The Conservative Conundrum: Regulating Social Media

Charles J. Glasser, Jr., Esq. Professor, Media Ethics and Law, NYU
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Almost everybody I talk to — be they on the Left, Right or in between — agrees that something is terribly wrong with social media.

My liberal friends are convinced that Russian trolls helped deliver the 2016 election to Donald Trump. My conservative friends have pointed to fairly strong evidence that Facebook and Twitter have codified a systematic bias against conservative or libertarian speech, and, as reported by left-leaning Vice Magazine, Twitter has regularly engaged in selective removal and “shadow banning” conservative voices. (They now claim to have fixed the “unintentional” bug. You can be the judge of whether it was a bug or a feature.)

Usually, one can predict proposed solutions by looking at the political identity of the person making the proposal. You would think that the progressive left is all in favor of a government solution. (I never saw a regulation that a Democrat didn’t like.)

At the same time, the hallmark of conservatives and libertarians has been since the time of Wendell Willkie an inclination against increased government interference with the lives of Americans, and an abhorrence of creating new bureaucracies and expanding the scope of government.

I’m particularly reminded of Ronald Reagan’s oft-repeated quote: “Government is not the solution to our problem, government is the problem.”

Although hard to pin down as a fact, Gerald Ford reportedly said that “a government big enough to give you everything you want is big enough to take it all away.”

Left is Right is Left

Political affiliation is no longer the barometer of where someone might stand on the issue of regulating social media. For example, an August 2017 editorial in The Washington Post argues that Facebook is not a public forum subject to First Amendment regulation.

This argument is mostly predicated on the fact that Facebook is a private company managed by Terms and Conditions of its own making:  “No public forum — traditional or designated — could ban, for example, ‘hate speech’ — speech by people under the age of 13, speech by a convicted sex offender or speech that is ‘misleading, malicious, or discriminatory,'” as Facebook does.

Facebook even reserves the right to “remove certain kinds of sensitive content or limit the audience that sees it,” and provides users the unqualified ability to “avoid distasteful or offensive content” by unfriending, blocking and even reporting other users.

This sentiment has been echoed by Harvard Law School’s Noah Feldman, who told Wired Magazine that “there’s no right to free speech on Twitter … The only rule is that Twitter Inc. gets to decide who speaks and listens—which is its right under the First Amendment. If Twitter wants to block Trump, it can. If Trump wants to block followers, he can.”

On the other hand, prominent conservative and libertarian voices have expressed the notion that perhaps the time has come to institute some regulatory framework on social media.

Without explicitly endorsing the idea, Glenn Harlan Reynolds, a University of Tennessee law professor and frequent opinion writer for USA Today and the influential Instapundit blog, raised cogent questions in a March 2018 editorial titled “Silicon Valley has gone from liberating to creepy. Next stop, government regulation.” The editorial largely hinges on the conflicting definition of a public forum subject to regulation.

Reynolds (and others) have argued that in reality the overwhelming market share and pervasiveness of Twitter, Facebook and Google militate for seeing these monopolies as de facto public forums. Nodding to traditional libertarian and conservative “free market” solutions, Reynolds still raises the factual sticking point that leaves Reagan Republicanism as inapplicable:

“You’d like to believe that the market will discipline this behavior, but Facebook doesn’t have any direct competitors. (And so far, there hasn’t been much antitrust scrutiny directed at Silicon Valley, though that might change as what University of Tennessee law professor Maurice Stucke calls “data-opolies” come under increasing scrutiny.) And Facebook is just one of several tech companies, among them Google, Netflix and Amazon, that have deep stacks of personal data and near-monopolies in their sectors.”

The De Facto Public Forum

The scant American case law regarding whether social media platforms are in fact public forums subject to government regulation is frankly, all over the place.

In 2017, the Supreme Court reviewed the case of Packingham v. North Carolina, where North Carolina made it a felony for registered sex offenders to access social networking websites. The law failed constitutional scrutiny because it was overbroad and restricted more speech than necessary to achieve a compelling public interest.

Nonetheless, in dicta the court compared social media networks favorably to traditionally public spaces: “With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square like parks and streets.”

Another case that same year raised the question of whether social media platforms are a “public forum” but in an entirely different context. The U.S. District Court for the Eastern District of Virginia handed down a decision stating that public officials may not “block” their constituents on social media. But the distinction, in that case, did not turn so much on the overwhelming market power of the social media platform, but instead the identity of the person using the platform.

In other words, a government official using a private platform to perform government duties (such as communicating with constituents) converts his or her account to a public forum.

The speaker’s identity and public role was also dispositive in a later case filed by the Knight First Amendment Institute at Columbia University against President Trump. That case resulted in a declaratory judgment holding that:

“The president presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the president as president.”

More Problems on the Horizon

The history of Facebook trying to “fix” problems that got in the way of their allegedly “neutral” approach, particularly to political speech, has been one comedy of errors after another. At one point, Mark Zuckerberg hired a cadre of non-journalist Social Justice Warriors to flag and remove potentially “offensive” material from the platform.

Because progressives are tolerant only of ideas with which they agree, Facebook removed a video clip called, “I Stand for the Flag,” by country artist Wes Cook. The song was a traditional expression of patriotism and that no point criticized, attacked or even mocked anybody. The mere sight of an American flag offended Facebook’s oh-so-correct censors.

Twitter has not fared much better. It blocked tweets from Titanic, a German-based satire magazine who had posted tweets that parodied a far right-wing politician’s tweets which themselves had been banned because of anti-Muslim posts. Question: How many speech nannies does it take to change a lightbulb? Answer: That’s not funny!

Legal and regulatory questions are piling up for tech giants around the world. Twitter’s removal of the Titanic tweets was a knee-jerk and unthinking response to German anti-hate speech laws.

The European Union has had its sights set on Google for quite a while. This year, the company that controls 91.42 percent of search functions in Europe was hit with a record-breaking 4.34 billion euro ($5.04 billion) antitrust fine, topping the 2.4 billion euros it was ordered to pay in another EU case last year. Prior to the antitrust case, Google has been fighting tooth and nail against the implementation of the EU’s “Right to Be Forgotten” rules as implemented by the European Court of Justice.

Those rules allow individuals whose personal information (including identity) accessible through Google to request removal from Google searches. Google removed access to the plaintiff’s identity on the country-specific top-level domain Google.es but has refused to remove the same information from the mothership Google.com.

At the present time another case, this one out of France, has resulted in a local ruling that Google must remove the offending data on a global basis. That case is making its way to the European Court of Justice.

It’s difficult to tell where this will all end. “Fake news” laws are being proposed and passed all over the world. In most of these cases, the redistributing platform (such as Google, Twitter and Facebook) will bear the legal and regulatory costs.

In another opinion piece for USA Today, Professor Reynolds wondered aloud whether these techno-giants are smart enough or even capable of finding common-sense solutions that could work and avoid government stepping in: “Trust, once lost, is hard to regain. America trusts big companies less than it used to. The best way to be trusted: Be trustworthy. Zuckerberg, et al., take note.”

Charles Glasser (@MediaEthicsGuy) is the author of “The International Libel and Privacy Handbook”, teaches media ethics and law at New York University and also lectures globally and writes frequently about media and free speech issues for Instapundit and other outlets.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.