Government oversight of social media moderation would infringe First Amendment liberties

Mike Masnick, TechDirt:

[J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:

We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.

The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.

There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.

More: “How Regulating Platforms’ Content Moderation Means Regulating Speech – Even Yours” [Cathy Gellis]; John Samples, Cato Daily Podcast on Trump’s comments about Google searches; Federalist Society debate on social media antitrust; “if you’re going to make an allegation that there’s a big [anti-conservative] conspiracy [on search engine results], you should do your due diligence.” [Zachary Graves] Earlier here, etc.


  • The FCC puts limits on licensees so what would prevent similar restrictions on businesses found to be monopoly/duopoly when using regulated internet?

    • Your first six words provide the answer to your question: “The FCC puts limits on licensees…”.

      FCC’s power to license and regulate radio and TV broadcasters was granted by the Communications Act of 1934, which, granted broad non-content regulatory power over licensees’ broadcasting; and specifically granted the FCC only limited power to regulate broadcast content. Content regulation was granted only for “indecency”.

      The FCC does not yet have regulatory power over the internet, even for non-content routing and bandwidth matters. Businesses using the internet are not licensees of the FCC.

      Although federal “net neutrality” regulations do not currently exist, any proposed power for the FCC to license and regulate content would likely meet strong political opposition.

      The obvious question for proponents of FCC content regulation of internet communications: Do you want government to tell you what ideas you can communicate on the internet, like the Ministry of Industry and Information Technology Propaganda Department of China?

  • I wouldn’t be so sure about a First Amendment violation. Consumer (even though services are gratis) protection is a valid government aim, and if Google is skewing search results, government likely has some tools in the toolbox (e.g., disclosure). There are also campaign finance implications as well.

    I agree that government regulation of these sorts of things raise numerous issues. But it’s also not inappropriate for the government to examine these practices.

    Commercial speech also has less protection.

    It will be interesting to see how this all shakes out.

  • “[J]ust after Twitter and Facebook appeared before Congress”

    Ohhhhh . . . I thought you meant Ford and Kavanaugh.

  • I agree with this article as far as it goes, but I would not want to see it extend to providers of low-level services such as the domain name service, which all web sites have to use to be accessible from the Internet. If it did, then ICANN, which runs that service, would be able to make it impossible for those banned by the likes of Facebook to operate competing services that do allow their speech.

    The Internet, along with television, phones, and all other media worldwide, are now pretty much completely controlled by six huge multinational companies, and they’re all trying to merge and/or acquire all their remaining competitors, thus creating a grave danger of an absolute shutout of dissenters. Even a libertarian ought to see the need for antitrust enforcement in this area; at a minimum there needs to be a moratorium on any further mergers like the recent Time Warner/AT&T merger.

  • As the value of a social network is primarily determined by its size, social networks are monopolistic in nature.

    If I was super cynical, I would say that this was a ploy by social media giants to undo section 230 and bring in government regulation. How? A large part of the rationale for 230 was that it was simply not practical to effectively police users. However, if the large networks start showing they can, that rationale goes away.

    Why? Because overturning 230 and bringing in regulations would cement these networks’ position at the top the hierarchy. this would give the current giants a nearly unassailable position. Additionally, every place that allows for user created content (every forum, every comments section, every public advertising site) would either have to have their own monitoring or outsource it, likely to one of these giants. That could literally give these giants the ability to define the entire internet (for North America at least) as far as user generated content goes.

    How’s that for an internet dystopia? Mark Zuckerberg and Jack Thompson stomping on your keyboard, forever.

  • There was net neutrality under title 2… But somehow the current FCC chairman thinks that ISP’s aren’t telecommunication services… Moron. Whether it’s pots, DSL, ISDN, ethernet, token ring, ATM, or even DOCSIS, it’s all forms of telecommunication. That’s layer 1 and 2 and sometimes 3… Information services run at layer 4 and up… Okay, so there are hybrids like VOIP but if you’re making a phone call, then it’s obvious… 😀
    Just because my ISP offers me email, web space, and maybe antivirus packages as part of my service, it’s not what I am there for. I am there for the connection. Once I have that, I can choose my email service provider, my web hosting company and even buy my own software from best buy or amazon… In fact, I have not used my ISP provided email services in years. So as far as I am concerned, you can impeach the chairman of the FCC and any of his cronies that supported him in the repeal.

    In case the acronym flabbergasts you, POTS=plain old telephone service… 😀

    • Net Neutrality is not at all what it claims. It is a grab by the huge bandwidth users (e.g. Google, Facebook, Amazon), where they don’t want to pay more because they use more, they want the same rate as the low users. Ultimately that means you and I pay more.

      Lots of other arguments against Net Neutrality. Seton Motley at has quite a few excellent articles about it. Here are a few I found: