The lawsuits filed by former President Donald Trump and his allies against Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey and Google CEO Sundar Pichai (link broken) have been widely reviled as a legally-flimsy political ploy aimed at fundraising and motivating his base in advance of the coming Congressional elections. They are that and will almost certainly be dismissed by the courts as legally defective. But they also raise fundamental questions about the role of social media in today’s information ecosystem that deserve a full airing.
The key argument in the cases is that Section 230 of the Communications Decency Act is an unconstitutional delegation of authority to social media platforms. Section 230 was deliberately enacted by Congress, the cases argue, to induce, encourage and promote social media companies to remove objectionable but constitutionally protected speech from their systems. But, the argument continues, Congress cannot do this itself and could not delegate it to a government agency. Government has a role in regulating illegal speech, but not legal speech no matter how objectionable it is. So, Section 230 amounts to an unconstitutional delegation of authority to private parties.
This argument is legally flawed. It misunderstands what Section 230 does. Social media platforms already have the right to publish or not to publish legal material. They have it by default unless a specific law affirmatively modifies this right. But no law requires social media companies to carry anyone’s speech. There is no right of access, no “must carry” rule for social media as there is for cable company carriage of broadcast stations. So, Section 230 does not transform social media companies into government actors in virtue of granting them a legal right to control the content on their systems.
It might be a good idea to give citizens an access right, or alternatively said, to treat social media companies as common carriers. But they do not have this status under current law. Even Justice Clarence Thomas did not find a common carrier requirement in current law in his opinion from several months ago. He argued only that if Congress sent him a law treating social media companies as common carriers, compelled to carry all legal speech, he would be inclined to find it constitutional. As a result, the lawsuits are ripe for a motion to dismiss.
Interestingly, the House Judiciary Republicans seem to recognize this. They released their agenda to rein in Big Tech on the same day that Trump and his allies filed their lawsuits. Part of their plan calls for a similar right of access to social media, but it does so through a reform of Section 230 rather than through an interpretation of the law as it currently exists.
Common carriage for social media is a bad idea, however. It would mean treating social media as if they were telephone companies, obligated to pick up and deliver all legal messages from their subscribers. This mandate to carry all legal messages would render social media companies unable to address the legal but harmful hate speech, terrorist material and disinformation rampant on their systems.
A better approach would be to build upon the broadcast model of regulation that remains in force to some degree today. Congress and the Federal Communications Commission required broadcasters to air public interest programming responsive to the needs of their local communities, including news programs; they had to carry ads for political candidates at the lowest rates and without censorship; they had to air children’s educational programming. Until it was repealed in the 1980s, broadcasters had an obligation for fairness, to air competing views of controversial issues of public importance. On the negative side, broadcasters faced more stringent rules for content such as indecent programming that might be legal in some media but not on broadcast outlets.
Broadcast regulation is halfway between the full editorial freedom enjoyed by newspapers and magazines and the much-diminished freedom of common carriers like telephone companies. As a model for social media regulation, it would require the platforms to transmit certain content and refrain from transmitting other content. Outside of these areas, however, the companies would have full editorial freedom to carry or not to carry the material of its users.
A major challenge facing policymakers is how to adapt this approach of public interest responsibilities to the case of social media companies to ensure that it provides for needed content moderation without diminishing the discussion of a wide variety of political perspectives. The real value of the cases brought by former President Trump and his allies is that they might very well prompt a further debate and discussion of this public interest approach among policymakers.
Mark MacCarthy is a senior fellow for the Institute for Technology Law and Policy at Georgetown University and a nonresident senior fellow at the Brookings Institution’s Center for Technology Innovation. He is the former vice president for public policy at the Software and Information Industry Association in Washington. Follow him on Twitter: @Mark_MacCarthy