Commentary by Steve Effros
I had hoped not to have to write this, but you might want to send it along to your elected officials and anyone else loudly demanding their “First Amendment rights” from Facebook, Twitter and the like. Listen up: the First Amendment to our Constitution does not apply to those companies! The First Amendment imposes a restriction on the government, not on private companies. You all knew that, right?
Here’s what it says, in relevant part: “Congress shall make no law…. abridging the freedom of speech, or of the press…” Note in particular that this restriction in the First Amendment applies to Congress, not individuals, not companies, not web sites. It’s Congress that is prohibited from: “…abridging the freedom of speech, or of the press…”I have to go through this in painful detail because we’re being exposed to an almost absurd amount of grandstanding by both conservative and liberal members of Congress as they delight in calling up the CEO’s of Facebook and Twitter (they left out Google this week) for public excoriation regarding those internet platforms’ abridging the “First Amendment” rights of the folks using them.
No. Wrong. There is little question that both Facebook and Twitter along with YouTube, Instagram and the like have had a tremendous societal impact. Much of it negative, in my view. It’s also true that they have facilitated the creation of “information bubbles” which have resulted in vast segments of the public willfully sheltering in their own realities. I refuse, by the way, to say that most folks don’t know what’s “fake” and what’s “factual.” They do. But it’s become way too easy to retreat into reality bunkers that simply reinforce what folks want to believe. Thus, we, amazingly, have people dying of COVID while still insisting that it “can’t be real!”
Facebook, et. al. are certainly responsible for helping to enable those bunkers. But when those companies finally take responsibility and start “flagging” untrue statements, the complaint of the conservatives, or refusing to do even more about the dissemination of hate speech, etc., the complaint of the liberals, they aren’t violating anyone’s “First Amendment” rights! Those companies, just like your local newspaper, the broadcast networks or any other creator and distributor of information have the right to edit it, curate it, decide what to put in or on it that they please. This is NOT a “First Amendment” issue! Users of Facebook do NOT have the “right” to say whatever they want. They only can because the company has chosen to allow them to.
Of course, there’s a major difference, as I have noted here many times, between Facebook, et. al. and other, yes, “publishers.” Section 230 of the Communications Decency Act says, unlike other “publishers,” they are immune from liability for the statements made by others on their platform. That’s the difference. It’s a big one. It has allowed this virus of inappropriate speech to proliferate. But let’s be clear; it’s a protection of a business plan. If web platforms were liable for what they helped publish, things would be very different!
There’s good reason to debate whether we should continue to protect that business plan. Forcing platforms to be responsible for what is distributed may tamp down the extremes we are now experiencing. That would be good. And, yes, it may also result in Facebook, et. al. not being as profitable as they are now. So be it. We have created a monster that needs to be tamed, and I’m not sure, but this may be the only way to tame it.
Steve Effros was President of CATA for 23 years and is now an advisor and consultant to the cable industry. His views do not necessarily reflect the views of Cablefax.