This is a new era of communication. A 2018 survey showed that teenagers prefer conversing via social media over talking on the phone at a rate of 3 to 1, making it the third most popular form of communication behind texting and talking face-to-face. Over 69% of American adults have social media accounts, and nearly all who do use it as a source of news. Social media is no longer a game played by a small niche of people; it is a primary form of communication.
However, social media differs from the rest of the above mentioned methods in a particularly crucial way. While the U.S. requires that each citizen have access to at least one of the local phone services so long as he or she can afford to pay for it, and its laws concerning free speech are clear; Twitter and Facebook users are subject to the whims of the companies’ employees who may censor any post or poster they choose.
If someone at Twitter disagrees with journalist Meghan Murphy’s statement that “men aren’t women,” then they can simply delete her account. If someone at Facebook feels that an excerpt from America’s Declaration of Independence constitutes hate speech, then they can delete that as well. Google may claim
Instead of being the hubs of free speech that they should have been, social media companies have chosen to monitor, police, and censor their sites in a way that would be considered unthinkable for any other method of communication. Can you imagine being told that you could no longer make a call because Apple disagreed with your politics?
This is the reality of social media. By selectively censoring and banning people from their sites, they have assumed control over a prominent means of modern communication. They have declared ownership of their customers’ words. And by doing so, they have also assumed the blame for each and every awful word spoken by their users.
Social media: Platforms or publishers?
Thus far in America, social media companies have been shielded against repercussions for content posted on their sites by Section 230 of the Communications Decency Act, which protects “interactive computer service(s)” from being treated as publishers. This decision was based on Congress’s initial findings that “the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
But a lot has changed since 1998. Twitter is now openly banning people based on their political beliefs, something which is arguably prohibited by law in several U.S. states. YouTube and Google are censoring and demonetizing conservative videos. Facebook is being accused not only of allowing “fake news,” but of knowingly creating it. These are no longer the impartial forums once envisioned by Congress.
Some, like Google CEO Sundar Pichai, shrug these things off as glitches in the system, free from human influence. In an interview with the House Judiciary Committee about allegations of political bias in Google’s search results, Pichai blamed the algorithm, saying that “It is not possible for an individual employee or groups of employees to manipulate our search results.” One must wonder who creates and maintains these algorithms if not groups of Google employees.
Other companies are more forthcoming about policing their sites. Apple CEO Tim Cook recently went so far as to say that it would be “a sin” for tech companies not to censor their content, which led to this response from a prominent First Amendment lawyer:
Here is a message for big tech & our government: tech companies that discriminate based on viewpoint, should have no protection under the Communications Decency Act, Sec. 230. They are publishers, not neutral platforms. And they violate civil rights laws, e.g. CA Unruh Act. https://t.co/cdxNUg2j9b— Harmeet K. Dhillon (@pnjaban) December 4, 2018
You don’t blame the paper manufacturer for the words that someone prints on them. You don’t blame the telephone company for an annoying call from a telemarketer. And you don’t blame a platform for the person who chooses to stand on it. If social media companies had played their cards right, they might have been awarded this same privilege.
But a platform does not discriminate against those who might stand on it. The CEOs of Facebook, YouTube, Instagram, etc. have made it clear that they are not platforms, but publishers. The European Union has acted in kind.
The EU social media directives
In 2016, Facebook, Twitter, YouTube (Google), and Microsoft signed a code of conduct with the EU requiring them to remove all instances of “hate speech” within 24 hours of their being reported. The EU was unsatisfied with the results, and so in 2017, they drew up a plan to force them to do this under penalty of law.
Approved in October of this year, the EU directive aims to, among other things, “protect (…) all citizens from incitement to hatred.” Of note is the word “incitement,” which allows for the censoring not only of things deemed to be hate speech, but also of anything that could maybe, possibly lead to hate speech. This one sentence gives EU Member States the power to shut down any number of difficult conversations before they’ve even begun. This in the name of “the right to freedom of expression.”
It has yet to be seen what kind of penalties each Member State will choose to enforce on social media platforms who fail to comply with the rules of the directive, but if Germany’s newly enacted NetzDG is any indication, the penalties will be severe. On January 1st of this year, Germany began enforcing its new law which requires all “obviously illegal” posts – including hate speech, fake news, etc. – to be removed within 24 hours. The law states that a failure to do this will result in a fine of up to 50 million euro.
Interestingly, this punishment is not to be administered to the posters of the illegal material, but only to the hosts. The U.S. may have only begun the “platform vs. publisher” debate, but the EU has long since made up its mind on the matter. Clearly, its laws attribute to them the role of publisher.
Right and wrong
In some ways, laws like the EU’s only exasperate the problem. They not only discourage social media companies from allowing free and open discussion; they require that they do not. Allowing, and in fact forcing them to police their sites reflects the condescending belief that average people must be protected from themselves. And it reinforces the companies’ claim to ownership of their users’ words.
But these companies do not control the thoughts and ideas of the people who post on them. They deserve neither credit nor blame for them. If speech on social media is ever to be as free as it is in every other form of communication, the law will have to reflect this.
Neither Jack Dorsey nor Mark Zuckerberg carry a gavel. Susan Wojcicki does not wear a badge. Not one of these people has the right to determine whether a person’s words are “obviously illegal.” They certainly do not have the right to determine what constitutes an appropriate political stance.
As said by Tim Cook of Apple, (evidently unaware of the irony of his statement), “The most sacred thing that each of us is given is our judgment, our morality, our own innate desire to separate right from wrong.”
Should Apple, Google, Facebook, Twitter, etc. be able to take that “sacred” right of judgment from you? Should they be allowed to separate right and wrong for you?
“Are America’s technology companies serving as instruments of freedom, or instruments of control?” – Majority Leader Rep. Kevin McCarthy (R-CA), House Judiciary Committee, Google Hearing
The future of free speech on social media
The average citizen may talk to dozens of people per day in person, but they can reach thousands via Twitter or Instagram. Never before has the common man had the potential to be heard in this way. Never before has there been such a bridge between the different peoples and classes of the world.
To allow such a significant aspect of modern communication to be monitored and censored by a handful of CEOs is to once again relegate significance to the “elite.” It is to create the kind of ideological echo chamber that free speech laws were specifically designed to prevent. Controversial opinions cannot be relegated to those in power, as great ideas most certainly are not.
Some will speak falsehoods. Some will speak hate. Some will even speak violence. But the dangers of free speech are greatly outweighed by the consequences of censorship. There is no such thing as an “objective” censor; it is too difficult for any person or group to escape their own biases enough to discern between an opinion that is “wrong” and one that is simply “different.”
Social media companies are not the exception to this rule. They are not the arbiters of right and wrong. They are a megaphone, amplifying the voice of the worker who fights for better conditions. They are the convention center in which people may debate their ideas from opposite ends of the globe. They are, or should be, the platform on which the average citizen stands. It’s time for them to start acting the part.