Few debates are louder or more palpable today than this: “What role should free speech play when it comes to social media platforms?” Even though social media companies are private and aren’t bound by the First Amendment, the argument rages on, highlighting the tension between tenets of free speech for all and the privacy and transparency measures that protect the public — especially children — from harm.
Mark Zuckerberg, CEO of Meta, owner of Facebook and Instagram, uses “free expression” as a cudgel against transparency or any form of government regulation. He has insisted that Meta, as a fierce advocate of free speech, can handle all privacy issues internally.
Self-proclaimed “free speech absolutist” Elon Musk, CEO of Twitter, apparently considers free speech a license to allow misinformation and conspiracy theories to proliferate unabated. Upon taking the helm of Twitter last fall, Musk granted amnesty to thousands of suspended accounts and decimated the content moderation team, allowing bots, trolls and hate speech to run amok — sometimes drowning out the voices of everyday users of the platform.
Whatever viewpoint “free speech” is filtered through, when distilled to its essence, seems to be: “Free speech is the right to say whatever social media owners or their monied influencers want you to say” — or worse, want you to hear.
In our radically evolved communications world, where it is possible to instantly communicate with millions of people (children included), this viewpoint can be disastrous, resulting in increased abuse, as well as deliberate efforts to addict our young people to a profit-seeking messaging source. Further, this myopic focus on free speech rights is crowding out other important rights — the right of the audience not to suffer abuse, the right to select who they wish to see and hear, and the right to pursue truth by knowing the bias and expertise of the source.
This free speech-obsessed climate has created a monster in the name of the First Amendment, one that ignores its purpose and now threatens to undermine its crucial benefits. We’ve seen, and will continue to reap, decisions giving carte blanche to the speaker: fraud, politically-inspired lies, and the most dangerous torrent of inaccurate information ever suffered by humankind — and it grows more harmful each day.
Ironically, the most effective counterforce to stimulate truth and real First Amendment values is the disclosure of who is talking. The amendment affords us all the right to access information and ideas, but that right is sorely diminished when we’re accessing information that hasn’t been vetted for accuracy. The right of the audience to choose who to see and hear, and to gauge accuracy, bias and expertise, is now disregarded and even denigrated as antithetical to “free speech.” That is 180 degrees wrong.
We do not have a First Amendment merely to protect the unfettered right to write, show or belch. The audience — listener, watcher, reader, etc. — must also play a role in this basic constitutional right. Former Supreme Court Justice Anthony Kennedy wrote in United States v. Alvarez, “The remedy for speech that is false is speech that is true.” However, in the social media realm, the audience may hear only the false information and be cut off from hearing competing messages by an arbitrary algorithm.
At its core, the First Amendment’s objective is to facilitate knowledge and truth. Maybe the audience knows “who” is delivering the message, but if they don’t know “why” they are delivering it, they can’t deliver necessary counter-speech. When the audience understands the motives, bias and expertise of the person delivering the message, they can decide for themselves whether or not to listen to it.
The audience’s role here is not mere dressage; it is the crux of free speech that allows it to function optimally. Ironically, information about the audience proliferates, delivering messages based on age, party, geography, purchases and hundreds of other features to the mass media creators, advertisers and other influencers. The audience, however, has no access to the most basic information: “Who sent this? Who is speaking here? What is the unstated economic, political or personal interest?”
To date, Congress has done little to promote transparency, aside from hauling tech companies before revelatory but ineffective committee hearings. Bipartisan proposals dealing with antitrust issues and data privacy fizzled out in December. President Biden recently urged lawmakers to pass federal privacy protections that limit the collection of sensitive data and provide more transparency around the algorithms that tech companies use to determine what information users see to ensure they are not pushing unsafe content to kids or discriminating against groups of users.
Is this the world envisioned by Thomas Jefferson and George Washington? Shouldn’t the audience have the right to know who is speaking? It could be a political action committee; a company dividing up the messaging by stolen profile features; a foreign government exerting influence; or a rogue state operating through bots. We need to know who it is, so we can choose to avoid their exploitation of our time and choices.
Some responsible social media entities are now requiring accurate attribution for access. All of them should do it. We should not buy, subscribe or participate in any that does not. We are the consumers, and we must demand a First Amendment system that puts us in charge of who we listen to and how we judge the messages transmitted. We all should have the right to have this question answered: “Who are you?”
Robert C. Fellmeth is the Price Professor of Public Interest Law at the University of San Diego School of Law and executive director of the Centers for Public Interest Law.