No, The Arguments Against Florida's & Texas' Content Moderation Bills Would Not Block All Internet Regulations

Free Speech

from the let's-not-be-silly dept

Let me be clear upfront: I’m a huge fan and supporter of the Knight First Amendment Institute at Columbia University. After all, just last week, that organization stepped up to defend my rights after Representative Thomas Massie decided to trample on them. The Knight Institute was also the publisher for my Protocols, Not Platforms paper, and their guidance and editorial support with that paper were tremendously helpful. I’ve been involved in a few other projects with them as well, and have found every one of them worthwhile.

But, I have to admit that I’m perplexed by an argument the Institute has been putting forth, including in an amicus brief regarding Florida’s unconstitutional social media law, and more recently in the pages of the NY Times, arguing that while the laws in both Florida and Texas are clearly unconstitutional, that the 1st Amendment arguments by the internet company trade groups go too far, and would create wider problems for the internet.

I think the argument is incorrect — and it seems somewhat odd for a “First Amendment Institute” to be arguing that the 1st Amendment does not, in fact, protect editorial discretion. There is, of course, some more nuance to the argument, but the NY Times piece summarizes the argument here:

The companies are correct that the two laws discriminate against certain platforms based on their perceived political views ? and two federal district courts have enjoined the laws pending appeal. What?s concerning is that the companies have made arguments that go much further.

For instance, they contend that the courts should extend to social media platforms exactly the same very broad First Amendment protections that have been afforded in the past to newspapers. They also argue that any law that burdens their exercise of ?editorial judgment,? however minimally, should be deemed unconstitutional. These arguments are deeply misconceived and would, if the courts agree with them, pre-empt even laws that do not share the Florida and Texas laws? fundamental defects.

The truth is that social media platforms are like newspapers in some ways but not others. Like other media organizations, social media companies sometimes make decisions about which content to publish, and they sometimes add their own voices to public discourse ? as they do when they attach labels to users? posts. When the companies engage in these activities, they are exercising the kind of editorial discretion that the Supreme Court has protected against government interference again and again.

But social media platforms are different from newspapers in important ways. They are primarily vehicles for others? speech, rather than their own. They do not exercise close curatorial control over the content they publish. They do not take responsibility for the content they publish in the same way that newspapers do ? and the law does not require them to. There is also an incredible disparity in scale between (many) social media platforms and newspapers. Over the course of a day, the newspaper you are reading publishes a couple of hundred articles, but the big platforms publish hundreds of millions of posts.

Everything stated here is clearly true, but it’s a garden path kind of argument. It points out an undisputable true point, followed by an undisputable true point, followed by an undisputable true point… and then makes a huge logical leap, but hopes you miss it because you’re nodding along with all of the logical points before that.

Whether or not social media platforms are “different” than newspapers in some ways and the “same” as newspapers in some ways is not the issue, and it’s weird for the Knight Institute to key in on that. What matters is whether or not the activity itself is protected by the 1st Amendment — and any sort of moderation of hosted content on a platform (even at scale) is clearly about expressive choices, and thus protected by the 1st Amendment.

It’s really the next paragraph that has me the most perplexed:

Florida and Texas contend that these kinds of differences mean that social media companies are outside the protection of the First Amendment. That is clearly wrong. But the First Amendment should apply differently to social media companies than it does to newspapers, because social media companies and newspapers exercise editorial judgment in different ways.

Yes, social media companies and newspapers exercise editorial judgment in different ways. And that’s what’s so important about the 1st Amendment protections afforded to both. It’s because of the 1st Amendment, preventing government from getting involved in such editorial choices that allows things as diverse as newspapers in one area and social media websites in another area to exist. They are exercising their editorial judgment in different ways because the 1st Amendment allows them too — and suggesting that social media shouldn’t qualify for the same level of protection seems totally antithetical to the entire point of the 1st Amendment itself.

And then the argument from Knight takes a big logical leap that I think is just wrong. It argues that the internet companies’ argument would prevent all types of other regulations, including privacy regulations:

But the companies? arguments would make it almost impossible for legislatures to enact carefully drawn laws that protect the integrity of the digital public sphere. They would make it difficult for legislatures to impose even modest transparency requirements on the companies, to require the companies to share data with academic researchers or to require them to provide explanations to users whose posts are removed or whose accounts are suspended. They would also make it difficult for legislatures to pass straightforward privacy laws limiting the information companies can collect and how they can use it.

Of course, whether any particular legislative proposal is constitutional will turn on its specifics. If the courts accept the companies? arguments, however, many legislative proposals worth considering will be dead on arrival.

But that’s almost certainly incorrect. It would only be true if those regulations did, in fact, interfere with the editorial decision making process. And we already have some privacy laws in place that don’t seem to do that. The transparency argument also strikes me as a strange one for Knight to be making. While I support Knight’s efforts to defend against Facebook’s ridiculous threats to academic researchers, mandating transparency does, in fact, raise very real 1st Amendment issues.

We’ve discussed this before, in noting that transparency is super important, but mandating transparency is dangerous. Just to put this in context, if the government sought to pass a law that “mandated” transparency for newsrooms regarding their editorial choices, people (including the Knight Institute, I imagine) would be up in arms over a clear intrusion on 1st Amendment rights. Part of the 1st Amendment’s protections means that those making the editorial decisions shouldn’t have to disclose their reasons for every possible decision — as that can only serve as a method of intimidating such newsrooms.

Having spent a lot of time with people who work in trust and safety and content moderation, such mandated transparency would be incredibly detrimental to the jobs they do as well. I’m all for figuring out more ways to encourage companies to be transparent about certain aspects of their decision making, but when the government is demanding it, it can and will be abused. It will be used to pressure companies according to the whims of whoever is in power. And if it’s not carefully calibrated, such transparency will be abused. I’ve noted before that the only times anyone has demanded “transparency” about our own moderation here at Techdirt are trolls who are mad and who want to game the system — and want better insight into how to troll better. Now imagine how that works when the “trolls” are running the government. It wasn’t that long ago that we had exactly that.

This is why the 1st Amendment must protect against such laws — not because “social media is different,” but because this is how the 1st Amendment works.

The argument about privacy laws seems confusing as well. Obviously, there could be some privacy laws that have a serious impact on the 1st Amendment. In the EU, obviously, we’ve seen the rollout of the GDPR with its “right to be forgotten,” which would never pass 1st Amendment scrutiny in the US. But, not every privacy law would include such restrictions on speech, and none of this means that it would be effectively impossible to pass privacy laws in the US. It would only do so if those privacy laws clearly intruded on 1st Amendment protected editorial discretion and rights.

In other words, nothing in the arguments for the social media companies against the Florida and Texas laws is expanding 1st Amendment doctrine, as the team at Knight implies, but rather just asking that the 1st Amendment continue to be applied in the same way it always has been — protecting editorial discretion.

Now, it is true that some companies have tried to abuse the 1st Amendment to protect against certain legislation. Famously, Verizon has argued that net neutrality violated its 1st Amendment rights. But that claim was rejected, showing that the courts have little problem distinguishing actual 1st Amendment issues with ones that may be cooked up to protect business models.

The Knight Institute does amazing work most of the time, but I think it’s gone somewhat off the reservation here, and in doing so is making an argument that would actively weaken, not strengthen the 1st Amendment and our free speech rights.

Filed Under: 1st amendment, content moderation, privacy, regulation, social media, transparency