Thursday, April 12, 2018

Is Facebook Media? If So, What Changes?

Is Facebook a media company, even as it remains a technology company? The answer now matters, as regulators may weigh a range of measures to protect privacy and content on the site.

To the extent Facebook operates as a media company, then First Amendment protections of its free speech rights will apply, as they do to every other media entity.

It does not matter that Facebook’s dominant business model is advertising, made possible by its creation of audiences based on content consumption (though other revenue models might well emerge as significant, over time). Other media companies rely on subscriptions.

And even some other companies (such as e-commerce providers such as Amazon, streaming services such as Netflix, or search providers such as Google) also operate, in part, as media outlets.

In some ways, media regulation, though relatively unobtrusive, potentially will be more extensive than has been the case in the past, as “data services” have been completely unregulated, in terms of content.

But much depends on which media model is used. Most free are media covered by newspaper and magazine rules. Internet media likely will tend to fall in this bucket.

More regulated are other electronic forms of communication using public spectrum, such as TV and radio broadcasters. Cable TV firms have tended to fall under the “broadcast” rules, with less freedom than newspapers, but more freedom than common carriers.

What that has tended to mean is that a few areas, such as “obscene content,” programming for children and balance or diversity have sometimes been requirements in broadcast media, obligations newspapers or magazines, for example, are not subject to.

“Obscenity” long has been an issue for regulators, in the context of protecting freedom of speech by individuals and companies and organizations including radio, TV, newspapers, magazines and other media.

We can now add “bullying” and “hate speech ” to that list of troublesome issues, especially in a new media context, where it is not easy to determine who the “speaker” is, and therefore whose rights have to be respected, even when some “time, place or manner” restrictions are conceivable.

Figuring out who the “speaker” is has been an issue in the past, and shows no signs of becoming less troublesome. Speakers can include citizens and individuals, owners of printing presses and TV channels or programming networks, publishers of magazines and now internet media.

Internet media eventually will lead to new elaboration of First Amendment law, as it is not so clear who the “speaker with a free speech right” is on a social network or other platform where third parties create the actual content, not the entity providing the platform.

Traditionally, media outlets (content providers) have exercised editorial control, so it was the outlet that had the free speech right. That likely will eventually be held to be the case for Facebook and others as well. Even when content is “user generated,” Facebook will be found to exercise editorial control, and therefore it will be Facebook that has the free speech rights, not Facebook’s end users.

That will require some new thinking in the area of First Amendment law, as there are not obvious and well-attested prior examples.  The bottom line is that the platform--Facebook and others--are likely to emerge as the entities with free speech rights, not people who use the platforms and create content for the sites.

On the other hand, First Amendment law has been enlarged over time. Where it once was directly political speech “the King or president is an idiot”) that was protected, over time, other cultural and artistic endeavors have been deemed to represent potential political expression, and have been protected as well.

At the same time, with the rise of electronic media, the “rights holders” have changed. Yes, programmers have free speech rights. But in some instances, so do “listeners” or “viewers,” to some extent. Requirements to provide childrens’ programming, local programming or diversity of voices and balance in the broadcast TV and radio area are the best examples.

In other words, “rights” are always, at least potentially, in conflict. And that might apply especially to entities such as Facebook. Is the free speech applicable to the platform (is Facebook the speaker?) or to the individual contributors? And to the extent both have some rights, what are those rights and whose rights are paramount in which instances?

And though it seems esoteric, even ascertaining what “speech” is, has been troublesome.

You might find it odd that there has been any serious debate on the nature of speech. Originally, “speech” meant “political speech,” and the concern was to protect ideas and their expression as they related directly to politics and government.

Over time, jurists concluded that, at least sometimes, art, culture, music and other expressions in a variety of media also can have political implications and content, and so deserve freedom of expression. Also, over time, the right of expression became a more-established right of organizations (political or not) as well.

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