President Trump, who has been leading a critical crusade against the corrosive impact of Fake News on our culture, is convening a White House Social Media Summit to discuss the abusive practices of the field’s giants, including Facebook, Google, and Twitter.
The issues on the table are hardly subtle. The tech giants who own and run the largest social media platforms are elitist progressive ideologs who manipulate in order to control. They’ve designed policies that ban, downgrade, and demonetize popular users whose messages differ from their own agenda.
The questions at hand center around whether those practices are acceptable exercises of private property, infringements upon free speech and the free exchange of ideas, anticompetitive behavior, abuses of regulatory favors — or some combination thereof. Today’s Social Media Summit represents a beginning of a discussion that is long overdue.
When thinking about curtailing abusive practices, it’s important to focus on what the abusers most value: the ability to control and monetize the flow of information.
In the mid-1990s, when the purpose of the newly-developing bodies of Internet law and regulation was to foster a fledgling industry, all the rules were set to ease the growth of information companies. If the companies that benefited most from that environment are now abusing it, the time has come to revisit America’s Internet policy. Specific areas that warrant consideration include (i) liability, (ii) regulation, and (iii) collusion.
In terms of liability, the Communications Decency Act (CDA) of 1996 created a safe harbor to allow the folks operating what were effectively electronic bulletin boards to pull down pornography without assuming editorial or publisher liability. Courts have consistently read this exemption so broadly that no Internet property that allows third-party postings can be held liable for the content of any of those postings. That decision needs to be revisited. It’s one thing to allow a moderator to remove entire categories of improper postings, or to comply with a specific legal obligation, without becoming an “editor.” It’s another to allow them to employ subjective or algorithmic content filters to decide which entries or expressions are acceptable and still claim that the behavior is “not editing.”
When it comes to regulation, social media platforms are treated as the private property of the platform owner, and thus subject only to light regulation.
The Second Circuit’s recent decision affirming that President Trump cannot block users from his Twitter feed begins the erosion of that private ownership. The Court explicitly did not address whether Twitter is bound by the First Amendment when policing its platform. The logic behind its ruling, however, suggests that it should be.
The FCC should now investigate whether or not social media platforms qualify as public forums.
On collusion, social media companies frequently ban the same people and accounts at the same time — not for specific violations occurring on their platforms, but for an accumulated body of work and reputation. This sort of coordinated action could qualify as a conspiracy in restraint of trade — illegal under the Sherman Act. Most state laws on “unfair trade” go further than do the federal antitrust laws in prohibiting “unfair” practices. The federal antitrust authorities and state Attorneys General need to consider these issues.
All of these suggestions are pro-free market and pro-free speech. They arise because the existing legal and regulatory regime was developed under a vastly different technological and industrial reality from the one that prevails today. The time has come to modernize Internet law and regulation.
In particular, a revision to the CDA is little more than a reassignment of liability from the victims of a third-party posting on a platform to the far larger platform providers. Such a reassignment would not prohibit any platform or company from doing anything it does today. It would simply say that those who decide what, and what not, to publish, are liable for the things they choose to publish — just like any other editor.
If America wants to promote both the free exchange of ideas and the competition to spur technological development, it needs open spaces the incumbents would rather keep closed.
The existing regime operates to alleviate the need for such choice. That’s an open invitation for abuse — an invitation our leading social media providers accept readily and often. A regime that corrects for misallocated liabilities and costs will benefit American speech, American competition, and American consumers.
The tech giants, like the mainstream media, will insist that they are the champions of freedom, and that anyone who dares to open their platforms to competition threatens America. Don’t believe it. The freedom they seek is the freedom to manipulate and abuse.
President Trump, who has been calling them out on it for four years, is poised to lead the charge to expose them for what they are — and restore true freedom to the American marketplace of ideas.
Bruce Abramson is the President of Informationism, Inc., Vice President and Director of Policy at the Iron Dome Alliance, and a Senior Fellow at the London Center for Policy Research. Jeff Ballabon is CEO of B2 Strategic, a Senior Fellow at the American Conservative Union's Center for Statesmanship and Diplomacy, and an advisor to Donald J. Trump for President, Inc. To read more of their reports — Click Here Now.
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