Big digital platforms, especially Facebook, Google, YouTube and Twitter, are facing growing scrutiny about monopoly power and censorship. Consider the matter of political censorship, complaints which are growing louder.
Traditionally, the right of free speech, as enshrined in the First Amendment to the U.S. constitution, protects speakers from government censorship, but only government action. There is a long legal history that extended First Amendment protections to new electronic media.
The internet, though, and particularly the rise of social media platforms, seems to raise entirely new questions, such as whether free speech rights can, or ought to, be extended to protect citizens from censorship by private corporations. That is almost entirely new ground, and up to this point, the right of free speech does not exist on any social platform in the United States.
But some believe the traditional right of free speech, protecting citizens from government censorship, should be expanded in an era where “certain powerful private entities—particularly social networking sites such as Facebook, Twitter, and others—can limit, control, and censor speech as much or more than governmental entities,” argues David L. Hudson Jr., Justice Robert H. Jackson Legal Fellow at the Foundation for Individual Rights in Education.
The issue is whether it is possible to enlarge the space within which constitutional protections on free speech are expanded, yet also avoid damage to private property rights of platforms. And that is the issue. It is not clear that regulation can do so, whether the issue is a remedy for business monopoly or the promotion of free speech.
You might think the simplest answer is to simply allow people to speak their minds, with the exceptions of harassment and intimidation, threats of violence or promotion of criminal acts. But therein lies the problem, given the aggressively uncivil behavior one now sees on social media.
What one speaker sees as the free expression of ideas will be seen as aggression and threat from another. Some 30 years ago this was not really a problem. People were simply more polite. But it is hard to mandate polite behavior.
Many solutions seem to require “more regulation of platforms” which tends to mean “less freedom” for platforms, if arguably in pursuit of “more freedom” for speakers. And that raises an old issue: “who” has the right of free speech and its benefits, the speaker or the reader or listener.
The U.S. Bill of Rights, the first 10 amendments to the U.S. Constitution, provided that “Congress shall make no law” prohibiting the free exercise of speech or the press. Note the language, which protects people as speakers and the “press” as a speaker from government restriction.
Later broadcast media regulations sometimes shifted the focus a bit to the rights of listeners or viewers, rather than speakers. Generally speaking, however, the protected right is held by “speakers,” not “audiences.”
Perhaps the seminal case was Red Lion Broadcasting Co. v. FCC (395 U.S. 367, 393 (1969), which allowed some content regulation of broadcasting for reasons of promoting the public interest. The point is that speaker rights were somewhat subordinated to the rights of viewers and listeners (the public interest).
Complicating matters further is the issue of “who” the speaker is, in the context of a social media site or business: the platform or the users of the platform. Up to this point, it is the rights of the platform as “the speaker” which have been upheld, even if a platform supposedly is a neutral matchmaker between users who might, arguably, be considered the actual “speakers.”
The approach prioritizing the rights of audiences (listeners, readers, hearers) is exemplified by Alexander Meiklejohn’s book Free Speech and Its Relation to Self-Government, in which he says “what is essential is not that everyone shall speak, but that everything worth saying shall be said.”
All that assumes a singular public interest could even be identified.
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