Do Americans Have a Right to Fair Distribution of Political Voices?
Earlier this year, Hawaii Representative Tulsi Gabbard filed a lawsuit against Google for allegedly censoring her democratic primary ad campaign during important hours after televised debates. Gabbard alleges that Google’s ad suspension was intentional and executed to sabotage her ability to gain national prominence in the democratic primary. Gabbard has a few viewpoints that don’t perfectly align with her fellow mainstream democratic politicians, and the relevancy of her complaint has only escalated with Hillary Clinton claiming that — without evidence — Gabbard is a Russian asset.
Simultaneously, another democratic presidential candidate, Andrew Yang, has continuously been left out of the mainstream news conversation, despite his decent polling numbers. Yang received less speaking time during the early debates and has been constantly omitted from media graphics discussing democratic nominee support (this phenomena has been named #YangMediaBlackout by the Yang Gang on Twitter). Non-mainstream democratic candidates, such as Gabbard and Yang, heavily rely on independent, online media platforms to rally support.
Meanwhile, online conservative commentators continue to argue YouTube, Facebook, and Twitter are actively suppressing conservative voices on their platforms. Their viewpoints, conservatives argue, do not align with the progressive ideologies of the social media companies and news organizations, so these companies are intentionally suppressing their organic search traffic in an attempt to silence dissenting voices. Prominent conservative comedian and political commentator Steven Crowder has, on multiple occasions, presented evidence to support this claim and is supposedly on the brink of a lawsuit against YouTube.
In our modern politics, the curation of information is more powerful than ever. Whichever politician controls the social and news media holds a substantial advantage over their opponents. This becomes increasingly evident as pundits and experts dissect what happened in the 2016 election. Donald Trump owned the media 24/7, and thus was the single character piercing through the crowd of other Republican candidates. For a political candidate, trending on YouTube or Twitter might be more valuable than going on CNN to discuss your policy proposals. Russia saw the value in this influence, and in 2016 attempted to mold public opinion through social media.
If these accusations are true — meaning that the social media companies are intentionally suppressing non-mainstream, non-progressive viewpoints — shouldn’t we all be extremely concerned? Is this not election interference akin to that of Russia in 2016? Google, Twitter, and Facebook arguably wield far more power and influence than CNN, Fox News, or even the New York Times. Are we okay with unelected, wildly powerful platforms exerting their political influence based on what they believe? Maybe you’re minimally concerned or fine with this now, but imagine if your political beliefs were subject to suppression.
The question I keep coming back to revolves around the potential remedy. If these accusations are true — and perhaps they’re not and there’s no issue here — but if true then we are living in a world where our political discourse is being actively filtered and influenced. Non-mainstream candidates now struggle to rise to national prominence not because of their lack of name recognition, or lack of funding, or lack of different ideas, but because Google executives do not agree with their stance on a particular issue.
Does the public have a right to fairly curated media content? If so, is there something we can do to enforce that right? I don’t think anyone argues media companies must, legally speaking, be balanced in their news reporting or opinions. But can they use their power to purposefully elevate certain viewpoints over others?
The legalities of these questions are complex and unclear. For starters, do First Amendment protections apply to media content creators? On one hand, the platforms are private companies and not state actors, so there’s is no state action, which is required for First Amendment protections. But this issue isn’t crystal clear. In Davidson v. Randall, the Fourth Circuit Court of Appeals held that a Virginia county official violated the First Amendment when she blocked constituents’ access to the official’s Facebook page. The court determined that the Facebook page was a “public forum,” and therefore the First Amendment protection applied.
Additionally, the Second Circuit in Knight First Amend. Inst. at Colum. Univ. v. Trump found that President Trump engaged in viewpoint discrimination when he selectively blocked disagreeable users on Twitter. The First Amendment, the court held, does not allow public officials — in their official capacity — to block opposing viewpoints. The Verge quoted Cornell Law Professor James Grimmelmann who stated,
“Of course Trump can say whatever he wants” on Twitter. And he can choose to boost specific posts by retweeting them. But he can’t make it harder for certain people to participate in the conversation around those tweets, which is exactly what blocking somebody on Twitter does.
However, the Sixth Circuit in Morgan v. Bevin allowed the Kentucky Governor to block users on Facebook and Twitter, finding that the blocks do not implicate the First Amendment. Similarly, some have distinguished the above cases from the contended issue at hand here by pointing out the rulings focus heavily on the blockings coming from public officials exclusively in their public capacity, not private actors. So a non-political, public person (like a celebrity) certainly isn’t violating the First Amendment when they block “the haters” on Twitter.
For the issue of social media companies suppressing non-mainstream political viewpoints, in my opinion that action would unequivocally be viewpoint discrimination, though there would be several issues in such a case. One problem would be proving social media companies are intentionally discriminating against certain speech and politicians they disagree with. Without testimony from social media decision-makers admitting to this, developing adequate proof would be difficult. But if proof could be established, the question becomes whether their actions could be equated to public officials acting in their public, political capacity.
Google, Facebook, and Twitter are obviously not publicly elected officials, but they still control political voices and narratives. Could alleged suppression actions violate the First Amendment if their actions were so entangled with the political process? Say, for example, Fox News hosted a presidential debate between President Trump and the future democratic nominee, and every time the democratic nominee went to speak they were intentionally muted by the broadcast. Would this violate the democratic nominee’s right to free speech? This action might be a limited public forum that is so entangled with the political process, so should the courts find Fox News violated the First Amendment?
Look, I’m certainly no expert here. First Amendment jurisprudence is incredibly vast and difficult to fully grasp. This article makes a lot of assumptions about the conduct being alleged by Google, Twitter, and Facebook, so this concern could be over nothing. But the allegations and subsequent litigation raise interesting questions about social media and free speech in our political discourse. I’m not sure what the right answer is here, but I’m also not sure what the right answer should be here. Should we allow government regulation and control of these social media companies? Or maybe we should leave it alone, and eventually have a Google for conservatives and a Google for democrats. Neither one seems particularly appealing.
Overall this issue is an unmitigated disaster that’s currently brimming underneath the surface. Don’t be surprised if this becomes a major talking point of the 2020 Election. Truthfully, a lot of this could be avoided if news organizations maintained a sufficient level of public trust. In 2016 the public trust in media reached all-time, historic lows, and in 2019 that trust appears sharply divided by party lines.
Efforts to re-establish this trust should be substantially encouraged. But unless the news and social media companies self-initiate actions to fairly distribute different voices and re-build public trust, we could be moving headfirst into unknown legal territory that will set the stage for future political discourse in a false marketplace of ideas.
