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Don’t Let Big Brother Dismantle Social Media

Facebook and Twitter are flawed, yes. But messing with them as legislators propose would chill speech rather than balancing it.
Internet censorship

After President Donald Trump was irked by Twitter’s first ever fact checks, he took to the site with a warning: “Republicans feel that Social Media Platforms totally silence conservatives voices. We will strongly regulate, or close them down, before we can ever allow this to happen.”

Two days later, Trump penned a lengthy executive order (EO), which mostly does away with private speech protections on social platforms. In an attempt to address “selective censorship,” the order directs the Federal Trade Commission (FTC) to review bias and sanction companies that engage in such practices. The EO is undoubtedly reversible, and its legal basis is weak, but its intentions are clear. Namely, Trump is addressing the cultural impression that social media is biased against conservatives. Although Trump is hardly alone in believing this, and companies like Facebook haven’t always helped allay such concerns, his misguided efforts to have government bureaucrats control social media platforms rings of an Orwellian Ministry of Truth.

The law Trump would like to eliminate is Section 230 of the Communications Decency Act (CDA230). In essence, it makes platforms unaccountable for the speech of their users. For two decades, CDA230 remained unchanged. Then in 2018, Congress poked a hole in immunity protection with the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). FOSTA had a laudable goal, namely to protect victims of sex trafficking. However, the act was so badly written that a group of sex trafficking survivors and sex workers along with the Department of Justice opposed it.

Enter Facebook’s chief operating officer, Sheryl Sandberg, who supported FOSTA. Yet however well-intentioned, her support was shortsighted. Facebook’s support for FOSTA was characterized as a move to protect platform incumbents from competition from start-ups and smaller companies. Not helping Facebook’s image in the social conservative space was Sandberg’s very public $1 million private donation to Planned Parenthood, which, she said, was directly motivated by abortion restrictions signed into law by Republican governors in Alabama, Georgia, and Missouri. Later that year, four senators complained after Facebook allowed pro-choice doctors to post a fact-check on a pro-life video. Although Facebook has successfully addressed many anecdotal issues concerning censorship of right-leaning views, for some conservatives, its image is one of a progressive entity that favors liberal ideas.

Trump is hardly the only politician who wants to poke more holes in CDA230. Astoundingly, in 2019, Senator Josh Hawley introduced a bill to dismantle CDA230 protections for big companies, similarly arguing that tech companies had gotten “a sweetheart deal … with the complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship … unsurprisingly, big tech has failed to hold up to its end of the bargain.”

And the resentment over big tech private speech protections did not stop at partisan lines. Last year, Speaker Nancy Pelosi called CDA230 “a gift” to tech companies that can be taken away. Pelosi then ominously added, “for the privilege of 230, there has to be a bigger sense of responsibility on it.” In other words, if Big Brother giveth private free speech privileges, big brother can taketh away.

In other countries, similar government regulations have had chilling effects not only on private speech protections but on freedom of speech in general. For instance, Thailand’s 2007 Computer Crimes Act holds bloggers liable if anyone using their services criticizes the Thai Royal Family. In Turkey, it is a crime to criticize the founder of the Turkish Republic or to speak ill of “Turkishness.” Egyptian lawmakers have called for the banning of TikTok and Instagram for “violating public morals.” In these countries, government regulations ended up weakening the robust civil society discourse necessary for a healthy democracy.

In contrast, CDA230 in the U.S. has allowed us to use social media to speak directly to others, without chilling government regulations. Ironically, platforms like Twitter have enabled the president of the United States to speak directly to the American people and to circumvent what he perceives to be media bias. If politicians think the social platforms they are using are unfair or biased, their answer should be to incentivize competition and the private sector.

Facebook is imperfect, but in creating it, Mark Zuckerberg gave equal access to voices from every possible demographic. Last year, in a speech at Georgetown University, Zuckerberg noted that the idea for Facebook came to him while our country was going to war with Iraq and there was a sense that important voices were not being heard. “Those early years shaped my belief that giving everyone a voice empowers the powerless and pushes society to be better over time,” he said, adding, “People having the power to express themselves at scale is a new kind of force in the world—a Fifth Estate alongside the other power structures of society.” In short, “people no longer have to rely on traditional gatekeepers in politics or media to make their voices heard.” Addressing concerns about the centralized power of platforms, he said: “I actually believe the much bigger story is how much these platforms have decentralized power by putting it directly into people’s hands. It’s part of this amazing expansion of voice through law, culture, and technology.”

Zuckerberg has not shied away from criticism or innovation. Faced with an outcry over Facebook’s monitoring of content during the 2016 elections, he devoted $130 million to create an independent oversight board before which users could appeal Facebook’s decisions. The first 20 members were announced last month and included representatives from differing viewpoints, including a conservative, Judge Michael McConnell.

It’s because of measures like those that CDA230 needs to stay. If Big Brother’s repeated calls to do away with private speech protections prevail, the message to social media platforms will be: all voices are equal, but some voices are more equal than others.

Kristina Arriaga frequently writes on freedom of speech and freedom of belief. She served as the executive director of the Becket Law firm and vice chair of the U.S. Commission on International Religious Freedom, and is the recipient of the Newseum’s Free Expression Award. She is reading for her Doctorate in Philosophy in Law at the University of Oxford.

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