Freedom of speech is not a right to be heard. Instead, it is a right to express oneself without restraint from government. Likewise, editorial discretion is distinct from censorship; the former is a private choice made millions of times every day, while the latter is a government-imposed limit on speech. Censorship is worrisome because governments can coerce individuals or organizations in ways that, say, Facebook cannot. Governments can, and do, arrest people for spreading certain ideas.
Recent debate has muddied this distinction. Texas Gov. Greg Abbott argues that social media platforms should not be afforded First Amendment protections because these companies are common-carriers, effectively controlling the channels for public discourse. News outlets are protected by the First Amendment, he says, but are different because they are publishers liable for the content they run — unlike online social media that are exempt from user content liabilities under Section 230 of the federal Communications Decency Act. So platforms should not be able to take down or restrict content if they are to keep their liability exemptions; otherwise, they should be treated as liable just like any other publisher.
But this analogy is flawed. Newspapers are not liable for content they decide not to publish, as the governor wants to make us believe. Also, even though the law shields the platforms from liability, it does not prevent users that post the content from being held accountable. Finally, government intervention is no less harmful when enforcing “neutrality.”
Neutrality regulations can downgrade user experience by curtailing platforms’ abilities to filter out offensive or uninteresting things. And some users might still object to the presence of certain content, even if they do not see it. More importantly, once such a policy exists, more regulation usually creeps in. Germany’s tough hate speech law has largely failed to stem “toxic” content, even after an amendment to force social media platforms to report illegal content to authorities. And now there are more calls to close “loopholes” for other online services and further toughen provisions.
Social media content policies, although imperfect, are checked by competition; government mandates are not. If a given platform’s guidelines displease consumers, they can opt-out and migrate elsewhere. This is already happening for platforms that target disgruntled conservatives, such as Gab, Parler and Gettr. Besides, markets allow for different content guidelines to coexist, such that consumers can choose platforms whose content policies suit them best. Government rules instead suppress experimentation and competition.
Conservatives might learn this the hard way. If Democrats start crafting bills to regulate hate speech or misinformation, this might initially put conservative-inclined social media platforms in jeopardy. And this might generate bipartisan support to repeal the oft-criticized Section 230, which shields social media companies from liability for user-generated content.
The repeal of Section 230 would then unleash a flurry of lawsuits against platforms that harbor content deemed offensive or misleading, which could be weaponized against right-wing discourse. Politicians may also seize the end of liability protection to foist more direct responsibilities onto social media corporations, such as requiring them to take down false or misleading content. In sum, Republican legislative efforts could backfire and hinder the emergence of conservative alternatives to social media platforms.
Lawmakers, in Texas or elsewhere, should also consider that new policies and liabilities add to monitoring and legal costs of running social media services, discouraging new entrants and further entrenching incumbents such as Facebook and Twitter.
Government meddling with social media content policies set troublesome precedents for politicians wanting to foist their — and their constituents’ —views onto private companies. This political interference is likely to worsen media service for users, lower the quality of information, and render social media less responsive to users. The way to preserve free speech is to leave media companies free to set content policies themselves.