May 5, 2022 Jeffrey Westling
Executive Summary
·
Elon Musk’s purchase of Twitter has amplified the already
contentious debate over the proper scope of content moderation on social media
websites.
·
Both sides of the political aisle dislike many of the processes
and decisions related to content moderation made by social media companies; in
response, lawmakers have proposed their own content moderation regulations.
·
Republican proposals for regulation include common carriage
requirements, which would require companies to transfer all information
regardless of content; Democratic proposals, meanwhile, vary but most
prominently call for “algorithmic accountability,” which would likely entail
curtailing certain Section 230 protections for social media websites.
·
Both these proposals could violate the First Amendment’s
protection of social media’s editorial judgment and lead to policy outcomes
that would likely harm the quality of moderation rather than improve it; additionally,
lawmakers’ threats of punitive legislation against social media companies
distort their content moderation policies and further erode trust in these
systems.
Introduction
In April, Elon Musk amplified already fierce debate over the proper scope of
content moderation on social media websites by purchasing
Twitter for $44 billion. The stated reason for his
purchase was a desire to push the company to embrace a free speech model for
content moderation, ensuring users can share more information on the platform
without moderators silencing such discussion. Many on the political left
immediately expressed concerns, with even the White House chiming in to argue
that tougher scrutiny from social media companies should
be employed to prevent the spread of false information on a range of political
issues and, in particular, the COVID-19 pandemic.
Most agree that social media companies
should moderate content to a degree, but engaging in
content moderation requires answering very difficult questions, and these
decisions can have a significant impact on which news and information people
can and cannot access. When a platform makes any decision to limit the reach
of, or access to, content, undoubtedly many users will disagree and loudly voice
their opinions. What’s more, such moderation, which is frequently imperfect,
often feeds the perception that social media staff are biased in favor of their
own parochial interests. As a result, pressure from both sides of the aisle
will only continue to mount, as Republicans claim their content is being targeted by left-leaning staff and
Democrats argue that social media should take a greater role in addressing disinformation and hate speech online.
To address their respective concerns, lawmakers
have proposed different bills that would drastically alter how social media
platforms moderate user content. Republicans have suggested, among other ideas,
applying common carrier requirements to social media companies as part of an
effort to regulate these firms like telephony, meaning that they would need to
transfer all user information, regardless of content.
Democrats, however, argue for what they call
“algorithmic accountability” that would entail peeling back pieces of Section
230 of the Communications Decency Act, which provides legal immunity to
platforms for what their users post. This, they assert, would allow regulators
to use a heavier hand to combat disinformation and hate speech online.
Both these proposals could be violative of the
First Amendment and, even if they weren’t, could have a negative impact on
content moderation as a whole. Ideally, social media companies would respond to
consumer concerns and pressures from the market, but lawmakers have turned to
crafting legislation—and often, the threat of legislation—to influence
moderation practices, further politicizing content moderation and making it
more difficult for a nuanced discussion about targeted improvements and
self-government changes.
Government intervention in the content
moderation decisions of social media companies is fraught with legal and policy
dangers. At the same time, the lack of a clear solution means the current
debates will not subside any time soon. This insight explains the potential
pitfalls of Republicans’ and Democrats’ proposals for the regulation of social
media and online speech, as well as the risk of distorting market forces by
political jawboning.
Forcing Companies to Host
More Content Through Common Carriage Regimes
On the right, experts and lawmakers have
explored common carriage requirements designed to
treat social media like telephony, an arrangement requiring platforms to
transfer all information regardless of its content. This theory rose to
prominence in conservative circles after Supreme Court Justice Clarence Thomas
explored the idea in his concurrence in Biden v. Knight First Amendment Institute, a
case looking into whether social media could qualify as a public forum for
First Amendment analysis (an idea the Court dismissed). In Thomas’ view,
because social media is a service offered of public interest, and some firms
arguably have dominant market power that limits the abilities of users to go
elsewhere, these services are akin to services like telephony, which must “serve all customers alike, without discrimination.”
Only in return for a non-discrimination approach should social media companies
receive immunity for the content users post, the common carriage requirement
holds. From a constitutional perspective, some cases have distinguished must-carry provisions in other
technologies, and legal scholars have made the argument that a law forbidding
platforms from discriminating based on content, limited to material readers
deliberately choose to read, could be constitutionally permissible.
Yet major flaws exist with this approach. First,
simply declaring social media to be a common carriage service doesn’t make it
so. Voice telephony, the most analogous common carrier to social media,
involves the private communication between two users, rather than a public communication which contains
fundamentally expressive speech. In that sense, social media is much more like
a newspaper – which is not in any way a common carrier – than a voice telephony
network. Social media services also do not hold themselves out to the public at
large, but instead impose specific rules and regulations before a person can
join the service. Second, even if a regulation is narrowly tailored, and
focused on must-carry, there are significant distinctions between social media
and the types of entities that have been forced to carry speech in the past.
For example, courts upheld must-carry provisions for cable largely because its
networks use physical infrastructure in the public rights-of-way, giving the
operator a physical bottleneck on communications. Social media has no such
physical infrastructure.
But even if such an approach could withstand
judicial scrutiny, requiring platforms to host all content would undoubtedly
come with risks and concerns. If applied broadly, this would require platforms
to leave up all kinds of bad content as long as it doesn’t violate the law,
which neither party wants. Even if approached more narrowly—perhaps under a
common carriage requirement applying only to political content—platforms would
still need to draw lines regarding which content fits into this framework and
which does not. These companies are risk averse, so they may fall back onto
common law protections, which absolve them of liability if they refuse to moderate
at all, or even forbid political content to avoid any risk of violation.
Targeting Content Promotion
by Legislating Algorithms
On the left, many want social media companies to
take down more content that can lead to harms. Of course,
Congress will struggle to ban any kind of speech on social media due to the
First Amendment. As a workaround, the proposals tend to entail the removal or
partial rollback of Section 230 protections, which are designed to give
platforms the legal certainty that their moderation of content will not lead to
liability for anything the platform does not remove. Of note, some Democrats
have taken a critical look at these platforms’ algorithmic amplification of content
and questioned whether Section 230 protections should apply to content
recommended by social media companies to users.
As the argument goes, social media provides
a feedback loop to individuals because its
algorithms tend to share the most extreme and harmful information: Such content
drives engagement, and therefore increases advertising revenues. To address
this, legislators have considered bills such as the Justice Against Malicious Algorithms Act,
which would limit Section 230’s protections when a company’s use of algorithmic
amplification causes physical or emotional injuries.
This approach may survive First Amendment
scrutiny if challenged, but would run into the same fundamental issues that
exist with any attempts to reform Section 230. Section 230 builds on the First
Amendment by encouraging services to moderate content without fear of
liability; reimposing that risk will force companies to essentially dumb down their systems and
limit recommendations to users, making it more difficult to share and find
content users wish to see. Companies could likely rely on simple algorithms
that deliver content as soon as it is posted, but it would drastically limit
the ability for new content creators to reach a larger audience and for users
to find content that they wish to see.
Regardless of the bad policy, the approach also
highlights the challenge that lawmakers face: They don’t like how social media
companies moderate content, but the First Amendment bars them from directly
regulating the moderation process. With algorithmic amplification tied to
Section 230 protections, lawmakers can attempt to circumvent the First Amendment
by specifically targeting the functionality of the website itself. That way,
lawmakers can push companies to over-remove content to ensure that no harm can
stem from the service.
The Perils of Government
Jawboning
As lawmakers consider ways to determine how
platforms regulate content—and circumvent the First Amendment while doing
so—they risk worsening an inherent problem with content moderation that will
lead to significant harms for users of these services: politicizing content
moderation. Such meddling would not only fail to improve content moderation on
social media but would likely leave both Democrats and Republicans unsatisfied
with the result.
Current content moderation isn’t perfect, but it
is driven largely by the needs of the users and advertisers wishing to reach
these consumers. When users voice concerns about content moderation, companies
take these concerns into consideration about future decisions and policies.
Different platforms can employ different standards that serve as a point of competition:
If users dislike one service, they can move to another.
When lawmakers threaten legislation in response
to specific decisions from a company – a practice called jawboning – it
drastically distorts actual consumer preferences. No longer is the company
largely responding to, and acting in accordance with, general public opinion
about content moderation decisions but rather a legislative threat that will
have a direct impact on its practices. When the government threatens a private
company to make a decision with which it has no choice but to comply, courts generally hold
this to be unconstitutional. Whether such a threat exists isn’t always clear,
however, and so jawboning may not always rise to the level of
unconstitutionality.
Social media has quickly become a battleground
for ideas and the future of politics, and as such, both political parties have
immense incentive to steer content moderation decisions in their favor. But
political jawboning will only further embolden both sides to respond in turn
with increasing pressure and threats. These continuing disputes will distort
content moderation norms and erode the already brittle confidence that users have
in these systems.
Conclusion
Most agree that content moderation on social
media platforms needs improvement. That said, content moderation will never
satisfy everyone. Users can and should influence platforms’ decision-making by
voicing concerns, or moving to other services if a given company’s approach
doesn’t meet their needs. The approach currently pursued by lawmakers – the
crafting of legislation that circumvents the First Amendment to dictate what
content is allowed and what isn’t – would distort the moderation process and
lower trust in the ability of content moderation systems to fairly appraise the
appropriateness of user communications. Nevertheless, the lack of a clear
solution to the dispute over moderation likely means these debates will not stop
anytime soon; lawmakers must be careful not to make the problem even worse.
https://www.americanactionforum.org/insight/lawmakers-misguided-approach-to-social-media-content-moderation/#ixzz7UGP4kLhX
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