Facebook and Twitter suspending former President Donald Trump’s accounts in the wake of a mob storming the Capitol raises yet again the issue of the discretion that federal law affords internet platforms to regulate speech and Big Tech’s monopoly power.
Bigness is not necessarily a problem and can be an asset. Facebook is a leader in artificial intelligence research, Google gave us Android, Amazon pioneered cloud computing, and Apple pioneered the modern smartphone.
Facebook may have a monopoly by providing a substantially differentiated digital bulletin board, but it is a free service, making questionable the economic harm to consumers — the sine qua non of modern antitrust enforcement.
In the advertising market, Google has the largest market share. And it is noteworthy that the Justice Department did not charge Facebook in its suit against Google for manipulating the ad-marketing algorithms.
In this previous column, I argued that the Federal Trade Commission suit against Facebook is wrongheaded. It could be interpreted as an attempt to rein in the company owing to gross data privacy misdeeds going back to the Cambridge Analytica affair and enabling Russian meddling in the 2016 presidential campaign. And for the complaints of Democratic and Republican politicians about editorial abuses at both Twitter and Facebook.
Forcing Facebook to divest Instagram and WhatsApp, as the FTC seeks, won’t solve the data-mining and privacy problems — that would require legislation similar to the European Union General Data Regulation that mandates users be informed, understand and consent to the data collected about them and how it will be used.
Section 230 of the Communications Decency Act provides Twitter, Facebook, and other internet platforms with expansive legal immunity for the statements and other material that users post. It exempts service providers from civil liability for actions “taken in good faith to restrict access to or availability of material the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” And for providing users with tools to restrict access to such materials.
As a candidate President Joe Biden called for revoking those protections and permitting the websites to be sued. More generally Democrats would like Twitter, Facebook and others to remove what they view as false information, whereas Republicans believe the two platforms exhibit an anticonservative bias.
All sides appear to miss even bigger problems.
Justice Clarence Thomas argues that lower courts apply Section 230 too expansively. Internet platforms have been found exempt from liability even when they know the content or activity it enables is illegal — for example, child pornography, human trafficking, and terrorism.
With millions of daily posts, it is impossible for Twitter and Facebook to catch everything, but they could be compelled — or be held criminally or civilly libel—to remove material they know is illegal or facilitates crimes. And for failing to pre-emptively screen material that could incite civil unrest until the full context of an incident is determined and accurately portrayed.
As for political and other speech, Twitter and other platforms have been accused of anticonservative bias in the content they exclude and promote. This is broadly protected, because the First Amendment applies to restrictions that may be applied by government entities, not private actors. And the courts do not treat internet platforms as public squares where viewpoint discrimination is impermissible.
Absolute neutrality is impossible but the ruminations of politicians — as long as their posts are not illegal and do not incite illegal assembly, destruction of property, or violence — should be left to the intelligence of voters. After all, what is true and not true is often in the eyes of the beholder.
They may be technology wizards, but Jack Dorsey and other internet magnates should not be exercising broad censorship powers.
European officials were shocked by the recent Facebook and Twitter bans on Trump and suggested such decisions should be left to elected officials to arbitrate.
Importantly, Twitter, Facebook and other social media have become so pervasive that they have become the public square—and legally should be treated as such. Neutral arbitration panels — with equal representation chosen by Republican and Democratic leaders — should oversee editorial decisions to ensure some measure of objectivity.
It’s not perfect but if you want perfection you will have to wait for the hereafter — St. Peter won’t be facing a primary challenge anytime soon.
Peter Morici is an economist and business professor at the University of Maryland, and a national columnist. He tweets @pmorici1
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