The Personal Website of Mark W. Dawson
Social Media and Free Speech
Over twenty-five years ago (February 1996), Congress passed, and President Clinton signed into law what became, ‘47 U.S. Code § 230 - Protection for private blocking and screening of offensive material’ a.k.a. Section 230. This law gave the newly fledgling Internet’s "Social Media" special legal protections to protect its growth. The Wikipedia article “Section 230” has more information on this topic, but the actual law is very readable. In the Findings section of Section 230, this Code states:
The Congress finds the following:
- The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
- These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
- The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
- The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
- Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
Currently, the Internet is a mature technology that calls into question the need for Section 230. This calling into question the need for Section 230 is being driven by the current Social Media’s decisions and actions of excluding, censoring, or tagging of content based on the Social Media’s determination of its truthfulness, misinforming, or misleading, or otherwise objectional content. This is based on Section 230 provision:
“No provider … of an interactive
computer service shall be held liable on account of … any action
voluntarily taken in good faith to restrict access to or
availability of material that the provider … considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is
constitutionally protected ….”
And these Social Media’s decisions and actions are based solely on their discretion, with little recourse for the users so impacted. There is an alarming trend of Social Media engaging in these decisions and actions against political thought with which they disagree. Conservatives, Trump Supporters, critics of "Progressives/Leftists" and Democrat Party politicians, some Republican politicians, many conservative political commentators and organizations, and even some newspapers have encountered these decisions and actions of Social Media. However, the political opinions with which they agree very rarely face these decisions and actions, and other ‘objectionable’ material that fits into Section 230’s provision for exclusion goes unnoticed or is ignored.
With Social Media making these decisions and instituting these actions, it begs the question, to paraphrase Thomas Sowell:
“The most basic question is not what is the truth, but who shall decide what is the truth.”
All of these Social Media decisions and actions raise the questions of Free Speech and robust democratic discourse in the Internet era. There is also the question of how Social Media decisions and actions have, or will have, on elections. A recent lawsuit by President Trump on his banning on Facebook and Twitter has raised some interesting questions about Section 230. In addition, comments made by President Biden’s Press Secretary, Jen Psaki, have raised concerns about interactions between government and social media. A series of articles by noted Constitutional scholar and lawyer Rob Natelson examines this lawsuit from a legal and constitutional perspective. These articles are “Trump v. Twitter, Part 1: How Social Media Censorship Abuses Federal Law” and “Trump v. Twitter, Part 2: Can a Private Company Violate the First Amendment?” and “Twitter v. Trump, Part 3: Trump’s Best ‘Free Speech’ Claim against Twitter”.
With the above in mind, this article examines Social Media decisions and actions within the context of Free Speech and democratic discourse in the Internet era.
When Social Media exclaims that they have algorithms that determine if something is untruthful or misinformation or constitutes hate speech, their computers are making a decision based on what a human or humans have determined what constitutes untruthfulness or misinformation or hate speech. And humans make mistakes, or are biased, or have a belief or attitude that influences how the algorithm performs its function. Algorithms are not mysteriously created; they are developed by humans. The basic structure of an algorithm is:
TRUE Then Do Some Action
FALSE Then Do Some Action
There are many different ways and means that can be utilized to create the algorithm, some of which a complex in creating the CONDITION, but at its core, the algorithm is as simple as stated above. The introduction of Artificial Intelligence techniques in the construction of the CONDITION has greatly enhanced the creation of complex CONDITIONs. The devil is in the details of the CONDITION, for the CONDITION is what determines the actions to be taken. If your CONDITION is improperly formulated, both structurally (Boolean Logic) or are incoherent (inconsistent with the intended purpose), then the Actions will be improper.
An example would be Climate Change. There are believers in Climate Change, Skeptics of Climate Change, or Disbelievers in Climate Change. If you construct your CONDITION so that Believers of Climate Change meet the TRUE criteria and the Skeptics or Disbelievers in Climate Change meet the FALSE condition, then the algorithm will do as instructed for the TRUE Action (believers) or FALSE Action (skeptics or disbelievers). If Social Media should tag or censor the FALSE condition, then the skeptics or disbelievers would be discriminated against their position, no matter how intellectually reasoned their arguments might be, and the believers would be the only permissible posts.
The ways and means in creating the algorithm are often considered proprietary to the developer and are just as often treated as a trade secret. It is, therefore, impossible for an outsider to determine the coherence or incoherence of the CONDITION. Without seeing the algorithm, it is also not possible to determine if the Boolean Logic is properly formulated, as an improper format would result in improper Actions.
This begs the question of should Social Media be required to reveal their algorithms to the public? For if someone is to be discriminated against or tagged as untruthful or misinformation, or their post constitutes hate speech, they should know the basis for the allegation to determine if legal recourses for libel are appropriate. The larger question is, can or should, Social Media be Allowed to Discriminate?
Free Speech is a protected right under the First Constitutional Amendment, but this amendment only deals with governmental actions on Free Speech. Is the Constitutional Right of Free Speech applicable to Social Media? Social Media are private entities that have control of their content. They are only restricted to non-discrimination based on race, religion, creed, sex, sexual orientation, national origin, ancestry, age, veteran status, disability, military service, political affiliation, or other protected status by our Civil Rights laws.
A recent lawsuit by President Trump on his banning on Facebook and Twitter has raised some interesting questions about Free Speech in the Internet era. In addition, comments made by President Biden’s Press Secretary, Jen Psaki, have raised concerns about interactions between government and social media. A series of articles by noted Constitutional scholar and lawyer Rob Natelson examines this lawsuit from a legal and constitutional perspective. These articles are “Trump v. Twitter, Part 1: How Social Media Censorship Abuses Federal Law” and “Trump v. Twitter, Part 2: Can a Private Company Violate the First Amendment?” and “Twitter v. Trump, Part 3: Trump’s Best ‘Free Speech’ Claim against Twitter”.
The larger question that this lawsuit raises is what constitutes Free Speech in the Internet era, and what are the duties and responsibilities of a private business in allowing Free Speech? What good is Free Speech if someone or some entity can restrict somebody from reading or listening to your Free Speech (somewhat like the question "If a tree falls in a forest and no one is around to hear it, does it make a sound")? As the Social Media services utilize the free and publicly available Internet as their means of communication, should the Internet be considered as a common carrier (A person or firm in the business of transporting people or goods or messages)? What restrictions on content are constitutional, and how are they are to be applied? Is a company a publisher or a provider, and be treated differently depending upon the answer? What constitutes slander and libel within Social Media posts, and what are the duties and responsibilities of a private business in responding to slander and libel lawsuits as a result of posts in Social Media? And finally, the questions about the impacts on our democracy if censorship or banning of content in Social Media is permitted to continue?
To respond that private businesses are free to do whatever they please, insomuch as it does not break the law, is a knee-jerk reaction. All businesses are in some form regulated by government laws and regulations for various and potentially harmful impacts on society. The question is, are these laws and regulations necessary, proper, and constitutional? Because Social Media has a direct and potentially large negative impact on our society and democracy, the preceding paragraph's questions need to be considered reasonably, rationally, and Constitutionally to mitigate Social Media's harmful impacts on our society.
A “Common Carrier” in common law countries (corresponding to a public carrier in some civil law systems) is a person or company that transports goods or people for any person or company and is responsible for any possible loss of the goods during transport. A common carrier offers its services to the general public under license or authority provided by a regulatory body, which has usually been granted "ministerial authority" by the legislation that created it. The regulatory body may create, interpret, and enforce its regulations upon the common carrier (subject to judicial review) with independence and finality as long as it acts within the bounds of the enabling legislation. Although common carriers generally transport people or goods, in the United States, the term may also refer to telecommunications service providers and public utilities.
So, is the Internet a Common Carrier? Under current U.S. law, it is not a Common Carrier. The real question is whether we should make the Internet a Common Carrier, and what laws and regulations are required if it is to become a Common Carrier?
Social Media also have special protections under the law, commonly referred to as Section 230 of Federal Law, as I noted in the ‘Introduction’ to this article. The Wikipedia article “Section 230” has more information on this topic:
“Section 230 is a piece of Internet legislation in the United States, passed into law as part of the Communications Decency Act (CDA) of 1996 (a common name for Title V of the Telecommunications Act of 1996), formally codified as Section 230 of the Communications Act of 1934 at 47 U.S.C. § 230. Section 230 generally provides immunity for website publishers from third-party content. At its core, Section 230(c)(1) provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
The statute in Section 230(c)(2)
further provides “Good Samaritan” protection from civil liability
for operators of interactive computer services in the removal or
moderation of third-party material they deem obscene or offensive,
even of constitutionally protected speech, as long as it is done in
- From the Wikipedia Article on “Section 230”
This law states that “No provider … of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider … considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected …. “ [Emphasis added].
Section 230’s original intent was to protect the fledgling Social Media from libel lawsuits as they had no control over the content of their posts. It was also enacted to encourage the growth of Social Media on the Internet. In this, the law was successful. However, Social Media has grown to the point where it does not need any encouragement. Also, Social Media, in its growth, rarely censured or tagged posts as these actions were laborious and time-consuming to enact. With the development of modern algorithms and Artificial Intelligence techniques to construct the algorithms, this censuring or tagging of posts is no longer burdensome. Today it is quite common for Social Media to censure or tag its posts.
The question is then whether Social Media requires the special protections of Section 230? In my opinion, it no longer requires these protections as it has matured, and the decisions and actions of the censuring or tagging of posts are those of a publisher rather than a platform. If they act as publishers, then their decisions on what, or what not, may be censured or how to tag a post, then they should be treated as publishers and subject to slander and libel lawsuits.
The supporters of Section 230 claim that it is not possible to review all posts before they are posted, while the detractors of Section 230 claim that the censuring or tagging of posts is biased in favor of one side of the issue or political ideology. Both arguments are true, but are they germane to the issue of Free Speech? The problem is that modern Social Media has become the main source of information on news, politics, social, and other issues that impact Americans. If Free Speech is curtailed on Social Media, then Americans are only receiving information that is biased to a viewpoint, and they, therefore, are unable to make informed decisions. Uninformed decisions make for bad laws and social policy that could negatively impact the American government and society, not to mention that they could impact our “Freedoms, Liberties, Equalities, and Justice for All” and loosen the bounds of “A Civil Society”. This problem, and its resolution, have far-reaching impacts on American governance and society.
Do we allow unelected business leaders to decide what is allowable Free Speech for Americans, or do we constrain them in their decisions and actions of what is allowable Free Speech for Americans? Does the government hand via laws and regulations in these decisions and actions infringe on the First Amendment Rights of the businesses of Social Media and/or the posters on Social Media? I would prefer no governmental interference in these business decisions, but I would also prefer no business leaders determining what the allowable Free Speech for Americans is. I believe that the only responsible answer to this issue is that the posters who believe they have been discriminate against be able to sue for libel, and the Social Media providers would have to publicly release the algorithm that led to the censuring or tagging of a post. It would then be up to the courts to determine if someone was libeled or not. This would also force the Social Media providers to be more careful and judicious in the creation of their algorithms and ensure that the algorithms are not biased to one viewpoint.
The effects on democracy of Social Media's decisions and actions can be illuminated in the Presidential election of 2020. Social Media consistently suppressed or tagged as misinformation the posts on Hunter Biden’s laptop contents and candidate Biden and his family business dealings, the Coronavirus Pandemic issues and concerns of scientific credibility, the restrictions and mandates usefulness and constitutionality, and the origination of the virus, the extent of the mob violence and its perpetrators and supporters that occurred in 2020, and the voting irregularities during the election. In many cases, what they suppressed or tagged as misinformation eventually turned out to be correct information. They were in effect becoming propagandists for Democrat Party leadership as well as Progressive/Leftist ideology and ideas.
If this information was more widely known, it would have probably affected the outcome of the election. The malpractice of "Modern Journalism" also had an effect on the outcome of the election. The combined efforts of Social Media and Modern Journalism were a disservice to the American people as they had insufficient (or wrong) information as to make an informed decision on whom to cast their ballots.
These impacts should not be allowed to occur in the future as it skewers elections and results in the will of the people not being accurately reflected by whom is being elected. This can be seen by the first six months of President Biden’s administration in that much of his actions have been negatively received by the American people and the changing of the course of America that many, if not most, Americans do not agree. Change in America should only be accomplished through free and fair elections in which the American people have all the information required to make an informed decision on the proposed changes. To change American society by the current Social Media’s decisions and actions of excluding, censoring, or tagging of content is to disrupt society that could result in much more bitter partisanship and civil unrest.
The question is then, what can be done about this situation? The answer is very fraught with difficulties. The two sides of this coin are the creation of the algorithms and the Free Speech rights of posters on Social Media. Should we require that the Social Media release their algorithms or allow all posts regardless of their content? To publicly release the algorithms of Social Media is to infringe on the trade secrets of a Social Media provider and possibly disadvantage them or advantage their competitors. To allow Free Speech for all posters would allow for false, vile, hateful, or incendiary posts. The question is how to decide which posts are acceptable or unacceptable?
Social Media restrictions on the posting of user content should be few and narrowly defined. Exemptions from civil legal proceedings should not be allowed for the decisions and actions of the Social Media providers that infringe on the Free Speech rights of the posters, nor should civil legal proceedings be prohibited against posters that engage in slander or libel. In all such slander and libel civil legal proceedings, the Social Media providers should be required to provide the real identity of the person(s) who posted the content to the plaintiffs of the civil lawsuit.
Alas, I do not expect that Section 230 will be modified as one side, the Progressives/Leftist and the Democrat Party side has a distinctly ideological, political, and electoral advantage of keeping the law as it is as Social Media is highly supportive of their side. As their side believes that they are more intelligent, better educated, and morally superior, they are, of course, always correct, and they believe that they know what is best for all Americans. Consequently, the Progressives/Leftists and the Democrat Party are motivated to support Section 230 as currently written, as they believe that the decisions and actions of Social Media are best for America and Americans. However, the real question is:
“The most basic question is not what
is best, but who shall decide what is best.”
- Thomas Sowell
What is best for America and Americans is the free flow of information on Social Media so that each American can decide what is best. I also suspect that if they were being discriminated against, they would have a different opinion on modifying Section 230. Or, as I have stated:
“The shoe on the other foot requires
that you have both shoes on your feet.”
- Mark Dawson
The answers to all these questions are fraught with constitutional difficulties. I, therefore, believe that President Trump’s lawsuit should be ligated through the Supreme Court. The Supreme Court should establish the constitutionality and boundaries of Social Media laws and regulations with as much fairness and impartiality as possible while protecting the rights of the Social Media companies and Social Media users. In the Internet era, it is necessary for us to resolve these questions for the good of society.