Facebook and other social media platforms want it both ways when it comes to the First Amendment.
They want to claim their free speech rights are being violated when state governments try to curb Big Tech’s power to regulate content. These platforms want the protections similar to what’s awarded newspapers to decide what gets published, free of government interference.
But unlike newspapers, Big Tech doesn’t want to be held legally responsible for what gets posted to its sites. The platforms say they’re like telephone companies, who only provide the means for people to express their views.
Which is it? Are they a utility, or are they a content provider? And if they are both, who gets to decide what they are at any one time?
That is the confusing and contradictory landscape into which the U.S. Supreme Court is entering with the case challenging Florida and Texas laws that try to limit how much censorship social media platforms can perform.
Both of those states, controlled by Republicans, believe that most social media platforms have a liberal bias and try to silence conservative viewpoints and ideas. They objected particularly to the decisions by Facebook and Twitter, now known as X, to shut down Donald Trump’s accounts over his inflammatory posts related to the Jan. 6, 2021, attempted insurrection at the U.S. Capitol.
Those states’ objections only hold water, though, if these platforms are solely utilities, not media companies. Their business models, however, suggest they are more of the latter than the former.
Unlike a telephone company, which makes the same amount of money for providing a service regardless of the message communicated, social media companies profit based on the substance of the content posted to their platforms. The more provocative or sensational the content is, the more eyeballs it attracts. The more eyeballs it attracts, the wider the platforms’ algorithms distribute it, all the while cashing in from selling advertising to those eyeballs.
These platforms are not content-neutral. They may not have a political bias, as the governors of Florida and Texas contend, but they definitely have an economic bias. Whatever content holds the most advertising potential is the content that gets the widest distribution, within limits of decency that are often inconsistently applied.
Congress could clear up the confusion — and level the playing field between social and traditional media — by removing Section 230 of the Communications Decency Act of 1996. That law has provided a shield to internet platforms that allows them to profit off the content of others but not be responsible for it.
Without Section 230, Facebook, TikTok, X and the like would have the freedom to decide what gets posted, but also the legal duty to ensure that what gets posted is not defamatory. They would be free to censor as they wish, but they also would be held responsible when they fail to exercise that authority over false information that causes real harm.
That would be fair to everyone, while cleaning up the cesspool into which social media can at times devolve. Why, after nearly 30 years of well-documented damage done by Section 230, is that not a good idea?
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Tim Kalich is editor and publisher of The Greenwood Commonwealth.
