We are ceding our freedom to Facebook and YouTube
The United States should limit the authority of its social media companies to censor speech on their platforms. Giants like Facebook, YouTube, and Twitter have become the new public square for expressing opinions. Limiting expression of opinions to only those approved by our unaccountable digital oligarchy will be more damaging than limited interference in the private sector.
Conservatives argue that as private corporations the media companies deserve the freedom to do business as they see fit. Modern liberals view free speech as less and less important, going so far as to support a constitutional amendment allowing Congress and the states to regulate political campaign speech.
YouTube is blazing the trail for digital censorship. Moving beyond political censorship of Dennis Prager, the company recently removed a video by two doctors from Bakersfield, California, for:
…content that explicitly disputes the efficacy of local healthy authority recommended guidance on social distancing that may lead others to act against that guidance. — as reported by ABC news
What other government guidelines are citizens prohibited from disputing? How about advocating that the speed limit on a certain road ought to be 60 mph instead of 55 mph? Motorists could read that the highway is really designed for 70 mph and drive too fast. What’s the difference? The ability to dispute what the government says is fundamental to American success as a democracy.
If abortion is a woman’s health issue, do we shut down online debate? Perhaps we get a conservative digital oligarch or elect a Republican Congress that defines abortion as murder. Would it be OK to de-platform Planned Parenthood from social media and shut down all discussion in the interest of saving unborn lives? Free speech should not be a liberal vs conservative issue, it is a human rights issue.
Do we really want to restrict Americans’ (and the rest of the world’s) speech based on what the World Health Organization (WHO) thinks is true today? Climate change could kill the world, should we ban anyone who disagrees with the Intergovernmental Panel on Climate Change (IPCC)? Should scientific journals follow suit and reject anything that disagrees with the current consensus? That’s not how science works.
The fundamental trap of censoring speech is deciding who gets to decide.
So when should the government interfere in the private sector? The strongest cases for interference is when markets alone are insufficient to regulate because of consequences, negative externalities, or monopoly.
We have the FAA because airlines that skimp on safety will eventually go out of business as planes crash, but waiting for the market consequence to correct the behavior is intolerable. We regulate emissions because dirty air is an externality that the market will not capture and signal back to the producer.
For markets to work, customers need alternatives. Social media thrives off of its connected nature and leaves no room for similar products to grow to scale. Facebook, Twitter, and YouTube are not interchangeable, any more than the effective monopolies of the National Football League (NFL) or Major League Baseball (MLB) are interchangeable. Stretching the analogy further, Google’s attempts like Google Friend, Google Buzz, Orkut, Google+ and most recently Shoelace had about as much chance competing as the twice-doomed XFL
Competition is absent and breaking up social media firms would destroy their utility. Intervention is reasonable, though only to address harms from the monopolistic practices. It’s always possible that Congress will pressure the social media giants to do more censorship.
What should the standards be?
Free speech has always been limited even in the physical, literal public square. Generally, speech is limited when likely to result in concrete physical harm. The most famous example, in an opinion by Oliver Wendell Holmes, cites “falsely shouting fire in a theatre and causing a panic” as an exception.
Though Holmes’ case actually found for the government, allowable restrictions evolved to prohibit actions that immediately incited violence or harm. Advocating for the idea of assisted suicide is not the same as telling an actual, specific person to take their life today.
Other categories of speech that do harm are banned as well. Child pornography causes so much harm to the child that society’s interest in banning speech outweighs the freedom argument, but again there is a specific person, a child, involved who receives the harm.
Standards also exist, more or less, for pornography and obscenity. There are words you can’t say on the television and the radio and anatomy that incurs fines from the FCC.
The key is to censor specific acts and statements, rather than broad swaths of ideas. The digital oligarchs have perverted the idea of community standards through fuzzy concepts like hate speech. One person’s hate is another person’s gospel. Atheists should be protected for their legitimate right to disbelieve. Muslims should be protected for their legitimate right to believe. But Athiest Muslim speech may be taken down on Facebook as vast Muslim user groups target and flag the speech as hateful.
Social media companies should be bound to the same standards as government entities when it comes to censoring the content they publish. Speech should not be banned unless it presents imminent and specific physical harm.
How do we get there
Some advocate that the US Supreme Court should relax the doctrine of ‘state action’ which restricts the First Amendment’s applicability to public spaces, noting that some states apply protections to speech at private shopping malls and that New Jersey has prevented Homeowners Associations (HOAs) from restricting speech.
While states could apply speech protections to social media, it is uncertain whether state regulations would pass constitutional muster since the internet is pure interstate commerce. The Supreme Court is unlikely to reverse recent rulings and expand speech rights.
Instead, congressional action should recognize that social media are de facto monopolies and regulate them for the public good. Any legislation would certainly be challenged in court, but there is a powerful argument that the people’s interest in a robust exchange of ideas outweighs the people’s interest in protecting the property rights of the social media companies.
Brian E. Wish works as a quality engineer in the aerospace industry. He has spent 29 years active and reserve in the US Air Force, where he holds the rank of Colonel. He has a bachelor’s from the US Air Force Academy, a master’s from Bowie State, and a Ph.D. in Public and Urban Administration from UT Arlington. The opinions expressed here are his own.