By: John Kline
The ongoing ‘Twitter Files’ revelations show that Republicans’ first order of business this coming 118th Congress must be to introduce a legislative firewall between the White House — and its offshoot federal law enforcement agencies such as the Department of Justice and its offshoot, the FBI — and private social media companies. Last summer’s revelations of government pressuring social media executives into blocking users not toeing the official line on COVID was as clear an example of unconstitutional “state action” as any. Courts have long ruled the government cannot pressure private entities, as an “agent of government,” into censoring what itself cannot.
Facebook’s Mark Zuckerberg disclosed to Joe Rogan in August 2022 that the FBI had warned him in October 2020 not to post information about what appeared to be Hunter Biden’s laptop. As he stated at the time:
“The background here is that the FBI came to us – some folks on our team – and was like ‘hey, just so you know, you should be on high alert. We thought there was a lot of Russian propaganda in the 2016 election, we have it on notice that basically there’s about to be some kind of dump that’s similar to that.'”
Zuckerberg further said the FBI did not come to Facebook about the Biden laptop story, specifically only that his team thought the story ” fit that pattern.”
Then came the recent revelation about Twitter’s now-former head of “trust and safety,” Yoel Roth, getting the exact same FBI treatment regarding the same story. As he stated in a declaration in response to a lawsuit filed by the Tea Party Patriots Foundation against Twitter:
“I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social media platforms, including Twitter.”
This included, Roth stated, “rumors that a hack-and-leak operation would involve Hunter Biden.”
Yet courts on COVID-related state-action claims, at least, have greatly disappointed when it comes to reining in the state’s attempts to control online behavior. Despite numerous White House and federal agency statements directed at social media platforms on the issue, including threats, three cases have seen such claims dismissed (including one brought by journalist and author Alex Berenson) and only one has been granted discovery requiring the Biden administration to turnover any records of communications with such platforms (the case brought by Missouri and Louisiana). Clearly, free, public dialogue is too important to be left in the hands of the judicial system.
The dissemination of news and the facilitation of public discourse is central in any democracy that allows genuine participation on the part of its citizens. Chinese protesters expressing their anger against strict speech controls in China by holding up blank pieces of paper is certainly a poignant illustration of this.
An older one closer to home is America’s second Congress in 1792 deciding to subsidize the postage of newspapers and other information sources; a practice that persists to some degree today, seen, for instance, in the mailers Congress sends out to its constituents. Although the term was not around at the time, Congress clearly recognized that open public dialogue was a “public good”, or something which, like clean air, benefits everyone equally and greatly.
Common Carriers
Providers of public goods are generally regulated under common carriage laws. The Communications Act of 1934, for instance, allowed AT&T to enjoy monopolistic power over the public good it provided: the interconnecting of the American people by way of a unified, national standard for telephone communication.
In exchange for enjoying monopoly power, and to ensure that public goods truly remain beneficial to the public, special duties or restraints are generally imposed on such companies. For instance, before a national telephone network was created, Americans needed separate phones to contact friends and family if they used different carriers (AT&T was easily the dominant player, so it had the biggest network). In exchange for the DOJ dropping antitrust claims against AT&T, the company agreed to allow smaller companies to join its network, thus creating a universal line of communication for citizens across the country — again, all for the public good.
As Michigan State University law professor and former Commerce Department telecom official Adam Candeub has written, this is the kind of “carrot” and “stick” bargain at the heart of common carriage law. A powerful monopoly status can be conferred where a public good is beneficial enough, but to ensure that such status is not abused (and the public good stays a public good), some sort of duty or restraint must be established.
Unfortunately, Candeub notes, for other dominant telecommunications companies, such as social media platforms and search engines today, “it is all carrot and no stick.” Companies such as Facebook and Google are allowed complete monopoly power to provide what are undoubted (though diminishing) public goods, but with zero restraints or obligations on their part.
Section 230
Way back in 1996, Congress came up with an amendment to the 1934 Communications Act to deal with the then-burgeoning industry of “interactive computer services”, at the time, mostly message boards.
With companies such as Compuserve and AOL in mind, Congress sought to hand out special liability relief with the idea of promoting two public goods: an internet characterized by a wide dissemination and diversity of ideas; and an incentive system for platforms to create family-friendly environments.
The amendment they came up with, Section 230 of the 1996 Communications Decency Act, has two key sub-sections. Section 230(a)(1), relieves internet platforms of liability for statements made specifically by third parties. This entails giving companies such as Facebook relief from liability for a defamatory post or other unlawful content made by one of its users. While relevant when it comes to what conservatives criticize most— the politicized removals of messages and whole accounts — it is the next subsection that is most important.
Section 230(c)(a)(2) immunizes a platforms’ own efforts to discriminate against certain content. As it says, it allows them to:
“restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
In doing so, however, it does mandate one qualification: In order to “restrict access” or remove material deemed “obscene”, and so on, platforms have to act in “good faith.” In other words, Congress here created a “Good Samaritan” clause intended to incentivize positive, pro-social behavior.
To be continued next week
