For years, conservatives in America have railed against Big Tech companies, including Facebook, Twitter, Google, and YouTube, for using vague speech guidelines on their forums as a weapon to ban (and shadowban) their accounts, delete posts and remove followers, and demonetize accounts. Big Tech employees create algorithms that purposefully engage in these actions on a broad scale.
Politicians from both sides of the aisle are debating whether Big Tech companies should be treated as platforms or as publishers. The law views Big Tech giants as platforms, meaning they must permit nearly all speech to be posted on their sites regardless of content. However, the companies consistently fail to adhere to this condition: In 2019, YouTube demonetized the account of conservative comedian Steven Crowder, Pinterest banned the anti-abortion group LiveAction, and Facebook temporarily banned conservative activist Candace Owens, drawing wrath from conservatives who interpreted these actions as further evidence of Silicon Valley’s suppression of conservative voices. Most recently, Twitter banned James O’Keefe, President of Project Veritas – a conservative investigative team that goes undercover to expose what it sees as liberal bias in the media – for “posting private information.” The information posted by Project Veritas that Twitter claimed was private was in fact public.
The law should be changed so that the companies that decide to restrict speech are legally considered publishers, allowing them to pick and choose their forum’s content and to censor any speech they dislike. Those companies should have special protections that guard them against having their civil liability revoked. However, the special protections should remain for the companies that truly protect free speech of all political persuasions and can prove so in court. It should be up to the courts to decide whether Big Tech companies are acting as platforms or publishers and whether their designation should be changed.
Section 230 of the Communications Decency Act of 1996 protects Big Tech companies from being held liable for most content posted on their platforms. It states that “No interactive computer services shall be treated as the publisher or speaker of any information provided by another information content provider.” Following from this, the law states that “interactive computer services” are almost always protected from lawsuits involving defamation and copyright infringement; effectively, the user who posts content that may be seen as defamation, harassment, obscenity, or another speech crime that is not protected by the First Amendment will be held responsible for their wrongdoing – not the forums where the content is posted. Congress concluded these special protections should be afforded to Big Tech companies because they serve as a “forum for a true diversity of political discourse.” This was a quid pro quo – in exchange for most civil liability protections, Big Tech companies were expected to uphold freedom of speech on their platforms.
Despite these protections, many tech giants have violated their side of the deal: with the help of Section 230 immunities, these companies have grown exponentially and have become omnipotent. Every 60 seconds, 3.8 million questions are entered into the Google Machine – an international hegemon that has 1.7 billion users and a market value of $990 billion. According to a November 2019 Wall Street Journal investigation, Google has been found to manipulate search results, create politically-partisan algorithms, and maintain blacklists to prevent users from accessing certain websites. Facebook, which has a market value of $572 billion, and Twitter, which has a market value of $28 billion, hold considerable economic and political clout in our society, as 68 percent of Americans periodically use social media as a source for news. Therefore, these companies’ distortion of political opinions holds considerable weight. A 2018 study conducted by Robert Epstein, a senior research psychologist at the American Institute for Behavior Research and Technology, shows that with the use of 10 different methods, Big Tech companies, especially Google, have the ability to influence more than 12 million votes in an election. This corroborates the fact that Big Tech companies have become financial powerhouses with considerable influence on the American (and world) population.
Congress is well aware of this issue: The Senate Intelligence Committee held a hearing in September of 2018 with Twitter CEO Jack Dorsey and Facebook COO Sheryl Sandberg in which Republican lawmakers grilled Dorsey on instances of Twitter shadowbanning conservative accounts, which Dorsey denied were politically-driven. Democratic lawmakers asserted that the political censorship claims by their Republican colleagues were dishonest and fueled by partisanship. In July of 2019, Congress held three hearings with executives from tech companies including Facebook and Google. In the first two hearings, held by the House Judiciary Committee, Republicans and Democrats focused on the companies’ market power, cryptocurrency efforts, and their misuse of users’ personal information. In the third hearing, held by the Senate Judiciary Subcommittee on the Constitution, Republican lawmakers criticized the executives and pushed for answers regarding the suppression of conservative content and accounts on their forums while Democrats focused more on the companies’ market power and their misuse of users’ personal information.
Some conservatives argue because Big Tech companies are private, the First Amendment does not apply to them, and therefore they should not be subject to government intervention. As the argument goes, Big Tech companies have carved out their space in the free market and thus should be able to censor speech on their “property” if and when they like. It is true that the First Amendment applies to Congress and other government institutions, while the Big Tech companies under fire are private entities. However, tech corporations must be transparent and specify whether they are a platform or a publisher. If companies want to be able to continue to regulate speech on their forums, they should be stripped of their Section 230 protections and legally declared publishers. Many Big Tech companies claim that they have the rights of publishers when they are facing litigation in court but declare themselves neutral platforms when they are questioned by members of Congress on Capitol Hill. Big Tech companies cannot have it both ways. It is clear that certain companies do not allow for a marketplace of ideas on their forums – they have been intervening, using their vague speech rules to crush speech with which they disagree, and therefore must be seen as publishers unprotected by Section 230 stipulations.
Many on the Left strongly object to permitting all speech on these platforms. They argue that it will allow for what they label as “hate speech” to run rampant on the platforms. It is true that a substantial number of political extremists, on both sides of the aisle, who espouse repugnant views, exist on these platforms. Info Wars owner Alex Jones, a right-wing extremist, and Nation of Islam Leader Louis Farrakhan, a vicious anti-Semite and terrorist supporter, were both banned from Facebook in 2019. The vast majority of Americans would likely consider the speech of those two individuals “hateful.” However, “hate speech” is not only protected under the First Amendment but is also a subjective term that can be applied to any speech which one finds objectionable. It is impossible for these forums to make thorough, politically-neutral guidelines that ban “hate speech.” Banning extremist or hateful speech will only radicalize more people and drive the people who hold those views underground. More speech, not less, is the answer: the better argument will always prevail.
Congress needs to revise Section 230 of the Communications Decency Act to clearly outline the separation between a platform and a publisher. Furthermore, the civil liability protections currently in place should be changed so as to only apply to the companies that allow for all speech protected under the First Amendment on their forums. If they appear to be engaging in viewpoint discrimination, they open themselves up to litigation, and their status may be legally changed to that of “publisher.” Those companies that have proven their case should be labeled “platforms,” while those that have been found guilty in court of suppressing certain political speech should be labeled “publishers.” Leaving these decisions to the courts is the best solution to this problem because unlike federal government bureaucrats, judges are expected to interpret the Constitution and precedent with political neutrality. Once some Big Tech companies are legally treated as publishers, conservative content and accounts will likely be censored to an even further extent. Conservatives can move to the platforms that have proven in court to be politically neutral, in which case conservatives have the power of filing a lawsuit if their views are silenced. Another possibility is that the market will adjust, and a company will respond to an increased demand for a platform that allows for all political speech. A greater variety of platforms will increase competition in a market that is dominated by effective monopolies like Facebook and Google. The existence of more platforms may even assist in decreasing polarization in America, which, according to one study by professors at Duke University, has been a byproduct of social media. Perhaps if users are spread out across more forums rather than concentrated in one, there will be less hostility and tribalism on the platforms.
Photo: Image via Flickr (Sean MacEntee)