Internet freedom is an extension of our personal freedom. Today, a social media post is the equivalent of standing on a street corner and giving a speech. Social media platforms, as it stands, free and easy to use, are greater distributors of messages to people than using a traditional public forum like a street corner with a megaphone.
Under Section 230 of the Communications Decency Act (47 U.S.C. § 230) “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This differs from European Union law where platforms like YouTube and Facebook are liable for the copyrighted or trademarked content that users post and display. For example, think about someone posting a copyrighted song or clip from a movie, etc. In Europe, the user and the platform are liable.
The law in United States of America has made it possible for platforms to grow at an exponential rate and to avoid costly litigation from users sharing information, ideas, whether or not those ideas and shares are copyrighted or trademarked ones. However, the Digital Millennium Copyright Act (DMCA), the Lanham Act, and other state and federal infringement laws allow for intellectual property rights holders to seek the removal of infringing content and to file suit against the infringing party. Under internet law principles, platforms are not completely immune from liability, however, because if the platform fails to remove the information after having notice of infringement the platform can be liable.
In that vein, the social media strategy for growth has been two-fold. First, encourage the free marketplace of sharing ideas, pictures, and information in exchange for access to information and connection (e.g., now protected by privacy laws) to help those same social media platforms monetize advertising space to outside businesses through the power of community and algorithms. Secondly, the platforms, enjoying immunity from initial user posting liability from infringing content, which saves on the cost of litigation, allows for faster growth. Or, as the web campaign has stated, internet freedom.
However, what occurs when those same social media platforms begin to limit speech and regulate when and where the marketplace of ideas has value or by placing disclaimers, censors, and blocking on certain speech? In many ways, social media companies and platforms like YouTube and Google as a search engine have utilized the limited immunity provision of Section 230 to also limit access to ideas and speech. Where these platforms have no liability for initial posting, they similarly share in no liability for regulating those same posts by users. The platforms are using Section 230 in the negative sense of the word—if a user posts, the platform enjoys immunity from the user post, but the platform also enjoys freedom from liability if the platforms regulates the users post.
Twitter’s use of disclaimers and blocking, Facebook’s use of in post pop-ups below the post, and Instagram’s use of similar tools is censorship of speech. The issue for speakers (e.g., posters) is that you need a public forum and a state actor to file suit for violating the First Amendment to the United States Constitution (e.g., free speech). Under the law, social media and platforms like YouTube and search engines like Google are not considered public forums and as private companies they are not state or government actors. If platforms were considered public forums and the company owners as state actors, the law is established: “When the government restricts speech in a traditional public forum, strict scrutiny dictates that restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.”
For the future, should social media be allowed to continue to influence or better yet control the sharing of information according to company developed standards? As a private company they have the legal ability to do so. One solution is a change in company and industry strategy, which would be to have social media become subscription-based for a fee (e.g., user pays “x” dollars to see A-list actor’s or MVP athlete’s content), which could be monetized by the entertainment, media, and sports account holders. It could be a choice, like entertainment content streaming platforms (e.g., Amazon, Hulu, etc.), where you have ad-based free content and paid advertisement-free content. The industry could also offer premium content that encourages and looks for exclusive access to celebrities or other content. One thing is for sure, under the aforementioned model, people might be a lot less upset at social media posts because they would conceivably see less (e.g., assuming the model that where users will not purchase every streaming platform to see every show so similarly not every social media user would purchase access to every person and celebrity).
Regardless of the current laws and regulations that allow social media to maintain its market strength, the on-going question of our time is whether social media and big tech companies like Google should be free to control information. Make no mistake, the current investigation and lawsuit for antitrust activity by the United States Department of Justice against Google (Alphabet Inc.) is about the industry controlling information and access to information that the American people have the right to consume and enjoy in the marketplace of ideas.
The American people vote for the Representative Branch in our Republic to write and pass laws. Our Judicial Branch interprets those laws when disputes arise. The Executive Branch enforces those same laws. When little to no laws exist as to social media self-regulation, the companies are free to police themselves.
To date, the first part of social media and platform strategy has been challenged by privacy laws being passed across the Country, especially in California with Proposition 24 and the California Consumer Privacy Act (CCPA). As to part two of the strategy, immunity, will the safety self-regulation practiced by social media platforms, search engine companies, applications, and websites be the next to reach the desks and halls of Congress in the form protecting the marketplace of ideas for consumers? The Washington Post’s newspaper slogan reads “Democracy Dies in Darkness”; is the suppression of ideas and addition of safe spaces the definition of darkness? Unfortunately, for social media platforms, the current path is one of least resistance, regulate before questioning, debate, and exchange. Remember, the best ideas are debated and questions encouraged in a representative republic. Time will tell.