Wednesday, June 3, 2020

Whose Free Speech is Protected?

First Amendment law admittedly is arcane, but occasionally becomes important in the context of how industries ought to be regulated. One thorny issue is whether social media apps actually are platforms or publishers. It matters. The traditional poles of regulation have had unregulated and protected “free speech” rules applied to publishers, while common carriers are regulated. 

The distinction is that a publisher exercises editorial judgment, and picks and chooses what it will say. The common carrier, such as a railroad, electrical or gas utility, merely transports, and does not choose. 

As applied to internet app platforms, the claim has been that the likes of Facebook and Twitter only transport, or allow, content and views to be expressed; they do not “publish” by exercising editorial control. The problem is that they now do so, even if they remain a mix of platform and publisher. 

Hybrid matters have emerged. Radio and television broadcasting, as well as cable TV services, historically were not as unrestricted as newspapers or magazines, in part because they use public rights of way or public airwaves. Also, broadcasters once were covered by a fairness doctrine that restricted complete broadcaster publishing freedom, even if, generally speaking, stations had freedom to program their content. 

In the case of broadcasting, choices also were made about “who” has the right of free speech, the speaker or the listener. Though we might argue it was the speaker whose rights are protected, broadcasting regulation often has shifted that “right” to the listener. That is what the equal time rule or fairness doctrine implies. 

Nor is the matter as simple as originally intended, to protect citizens and speakers from restrictions by government entities. The original notion was that political speech, in particular, was what needed protection. Over time, the range of expressions deemed to be protected political speech has been extended. 

While the First Amendment only protects citizens from government restraint, most would agree that private entities (big platforms) arguably have an equally-chilling impact on citizen free political expression. 

To the extent that Facebook and Twitter claim to be “platforms,” they arguably operate as do common carriers, in the specific sense of “transporting” what others say, not saying themselves. To the extent they exercise actual editorial control, they act as publishers (as do newspapers, magazines, radio stations, web sites). 

To complicate matters, this is not to say Twitter and Facebook, as legal entities, have no “right of political speech” as entities speaking for themselves. They do have such rights. What is confused is speech rights held by the speakers on their platforms, as compared to the “readers or viewers” on their platforms. When Twitter censors speakers, it is because Twitter claims to protect “readers and viewers,” not speakers. 

And that is part of the philosophical underpinning of the “platform or publisher” discussions. There are elements beyond free speech implications, but the choice of “whose political rights to protect” is in play. It is not merely the issue of whether Twitter is a common carrier or a publisher. 

There also is the key matter of whether the right of political free speech is possessed by the speaker or the viewer or listener or reader. Traditional First Amendment rights have been for the speaker in the case of newspapers and magazines, generally in favor of the speaker in the case of radio, TV or cable TV, but with a shift in the direction of protecting the rights of viewers or listeners. 

That same distinction now shapes our understanding of how political free speech is protected when platforms are so dominant.

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