrow's conservatives need to rely upon Section 230 immunities more than ever to preserve their voices. Any expansion of federal agency oversight of Internet content standards stand ultimately to be repurposed to the aims of the left in the long run.

Yet, the threat of online speech regulation now comes in bipartisan clothing. The Deceptive Experiences to Online Users Reduction (DETOUR) Act (S. 1084), cosponsored by Sens. Mark Warner (D-VA) and Deb Fischer (R-NE), seeks to address "dark patterns" and the alleged tricking of users into handing over data.30 Warner seeks still broader regulation of tech firms including changes to Section 230,31 but probably will not agree with conservatives on what constitutes disinformation or valid exercise of the civil right of anonymous communication.32

At bottom, neither left nor right now defends the right to platform bias. Both sides must hit pause, in order to protect the right to express controversial viewpoints enshrined in the First Amendment and affirm the property rights of "interactive computer services" of today and tomorrow. The opponents, superficially in conflict, agree in principle that government should have the final say. In the wake of any bipartisan tech regulation "victory," entrenched unelected bureaucrats at Washington regulatory agencies will have free rein to define "objectivity" as they see fit-highly likely to the detriment of conservatives and classical liberals.

Countering the Tech Regulatory Campaign of the Right

Unlike the left and its emphasis on culling "harmful content," conservatives seek forced carriage in service of political neutrality; they want content included, not removed. Many on the right insist bias prevails and that monopolistic social media routinely censor search results and user-generated content. To supposedly remedy that situation, they would alter Section 230's immunities and require objectivity and even official certifications of non-bias-to be determined by tomorrow's bureau- crats. On Twitter, President Donald Trump thundered at "the tremendous dishonesty, bias, discrimination and suppression practiced by certain companies. We will not let them get away with it much longer."33 He has also expressed a desire to sue social media firms.34

Then in July 2019, Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) wrote to the Federal Trade Commission (FTC) seeking investigation into how major tech companies curate content, while -echoing progressive calls for regulation-accusing social media of being "powerful enough to-at the very least-sway elections." "They control the ads we see, the news we read, and the information we digest," they complain. "And they actively censor some content and amplify other content based on algorithms and intentional decisions that are completely nontransparent."35 Meanwhile, many on the left hold the same elitist opinion of people's faculties. Sen. Hawley has now introduced several pieces of nanny- state legislation that should be of concern in today's environment.36

Lost in all this are the simple facts that social media cannot censor and a that non-depletable Internet cannot be monopolized unless government circumscribes it. Control, amplification, or content removal by private actors are not coercion or censorship, but elemental to free speech. Manipulating an algorithm is likewise an exercise of free speech, even if the July 2019 White House Social Media Summit maintained otherwise.37 Censorship requires government force to either block or compel speech, and there can be no private media monopoly so long as there is no government censorship.38 One has a right to speak, but no one exercising that right has a right to force others to supply them with a Web platform, newspaper, venue, or microphone.39

The Constitution places limits on state actors, yet Hawley asserts social media must "abide by principles of free speech and First Amendment."40 These vital principles apply to government, not to the population generally or to communications enabled by private companies.

Hawley's own legislation, the Ending Support for Internet Censorship Act (S. 1914), would limit Section 230 immunities, deny property rights, compel transmission of speech, and create a large administrative bureaucracy by requiring that a "covered company" obtain an "immunity certification" from the Federal Trade Commission, assuring a majority of the unelected commissioners every two years that it does not moderate content provided by others in a politically biased way.41 In similar spirit, the Stop the Censorship Act (H.R. 4027), sponsored by Rep. Paul Gosar (R-AZ), would limit moderation of "objectionable" content.42 These legislative proposals are highly problematic. One cannot prove a negative. The premise is inoperable, susceptible to partisanship, and hostile to free speech.

Discrimination and bias are the essence of healthy debate, and mandating neutrality by altering Section 230-or via any other means-would remove the right of conservatives to "discriminate" on potentially dominant alternative platforms that could emerge in coming years or decades (just as Google and Facebook emerged to displace prior leaders).

But that is not all. Sen. Hawley also has set his sights on many tech companies' business model. Hawley has complained: "These companies and others exploit this harvested data to build massive profiles on users and then rake in hundreds of billions of dollars monetizing that data."43 Indeed, big tech firms use data in extraordinarily sophisticated ways, but so do popular conservative media sites. The Drudge Report looks like 1990s vintage, but it sports a sophisticated architecture underneath the hood.44 Perhaps "information wants to be free," but it also wants to be monetized.45 Another Hawley- sponsored bill, the Social Media Addiction Reduction Technology (SMART) Act (S. 2314), would mean future conservative platforms could not monetize and survive as easily.46 Specifically, it would require online content providers to tread carefully over how they write headlines. The bill stipulates:

Not less frequently than once every 3 years, the [Federal Trade] Commission shall submit to Congress a report on the issue of internet addiction and the processes through which social media companies and other internet companies, by exploiting human psychology and brain physiology, interfere with free choices of individuals on the internet (including with respect to the amount of time individuals spend online).47

The current antitrust debate is inextricably bound with the online speech controversy. Yet, concepts like "common carrier" and "essential facility," which have been used to rationalize regulation, are not applicable either to a virtually limitless Internet or to its future capabilities.48 Like the expanding universe, the healthy Internet, with all its potential, remains unbounded and not monopolizable.

Legislation would change that.

In today's environment, big tech firms should defend the principle of and right to bias both for themselves and for others, even as they articulate that they strive toward some measure of objectivity, which can be a selling feature.

Competing Biases Are Preferable to Pretended Objectivity

Social media firms deny they are biased. Google Vice President Karan Bhatia, for example, denies bias in content display or search results.49 He testified as such in July 2019 to the Senate Judiciary Committee, pointing to external validating studies.50 Bhatia reasonably asserts: "Our users over- whelmingly trust us to deliver the most helpful and reliable information out there. Distorting results for political purposes would be antithetical to our mission and contrary to our business interests."51 To an unappreciated degree, people's own online behavior, not externally imposed bias, will influence algorithm functionality and what they see.52

Twitter has likewise proclaimed itself an "open communications platform." Twitter CEO Jack Dorsey similarly claimed, in testimony to Congress in 2018, that it does not base decisions on political ideology.53 In April 2019 testimony, Twitter Public Policy and Philanthropy Director Carlos Monje told the Senate Judiciary Committee: "We welcome perspectives and insights from diverse sources and embrace being a platform where the open and free exchange of ideas can occur."54

Google's 2018 report "The Good Censor," described in the Senate Judiciary hearing as an internal assessment and marketing exercise, defended "balance," and "well ordered spaces for safety and civility." These are worthy goals, but, as we have seen, "censoring" can only be a term of art as Google used it in the report (and for which it drew avoidable criticism).55 In any event, many policy makers will never be convinced of non-bias. A negative cannot be proven, nor can total neutrality be achieved given the inevitability of bias in human communication.56 Unknown, undiscovered, or unrealized emergence of bias will likely increase as human knowledge increases. Algorithms understandably boost content that generates likes, shares, and other interactions.57 They also undertake the error-prone and thankless task of looking for and rooting out "toxicity."58

The upshot is that Google results can never be objective in a way that can satisfy everybody, and there is nothing wrong with that. Policies will always be in flux and there can be vagueness and lack of transparency ripe for misunderstanding.59 The sole remedy, "All search results must appear first," is an absurdity.60 In a fluid environment, it is not reasonable to say bias is not reflected in decisions made or in algorithmic results, but revealed or overt bias can be more honest than an insincere, pretended objectivity.

Besides, search has evolved into swiping and talking as means of interface, which do not always involve Google and typing text.61

In the July Senate hearing, the promise extracted from Google to grant access to its records on advertisements and videos pulled sets a terrible precedent. While moves like Facebook's response of appointing Sen. Jon Kyl to lead a bias audit62 may yield some helpful transparency proposals, they will resolve nothing as far as competing complaints of bias are concerned.63 But if conservatives, liberals, or some alliance of them triumph in the quest for content regulation, that would impose control and censorship on everyone.64 That is why competing biases and algorithms are paramount as a matter of principle, whether or not bias exists in select circumstances.

The Danger of Progressive Regulation of "Harmful Content"

"I think a lot of regimes around the world would welcome the call to shut down political opposition on the grounds that it's harmful speech,"

-Federal Communications

Commissioner Brendan Carr ⁶⁵

Some politicians, dominant social media firms, and activists propose to expunge what they see as objectionable content online. They point to hate speech, disinformation, misinformation, and objectionable, harmful, or dehumanizing content.66 Since "misinformation" can translate into "things we disagree with," this inventory can be expected to grow.

Disagreeable or hateful speech is nonetheless constitutionally protected.67

The leading edge of social media regulation consists of a March 2019 proposal from Facebook founder and CEO Mark Zuckerberg and a white paper from Sen. Mark Warner entitled, "Potential Policy Proposals for Regulation of Social Media and Technology Firms." 68

Zuckerberg asserts, "I believe we need a more active role for governments and regulators." He endorses alliances with governments around the world to police harmful online speech, a move that would erect impenetrable global barriers to future social media alternatives to Facebook. In his March 2018 Washington Post op-ed, "The Internet Needs New Rules," Zuckerberg said:

Lawmakers often tell me we have too much power over speech, and frankly I agree. I've come to believe that we shouldn't make so many important decisions about speech on our own. So we're creating an independent body so people can appeal our decisions. We're also working with governments, including French officials, on ensuring the effectiveness of content review systems. ...

One idea is for third-party bodies to set standards governing the distribution of harmful content and measure companies against those standards. Regulation could set baselines for what's prohibited and require companies to build systems for keeping harmful content to a bare minimum.69

To date only Facebook has publicly called for this degree of engagement from governments, but Facebook's influence alone could be enough to give it momentum. In any event, such government enforcement of "community standards" gives politicians and bureaucrats veto power over critical political speech. While Google, Facebook, Twitter, Pinterest, and their brethren cannot "censor" as private media and social media plat- forms, in the Zuckerberg formulation, deplatforming will be preordained, baked into the ecosystem and constraining emergent networks to the regulatory vision of "baselines for what's prohibited."70 Once this path is chosen, would a reasonable person expect for the forbidden content list to shrink or expand over time? And while in the U.S. such requirements may be ultimately struck down on First Amendment grounds, it could take years of litigation-and much damage to free speech in the meantime-to reach that result.

Zuckerberg's proposals also would inflict painful compliance burdens that would severely hobble Facebook's smaller competitors:

Facebook already publishes transparency reports on how effectively we're removing harmful content. I believe every major internet service should do this quarterly, because it's just as important as financial reporting. Once we understand the prevalence of harmful content, we can see which companies are improving and where we should set the baselines.71

Facebook's efforts to secure global input on content review decisions can be admirable so long as the company is describing policies it intends to adopt for itself.72 But the more ambitious campaign to transcend self- policing is troubling. Having benefited from Section 230 immunities in the U.S. that boosted it to global stature (other firms enjoyed this immunity, too), Facebook now is urging speech standards and reporting burdens imposed on the online companies of the future. Such a government partnership scheme would go a long way toward making the dominance of today's largest social media firms permanent.

It matters not if Facebook were to partner with "thoughtful governments that have a robust democratic process."73 Free speech in the U.S. is not subject to limitation by majority vote. Speech is routinely criminalized throughout the world, however, by these same "robust" democracies.74 The Brennan Center for Justice has noted how political pressure from governments has influenced what information the public sees-and surely will do so again. There is no way to know the nature of the internal decision process and no judicial review of it.75 Removing content at the behest of political leaders, subject to jail or fine, is a scenario playing out worldwide,76 while real voices against tyranny get silenced.77 George Washington University law professor Jonathan Turley deemed France one of the greatest global threats to free speech.78 Yet, rather than defend free expression on principle, Facebook has pledged a partnership with French courts against online hate speech and to hand over information about its users.79 A similar circumstance that garnered some criticism has been Google's alleged cooperation with Chinese authorities on a censored search engine.80

Social media firms' yielding to authoritarian governments will have grave repercussions for expression. While Americans' free speech rights are protected by the First Amendment to the Constitution, social media giants that cooperate with foreign governments' censorship efforts threaten free expression even in the U.S. In essence, it enables censorious governments to export their Internet laws globally.81 Ominously, all this gives politicians more weapons to help them work around the First Amendment.

Similarly, the administrative apparatus that some Republicans favor expanding to monitor political objectivity circumvents constitutional speech protections. Private entities are incapable of censorship, but reconfiguring them as semi- governmental oversight bodies with ability to suppress would change that. Such a move would revoke big tech companies' status as market entities and convert them into the "essential" facilities they otherwise could never be. The pertinent risk, then, may not be ill-considered reform of Section 230 immunities. Rather, regulation or laws that "set baselines" could perform an end run around Section 230, leading to a reformulation of indemnification perhaps more powerful for Facebook's new incarnation, but that effectively moots much of Section 230 for other social platforms.

Securing compromises and adoption of industry standards certified by governmental bodies would prevent alternative platforms-existing or emerging-from being able to facilitate the unfettered free expression that powered Facebook's growth. This would help Facebook avoid breakup and fines and help it maintain its dominant position, lest it become the next MySpace. The result would be a new business model for the biggest of big tech, one based on central oversight of speech in an environment in which Section 230 would be less critical to their success. As Vox 's Peter Kafka observed:

[M]aybe the giant platforms are now so enormous that they don't need to distribute an infinite amount of content anymore- maybe they could survive by bringing in enormous but man- ageable amounts of content, which they could ac- tually review before publishing-kind of like a media company. This used to be an unthinkable thought, and still seems to be if you talk to the people who run the platforms.

But maybe that's where we are headed, like it or not.82

In July 2018, nearly a year before Zuckerberg's declaration, the Columbia Journalism Review reported on a leaked draft white paper from Sen. Mark Warner containing a wide- ranging slate of proposals to regulate content, speech, and anonymity under the justification of combating trolls, misinformation, and election interference.83 The paper, titled "Potential Policy Proposals for Regulation of Social Media and Technology Firms," expressed alarm that "bots, trolls, click-farms, fake pages and groups, ads and algorithm- gaming can be used to propagate political disinformation."84 Its proposed solutions included labeling of automated "bot" accounts; limiting certain elements of anonymity; placing limitations on Section 230 immunity for re-uploaded content; liability for defamation, false light, and deep fakes; and defining certain services to be essential facilities.85

Warner's proposals, which, as Axios ' David McCabe notes, had been "circu- lated in tech policy circles,"86 did not recommend corporate breakup.87 Sen. Warner later reacted favorably to Zuckerberg's new-rules-for-the- Internet manifesto, declaring:

I'm glad to see that Mr. Zuckerberg is finally acknowledging what I've been saying for past two years: The era of the social media Wild West is over. ... Facebook needs to work with Congress to pass effective legislative guardrails, recognizing that the largest platforms, like Facebook, are going to need to be subject to a higher level of regulation in keeping with their enormous power.88

Social media companies have guardrails now, and competition for authentication and anonymity and other competitive disciplines can add more of them. It is legislation and regulation, not their absence, that threaten to remove them and undermine one of America's bedrock principles.

Whether search results or the presentation of content by big tech are biased or not, suspicion prevails because left-of-center perspectives prevails at major mainstream institutions like print and broadcast media editorial management, college campuses, and even big tech workforces. For example, The Washington Post has not endorsed a Republican since it began endorsing presidential candidates in 1976 (sitting out 1988).89 The New York Times has not endorsed one since Dwight D. Eisenhower.90 So, biases? Yes, but bias becomes a public policy issue only when government joins efforts to regulate content and speech.

The Vulnerability of Dissent to the "Harmful Content" Sledgehammer

Freedom of expression is paramount. There is no political right not to be offended. Congress needs to preserve the right to express both popular and unpopular opinions.91 That requires continuing to allow curation that protects alternative viewpoints with the same immunities Facebook and other social media have enjoyed to date. That means no compulsory participation in Facebook's "baselines for what's prohibited," Warner's "the Wild West is over" claim, Hawley's government affirmations of objectivity, or whatever other speech control schemes emerge in the future.

This section will mention some controversial issues not to take positions but to illustrate why people must retain rights of expression protected from government administrators. Positions that were unremarkable among liberals a generation ago can now lead to career loss, even for CEOs.92 These include the opposition to illegal immigration of former President Barack Obama and Sen. Charles Schumer (D-NY),93 the opposition to birthright citizenship of former Sen. Harry Reid (D-NV),94 or Obama's former opposition to gay marriage.95

Political correctness can have grave implications when moving from voluntary settings to a legally enforced regime. Such a regime could come about in unexpected ways. For instance, the Change the Terms Coalition-a grouping of mostly progressive organizations that includes the Center for American Progress, Southern Poverty Law Center, and others-declares:

While some companies are taking steps in the right direction to reduce hateful activities online, anti-hate provisions in most companies' terms of service are not enough. To ensure that companies are doing their part to help combat hateful conduct on their platforms, organizations in this campaign will track the progress of major tech companies-especially social media platforms-to adopt and implement these model corporate policies.96

To be fair, the petition itself expresses concern over government involvement in speech that historically "disproportionately silenced activists and minorities" and acknowledges that hate crimes are already illegal.97 However, the coalition holds that, while the First Amendment protects even hate speech,

[O]utside the United States, speech laws vary wildly from one country to another. It is preferable to develop a set of policies that major tech companies can apply globally so that hateful actors cannot launder their activity by routing their traffic through a different jurisdiction.98

The concern here is that the laundering will wash out in the opposite direction, cleansing even non-hate speech. Like Facebook's own "baseline" principles and other promises regarding harmful content, which Change the Terms argues do not go far enough,99 the policies can be admirable, but they can also be myopic and beholden to one viewpoint.100 "Hateful activities" defined by liberals are far from the only objectionable phenomena online.101

This is why Congress has to be uncompromising in protecting clashing viewpoints from "cancel culture." Sen. Ben Sasse (R-NE) stressed in a 2018 exchange with Zuckerberg that "[a]dults need to engage in vigorous debates"102 over controversial issues like late-term abortion without being flagged as haters. Yet even in April 2019, Twitter and Facebook officials could not assure senators that certain remarks by Mother Teresa on abortion did not constitute hate speech.103 The freedom to engage such matters does not have to be supported by corporations such as Facebook or Twitter, of course, but somewhere. In the 2018 hearing, Zuckerberg himself struggled to define hate speech clearly.104 In 2019, Facebook's own new Civil Rights Audit took up the task. Among other declarations, hate speech is defined there:

... as a direct attack on people based on "protected characteris- tics"-race, ethnicity, national origin, religious affiliation, sexual orientation, caste, sex, gender, gender identity, and serious disease or disability. Facebook also provides some, but not all,

of the same protections for immigration status. An "attack" for hate speech purposes is defined as violent or dehumanizing speech, statements of inferiority, expressions of contempt or disgust, or calls for exclusion or segregation.105

Again, such anti-harmful-speech principles may be unimpeachable as internal corporate policy, but that changes when a firm like Facebook cooperates with governments, including in turning over user information. The "speech laws" that the Change the Terms Coalition notes "vary wildly from one country to another" include those of China, Russia, and myriad other illiberal regimes.

A report commissioned by Google and conducted by a team led by former Arizona Republican Sen. John Kyl, intended to address conservative criticisms of bias by the company, appeared to highlight concerns with how motives would be ascribed to some and not others by Facebook's hate speech policy.

[I]nterviewees' concerns stemmed both from the notion of having a "hate speech" policy in the first place and from unfair labeling of certain speech as "hate speech." ... The term "hate speech" is itself controversial, insofar as it may incorrectly ascribe motive in many cases.106

The arbiters ascribing hate to others are themselves agenda-driven and can have credibility problems of their own.107 For example, the Kyl report noted that, "Many conservatives view the SPLC [Southern Poverty Law Center, a member of the Change the Terms Coalition] as an extreme organization intent on defaming conservatives."108 Should today's expanding inventory of "protected characteristics" policies become incorporated into compulsory "baselines for what's prohibited and ... systems for keeping harmful content to a bare minimum," much can deemed off-limits that deserves debate.

Conservatives have their view of what counts as extremism and liberals have theirs. Therefore, especially in so tense an environment, there need to be fora to talk about the most polarizing of issues. David Thunder, a professor at the Institute for Culture and Society at the University of Navarra in Pamplona, Spain, wrote of the need for leeway in discussion:

[M]any forms of offensive speech are not black and white. For instance, speech that contests dominant narratives about political and social authority, law, marriage, gender, religion or national identity may be deeply unpopular and offensive to many, yet offer intelligent critiques of conventional wisdom and not constitute any genuine incitement to hatred or violence.109

For instance, calls for slavery reparations-redistributing assets from one group to another based on race-are unlikely to draw ire from establishment press outlets, while opposing them could well be deemed "harmful."110 Again the intent here is not to defend or excoriate particular speech, harmful or otherwise. Rather, it is to demonstrate that the tenor of today's "harmful content" campaigns tend toward affirmation of progressive ideologies.111 Those assuming they are not in the left's crosshairs as spewing "harmful content" might note that some progressive commentators have even denounced classical liberalism as an authoritarian and racist doctrine.112 The above reservations are meant to illustrate why administrative agencies should not be allowed anywhere near the Internet's volume knob, much less its off button.

A Thought Experiment: Socialist Advocacy as "Harmful" Speech The media often refer to "incitement" as a phenomenon largely of the political right. Yet, the violence committed by actual socialist regimes to coerce human beings into participating in utopian schemes has been plain sight for decades, but concern about socialist advocacy is absent in the appeals from Warner, Zuckerberg, or Change the Terms. 113

To illustrate, consider the following thought experiment. As the noted Austrian economist Ludwig von Mises noted, in his classic 1944 work, Bureaucracy:

The champions of socialism call themselves progressives, but they recommend a system which is characterized by rigid observance of routine and by a resistance to every kind of improvement.

They call themselves liberals, but they are intent upon abolishing liberty. They call themselves democrats, but they yearn for dictatorship. They call themselves revolutionaries, but they want to make the government omnipotent. They promise the blessings of the Garden of Eden, but they plan to transform the world into a gigantic post office. Every man but one a subordinate clerk in a bureau.114

Given socialism's grim historical record, it would not be too far-fetched for a content regulation authority to flag socialist advocacy as "misinformation" or "harmful."

For example, take the Green New Deal. If fully implemented, it would cause untold hardship for millions and bring much of the economy under Washington's control.115 A chief architect of the proposal, Saikat Chakrabarti, chief of staff to Rep. Alexandria Ocasio-Cortez (D-NY), acknowldedged that the Green New Deal "wasn't originally a climate thing at all." Rather, he added, "we really think of it as a how-do-you-change- the-entire-economy thing."116 The costs for such a transformation would be enormous. Yet, no one is calling to shut down debate on the Green New Deal.

Imagine if Zuckerberg were specifically referencing socialism when he proclaimed at Facebook's 2019 F8 Developer Conference:

We're taking a more proactive role in making sure that all of our partners and developers use our services for good. We're very focused on making sure that our recommendations and discovery services aren't highlighting groups or people who are repeatedly sharing misinformation or harmful content and we're working hard to completely remove groups if they exist primarily to violate our policies or do things that are dangerous." [Emphasis added]117

Obviously, we do not advocate removal of harmful socialist content. We merely observe the glaring contradiction that socialism, even with its dismal track record, is not targeted for removal in any content moderation formulation.

The Right's Misguided Call to Compel "Unbiased" Speech Both the left's banned speech and the right's compelled speech agendas would require a substantial government apparatus to oversee them. The right's concern is the left's dominance of discourse, but as the preceding section makes clear, treating Facebook, Google, Twitter and the like as monopolies or common carriers in need of FTC regulation and reporting duties would make the problem worse. Efforts to certify "objectivity" will neither protect the public nor safeguard conservative speech. Instead, it will deliver the Internet into the administrative state's clutches. If today's upset conservatives prevail in their quest for social media regulation, they will have helped erect a permanent machinery to police online speech that they are in no foreseeable circumstance likely to control (not that anyone should).

Arbitrary thresholds at which regulation kicks into effect and becomes binding are also troubling. A company eligible for Hawley's FTC objectivity certification is one with more than 30 million active monthly users in the U.S. or 300 million worldwide, or with more than $500 million in global annual revenue. Other elements of Hawley's legislative agenda, such as the SMART Act's burdensome reporting requirements, would also balloon the federal bureaucracy.

The damage is compounded by the bipartisan Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data (DASHBOARD) Act (S.1951), sponsored by Sens. Warner and Hawley. It would require a "commercial data operator"-defined as an entity that "(A) generates a material amount of revenue from the use, collection, processing, sale, or sharing of the user data; and (B) has more than 100,000,000 unique monthly visitors or users in the United States for a majority of months during the previous 1-year period"-to:

These invasive requirements represent a major potential incursion into online speech. The Competitive Enterprise Institute's Patrick Hedger observes that the bill is "vague, arbitrary, picks winners and losers, delegates too much power to agencies, and inserts government into an area where markets are working just fine.119

The Federal Trade Commission would enforce that, while the Securities and Exchange Commission would oversee annual or quarterly filings (parallel to financial filings) related to the value of aggregate data, as well as develop the accounting schemes to facilitate said filing. With so much "administering" being sought by Republicans, the Federal Communications Commission (FCC) will seek a piece of the action, once the tenure of deregulatory- minded chairman Ajit Pai ends. And sure enough, a proposed Trump social media executive order obtained by CNN affirmed that FCC would have a role.120 At that point, the Department of Justice would become involved in social media regulation. Perhaps more agencies will, too, as many of them have civil rights offices.

Despite superficial differences, the common denominator of the ostensibly opposing demands from left and right on social media is their calls to concentrate more power in federal administrative agencies. Each bit of technology regulation that conservatives support expands the arbitrary administrative state they claim to oppose. They may wish to abolish the Consumer Financial protection Bureau, but they will open a Consumer Data Protection Bureau, perhaps in the same luxurious offices. Over time, the window of what counts as "political unbiased content moderation by covered companies" good enough for an "immunity certification from the Federal Trade Commission" will lead to real suppression of conservative ideas. No coordination, collusion, or conspiracy is needed for this result to emerge. As the Hoover Institution's John Cochrane notes:

When vast majorities of the bureaucracy belong to one political party, when government employee unions funnel unwitting contributions to candidates of that party, and when strong ideological currents link decisions across agencies, explicit cooperation is less necessary.121

Whether a Zuckerberg, Warner, or Hawley lights the fuse, an administrative apparatus to oversee speech will increase the size of government and thereby undermine individual liberty, free speech, private property rights, and other institutions of liberty.

Property Rights and Non- Depletable Cyberspace: "Media," Including Social Media, Is Plural In February 2007, The Guardian ran the headline, "Will MySpace Ever Lose Its Monopoly?"122 Years later, younger folks have abandoned Facebook, while growth continues among older users.123 Big tech cannot stop anyone from reaching anyone else and sharing ideas.

Facebook as an entity is a singular social medium. Twitter is also a social medium. Displaced transitory giants like MySpace and America Online were singular. Social media, though, is a plural concept. Social media trends fluctuate; communications media options are potentially boundless. In the frenzy of the content moderation debate, we often forget that Facebook and Google are the gauzy film atop the deeper actual Internet. One can be a "never Googler"-as the rapid growth of the privacy-protecting search engine DuckDuckGo124 indicates-and presumably a "never YouTuber."125 We are likely to witness the emergence of larger, decentralized online companies not envisioned today.126

Still further, media need not be "social" to be mass; alternative non-social media on the right, like the Drudge Report, Daily Caller, Breitbart, and other right-leaning reporting and talk radio remain formidable as sources of information. Semi-social conduits such as comment sections in news articles may exceed some social media platforms in reach.127

With respect to its very limited role in Internet governance, the core public policy duty for Congress is to foster the creation and expansion of private property rights and communications wealth on existing and future platforms and in the coding that enables them.128 Conservatives who turn their backs on private property rights in social media disputes over bias will render themselves defenseless against leftist resistance to property rights in more complicated policy settings.

Conservatives committed the same error by endorsing net neutrality legislation to ban "blocking" and "throttling."129 Such yielding on core principles on relatively "easy" matters makes the expansion of the institutions of liberty far more difficult.

Government Regulation Can Absolve Social Media Companies of Responsibility and Preempt Consumer Self-Help

Consumers possess the power, wherewithal, and user tools to protect themselves from harmful content as well as to create it. Users customize and filter what they see, deliberately or by habit, and can use tools like Google's SafeSearch or Twitter's Quality Filter. They are the innovators on gaming platforms. The ultimate user tool is the ability to not listen or participate.

Regulation, by contrast, can worsen outcomes by passing the buck of seemingly intractable content moderation problems, while entrenching the dominant positions of big tech's current major players.130 That is, some leading social media would love to be relieved of the grief it gets from both left and right. As Mark Jamison of the American Enterprise Institute notes:

Facebook headaches would become somebody else's problem. By effectively handing the policing of "harmful content" over to an independent oversight group and governments, the plan would rid Facebook of responsibility for user-provided content.131

Regulation will preempt private efforts to develop sophisiticated user tools and databases. Mistakes will be made, but much will be learned from them.132 Policy makers should remain at arms' length. One-size-fits-all "solutions" for the supposed problems bedeviling big tech will prevent the evolution and competition that need to happen among platforms. Options for degrees of openness, insularity, authentication, and third-party moderation can emerge and benefit the public. The potentialities are boundless, and too little recognized in today's debate.

Again, the emphasis here is media, not medium. The social media giants are not the Internet, but a proprietary sliver of it that happens to have been gathered into a pile in the early 21st century. Neither censorship, handholding, nor administratively determined "objectivity" are sound policy as consumers decide whether to continue to embrace traditional social media, warts and all, or to move instead toward as-yet-unknown options and resolutions on a limitless medium. It makes the most sense for policy makers and the public to assume biases of one sort or another, for those to be dealt with accordingly by critically thinking adults on both the service and user sides, and to revel in the new forms of wealth and customer welfare afforded by them.

Conclusion

In the social media debate, the problem is not that big tech's power is unchecked. Rather, the problem is that social media regulation by either the left or right would make it that way.

Zuckerberg's speech controls and Hawley's ostensibly opposite compelled speech both lead to bigger government lording over Internet platforms, complete with onerous filings to agencies and other burdens. Like banks, social media giants are not too big to fail, but regulation would make them that way.

American values strongly favor a marketplace of ideas where debate and civil controversy can thrive. By contrast, attempts by tech companies uniting with the government to create new regulatory oversight bodies and filing requirements to exile politically disfavored opinions on the one hand, and force the inclusion of conservative content on the other, should both be rejected.

The vast energy expended on accusing purveyors of information, either on mainstream or social media, of bias or of inadequate removal of harmful content should be redirected toward protecting the right for future platforms to be biased in any direction, and toward fostering the development of tools that can empower users to better customize the content they choose to access.

Existing social media firms want rules they can live with-which translates into rules that future social networks cannot live with. Government cannot create new competitors, but it can prevent their emergence by imposing barriers to market entry.

At risk, too, is the right of political- as opposed to commercial-anonymity online.133 Government has a duty to protect dissent, not regulate it, but a casualty of regulation would appear to be future conservative-leaning platforms.

Mark Zuckerberg remarked about content decisions, "[I]f we were starting from scratch, we wouldn't ask companies to make these judgments alone."134 That is exactly what both tech firms and policy makers should do. Operating as a free platform for expression is what made Facebook the giant it is today. Facebook is a large presence in commercial and political speech in a major medium where it remains free.

The Section 230 special immunity must remain intact for others, lest Congress turn social media's mere economic power into genuine coercive political power. Were Congress to impose social media content, tomorrow's threat to expression will be government's biases and policy "algorithms."

Competing biases are preferable to pretended objectivity. Congress should reject policies such as those such as those proposed by Zuckerberg, Hawley, and Warner-who may be not such strange bedfellows after all.135 Instead, lawmakers should acknowledge the inevitable presence of bias, protect competition in speech, and defend the conditions that would allow future platforms and protocols to emerge in service of the public.

The priority is not that Facebook or Google or any other platform should remain politically neutral, but that citizens remain free to choose alternatives that might emerge and grow with the same Section 230 exemptions from which the modern online giants have long benefited.

Policy makers must avoid creating an environment in which Internet giants benefit from protective regulation, reporting requirements, and thresholds that prevent the emergence of new competitors in the decentralized infrastructure of the marketplace of ideas.

NOTES

1. Angela Charlton, "New French Rules for Facebook? Zuckerberg Likes the Idea," Associated Press, May 10, 2019, https://www.apnews.com/52cbe54ca38c49ab88d73bb1c098e1d7.

2. White House, "Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities," March 21, 2019,

https://www.whitehouse.gov/presidential-actions/executive-order-improving-free-inquiry-transparency-accountability-colleges- universities/.

1. Brian Fung, Ryan Nobles, and Kevin Liptak, "Trump signs executive order targeting social media companies," CNN, May 28, 2020, https://www.cnn.com/2020/05/28/politics/trump-twitter-social-media-executive-order/index.html.

2. Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014). David S. Schoenbrod, Power Without Responsibility: How Congress Abuses the People through Delegation (New Haven, Connecticut: Yale University Press, 1993). F. H. Buckley, The Once and Future King: The Rise of Crown Government in America (New York: Encounter Books, 2014).

3. Jeff Schultz, "How Much Data is Created on the Internet Each Day?" Micro Focus Blog, October 10, 2017, https://blog.microfocus.com/how-much-data-is-created-on-the-internet-each-day/. Alyssa Newcomb, "How Many Pages It Takes to Print the Entire Internet," ABC News, May 11, 2015,

https://abcnews.go.com/Technology/pages-takes-print-entire-internet/story?id=30956365.

1. Electronic Frontier Foundation, CDA 230, accessed May 5, 2020, https://www.eff.or g/issues/cda230/legislative-history.

2. 47 U.S.C. §230, Section 230 of the Communications Decency Act of 1996, https://www.law.cornell.edu/uscode/text/47/230.

3. Ibid.

4. Jeff Kosseff, "Correcting a Persistent Myth About the Law that Created the Internet," The Regulatory Review, July 15, 2019, https://www.theregreview.or g/2019/07/15/kosseff-correcting-persistent-myth-about-law-that-created-the-internet/. Kosseff is also author of The Twenty-Six Words That Created the Internet (Ithaca, New York: Cornell University Press, 2019).

5. Jared Schroeder, "Efforts to Compel Social Media 'Fairness' Go Afoul on Freedom of Expression," The Hill, August 13, 2019, https://thehill.com/opinion/civil-rights/457297-efforts-to-compel-social-media-fairness-go-afoul-on-freedom-of.

6. Brent Skorup and Jennifer Huddleston, "The Erosion of Publisher Liability in American Law, Section 230, and the Future of

Online Curation," Mercatus Center Working Paper, July 2019, https://www.mercatus.org/system/files/skorup-publisher-liability-mercatus-working-paper-v1.pdf.

August 27, 2019,

https://morningconsult.com/opinions/section-230-is-the-internet-law-that-stops-the-spread-of-extremist-and-hate-speech/.

1. Jeffrey Neuburger, "FOSTA Signed into Law, Amends CDA Section 230 to Allow Enforcement Against Online Providers for Knowingly Facilitating Sex Trafficking," Proskauer New Media and Technology Law Blog, April 11, 2018, https://newmedialaw.proskauer.com/2018/04/11/fosta-signed-into-law-amends-cda-section-230-to-allow-enforcement- against-online-providers-for-knowingly-facilitating-sex-trafficking/.

2. Elizabeth Nolan Brown, "Section 230 Is the Internet's First Amendment. Now Both Republicans and Democrats Want to

Take It Away," Reason.com, July 29, 2019,

https://reason.com/2019/07/29/section-230-is-the-internets-first-amendment-now-both-republicans-and-democrats-want-to- take-it-away/.
https://www.wsj.com/articles/big-tech-is-a-likely-target-at-white-house-social-media-summit-11562751015.
Questioning His Motives," CNBC, April 1, 2019,

https://www.cnbc.com/2019/04/01/facebook-ceo-zuckerbergs-call-for-gdpr-privacy-laws-raises-questions.html.

April 8, 2018,

https://www.forbes.com/sites/waynecrews/2018/04/08/mark-zuckerberg-testimony-will-washington-cast-the-first-stone-at- facebook/#5fb9330b2f132018.

The Guardian, April 4, 2019,

https://www.theguardian.com/technology/2019/apr/04/social-media-bosses-could-be-liable-for-harmful-content-leaked-uk- plan-reveals.

https://www.wsj.com/articles/linkedins-co-founder-warns-of-perils-in-regulating-big-tech-1537967181; "Reddit Co-Founder 'Very Nervous' About Regulations for Social Media" (video), Yahoo Finance, February 21, 2019, https://finance.yahoo.com/video/reddit-co-founder-very-nervous-211837872.html.

https://www.bloomberg.com/news/articles/2019-04-03/twitter-s-dorsey-adds-his-voice-to-support-of-regulation-in-tech. Katie Robertson, "Evan Spiegel on the Call for Regulation," New York Times, March 1, 2019, https://www.nytimes.com/2019/03/01/business/evan-spiegel-sam-altman-new-work-summit.html. Salvador Rodriguez, "Former Instagram CEO: Policing Social Media is Important to the Future of the World," CNBC, November 14, 2018, https://www.cnbc.com/2018/11/14/kevin-systrom-social-media-needs-to-be-policed.html. Shannon Liao, "Tim Cook Says Tech Needs to be Regulated or It Could Cause 'Great Damage to Society'," The Verge, April 23, 2019, https://www.thever ge.com/2019/4/23/18512838/tim-cook-tech-regulation-society-damage-apple-ceo.

https://netchoice.org/14-conservative-and-free-market-groups-ask-congress-to-protect-section-230/.

Enterprise Institute, February 28, 2020,

https://cei.org/blog/federal-court-rightly-affirms-online-platforms-first-amendment-rights.

Office of Sen. Mark Warner, "Senators Introduce Bipartisan Legislation to Ban Manipulative 'Dark Patterns,'" news release, April 9, 2019,

https://www.warner.senate.gov/public/index.cfm/2019/4/senators-introduce-bipartisan-legislation-to-ban-manipulative-dark- patterns.
http://news.trust.org/item/20190411221126-8277f.

1. See the Warner White Paper Draft "Potential Policy Proposals for Regulation of Social Media and Technology Firms," 2018, at https://graphics.axios.com/pdf/PlatformPolicyPaper.pdf#_ga=2.264215045.863640255.1563228787-239234713.1563228787.

2. @realdonaldtrump, Twitter post, July 11, 2019, 11:52 AM, https://twitter.com/realdonaldtrump/status/1149345678814060545.

3. Sens. Josh Hawley and Ted Cruz, letter to the Federal Trade Commission, July 15, 2019, https://www.hawley.senate.gov/sites/default/files/2019-07/2019-07-15_FTC-Letter-Content-Moderation-Practices.pdf.

4. Josh Hawley, "Big Tech's 'Innovations' that Aren't," Wall Street Journal, August 28, 2019, https://www.wsj.com/articles/big-techs-innovations-that-arent-11567033288. Eric Boehm, "Josh Hawley: What Has Technology Done for Us Lately?" Reason, July 31, 2019,

https://reason.com/2019/07/31/josh-hawley-what-has-technology-done-for-us-lately/. Andy Kessler, "Social Media and Hawley's Folly," Wall Street Journal, August 11, 2019,
https://www.wsj.com/articles/social-media-and-hawleys-folly-11565551761.

1. White House, Remarks by President Trump at the Presidential Social Media Summit, July 12, 2019, https://www.whitehouse.gov/briefings-statements/remarks-president-trump-presidential-social-media-summit/.

2. Clyde Wayne Crews, Jr., "Counterpoint: A Defense of Media Monopoly," Communications Lawyer, Fall 2003, pp. 13-17, https://www.americanbar.or g/content/dam/aba/publishing/communications_lawyer/forums_communication_comlawyer_fall0 3_crews.authcheckdam.pdf. Clyde Wayne Crews, Jr. "Comments of Competitive Enterprise Institute in FCC "Future of Media Proceeding GN Docket No 10 25, May 7, 2010,

https://www.scribd.com/document/135189382/Wayne-Crews-Comments-of-Competitive-Enterprise-Institute-in-FCC-Future- of-Media-Proceeding-GN-Docket-No-10-25.

Office of Sen. Josh Hawley, "Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies," news release June 19, 2019,

https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section-230-immunity-big-tech-companies; "Ending Support for Internet Censorship Act,"

https://www.hawley.senate.gov/sites/default/files/2019-06/Ending-Support-Internet-Censorship-Act-Bill-Text.pdf.

1. Makena Kelly, "Big Tech's Liability Shield Under Fire Yet Again from Republicans," The Verge, July 28, 2019, https://www.thever ge.com/2019/7/28/8933871/big-techs-liability-shield-under-fire-yet-again-from-republicans.

2. Office of Sen. Josh Hawley, "Senator Hawley to Introduce Legislation to Give the American People a 'Do Not Track' Option," news release, May 20, 2019,

https://www.hawley.senate.gov/senator-hawley-introduce-legislation-give-american-people-do-not-track-option.

1. Quote origin attribution on Wikipedia at https://en.wikipedia.org/wiki/Information_wants_to_be_free.

2. The Social Media Addiction Reduction Technology (SMART) Act (S. 2314), https://www.congress.gov/116/bills/s2314/BILLS-116s2314is.pdf. Emily Birnbaum, "GOP Senator Introduces Bill Banning 'Addictive' Social Media Features," The Hill, July 30, 2019,

https://thehill.com/policy/technology/455235-gop-senator-introduces-bill-banning-addictive-social-media-features.

47 S. 2314.

1. Karan Bhatia, "Google VP Karan Bhatia: Google Isn't Politically Biased and Doesn't Censor Conservative Speech, Fox News, July 15, 2019, https://www.foxnews.com/opinion/google-vp-karan-bhatia-conservative-speech-bias-censorship. See Google community guidelines at https://www.youtube.com/yt/about/policies/#community-guidelines.

2. However, a criticism is that those lacked access to proprietary information. "Google Rewards Reputable Reporting, Not Left-Wing Politics," The Economist, June 8, 2019,

https://www.economist.com/graphic-detail/2019/06/08/google-rewards-reputable-reporting-not-left-wing-politics.

"Google and Censorship through Search Engines," Hearing, Senate Judiciary Committee, Subcommittee on the Constitution, July 16, 2019, https://www.judiciary.senate.gov/meetings/google-and-censorship-though-search-engines. A hearing was held in the House the same day: House Committee on the Judiciary, Hearing, "Online Platforms and Market Power, Part 2: Innovation and Entrepreneurship," July 16, 2019,

https://judiciary.house.gov/legislation/hearings/online-platforms-and-market-power-part-2-innovation-and-entrepreneurship.

1. Testimony of Francesca Tripodi, Before the Senate Judiciary Committee, Subcommittee on the Constitution, Hearing on Google and Censorship through Search Engines, July 16, 2019, https://www.judiciary.senate.gov/imo/media/doc/Tripodi%20Testimony1.pdf.

2. Testimony of Carlos Monje, Director, Public Policy and Philanthropy, Twitter, Inc., Before the United States Senate Committee on the Judiciary, Subcommittee on the Constitution, April 10, 2019, https://www.judiciary.senate.gov/imo/media/doc/Monje%20Testimony.pdf

3. Mike Masnick, "The Good Censor Document Shows Google Struggling with the Challenges of Content Moderation," TechDirt, October 17, 2018,

https://www.techdirt.com/articles/20181014/00295940834/good-censor-document-shows-google-struggling-with-challenges- content-moderation.shtml.

letter to House and Senate Leadership:

https://techfreedom.org/academics-civil-society-caution-lawmakers-considering-amending-section-230/ and https://cei.org/content/cei-joins-coalition-letter-support-section-230.

Shannon C. McGregor and Daniel Kreiss, "Conservatives Say Google and Facebook are Censoring Them. Here's the Real Background," Washington Post,

https://www.washingtonpost.com/politics/2019/08/01/are-google-facebook-censoring-conservatives-problem-is-more- widespread-than-that/?noredirect=on.

1. Clyde Wayne Crews Jr. and Alberto Mingardi, "Government to Google: All Search Results Must Appear First," McClatchy News, July 12, 2011, https://cei.org/content/government-google-all-search-results-must-appear-first.

2. Valerie Richardson, "Facebook Taps Former Republican Senator to Probe Claims of Anti-Conservative Bias,

Washington Times, May 2, 2018,
https://www.washingtontimes.com/news/2018/may/2/facebook-brings-in-jon-kyl-to-probe-political-bias/.
https://cei.org/content/facebook-report-bias-overlooks-looming-threats-speech-regulation.

1. "FCC Commissioner Carr Pushes back on Zuckerberg's Call to Censor the Internet," The Federalist (radio show), April 10, 2019, https://thefederalist.com/2019/04/10/fcc-commissioner-carr-pushes-back-zuckerbergs-call-censor-internet/.

2. As the Change the Terms coalition letter on user-generated content stated: "The government shouldn't require-or coerce- intermediaries to remove constitutionally protected speech that the government cannot prohibit directly. Such demands violate the First Amendment." "Twitter bans 'dehumanizing' posts toward religious groups," Associated Press, July 9, 2019, https://apnews.com/905d3a919d9a4c20bb62837116e16506.

3. Liability for User-Generated Content Online: Principles for Lawmakers, July 11, 2019.

4. Office of Sen. Mark Warner, "Potential Policy Proposals for Regulation of Social Media and Technology Firms," White Paper 2018, https://graphics.axios.com/pdf/PlatformPolicyPaper.pdf#_ga=2.264215045.863640255.1563228787- 239234713.1563228787.

5. Zuckerberg, "The Internet needs new rules."

6. Clyde Wayne Crews Jr., "Real Sin for Social Media Companies Not 'Censorship,' but Getting into Bed with Government,"

OpenMarket blog, Competitive Enterprise Institute, August 7, 2018,

https://cei.org/blog/real-sin-social-media-companies-not-censorship-getting-bed-government.

1. Zuckerberg, "The Internet needs new rules."

2. David Ingram, "Facebook names 20 people to its 'Supreme Court' for content moderation," NBC News, May 6, 2020, https://www.nbcnews.com/tech/tech-news/facebook-names-20-people-its-supreme-court-content-moderation-n1201181. Brent Harris, "Getting Input on an Oversight Board," Facebook Newsroom, April 1, 2019, https://newsroom.fb.com/news/2019/04/input-on-an-oversight-board/. The Oversight Board charter is available at Nick Clegg, "Charting a Course for an Oversight Board for Content Decisions," Facebook Newsroom, January 28, 2019, https://newsroom.fb.com/news/2019/01/oversight-board/. Navneet Alang, "Inside Facebook's global constitutional convention," The Week, May 12, 2019, https://theweek.com/articles/840591/inside-facebooks-global-constitutional-convention. https://newsroom.fb.com/news/2019/06/global-feedback-on-oversight-board/. Facebook's Civil Rights Audit-Progress Report, June 30, 2019,

https://fbnewsroomus.files.wordpress.com/2019/06/civilrightaudit_final.pdf. Sheryl Sandberg, "A Second Update on Our Civil Rights Audit, Facebook Newsroom, June 30, 2019,

https://newsroom.fb.com/news/2019/06/second-update-civil-rights-audit. Brent Harris, "Global Feedback and Input on the Facebook Oversight Board for Content Decisions," Facebok Newsroom, June 27, https://about.fb.com/news/2019/06/global-feedback-on-oversight-board/. Ina Fried and Rebecca Falconer, "Facebook Vows Misinformation Crackdown Ahead of 2020 Election, Census," Axios, June 30, 2019,
https://www.axios.com/facebook-civil-rights-audit-2020-election-census-ed689151-f53b-49a5-b67a-0da99e095185.html.

Angela Charleton, "New French Rules for Facebook? Zuckerberg Likes the Idea," Associated Press, May 10, 2019, https://www.courthousenews.com/new-french-rules-for-facebook-zuckerberg-likes-the-idea/.

https://www.brennancenter.or g/blog/how-trumps-pressure-google-threatens-government-manipulation-search-results.

1. Jillian C. York, "How American Corporations Are Policing Online Speech Worldwide," Gizmodo, July 10, 2019, https://gizmodo.com/how-american-corporations-are-policing-online-speech-wo-1836010637.

2. Gurpatwant Singh Pannun "How Big Tech Silences American Voices against Tyranny Abroad," Observer, August 3, 2019, https://observer.com/2019/08/big-tech-censorship-tyranny-abroad/.

3. Jonathan Turley, "France has Turned into One of the Worldwide Threats to Free Speech," The Hill, July 6, 2019, https://thehill.com/opinion/civil-rights/451813-france-has-turned-into-one-of-the-worldwide-threats-to-free-speech.

4. Mark Scott and Zachary Young, "France and Facebook Announce Partnership Against Online Hate Speech," Politico, November 12, 2018, https://www.politico.eu/article/emmanuel-macron-mark-zuckberg-paris-hate-speech-igf/. "In a World First, Facebook to Give Data on Hate Speech Suspects to French Courts," Reuters, June 25, 2019, http://news.trust.org/item/20190625180830-9jept and https://www.dailymail.co.uk/news/article-7180593/In-world-Facebook- data-hate-speech-suspects-French-courts.html.

5. Ryan Gallagher, "Google Employees Uncover Ongoing Work on Censored China Search," The Intercept, March 4, 2019, https://theintercept.com/2019/03/04/google-ongoing-project-dragonfly/.

6. Matthew Ingram, "Leaked White Paper Proposes Congressional Regulation of Social Media," Columbia Journalism Review, https://www.cjr.or g/the_new_gatekeepers/congress-white-paper-platforms.php; see also David McCabe, "Scoop: 20 Ways Democrats Could Crack Down on Big Tech," Axios, July 30, 2018,

https://www.axios.com/mark-warner-google-facebook-regulation-policy-paper-023d4a52-2b25-4e44-a87c-945e73c637fa.html.

1. Warner White Paper, 2018, p. 2.

2. Warner White Paper "Potential Policy Proposals for Regulation of Social Media and Technology Firms" 2018.

3. McCabe, Axios, 2018.

4. Adi Robertson, "Sen. Mark Warner Floats Major Tech Company Regulations that Don't Include Breakups," The Verge, July 30, 2018,

https://www.thever ge.com/2018/7/30/17629854/mark-warner-tech-company-legislation-white-paper-privacy-misinformation- competition.

Lukas Mikelionis, "Democrats' Illegal Immigration Tune has Changed Over Years Despite Incoming Caravan," Fox News, October 24, 2018,

https://www.foxnews.com/politics/democrats-illegal-immigration-tune-has-changed-over-years-despite-incoming-caravan.

Reid said "no sane country" would have birthright citizenship. "Harry Reid on Immigration," C-SPAN (video and transcript), September 20, 1993, https://www.c-span.org/video/?c4548849/harry-reid-immigration. Tamar Lapin, "Trump Uses Old Obama Clip to Make Immigration Point," New York Post, October 23, 2018,

https://nypost.com/2018/10/23/trump-uses-old-obama-clip-to-make-immigration-point/.

1. Center for American Progress, "Civil Rights, Anti-Hate, Racial Justice and Open Internet Organizations Release 'Change the Terms' to Help Internet Companies Combat Hateful Activity Online," news release, October 25, 2018, https://www.americanprogress.org/press/release/2018/10/25/459714/release-civil-rights-anti-hate-racial-justice-open-internet- organizations-release-change-terms-help-internet-companies-combat-hateful-activity-online/. Henry Fernandez, "Curbing Hate Online: What Companies Should Do Now," Center for American Progress, October 25, 2018, https://www.americanprogress.org/issues/immigration/reports/2018/10/25/459668/curbing-hate-online-companies-now/. Center for American Progress, Appendix: Recommended Internet Company Corporate Policies and Terms of Service to Reduce Hateful Activities, 2018, https://cdn.americanprogress.org/content/uploads/2018/10/24111621/ModelInternetCompanies-appendix.pdf.

2. Change the Terms coalition FAQ, accessed September 9, 2019, https://www.changetheterms.org/coalition.

3. Ibid.

4. "Facebook Civil Rights Audit Takes Important Steps, Not Significant Strides, Says Change the Terms Coalition,"

Medium, June 30, 2019,

https://medium.com/@changetheterms/facebook-civil-rights-audit-takes-important-steps-not-significant-strides-says-change- the-terms-a11ef19e335.

Forbes, October 30, 2018,

https://www.forbes.com/sites/waynecrews/2018/10/30/is-there-a-downside-to-activist-groups-pressuring-social-media-about- what-speech-to-allow/#2c8272ff79ec.

https://www.wsj.com/articles/notable-quotable-facebook-and-free-speech-1523658405. Mairead McCardle,

"Sasse Grills Zuckerberg: If You're Going to Police Hate Speech, Can You Define It?" National Review, April 10, 2018, https://www.nationalreview.com/news/ben-sasse-mark-zuckerberg-hate-speech-policy-definitions/.

Claude Thompson, "Social Media Chiefs Left Speechless When Asked if Mother Teresa Abortion Quotation Is Hate Speech,"

Examiner, April 10, 2019,

https://www.washingtonexaminer.com/news/social-media-chiefs-left-speechless-when-asked-if-mother-teresa-abortion- quotation-was-hate-speech.

https://townhall.com/tipsheet/laurettabrown/2018/04/11/zuckerberg-cant-define-hate-speech-in-senate-hearing-despite- pushing-to-police-it-n2469747.

1. Facebook's Civil Rights Audit, 2019, p.7.

2. Kyl, Interim Report, 2019, p. 3.

3. Jessica Prol Smith, "The Southern Poverty Law Center Is a Hate-Based Scam that Nearly Caused Me to Be Murdered,

USA Today, August 17, 2019,
https://www.usatoday.com/story/opinion/2019/08/17/southern-poverty-law-center-hate-groups-scam-column/2022301001/.

1. Kyl, Interim Report, 2019, p. 3.

2. Facebook, "Dangerous Individuals and Organizations," accessed March 23, 2020, https://www.facebook.com/communitystandards/dangerous_individuals_organizations.

3. Zach Carter, "For Fancy Racists, Classical Liberalism Offers Respect, Intrigue," HuffPost, August, 19, 2018, https://www.huf fpost.com/entry/racists-classical-liberalism-classic-rock-fraud_n_5b6b232ee4b0fd5c73dff019. Jamelle Bouie, "The Enlightenment's Dark Side," Slate, June 5, 2018,

https://slate.com/news-and-politics/2018/06/taking-the-enlightenment-seriously-requires-talking-about-race.html.

1. Thomas C. Leonard, Illiberal Reformers (Princeton, New Jersey: Princeton University Press, 2016).

2. Ludwig von Mises, Bureaucracy (New Haven, Connecticut: Yale University Press, 1944), p. 125, https://mises-media.s3.amazonaws.com/Bureaucracy_3.pdf.

3. Kent Lassman and Daniel Turner, "What the Green New Deal Could Cost a Typical Household," Competitive Enterprise Institute/Power the Future, July 20, 2019, https://cei.org/content/what-green-new-deal-could-cost-typical-household.

David Montgomery, "AOC's Chief of Change: Saikat Chakrabarti Isn't Just running Her Office. He's Guiding a Movement,"

Washington Post Magazine, July 10, 2019, https://www.washingtonpost.com/news/magazine/wp/2019/07/10/feature/how-saikat-chakrabarti-became-aocs-chief-of- change/?noredirect=on.

Facebook 2019 F8 Developer Conference, YouT ube video https://www.youtube.com/watch?v=UtxPdezclYw&t=400s. Cat Zakrzewski, "Analysis: Facebook's New Emphasis on Groups Could Leave It More Vulnerable to Disinformation, Daily Herald, April 4, 2019,

https://www.dailyherald.com/business/20190504/analysis-facebooks-new-emphasis-on-groups-could-leave-it-more- vulnerable-to-disinformation.

1. Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data Act (S.1951), https://www.congress.gov/116/bills/s1951/BILLS-116s1951is.pdf.

2. Competitive Enterprise Institute, "Senate Bill Targets Big Tech but Empowers Regulators over Consumers or Investors," news release, June 24, 2019,

https://cei.org/content/senate-bill-targets-big-tech-empowers-regulators-over-consumers-or-investors.

Competitive Enterprise Institute, "Draft White House Executive Order Aimed at Social Media Companies Would Violate First Amendment," news release, August 9, 2019,

https://cei.org/content/draft-white-house-executive-order-aimed-social-media-companies-would-violate-first-amendment.

1. John Cochrane, "The Rule of Law in the Regulatory State," White Paper, June 2015, p. 6. http://faculty.chicagobooth.edu/john.cochrane/research/papers/rule%20of%20law%20and%20regulation%20essay.pdf.

2. John Paul Titlow, "How DuckDuckGo Rode A Wave of Post-Snowden Anxiety to Massive Growth," Fast Company, June 19, 2015,

https://www.fastcompany.com/3046943/how-duckduckgo-rode-a-wave-of-post-snowden-anxiety-to-massive-growth. DuckDuckGo Traffic, accessed March 23, 2020, https://duckduckgo.com/traffic.

1. Greg Bensinger, "Never-Googlers: Web users take the ultimate step to guard their data," Washington Post, July 23, 2019, https://www.thehour.com/news/article/Never-Googlers-Web-users-take-the-ultimate-step-14116157.php.

2. L. Todd Wood, "Big Tech Is Dying, Soon to Be Replaced, They Just Don't Know It Yet," CDMedia, https://creativedestructionmedia.com/news/business/2019/07/07/big-tech-is-dying-soon-to-be-replaced-they-just-dont-know- it-yet/.

3. Ranking of top websites in the U.S. as of March 23, 2020, https://www.similarweb.com/top-websites/united-states.

4. Arthur L. Herman, "Google's Unstable Empire," National Review, September 13, 2019, https://www.nationalreview.com/magazine/2018/10/01/life-after-google-blockchain-book-review/. Tunku Varadarajan, "Sage Against the Machine," Wall Street Journal, August 31, 2018,

https://www.wsj.com/articles/sage-against-the-machine-1535747443. https://www.mercatus.org/bridge/commentary/mark-zuckerberg-confirms-regulation-would-be-good-facebook.

1. Clyde Wayne Crews, Jr. "Cybersecurity and Authentication: The Marketplace Role in Rethinking Anonymity-Before Regulators Intervene," Knowledge, Technology & Policy, Vol. 20 (August 18, 2007), pp. 97-105, https://link.springer.com/article/10.1007/s12130-007-9010-z.

2. Zuckerberg, "The Internet needs new rules."

About the Author

Clyde Wayne Crews, Jr. is Vice President for Policy at the Competitive Enterprise Institute (CEI). He is widely published and a contributor at Forbes. A frequent speaker, he has appeared at venues including the DVD Awards Showcase in Hollywood, European Commission-sponsored conferences, the National Academies, the Spanish Ministry of Justice, and the Future of Music Policy Summit. He has testified before Congress on

various policy issues. Crews has been cited in dozens of law reviews and journals. His work spans regulatory reform, antitrust and competition policy, safety and environmental issues, and various information-age policy concerns.

Alongside numerous studies and articles, Crews is co-editor of the books Who Rules the Net? Internet Governance and Jurisdiction and Copy Fights: The Future of Intellectual Property in the Information Age. He is co-author of What's Yours Is Mine: Open Access and the Rise of Infrastructure Socialism and a contributing author to other books. He has written in the Wall Street Journal, Chicago Tribune, Communications Lawyer, International Herald Tribune, and other publications. He has appeared on Fox News, CNN, ABC, CNBC, and the PBS News Hour. His policy proposals have been featured prominently in the Washington Post, Forbes, and Investor's Business Daily.

Before coming to CEI, Crews was a scholar at the Cato Institute. Earlier, Crews was a legislative aide in the

U.S. Senate, an economist at Citizens for a Sound Economy and the Food and Drug Administration, and a fellow at the Center for the Study of Public Choice at George Mason University. He holds a Master's of Business Administration from the College of William and Mary and a Bachelor's of Science from Lander College in Greenwood, South Carolina. While at Lander, he was a candidate for the South Carolina state senate. A dad of five, he can still do a handstand on a skateboard and enjoys custom motorcycles.

Documents

Documents

Antitrust

Antitrust

Tech and Telecom

# data[].attributes.attachment_link.title
The Case against Social Media Content Regulation - Competitive Enterprise Institute

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As repeatedly noted by most defenders of free speech, expressing popular opinions never needs protection. Rather, it is the commitment to protecting dissident expression that is the mark of an open society. On the other hand, no one has the right to force people to transmit one's ideas, much less agree with them.

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Governments Should Stay Out of Social Media

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Governments Should Stay Out of Social Media

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https://www.cato.org/commentary/government-should-stay-out-social-media

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Let's recall why the government has so little control over the internet. Social media involves people speaking about many things, public and private. The First Amendment sharply limits government's power over speech. What about "hate speech?" The courts have prevented government from discriminating against offensive speech including "hate speech," whatever that might mean. The courts will strike down direct government censorship of social media.

They will be right to do so. Individuals have a right to speak, and our society benefits from dissent.

Congress has also strongly protected Internet speech. In the famous section 230 of the Communications Decency Act of 1996, Congress decided to exempt tech companies from liability for the actions of their users. For example, if I libel someone in a Facebook post, I can be sued and perhaps made to pay them compensation. Congress' exemption means Facebook cannot be held responsible for my malfeasance.

Congress protected the companies for two reasons. First, if Facebook were responsible for my libel, they would have incentives to remove all speech that might be actionable. The result? A lot less speech online. By protecting the companies, Congress protected speech which in turn fostered the growth of social media. Freedom of speech and economic growth worked together wonderfully.

Unlike government, tech firms are not bound by the First Amendment. They may refrain from hosting any speech they dislike. That may seem puzzling. But forcing tech companies to host unwanted speech would violate their right to private property. Tech managers know best how to keep their users (and advertisers) happy. If "hate speech" drives down profits, managers have the right to ban it. But this is about more than business. People should not be forced to hear or to associate with views they dislike. Those liberties too are part of American freedoms.

But therein lies a problem. We protect freedom of speech because government officials have powerful reasons to censor it. Government officials can get around the First Amendment by persuading Facebook to suppress speech. After all, Facebook's decisions about speech are not covered by the First Amendment.

The company might be tempted to follow the German example. Since January, Germany has required large social media platforms to suppress speech contrary to its hate speech laws. The proscribed speech covers Nazi symbolism, denials of the Holocaust, and expressions of racial hatred along with vague terms like "insult" or "blasphemy." Companies must suppress the speech within 24 hours or face fines up to 50 millioneuros ($60 million).

The times we live in increase the threat to speech. Horrible events like the Christchurch video prompt the belief that "something must be done" inducing a panic. Conservatives are convinced already that Facebook and other social media are biased against them. Progressives decry hate speech. Elected officials of every stripe are generally uncomfortable with novel technologies that seem to be upending the political status quo. Hence the bipartisan interest in regulation.

Tech leaders do have a right to control their property, and we all benefit from that. But they too are citizens who should protect vital rights like freedom of speech. Tech managers also have the knowledge and technology to deal with abuses of the internet like speech inciting violence or other unprotected conduct. Their efforts will inevitably involve trial and error. How could it be otherwise with such novel problems? Turning to the heavy hand of government will make things worse.

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Government Should Stay out of Social Media

# data[].attributes.attachment_link.description
Let's recall why the government has so little control over the internet. Social media involves people speaking about many things, public and private. The First Amendment sharply limits government's power over speech. What about "hate speech?" The courts have prevented government from discriminating against offensive speech including "hate speech," whatever that might mean.

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Governments Can't Regulate Social Media Because They Are Too Dependent On It

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Governments Can't Regulate Social Media Because They Are Too Dependent On It

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https://www.forbes.com/sites/kalevleetaru/2019/04/21/governments-cant-regulate-social-media-because-they-are-too-dependent-on-it/?sh=1e95606f2aec

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Perhaps the most striking aspect of the strange spectacle that was Mark Zuckerberg's congressional testimony last year was the degree to which members of the US Congress kept acknowledging Facebook's immense sway over the democratic process and how important the site was to each of their reelection efforts. Congressperson after congressperson repeated how critical Facebook was to getting themselves elected and maintaining contact with their constituents. This was not a CEO being given a public dressing down. It was almost a fan convention of children eager to tell their hero how much they admire him in the hopes of earning an autograph. Together with Twitter and Instagram, the three sites have become almost indispensable staples of the modern state, used by elected officials all the way up to world leaders to communicate with their domestic citizenry and audiences abroad. Has social become so powerful that governments simply cannot risk regulating it?

There is a great irony in governments around the world lambasting social platforms and threatening to regulate them, while simultaneously being utterly dependent on those very platforms to secure their reelections and listen to their citizenry.

Politicians the world over are acutely aware that it would take just a mouse click by a Facebook engineer to hand the next election to their competitor.

This creates a severe conflict of interest in which politicians seek to mollify public outrage over the increasing gulf between platforms' conduct and societal demands, while at the same time treading carefully so as to not upset what many see as the single most important element of their reelection campaigns.

Social platforms today are increasingly the primary mechanism through which governments communicate with their citizenry. Even at the national level, government agencies have pushed ever-greater amounts of their news releases off of their cumbersome websites and onto their social accounts.

Today it is almost impossible to interact with government agencies without at some point having to visit the walled gardens of Facebook, Twitter or Instagram.

Banishment from Twitter in today's world doesn't just mean not being able to broadcast one's thoughts to the world.

It means no longer being granted the right to speak directly to the President of the United States.

It is hard to underestimate the significance of Twitter's control over the modern democratic process in the United States.

A private company quite literally now determines who has the right to speak directly to the president of an entire country and can revoke that right for any reason.

Even more dangerously, social platforms are increasingly becoming a primary conduit through which citizens communicate with their elected officials. In fact, some members of Congress have even instructed their constituents that the best way to reach them is via the private platforms of social media.

For the governments that would like to regulate social media, this presents a unique conundrum: addressing public concern over the growing disregard of social platforms for societal norms risks killing the Golden Goose that many believe helped get them elected.

For elected officials in competitive districts who won their seats through relatively slim margins, there is even less incentive to risk alienating the behemoth they may view as having given them sufficient edge to win.

Most governments prohibit elected officials from serving on the boards of companies their agencies oversee. A Pentagon official with oversight of weapons purchases, for example, cannot serve on the board of a major weapons manufacturer that sells to the Department of Defense.

Similarly, ethics policies often require a "cool down" period before a former senior official can join the board of a company they formerly regulated.

These rules exist because of a widespread recognition that having a government official regulating a business that benefits them directly would create the perception of a conflict of interest, no matter how carefully they managed that conflict.

When it comes to regulating social media platforms, however, there are no such rules.

Social platforms are viewed as such an intrinsic part of modern life that it is simply viewed as a forgone conclusion that elected officials will have social media accounts critical to their reelections, meaning their future employment and thus monetary income is entirely dependent on maintaining a positive relationship with social media companies.

At the same time, as elected officials, their duty is to regulate those very same companies, potentially harming social platforms in ways that might affect those politicians' ability to help those politicians win reelection.

Putting this all together, we live in a strange world in which the very governments tasked with regulating social media are simultaneously entirely dependent on those very platforms. Elected officials in democratic states are faced with a particularly difficult conflict of interest in needing to potentially harm the very companies they often credit with helping get themselves elected.

In many ways, those officials are confronted with the reality that their continued employment as an elected official is dependent on their social media success, which means any monetary or legal harm they dole out to those companies may impact their own financial success.

In the end, we must ask: are our governments now so dependent on the major social media platforms that it is simply too late for them to faithfully regulate them?

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Governments Can't Regulate Social Media Because They Are Too Dependent On It

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Social platforms have become indispensable staples of the modern state, used by elected officials all the way up to world leaders to communicate with their domestic citizenry and audiences abroad. Has social become so powerful that governments simply cannot risk regulating it?

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Why the Government Should Not Regulate Content Moderation of Social Media

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Why the Government Should Not Regulate Content Moderation of Social Media

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https://www.cato.org/policy-analysis/why-government-should-not-regulate-content-moderation-social-media

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President Trump recently complained that Google searches are biased against Republicans and conservatives. Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump's election in 2016 and violence in Charlottesville in 2017. Many on both sides believe that government should actively regulate the moderation of social media platforms to attain fairness, balance, or other values.

Yet American law and culture strongly circumscribe government power to regulate speech on the internet and elsewhere. Regulations of social media companies might either indirectly restrict individual speech or directly limit a right to curate an internet platform. The First Amendment offers strong protections against such restrictions. Congress has offered additional protections to tech companies by freeing them from most intermediary liability for speech that appears on their platforms. The U.S. Supreme Court has decided that private companies in general are not bound by the First Amendment.

However, some activists support new efforts by the government to regulate social media. Although some platforms are large and dominant, their market power can disintegrate, and alternatives are available for speakers excluded from a platform. The history of broadcast regulation shows that government regulation tends to support rather than mitigate monopolies.

Others worry that social media leads to "filter bubbles" that preclude democratic deliberation. But the evidence for filter bubbles is not strong, and few remedies exist that are compatible with the Constitution.

Speech on social media directly tied to violence-for example, terrorism-may be regulated by government, but more expansive efforts are likely unconstitutional. Concern about "interference" in U.S. elections glosses over the incoherence of current policies. Some foreign speech, online and off, is legal if the relationship of a speaker and a foreign power is disclosed.

Preventing harms caused by "fake news" or "hate speech" lies well beyond the jurisdiction of the government; tech firms appear determined to deal with such harms, leaving little for the government to do.

Background

Our effort advances in two parts. First, we establish a starting point for our analysis. We show that the values and practices of the public demonstrate a legitimate but quite limited role for government regulation of speech on the internet and elsewhere. The public and policymakers prefer private governance of speech. Those who wish to introduce new public regulation of social media must overcome this presumption for the private. In the second part, we show that arguments for new public efforts fail to do that. We find that private content moderators have already taken effective and innovative steps to deal with some of these problems. It is private content moderators, not elected or appointed officials, who should have the power to regulate speech on social media.

The Presumption against Public Regulation of Social Media

What are social media? Many experts have offered different definitions. Tom Standage, deputy editor of The Economist, says social media are "two‐​way, conversational environments in which information passes horizontally from one person to another along social networks, rather than being delivered vertically from an impersonal central source."3 He identifies aspects of social media that bear on free expression:

Social media are platforms, not publishers. They provide the means for large numbers of people to produce and consume information. They are open to both producers and consumers. Social media managers regulate the content on a platform, but the platform does not host everything that is posted on it. The regulation is necessarily ex post. The number of users and their expectations of immediate publication preclude ex ante regulation.

In contrast, publishing involved a small number of people communicating information to mass or special audiences. Gatekeeping was inherent in publishing; it was relatively closed to producers but open to consumers. The constrained supply of content enabled ex ante regulation of a publication (i.e., gatekeeping).

Social media thus comprise four groups of people: users who generate content, users who consume content, users who generate commercial speech (advertising), and social media managers who host speech. Each element involves speech: users generate and consume information, and social media services create the forum in which speech happens. Individual speech is highly protected in the United States. The online activities of social media companies also have considerable protection from government regulation.

Yet social media platforms differ from traditional publishers. The regulation of social media content typically comes ex post after a user is found to have violated a platform's community standards. One might argue that ex post editorial decisions are less likely than ex ante decisions to involve expression. A company might remove existing content to create a pleasant experience for users (that is, for business reasons). Thus, social media content moderation might differ from editorial discretion in publishing and merit less constitutional protection.

Congress might have required social media to police their platforms to enforce accepted public standards for speech (e.g., liability for defamation). But Congress did not do so. At the same time, the section did not protect individuals from public accountability for violating the limited exceptions to freedom of speech, and it did not reduce government authority over those harms. Section 230 neither increased nor decreased government authority over speech on social media. Congress showed in these decisions a preference for private governance of internet speech.

In older decisions, the Supreme Court said private forums had to respect public limits regulating freedom of speech. In Marsh v. Alabama (1946), the court ruled that a company town, like a government, could not restrict First Amendment rights: "The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." The fundamental rights of speech and religion outweighed the rights of private property.25 In 1968, the court also found that a shopping mall was the "functional equivalent" of the company town opened for public use and thus had to respect a right to picket on private property.26

But more recent cases have been friendlier to protecting private forums from public regulation. In Lloyd Corp. v. Tanner (1972), the Supreme Court overturned Logan Valley, saying a shopping mall did not constitute a public forum and thus need not obey the First Amendment.27 Four years later, in Hudgens v. NLRB (1976), a majority noted that

Thus, the First Amendment's freedom of speech clause offered no protection for pickets making their case in a privately owned enclosed shopping mall.

Pruneyard Shopping Center v. Robins (1980) affirmed the proposition that being open to the public did not turn a shopping center into a public forum governed by the First Amendment.29 However, the decision depended on other considerations. The court also concluded that the California Constitution created a right to petition and speech even on private property. The court decided that the state's rights trumped any claims to protection for private property or the owner's freedom of speech.30 This extension of free speech rights did not appeal much to other states. Only six states beyond California adopted limited protections for speech on private property.31

Some Americans may believe free speech should trump private property in forums like shopping malls. But national judgments run the other way, supporting private governance of speech. The history of public values and social media suggests a strong presumption against government regulation. The federal government must refrain from abridging the freedom of speech, a constraint that strongly protects a virtual space comprising speech. The government has also generally refrained from forcing owners of private property to abide by the First Amendment. Hence individuals have no expectation that the government will force the owners of social media to refrain from suppressing speech on their platforms (provided the owners do not violate civil rights laws). Those who seek more public control over social media should offer strong arguments to overcome this presumption of private governance. Have they?

Arguments for Public Regulation of Social Media

Some idea of the public interest often undergirds government actions, including regulation of private firms. In other words, policymakers and others see government vindicating a public interest through regulation. A public interest argument comprises two parts. First, it should establish that government action is needed to secure some widely held value; private activity is assumed, in theory or fact, to be inadequate to achieving that end. Second, it should make the case that government action will achieve the values in question without significant costs to other important values. As we have seen with social media, fundamental values are at stake. The second part of the public interest argument must climb a steep incline.

This section will argue that proposed government regulations of social media fail on one or both criteria. The values pursued by regulation are more important than the restraint of government power. Government action is unlikely to attain the public interest cited by advocates of regulation. Finally, in some cases, the regulation may only attain some value at an unacceptable price in other rights and values.

The Anti‐​Monopoly Argument

If these firms are indeed monopolies, there would be a stronger case that their content moderation violates the First Amendment. But if these tech firms are not monopolies, then it matters much less whether their content moderation constitutes a violation of free speech. Private institutions discriminate among viewpoints all the time, and few would wish the government to manage their agendas to assure fairness or balance. Indeed, as we saw, the government may not manage their speech (unless in theory they are broadcast media). But if the monopoly claim is true, then bias in content moderation might matter more. If a private forum such as Facebook owns the only place to speak and to be heard, its discrimination among viewpoints will seem a lot like censorship by the government, notwithstanding its private status. If so, one might think government action (rather than constraint) would serve the cause of speech and debate. More voices might be heard if one company (or a small number) did not govern the private forum in question.

However, the question of viewpoint discrimination would matter a lot less if the dominance of current market leaders were insecure and if users and audiences who were excluded from a platform had alternatives. The discrimination argument also matters less if public regulation (e.g., turning social media into public utilities) seems likely to make matters worse regarding the monopoly question. Each of these contingencies appears true: the dominance of current firms is insecure, alternatives exist, and broad regulation seems likely to make things worse.

The tech companies involved in speech are large and successful. The Wall Street Journal reports that "these companies [Apple, Amazon, Alphabet (Google), Microsoft, and Facebook] are the five most valuable in the U.S. by market capitalization, the first time a single industry has occupied that position in several decades, according to S&P Capital Inc."36 Their success, however, does not necessarily mean that they enjoy a natural monopoly, a traditional justification for government antitrust action.

The case against the tech companies leans on an older economic theory of network effects. David S. Evans and Richard Schmalensee offer a pithy summary of the theory:

Does this theory comport with what we know from economics and with empirical reality?

Even speakers excluded from major platforms such as Facebook and YouTube can find a home for their speech somewhere else on the internet. LiveLeak, while less reputable precisely because of its willingness to host graphic content, will deliver video to viewers just as effectively as YouTube. Vimeo also exists as an alternative platform, which is owned by IAC, a firm that seemingly specializes in second‐​tier versions of a host of internet services, and Dailymotion is another option. There are also platforms that are not specifically dedicated to video hosting or sharing but are often used to do so. Snapchat can be used to send self‐​deleting clips, while file‐​storage sites like Google Drive or Dropbox are often repurposed as semipublic information repositories.

But even if firms dominate their markets, will government regulation deal with the problem or make it worse? The nation has had experience with similar regulation of communications for similar reasons regarding broadcasting. Such regulation reinforced the market dominance of large firms and threatened freedom of speech.

The federal government claimed control of the broadcasting spectrum in the 1920s. Congress set up the Federal Communications Commission (FCC) to regulate entry into and use of the spectrum. Between 1941 and 1953, the FCC allocated a large part of the spectrum for television broadcasting. To use the spectrum for television broadcasting required a license from the FCC.

Eventually, the courts became less tolerant of the FCC's hostility to competition and the agency itself became more open to markets in the 1980s. Those changes, however, came after decades of the FCC restricting competition in broadcasting markets.

The history of broadcast regulation suggests that increasing state control over social media would have a chilling effect on speech. Over time, both political parties might be expected to threaten any speech they find abhorrent.

The monopoly argument for regulating social media has weaknesses. We have reason to think the current market positions of large social media companies may not persist because network effects operate differently than in the past. In any case, speakers have alternatives if they are excluded from a specific platform. Finally, it should not be assumed that government regulation will produce more competition in the online marketplace of ideas. It may simply protect both social media owners and government officials from competition.

Democracy and Deliberation

The internet facilitated the exchange of views about everything, including politics. Once again, groups of the like‐​minded have formed. Indeed, the cost of speech and association has fallen so fast that we might expect that more people will be more involved in more like‐​minded groups than ever. One might see this as a tremendous success both in fostering speech and association or in satisfying individual preferences. But some see the association of the like‐​minded as a danger to democracy and to the individuals who associate this way.

By enabling and respecting individual choices, the internet complicates and even undermines both the diversity and the unity needed in a deliberative democracy. More diversity of views would improve the disharmony of the internet enclaves, and more unity across enclaves would militate against social and political fragmentation.

Sunstein's claims about filter bubbles and echo chambers seem plausible. We can imagine people choosing to avoid unpleasant people and views while affirming their prior beliefs. Such choices might be the easiest way forward for them. But the logic of this position does not entail its empirical accuracy. Communications researcher Cristian Vaccari notes that

Several recent studies have focused on either the United States and other developed nations or just European nations alone. Perhaps data and conclusions from other developed nations do not transfer to the United States. However, cultures and borders notwithstanding, citizens in developed nations are similar in wealth and education. Even if we put less weight on conclusions from Europe, such results bear more than modest consideration.

In 2017, Vaccari surveyed citizens in France, Germany, and the United Kingdom to test the extent of filter bubbles online. He concluded that "social media users are more likely to disagree than agree with the political contents they see on these platforms" and that "citizens are much more likely to encounter disagreeable views on social media than in face‐​to‐​face conversations." His evaluation of Sunstein's thesis is as follows:

Another recent study of the United Kingdom found that most people interested in politics who select diverse sources of information tended to avoid echo chambers. Only about 8 percent of their sample were in an echo chamber. The authors urge us to look more broadly at media and public opinion:

Whatever may be happening on any single social media platform, when we look at the entire media environment, there is little apparent echo chamber. People regularly encounter things that they disagree with. People check multiple sources. People try to confirm information using search. Possibly most important, people discover things that change their political opinions. Looking at the entire multi‐​media environment, we find little evidence of an echo chamber.67 Finally, another study of multiple countries found that social media was also related to incidental exposure to news, contrary again to Sunstein's view that older media promoted such unintended exposure while new media do not.68

We have seen that Sunstein's concerns about filter bubbles are open to question. Sunstein might disagree, and perhaps a maturing literature will support regulations to fight such bubbles. But Sunstein proposes restrained efforts to make internet users better citizens. If the literature cited in this report is correct, there is even less reason to regulate social media in the name of democracy. But there may be an inherent problem implicitly recognized in Sunstein's limited proposals for reform. Forcing people to read and interact with views they dislike or abhor implicates liberal values such as free speech and individual liberty. On the one hand, we may wish that people were more and better informed about politics; on the other hand, we may doubt the wisdom of forcing people to engage in public matters. If filter bubbles threatened popular government, the case for public action might have improved. But studies do not support that proposition.

National Security Concerns

Government traditionally protects the homeland from its enemies. A standard textbook explores the complex meaning of national security:

Our concern here is whether the government should increase its power over internet speech to achieve national security. That question inevitably concerns the relationship of speech to violence. But internet speech may involve other aspects of national security.

Terrorism. The clearest example of a threat to national security would be attacks on or occupation of the homeland or its citizens. Terrorism may be defined as "public violence to advance a political, social, or religious cause or ideology."79 Policymakers thus have reason for concern:

Posner seems concerned about two harms caused by speech that favors terrorism: the harm done to vulnerable individuals who end up being punished for materially supporting terrorism and the mayhem caused by the speech. Liberal governments generally do not protect people from the consequences of their beliefs; however, they do protect other people from those consequences if they are directly related to speech. Hence Posner rightly worries about violence caused by terrorist speech, a concern that informs the incitement exception in First Amendment doctrine. But his example, which is that 300 U.S.-based ISIS sympathizers were "lured" by Twitter into some affiliation with the group, does not establish that any harm was perpetrated by anyone in the group against other people. There is little doubt they might cause harm in the future, but we have no evidence they have done so because of hearing speech. Posner is proposing a revived "bad tendency" test that weighs free speech against possible harms carried out by beguiled people. One would think we need at least a few cases in which speech probably caused harm to change long‐​standing doctrine.

Courts have consistently refused to hold social media platforms liable for terrorist acts.85 The most plausible of these attempts, Fields v. Twitter, sought to make use of the civil remedies provision of the Anti‐​Terrorism Act (ATA), contending that in failing to prevent ISIS from using its platform Twitter knowingly and recklessly provided material support to a terrorist organization, rendering Twitter the proximate cause of harms suffered by ISIS victims. Suits brought under the ATA turn on its proximate cause or "by reason of" requirement. Under this requirement Fields and similar material‐​support claims falter. While ISIS certainly found value in the ability to tweet, it is unlikely that the organization's activities would be substantially hampered without access to Twitter. Furthermore, in Fields and similar cases, plaintiffs failed to demonstrate that ISIS's use of Twitter played an instrumental role in the attacks that victimized them. The District Court for the Northern District of California noted the following in Fields:

Given the plaintiffs' failure to establish ISIS's Twitter use as the proximate cause of their harms, the Ninth Circuit rejected Fields' appeal.

More broadly, any standard of liability that might implicate Twitter in terrorist attacks would also capture transport providers, restaurateurs, and cellular networks. All these services are frequently used by terrorists, though they cannot be seen as uniquely instrumental in the realization of terrorist plots.

As Posner notes, social media platforms have policies against terrorist speech. For example, YouTube's policy on "terrorist content" states:

Social media moderation may be more effective than the increases in government power desired by Posner. But that effectiveness may have been acquired by narrowing the kinds of speech heard on those platforms. However one assesses that narrowing, the case for more government power here remains at best unproven.

Electoral Integrity. Many believe that protecting national security also means preventing foreign powers from influencing American elections. In February 2018, Robert S. Mueller III, a special counsel to the U.S. Department of Justice, indicted 13 Russians for intervening in the 2016 U.S. election. The indictment charges that they intervened by purchasing advertising that mostly "focused on issues-like civil rights or immigration-and did not promote specific candidates."91 In other words, the ads were speech about issues discussed during the campaign. Of course, this was speech by foreign agents, which presumably makes all the difference. But should it? The First Amendment does not refer to speakers but rather to speech, which is protected from government abridgment. It might be assumed that foreign agents seek to do harm to the United States through speech. Indeed, Mueller's indictment and the law underlying it purport to protect national security from foreign actions during the election.92 But that harm could be ignored or rejected by internet users who are expected under the Constitution to act as a censor of dangerous speech. Lastly, social media users may have a right to receive materials from foreign speakers. Such a right would belong to a reader or listener rather than the speaker; the Russian speakers in this case have no right. In 1965, the Supreme Court invalidated a law requiring readers to sign at the Post Office to receive communist publications. The act of signing chilled a presumed right to receive a publication from abroad.93 In a concurring opinion, Justice William Brennan remarked:

The Peking Daily was printed on paper; Russian speech appeared online. But the difference does not merit protecting a reader's right to see the former and not the latter.

In this case, national security seems to have outweighed freedom of speech. But that conclusion is somewhat misleading. In fact, the United States both censors some foreign speech and permits other speech with disclosure of the source. We turn first to the case for censorship.

Why were the Russian efforts indictable? The indicted were supported by the Russian government and are said to have bought ads advocating the election or defeat of candidates for federal office. The relevant law comes from Title 11, Section 110.20(b) of the Code of Federal Regulations:

The Federal Election Commission (FEC) concisely explicates the relevant law:

The ads could have been a "thing of value," an "independent expenditure," or "disbursement for an electioneering communication."

Here we discern a descent toward incoherence. On the one hand, a foreign national is prohibited from spending money on American elections, including advertising. On the other hand, that ban extends only to spending on express advocacy for or against a candidate. As noted earlier, most of the spending by the Russians in 2016 involved issue advocacy and not express advocacy. What about internet speech by Russian agents? They were presumably paid to speak, so the same distinction applies; speech about the issues would be permitted. Of course, speech about issues by a foreign national "volunteer" would not be indictable.

The national security interest at stake appears to be the integrity of a fundamental institution-elections. A foreign national spending money on speech that advocates the election or defeat of a candidate apparently threatens the integrity of elections. A foreign national discussing the issues debated during an election does not pose the same threat. This distinction may belie an assumption that using money to support speech would enable a foreign power to coordinate direct influence over voters and thereby affect the outcome of an election. Observations by random foreign nationals would not likely be effective.

But what's entailed in that assumption is that without censorship voters and their votes would be affected by the foreign campaign to the detriment of national security. The assumption is paternalistic and contravenes many of the justifications for freedom of speech found in Supreme Court decisions about freedom of speech. At the same time, voters are assumed to be capable of dealing with issue advocacy by foreign nationals. So there is a tension here that reflects badly yet well on the United States.

Speech by foreign nationals is not just a threat to national security. If it were only a threat, that threat would be countered by banning all foreign speech. But speech by foreign nationals also offers benefits to Americans, so banning all foreign speech would involve significant costs. For this reason, foreign speech is often regulated but not prohibited.

This more liberal approach to foreign speech may be seen in FARA's statement of purpose:

In other cases, the interests of governments and peoples diverge, and the speech of foreign agents may run counter to the interests of the American people. Even though this speech could be divergent and a potential security threat, it does not require censorship. Diplomacy requires people employed by foreign powers to speak with policymakers on behalf of their governments. Public officials, including members of Congress and the executive branch, often meet and hear the arguments of foreign agents. Apparently, registering and thereby disclosing such agents sufficiently protects American security in those situations.

In sum, American law permits some speech by foreign nationals during an election. The law may permit issue advocacy by foreign nationals. It does not permit foreign nationals to spend money directly on elections, especially by buying advertising that supports or opposes a candidate.

There is little evidence that the Russian efforts had much effect on the American voters in 2016. Reporting by the New York Times suggests that Russian efforts may have persuaded a few people to show up at a small anti‐​Muslim rally in Texas.105 Speculation about other effects abounds. But as Brendan Nyhan, a professor of public policy at the University of Michigan, indicates, political science research shows how hard it is to change votes even with significant spending.106 The Russian effort was a minuscule portion of overall spending in 2016.107

Federal law seems needlessly incoherent. Allowing foreign nationals to buy ads with disclosure of their participation would vindicate freedom of speech. It might be objected that allowing such spending would permit a hostile foreign power to fund and coordinate a propaganda campaign capable of affecting the outcome of an American election. But allowing foreign nationals to fund lobbying efforts has not subjugated policymaking to foreign interests. Policymakers are assumed to be capable of sorting out arguments and interests. Perhaps voters are not as capable of doing so, although the unpopularity of RT suggests otherwise.

The Mueller indictment may never move to trial because the indicted are unlikely to come to the United States. But even if you believe Americans should be protected from Russian ads, there is little need for federal action.

A Private Alternative

Facebook is also enforcing disclosure on ad buyers:

Facebook now has a higher standard of ads transparency than has ever existed with TV or newspaper ads. You can see all the ads an advertiser is running, even if they weren't shown to you. In addition, all political and issue ads in the US must make clear who paid for them. And all these ads are put into a public archive which anyone can search to see how much was spent on an individual ad and the audience it reached.

The disclosure aims specifically at excluding expenditures by foreign nationals:

We now also require anyone running political or issue ads in the US to verify their identity and location. This prevents someone in Russia, for example, from buying political ads in the United States, and it adds another obstacle for people trying to hide their identity or location using fake accounts.

Facebook appears to be offering a private solution to the perceived threat to the integrity of elections and hence national security. No doubt some Russian accounts will escape the ban on fake accounts. But in this regard Facebook seems much better placed than the federal government to regulate Russian efforts. The private sector is doing what the public sector cannot and should not do.

This broad sweep of disclosure may be a response to the content of speech. Zuckerberg writes:

Most of the divisive ads the Internet Research Agency ran in 2016 focused on issues-like civil rights or immigration-and did not promote specific candidates. To catch this behavior, we needed a broad definition of what constitutes an issue ad.

So the broad definition is a response to what? The divisiveness of the speech? Or the source of the speech? To the extent the rule seeks the source, it is roughly similar to federal law governing prohibited sources of funding. But if divisiveness leads to disclosure, Facebook is regulating, though not suppressing, speech based on its content.

Preventing Harms Caused by Speech

The cases for regulation of both kinds of speech have a common weakness. If we do not know what a term means, we cannot know how it applies. Thus, vagueness fosters unconstitutionality, as Nadine Strossen explains:

Looked at another way, vagueness would lead government to suppress both prohibited and permitted speech. The "false positives," which are permitted speech wrongly suppressed, would involve a cost to freedom of speech. Given the importance attached to free speech in the United States, it is unlikely the benefits of suppressing speech would outweigh the costs of those false positives. Such costs would also indicate the chosen means were poorly tailored to the ends sought by the government; vagueness would suggest the government regulation of speech could not pass a strict scrutiny test.

For these reasons, the following analysis pays close attention to the meanings of fake news and hate speech. So far as we find the terms vague, we should have less confidence in calls to suppress such speech, however "fake" and however "hateful."

"False, often sensational, information disseminated under the guise of news reporting" (Collins Dictionary).

"(1) News that is made up or 'invented' to make money or discredit others; (2) news that has a basis in fact, but is 'spun' to suit a particular agenda; and (3) news that people don't feel comfortable about or don't agree with" (Reuters Institute, "Digital News Report 2017").

"All forms of false, inaccurate, or misleading information designed, presented and promoted to intentionally cause public harm or for profit" (European Commission, A Multidimensional Approach to Disinformation).

"Verifiably false or misleading information that is created, presented and disseminated for economic gain or to intentionally deceive the public, and in any event to cause public harm" (European Commission, "Tackling Online Disinformation: Commission Proposes An EU‐​wide Code of Practice").

"Perceived and deliberate distortions of news with the intention to affect the political landscape and to exacerbate divisions in society" (European Commission, "Joint Research Centre Digital Economy Working Paper 2018-02").

Some elements of these definitions clearly could not pass muster under American constitutional law. Speech that fits a particular agenda, that makes people uncomfortable, or that affects the political landscape would all be protected by American courts. Apart from that, the term fake news appears to comprise three elements: intentionality, falsity, and a public harm. Each of these elements poses serious problems to the First Amendment.

Apparently, only those who deliberately seek to mislead or divide listeners are liable for false or harmful speech, according to those who seek to regulate fake news.

But this intentionality standard itself does not work well with the remaining speech. If the government may not suppress false speech or speech that causes a public harm, then whether the speech is intended to cause a public harm does not matter. So we turn first to whether false and harmful speech may be sanctioned by the U.S. government.

In United States v. Alvarez, the court refused to recognize a general exception to the First Amendment for false speech: "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection."121 In part, false speech was not a traditionally recognized exception. Also, giving the government the power to limit speech on behalf of truth would chill permitted speech, thereby calling into question "a foundation of our freedom."122 False speech about politics enjoys significant protection under the Constitution.

Courts have long recognized defamation as a general exception to the freedom of speech.123 The government may sanction speech integral to defamation. Individuals defamed by others on social media may seek relief for a tort; the state then enforces the sanction on libelous speech. State sanctions require both harm to reputation and falsity; the exception is not for false speech per se.124 Public figures must also show "actual malice" by defendants to recover compensation.125 Falsity alone is not enough to allow punishment for speech. The standard of actual malice is quite demanding on those seeking relief. Moreover, Section 230 of the Communications Decency Act of 1996 prevents social media platforms from being liable for the torts of their users.126 Defamation will provide a limited public response to fake news.127 It is not broad enough to underpin a substantial government effort to regulate false speech on social media.

This market failure argument for regulating fake news lacks empirical support. Scholarly literature notes that social media have offered both costs and benefits to consumers. However, "the impact of all these changes on the welfare of consumers, producers and society as a whole is not so clear. There is very little empirical evidence to date, also because relevant data are often proprietary and not accessible to independent researchers" (emphasis added).131 In light of this, we have little reason to believe that by regulating fake news the government will serve the important interests said to be at stake.

Private content moderators permit false speech. However, they manage such speech much more efficiently than the government. Facebook says:

Although Facebook does not block false speech, it does make certain categories of false speech more difficult to find and points users toward other presumably more accurate articles about a topic.133 Moreover, sites posting false speech often violate other Facebook rules (e.g., rules against spam, hate speech, or fake accounts) and are suppressed.134 Yet Facebook product manager Tessa Lyons says "we don't want to be and are not the arbiters of truth."135 Yet Facebook has delegated the task of determining the factual truth of contested content to a network of third‐​party fact‐​checkers.136 While this allows Facebook to avoid the difficult and politically fraught work of distinguishing fact from fiction, Facebook is still held responsible for its selection of fact‐​checkers and the impact of their decisions. In September, the Weekly Standard, the sole conservative organization admitted to Facebook's fact‐​checking program, deemed a ThinkProgress article, or at least its headline, false, limiting its distribution. ThinkProgress took umbrage with the decision and criticized Facebook for granting a conservative publication the ability to downrank its content.137

Facebook appears to want to let a thousand flowers bloom on its platform, yet it employs fact‐​checking gardeners that cut the false ones. The public values truth, and we hope that conspiracy theories and obvious falsehoods are bad for business. On the other hand, a tech company deciding between the competing truths offered by blue and red speakers invites political attacks against their platform and, over the long‐​term, sows doubt about the fairness of its content‐​moderation policies. Tech companies may sanction speech in circumstances where government must remain passive. Yet that empowerment has its own problems, not least of which is deciding between contending armies in an age of cultural wars.

We should thus keep in mind that the case for public as opposed to private regulation of fake news online is weak. Fake news has no fixed meaning, and regulations would be unconstitutionally vague. The public values truth, but the search for truth in the United States must abide by the First Amendment, and the courts have held that false speech-the whole of which fake news is a part-also has the protection of the First Amendment. Were this not true, the combination of vagueness and politics in a polarized age would mean virtually anything "the other side" said would be regulated as fake news. But fake news might not be the most likely reason for suppressing online speech.

Hate speech may be defined as "offensive words, about or directed toward historically victimized groups."144 That definition seems clear enough. But consider the case of The Bell Curve, a 1994 book by Charles Murray and Richard Herrnstein. Among other things, the authors state that the average IQ score of African Americans is one standard deviation below the average score of the population. Many also thought the book argued that nature was far more important than nurture in determining the IQ of individuals and groups, a claim that suggested social reforms would have little effect on individual and group outcomes.145 The Bell Curve offended many people; "historically victimized groups" might well have taken offense. Was The Bell Curve hate speech? If not, where should elected officials draw the line between permitted and prohibited speech?

The Supreme Court has applied this general framework to protect speech hostile to racial minorities. In their decision in R.A.V. v. City of St. Paul, the court dealt with a Minneapolis ordinance punishing speech that "one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."156 A lower court ruled that the ordinance reached protected as well as unprotected speech and thus was unconstitutionally overbroad. The same court interpreted the ordinance to apply only to "fighting words," which have been considered outside the protections of the First Amendment. Most of the Supreme Court went further, holding that Minneapolis had engaged in viewpoint discrimination by punishing some but not all "fighting words," a distinction based on the ideological content of some speech.

In theory, it is possible for the courts to uphold viewpoint discrimination. Such distinctions must pass the strict scrutiny test discussed earlier. To do so, the Minneapolis regulation would have needed to be narrowly drawn to achieve a compelling government interest. The court recognized the importance of protecting minorities. Yet the government had other means to achieve that end, means that were neutral toward the content of the speech.157 Most experts assume R.A.V. v. City of St. Paul precludes government suppression of hate speech. Accordingly, hate speech on social media lies beyond government power.158

In sum, the First Amendment does not permit government to censor speech to prevent harms to the public apart from known exceptions such as direct incitement to violence. The government may not censor fake news or hate speech. Private regulators are doing what government officials may not do: regulating and suppressing speech believed to cause harm to citizens generally and protected groups specifically. Private action thus weakens the case for moving the United States toward a more European approach to fake news and hate speech.

But such private action presents a mixed picture for supporters of robust protections for speech. The platforms offer less protection for speech than the government does. Social media managers discriminate among speakers according to the content of their speech and the viewpoints expressed. Tech companies have in part applied to speech the proportionality test long‐​recognized in Europe and rejected in this country. Private content governance of social media poses a quandary, particularly for libertarians and anyone who recognizes that private property implies a strong right for social media managers to control what happens on their internet platforms without government interference. It seems likely that social media managers choose to limit speech in the short term to fulfill their larger goal of building a business for the long term. They may believe that excluding extreme speech is required to sustain and increase the number of users on their platform.

Moreover, we should ask whether these efforts regarding hate speech (along with private suppression of Russian speech, terrorist incitement, or fake news) is truly a private decision and not state action. If Facebook or other platforms remove content to avoid government regulation, is such suppression state action or a hybrid of private choice determined by public threats and offers?

Conclusion

We began with Cloudflare CEO Matthew Prince's concern about legitimate governance of speech on the internet. Prince's desire to bring government into online speech controversies is understandable but misplaced. American history and political culture assign priority to the private in governing speech online and particularly on social media. The arguments advanced for a greater scope of government power do not stand up. Granting such power would gravely threaten free speech and the independence of the private sector. We have seen that these tech companies are grappling with many of the problems cited by those calling for public action. The companies are technically sophisticated and thus far more capable of dealing with these issues. Of course, the efforts of the companies may warrant scrutiny and criticisms, now and in the future. But at the moment, a reasonable person can see promise in their efforts, particularly in contrast to the likely dangers posed by government regulation.

Government officials may attempt directly or obliquely to compel tech companies to suppress disfavored speech. The victims of such public‐​private censorship would have little recourse apart from political struggle. The tech companies, which rank among America's most innovative and valuable firms, would then be drawn into the swamp of a polarized and polarizing politics. To avoid politicizing tech, it is vital that private content moderators be able to ignore explicit or implicit threats to their independence from government officials.

It is Facebook, Medium, and Pinterest-not Congress or President Trump-that have a presumption of legitimacy to remove the speech of StormFront and similar websites. These firms need to nurture their legitimacy to moderate content. The companies may have to fend off government officials eager to suppress speech in the name of the "public good." The leaders of these businesses may regret being called to meet this challenge with all its political and social dangers and complexities. But this task cannot be avoided. No one else can or should do the job.

Notes

10. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011); Martin H. Redish, " Commercial Speech and the Values of Free Expression," Cato Institute Policy Analysis no. 813, June 19, 2017.

35. Trump's campaign manager Brad Parscale has written, "Google claims to value free expression and a free and open internet, but there is overwhelming evidence that the Big Tech giant wants the internet to be free and open only to political and social ideas of which it approves." Brad Parscale, "Trump Is Right: More than Facebook and Twitter, Google Threatens Democracy, Online Freedom," USA Today, September 10, 2018. Parscale's article offers several examples of putative bias against conservatives. During the Republican primaries in 2016, Facebook employees admitted they "routinely suppressed news stories of interest to conservative readers from the social network's influential 'trending' news section." Facebook denied the charge. See Michael Nunez, "Former Facebook Workers: We Routinely Suppressed Conservative News," Gizmodo, May 9, 2016; see also Peter van Buren, "Extend the First Amendment to Twitter and Google Now," The American Conservative, November 7, 2017. This view appears to be spreading on the right; see Michael M. Grynbaum and John Herrman, "New Foils for the Right: Google and Facebook," New York Times, March 6, 2018.

37. David S. Evans and Richard Schmalensee, " Debunking the 'Network Effects' Bogeyman: Policymakers Need to March to the Evidence, Not to Slogans," Regulation 40 (Winter 2017-18): 36.

55. Sunstein, #Republic, p. 71, 259. Former president Barack Obama has said that "essentially we now have entirely different realities that are being created with not just different opinions, but now different facts. And this isn't just by the way Russian inspired bots and fake news. This is Fox News vs. The New York Times editorial page. If you look at these different sources of information, they do not describe the same thing. In some cases, they don't even talk about the same thing. And so it is very difficult to figure out how democracy works over the long term in those circumstances." He added that government should put "basic rules of the road in place that create level playing fields." Robby Soave, "5 Things Barack Obama Said in His Weirdly Off‐​the‐​Record MIT Speech," Hit and Run (blog), Reason, February 26, 2018.

64. Levi Boxell, Matthew Gentzkow, and Jesse M. Shapiro, " The Internet, Political Polarization, and the 2016 Election," Cato Institute Research Brief in Economic Policy no. 88, November 1, 2017.

85. See Pennie v. Twitter Inc., 2017 WL 5992143 (N.D. Cal. Dec. 4, 2017); Force v. Facebook Inc., 2018 WL 472807 (E.D.N.Y. Jan. 18, 2018); Crosby v. Twitter Inc., 303 F. Supp. 3d 564 (E.D. Mich. April 2, 2018); Gonzalez v. Google Inc., 2018 WL 3872781 (N.D. Cal. Aug. 15, 2018); Cain v. Twitter Inc., 2018 WL 4657275 (N.D. Cal. Sept. 24, 2018); Cohen v. Facebook Inc., 2017 WL 2192621 (E.D.N.Y. May 18, 2017); and Fields v. Twitter Inc., 2018 WL 626800 (9th Cir. Jan. 31, 2018).

95. 11 CFR 110.20(f).

96. FEC​.gov, FEC Record: Outreach, "Foreign Nationals."

117. Bertin Martens, Luis Aguiar, Estrella Gomez‐​Herrera, and Frank Mueller‐​Langer, "The Digital Transformation of News Media and the Rise of Disinformation and Fake News-An Economic Perspective," Digital Economy Working Paper 2018-02, JRC Technical Reports, pp. 8-11.

126. Protection for Private Blocking and Screening of Offensive Material, 47 U.S. Code § 230.

141. European Union (website), Publications Office of the EU, A Multidimensional Approach to Disinformation: Report of the Independent High Level Group on Fake News and Online Disinformation, March 30, 2018. For the process going forward, see p. 33.

Vice President, Cato Institute

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Why the Government Should Not Regulate Content Moderation of Social Media

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Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump's election in 2016 and violence in Charlottesville in 2017. Many on both sides believe that government should actively regulate the moderation of social media platforms to attain fairness, balance, or other values.

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Government should not regulate social media

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Government should not regulate social media

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https://www.orfonline.org/expert-speak/government-should-not-regulate-social-media-57786/

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Online discussions simply mirror what is already happening in the society. A strong enforcement of rule of law will allow greater freedom of expression online and weaken the need for regulation.

The Indian government appears to have made up its mind about the need to regulate content on social media. In a recent Supreme Court filing, it has submitted that new social media regulations will be notified by early next year. Broadly, the goal of these regulations will be to make social media platforms more liable for the content they host. Another goal will be to enforce traceability of content, ostensibly to enable accountability. According to the filing, the government is worried about "unimaginable disruption to the democratic polity" from unregulated social media content. If the proposed regulations go through, India will join a burgeoning list of countries that regulate social media, including recent regulators such as Australia, Singapore, Europe, and old hands such as China.

Most agree that obviously illegal content should be regulated; child pornography, direct and specific threats, violent extremist videos, and the like. The need to regulate anything that is not obviously illegal, however, is unclear and must be scrutinised. The government argues that unregulated social media promotes misinformation, hate speech, defamation, threats to public order, terrorist incitement, bullying, and anti-national activities. While this may be true, it is unclear why content regulation is the answer, if the content is not obviously illegal. In addition, social media is simply a platform for expression; making the platform liable for content, even if it is obviously illegal, makes only as much sense as making a transporter, restaurateur, or a cellphone network provider liable for content of any discussion that used their infrastructure.

There are also challenges to regulating content that is not obviously illegal. Consider misinformation or fake news, for example. Who decides what is fake and what is not? Even if some content is fake, who decides whether it was satire or intentioned to create harm? Even if the intention is to create harm, who decides when it is permitted (freedom of expression) or prohibited? Besides, how exactly does one implicate social media for fake news? Even before the advent of social media, fake news was regularly peddled and relished (e.g., the Ganesh idol drinking milk, the Bangalore Nale Ba woman, Amala and Kamala; the list is endless). Social media, at most, increases the scale and speed of spread of misinformation.

Analogous challenges exist while regulating hate speech as well. Where should an elected official draw a line between permitted and prohibited speech? As our recent experience with movies such as Padmavat, Lipstick Under My Burkha, and Article 15 show, we do not know how to define or apply rules consistently.

Even more questions surround regulation of extremist and anti-national content. Even if one could unambiguously determine what such content was, how much should one regulate it? If such content is banned on one platform, the content will simply move to different, perhaps lesser-known platforms. Fracturing of extremist communication will make it harder to track and counter such communication or gather intelligence, perhaps making the public less secure overall.

The government should not do any social media regulation that must be done. Collective experience over many industries (e.g., banking, healthcare, insurance, oil, etc.) has shown that government regulations stifle innovation and create monopolies. The high cost of complying with regulations inhibits competition since it discourages upstarts from entering a market. It also disproportionately harms existing smaller players. For a country that desperately needs more startups, innovation, entrepreneurship, and investment, social media regulations will trigger exits and discourage new investments. This will be especially true if government insists on traceability. A vast number of businesses today are built upon end-to-end encryption. Most of them would prefer to exit the Indian market (or not enter it), instead of relaxing end-to-end guarantees provided by their products. Besides, weakening encryption contradicts the principle of data minimisation endorsed in government's data protection bill.

Another big reason why government should not attempt to regulate is that it does not know how to. Unlike traditional publishing where regulation can be ex ante, social media regulation must necessarily be ex post due to scale. Government does not have the technological wherewithal to detect and remove objectionable social media content at the requisite scale or speed.

Yet another reason for the government to not regulate is that it will trigger overreaction. Large social media platforms will be happy to comply to avoid liability (especially since the state now becomes partially responsible for the definition of objectionable content). However, an overenthusiastic compliance can severely limit freedom of expression and suppress dissent or disfavored speech, which, in turn, may lead to more "unimaginable harm to democratic polity" than the worst-case scenario government painted in its Supreme Court filing.

Regulation of social media content should be best left to the tech companies themselves. There are several reasons. First, they have an obligation. It could be argued that they are monetising a public resource - data of citizens. So, like licensee of the broadcast spectrum, who must abide by some public interest obligations in exchange for the opportunity to monetise a public resource, social media companies have an obligation to the public to limit spread of misinformation, extremism, hate speech, etc. Second, these companies have a strong incentive - survival. Customers will automatically gravitate away from a platform where a large amount of content is objectionable or untrustworthy. Threat of regulations also provides an incentive. Third, only they have the resources and the background to address the problem. Ex post detection and removal of objectionable content will require development of sophisticated tools and technologies. Fourth, they have been at it already. YouTube, which employs 10,000 people globally for monitoring and removal of objectionable content, took down 8 million videos in 2018 during a three-month period, 81% of which were removed automatically, and three-quarters of those clips never received a single view. Facebook, which employs over 30,000 people of detection and removal, removed over 15 million pieces of violent content during a three-month period in 2018, over 99% of which was done automatically.

Government also has a role to play. It should encourage social media companies to define and periodically update content standards and enforcement guidelines. Ideally, this is done through an independent body with participation from the different stakeholders, including civil society and law enforcement. Finalised standards and guidelines should be made public for transparency. This body should also publish compliance data periodically, both for transparency and to encourage compliance. In addition, government should make social media platforms liable for obviously illegal content, if it is not removed within a certain period of being reported. There should also be a transparent and rapid redressal mechanism to be used in case of disagreements. The burden of proof should lie on the government - this ensures that content removal is not a norm, but an exception. Finally, government should largely focus on addressing the systemic problems in the society - communalism, casteism, sexism, extremism, poor law and order etc. Online discussions simply mirror what is already happening in the society. A strong enforcement of rule of law will allow greater freedom of expression online and weaken the need for regulation.

Freedom of expression on social media is integral to a healthy, thriving democracy. We will be stronger by enabling and cultivating it, not curtaining it.

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Government should not regulate social media | ORF

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Online discussions simply mirror what is already happening in the society. A strong enforcement of rule of law will allow greater freedom of expression online and weaken the need for regulation. The Indian government appears to have made up its mind about the need to regulate content on social media.

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Why the Government Should Not Regulate Content Moderation of Social Media

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Why the Government Should Not Regulate Content Moderation of Social Media

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https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3502843

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32 Pages Posted: 3 Jan 2020

Date Written: April 9, 2019

Abstract

President Trump recently complained that Google searches are biased against Republicans and conservatives. Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump's election in 2016 and violence in Charlottesville in 2017. Many on both sides believe that government should actively regulate the moderation of social media platforms to attain fairness, balance, or other values.

Yet American law and culture strongly circumscribe government power to regulate speech on the internet and elsewhere. Regulations of social media companies might either indirectly restrict individual speech or directly limit a right to curate an internet platform. The First Amendment offers strong protections against such restrictions. Congress has offered additional protections to tech companies by freeing them from most intermediary liability for speech that appears on their platforms. The U.S. Supreme Court has decided that private companies in general are not bound by the First Amendment.

However, some activists support new efforts by the government to regulate social media. Although some platforms are large and dominant, their market power can disintegrate, and alternatives are available for speakers excluded from a platform. The history of broadcast regulation shows that government regulation tends to support rather than mitigate monopolies.

Others worry that social media leads to "filter bubbles" that preclude democratic deliberation. But the evidence for filter bubbles is not strong, and few remedies exist that are compatible with the Constitution.

Speech on social media directly tied to violence - for example, terrorism - may be regulated by government, but more expansive efforts are likely unconstitutional. Concern about "interference" in U.S. elections glosses over the incoherence of current policies. Some foreign speech, online and off, is legal if the relationship of a speaker and a foreign power is disclosed.

Preventing harms caused by "fake news" or "hate speech" lies well beyond the jurisdiction of the government; tech firms appear determined to deal with such harms, leaving little for the government to do.

Keywords: tech firms, bigtech, First Ammendment, freedom of speech, right to speech, filter bubbles, fake news, election interference

JEL Classification: H00, H1, H11, M38, O33

Samples, John, Why the Government Should Not Regulate Content Moderation of Social Media (April 9, 2019). Cato Institute Policy Analysis, No. 865, Available at SSRN: https://ssrn.com/abstract=3502843

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why the government should not regulate content moderation of social media

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Why the Government Should Not Regulate Content Moderation of Social Media

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32 Pages Posted: 3 Jan 2020 Date Written: April 9, 2019 President Trump recently complained that Google searches are biased against Republicans and conservatives. Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump's election in 2016 and violence in Charlottesville in 2017.

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M I D D L E

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The role of social media and online speech in civil society has come under heightened scrutiny. The deadly riot at the U.S. Capitol on January 6 is just one example of violence which national security experts say was fomented in large part on social media platforms. Elsewhere in the world, social media has contributed to religious and ethnic violence, including against Muslims in India and Rohingya in Myanmar. Harmful misinformation, including about the COVID-19 pandemic, has also spread with ease and speed.

Platforms such as Facebook and Twitter have become the de facto public squares in many countries, and governments are adopting varying approaches to regulating them.

How do the major platforms regulate content?

The most popular platforms, most of which are run by U.S. companies, have similar content moderation policies. They bar posts that glorify or encourage violence; posts that are sexually explicit; and posts that contain hate speech, which they define as attacking a person for their race, gender, or sexual orientation, among other characteristics. The major platforms have also taken steps to limit disinformation, including by fact-checking posts, labeling the accounts of state-run media, and banning political ads.

These platforms generally comply with the laws of the countries where they operate, which can restrict speech even further. In addition to using moderation software powered by artificial intelligence, Facebook, Twitter, and YouTube (which is owned by Google) employ thousands of people to screen posts for violations.

What are some of the controversies?

Critics say these platforms do not enforce their rules consistently. For example, both Twitter and Facebook have allowed accounts they say serve the public interest-most notably those of politicians such as former U.S. President Donald J. Trump-to post abusive or misleading content that might have been removed if it were posted by an ordinary user.

The number of moderators Facebook employs to screen content on its services.

Source:

NYU Stern Center for Business and Human Rights

In Trump's case, the companies instead appended fact checks to some of his posts, which some experts who track social media and misinformation criticized as insufficient. The two platforms eventually banned Trump, following the U.S. Capitol riots, but both have faced criticism for not taking similar actions abroad. YouTube has also come under fire for allegedly treating its star users, who bring in more revenue, more leniently. It was also criticized for not removing videos with false claims of U.S. election fraud and other misinformation quickly.

Critics say the companies are not incentivized to regulate hateful or violent speech because their ad-driven business models rely on keeping users engaged. At the same time, politicians in some countries, including the United States, argue that social media companies have gone too far with moderation, at the expense of free speech.

For their part, social media companies have argued that their policies are difficult to enforce. It can be tricky at times to distinguish hate speech from satire or commentary, for example. Some companies say the onus should not be on them to write the rules for the internet and have called for government regulation.

How are governments around the world approaching the issue?

In the United States, social media platforms have largely been left to make and enforce their own policies, though Washington is weighing new laws and regulations. Other countries have implemented or proposed legislation to force social media companies to do more to police online discourse. Authoritarian governments generally have more restrictive censorship regimes, but even some Western democracies, such as Australia and Germany, have taken tougher approaches to online speech.

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An infographic of the number of users of selected social media platforms, showing Facebook with the most at 2.7 billion, followed by YouTube at 2.3 billion.

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M I D D L E

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Should Government Regulate Social Media?

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Should Government Regulate Social Media?

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Source: Internet matters.org

Big Idea: The benefits of social media

Explicit Notes:
- It supports young people
- Collaborative learning (helps connect people to the world)
- Helps communication and technical skills
- Helps Mental health and wellbeing
- Strengthen relationships
- A place to seek support
- Campaigning for social good
- Develop a positive digital footprint

By Rhian Cabrera

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Notes
- It can aid in criminal investigations
- It keeps us informed about the world
- Shy people can connect with people, speak their minds, and their talents to the world more easily
- It exposes us to different innovations and points of views
- It keeps us connected with other family members and friends that may be far away
- If you have a business, it would be easier to reach customers online
- Help us find stuff and get rid of stuff, like find things we want (online shopping) and get rid of things (sell)
- Connect with people who are like you
- Learn new things (Hobbies, how to cook, things like that)
- Can help communicate with others, especially if in danger.
- Information spreads quickly (News, Weather, Major News Events)
- Help funds charities and funds money for those in need
- Reviews on social media to help decide where you go or where you buy things
- Social media allows small businesses to grow
- Amazing market research for large companies
- Get to know other people
- Share how creations (Music, art, books)
- Support and recognize artists and songwriters
- Social media is great for the consumer, and the company
- Introduces us to new things
- Increase knowledge on a college-level or higher
- Win prizes
- Dating is easier now online
- Social media made gaming cooler
- Keeps us occupied
- Help you achieve goals and offer support

By Rhian Cabrera

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25 ADVANTAGES of SOCIAL MEDIA That Are Good To Keep In Mind

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U S E F U L

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M I D D L E

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H A R M F U L

Source: Future

Big Idea: How does social media affect us or other people around the world?

Explicit Notes:
- It causes more stress
-using the evidence from a survey of 1,800 people women get more stressed than men, saying twitter may be one of the causes
- Although there are people that uses twitter as a coping strategy to not get stressed
- It causes lower moods
- A research in Australia says that people who used Facebook for 20 minutes have gotten a lower mood
- It causes more anxiety
- People who have been using social media have been more worried and had trouble sleeping
- Causes depression
- Two studies say that after kids went on social media, over 700 students had symptoms of depression
- Reduces sleep
- Causes addiction
- Lowers their self-esteem
- Worsens their well-being
- Breaks relationships with others
- People starts having envy towards others
- Causes loneliness

By Rhian Cabrera

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https://docs.google.com/presentation/d/1JITTlXwwH5DbJWM3X4I1bc-xzTK1pjpSFNx4qSHltRY/edit?usp=sharing

Title:
Source:

Big Idea:

Explicit Notes:

Implicit Notes:

Questions I thought of:

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https://www.mybib.com/#/projects/WgVvPV/citations

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What is MyBib?

MyBib is a free bibliography and citation generator that makes accurate citations for you to copy straight into your academic assignments and papers.

If you're a student, academic, or teacher, and you're tired of the other bibliography and citation tools out there, then you're going to love MyBib. MyBib creates accurate citations automatically for books, journals, websites, and videos just by searching for a title or identifier (such as a URL or ISBN).

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📖 MyBib - A New FREE APA, Harvard, & MLA Citation Generator

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MyBib is a free bibliography and citation generator that makes accurate citations for you to copy straight into your academic assignments and papers. If you're a student, academic, or teacher, and you're tired of the other bibliography and citation tools out there, then you're going to love MyBib.

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H A R M F U L

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H A R M F U L

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Social Media: Is Your Breaking News Broken?

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Is Social Media Hurting Your Mental Health? | Bailey Parnell | TEDxRyersonU

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Can Gen Z break free from social media addiction? - BBC News