It is no secret that one of the most pressing First Amendment issues facing this nation involves the future of social media. The Internet has democratized information, connected the globe, and created networks that wield massive influence on equally massive audiences. However, private companies such as Facebook, Twitter, Reddit, and Google now control vast swaths of mainstream Internet discussion. In the months surrounding the 2020 Presidential election, these companies have been thrust into the spotlight due to the ways they moderate content on their platforms. In some of the highest-profile instances, Twitter censored a New York Post story alleging corrupt behavior by Hunter Biden and Facebook removed thousands of posts deemed “misinformation.”
Content moderation has incensed groups on all sectors of the political spectrum. The Democrats and the Republicans are both (independently) considering legislation that would amend Section 230 of the Communications Decency Act, which currently “protects websites from being liable if one of their users posts something illegal or controversial” (Digitaltrends). Certainly, it is becoming ever more clear that the status quo is untenable; social media companies are under fire no matter what they do, and content policies increasingly toe the line of invidious censorship. However, fully repealing Section 230 without replacement would have far-reaching consequences and likely end social media as we know it.
In this essay, we propose a new policy that would turn social media sites into digital versions of the public square in an effort to protect Americans’ free speech and maintain spaces of robust public discussion.
IS BIG TECH TOO POWERFUL?
A. Social media as the new millennium’s public squares.
Before the Age of the Internet, speech took place one of two ways: publicly or privately. The First Amendment to the United States Constitution was intended to protect public speech from government infringement in order to secure the right to dissent and to protect the liberty of democratic participation. The First Amendment does not cover infringement of speech by private entities, however, and for good reason. Organizations, associations, clubs, companies, and other groups must be free to set restrictions and requirements upon their members. Such liberty enables the free market, political parties, and countless other instruments of a functioning democracy. Fundamentally, private entities engaging in private activities ought to be able to do whatever they want as long as they do not infringe on other entities’ liberty. Thus, when it comes to speech, people are really only protected in public. For a long time, public protection was entirely sufficient — most audiences are found in public. With the dawn of the Internet, however, the entire paradigm has been altered. The primary arena of mass discussion is no longer street corners or meeting houses. It is the Internet, specifically social media networks. Information is no longer shared through word of mouth, flyering, or soapbox speeches. It is Tweeted or posted.
The underlying difference between the modern status quo and the status quo ante is that social media companies, while providing public spaces for discussion, are private. They are not agents of the state. In order to participate in a network, users must agree to Terms of Service with the network operator. Thus, using the dichotomy that existed at the time of the Founders, nearly all speech on the Internet is private speech that can be infringed at will by the companies facilitating it. The public squares are no longer public and are beyond the reach of the First Amendment. Therefore, Americans do not have the right to free speech when they chat friends, share news, or make political posts.
B. Speech as “content” and the rise of moderation.
Social media companies do not treat speech the same way that government does. They have taken it upon themselves to be speech-police, scrubbing the Internet of ideas and information that violate certain polices. In essence, social media considers speech “content.” Tweets, Facebook and Reddit posts, and TikToks are essentially the product being produced by these companies and their users are the workers. Thus, from their point of view, it is their fundamental responsibility to make sure all content produced is moderated to ensure quality and satisfy consumers. This viewpoint leads to censorship. Speech is not content. It is not a product. American citizens are being censored, silenced, and deplatformed, primarily for political speech, and they have no recourse. This situation is untenable. Groups of all political persuasions are threatened by the rise of content moderation. While it may be negative stories about Hunter Biden that are silenced today, there is nothing to stop the moderators from turning the other way. An infringement on one is an infringement on all.
In addition to accusations of censorship, social media networks are facing intense pressure to control misinformation on their platforms. In the wake of multiple digital propaganda campaigns by foreign governments and the widespread promulgation of unfounded conspiracy theories like Pizzagate and QAnon, many Americans view social media as the breeding ground of lies that undermine democracy. Citizens, activists, and politicians have called upon Twitter and Facebook to root out the lies and either ban or fact-check them. In many instances, the companies have complied.
Misinformation is not a good thing. That being said, the best way to fight it is with better information. When people lie, you tell the truth. You don’t force them to stop lying. Americans have a fundamental right to lie and to believe lies. It is the job of a free society to convince those people of the truth. In fact, what undermines democracy is not misinformation, but rather the suppression of ideas.
When it comes to foreign interference in domestic elections, the federal government is tasked with handling it. Washington deals with counterespionage and foreign relations. Currently, the government is handing private companies the responsibility of defending the integrity of our elections and political process. It is not their job. Private Internet companies have neither the means nor the duty to engage in counterespionage, but right now they have no choice.
HOW TO MAKE SOCIAL MEDIA INTO DIGITAL PUBLIC SQUARES
A. The Proposal
We propose that Section 230 of the Communications Decency Act be repealed and replaced with a two-prong system for determining liability for online speech. Two tranches of social media companies would be established, separated by choice of the companies’ governing bodies.
The first tranche would be subject to a new law, “Section A.” Section A retains similar liability shields as Section 230, but they are even more robust. Section A companies would be fully absolved of any liability for any speech hosted on their platform. They would have no obligation to perform any content moderation whatsoever. Instead, the responsibility to police speech would fall to an investigatory body of the federal government. This body would be limited to taking action against speech that is in and of itself illegal. It would be prohibited from conducting peremptory investigations and could only begin acting if online speech is reported by another user. If it decides someone’s speech is in violation of the law, it can seek a court order to remove the offending post. The user could then challenge the body’s action in federal court. Social media companies’ only responsibility would be in executing lawfully-obtained federal orders, much as they already do with subpoenas.
The second tranche would be subject to a new law, “Section B.” Section B cedes all responsibility for content moderation to social media companies, but eliminates their Section 230 liability protections. Networks who choose to operate under Section B would be held fully liable for their users’ speech. They would, in turn, be given full freedom to enforce whatever terms of service they see fit.
Section A companies would be considered, essentially, “Digital Public Squares” when it comes to their content. They would retain all elements of private enterprise except control over their users’ speech. Section B companies would be considered, essentially, full-fledged private companies, outside the reach of government regulation but within reach of the judicial system.
The benefits of this proposal are numerous. First, it gives companies a choice in how to operate. It allows social media networks freedom to no longer engage in the onerous process of censorship, but also gives them the option to continue doing so. American businesses deserve the right to determine their own business practices, and this proposal preserves that right.
Secondly, it allows users a choice in how their speech in treated online. They can choose between moderated, private spaces and unmoderated, public spaces. Concerns over censorship and deplatforming are eliminated for Section A companies; they, operating as Digital Public Squares, would revitalize the lost art of discussion and allow the political process to take place, unimpeded and uninfringed, on the Internet. At the same time concerns over misinformation and hate speech are eliminated for Section B companies (with aggressive terms of service). Those frustrated over the perceived lack of action over misinformation could move to spaces that prioritize that perspective. Ultimately, this proposal offers online solutions for the entire citzenry through the freedom of choice.
Lastly, and most importantly, this proposal is designed to maximize liberty. It protects freedom of speech, freedom of enterprise, and freedom of choice. As the Internet evolves, so must liability laws in a way that allows the market and the Bill of Rights to coexist and thrive.
C. Potential Objections.
The potential objections to this proposal are also numerous. As with any policy in this area, this proposal would destabilize the current social media marketplace. Networks like Facebook, Instagram, and Twitter would likely have difficulties adapting to this proposed model and could suffer revenue loss and an erosion of userbase. However, we believe that industry disruption is a regrettable but necessary component of adjusting the status quo to protect the liberty of the American people and create spaces for genuine discussion online.
There would almost certainly be objections that this proposal offers a false choice. Section B is almost a certainly less financially sound option and essentially forces companies into giving up moderation control to the government. While this is a legitimate concern, we would argue that companies could still succeed under Section B. Section B networks would undoubtedly be very different than Section A networks but so much so that they would cease to be competitors.
Lastly, those with a libertarian way of thinking would probably be leery of giving the government any control over online speech whatsoever. We agree. This proposal does not actually give government any more power than it already has. It merely streamlines existing law enforcement and eliminates the private substitute. We believe that the outlines limitations and the judicial recourse provide ample protection against federal overreach.
Social media is an evolving aspect of American life. It is growing rapidly and has permeated every corner of the country. As it grows and adapts and as the Internet becomes the primary mode of communication for humans across the globe, citizens desperately need robust regulatory protection. The Bill of Rights is more than what is on the page. While the First Amendment may only apply to government, the principle of free speech does not. Open discussion is a fundamentally necessary foundation for any free society, and a fully privatized Internet threatens that foundation. The government must act, and this proposal provides a blueprint to solve the twin problems of censorship and misinformation while retaining companies’ freedom to do business as they see fit. No solution is perfect, but this proposal is a step towards liberty, and any step towards liberty ought to be taken.