Before It's Too Late: The Public Square Must Be Saved From Twitter & Facebook

Last week Twitter & Facebook decided they would stifle the speech of the leader of the nation that gave them birth and allowed their owners to become billionaires many times over. We’re not of course talking about the oppressive China and Chairman Xi… No, we’re talking about the United States and President Trump. Think about that. The duly elected president of the United States is no longer able to communicate to supporters and opponents alike via the biggest microphones on the planet because of the decision of two unelected billionaires, Jack Dorsey and Mark Zuckerberg.

This is a watershed moment in modern American history. As a virulent capitalist I believe that private businesses should be allowed to do what they want, and that includes Twitter and Facebook and Apple and Google et. al. As long as they don’t infringe on the rights of others. This is particularly true as it relates to the 1st Amendment. The Amendments limit the actions of government, not private industry. As such, they should be exempt…

Except, however, when they shouldn’t be. In 1996 Congress passed the Communications Decency Act which included this language in Section 230: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Publishers exercise editorial control over what they publish, which is why if the New York Times printed “John Smith is a bank robber” John Smith could sue for defamation, and if he proved the statement was false, he could be awarded damages. Indeed, 230 was written specifically to give Internet firms protection from such circumstances. It was the result of an early ISP, Prodigy, being sued for defamation by Jordan Balfor – the guy Leo DeCaprio made famous in “The Wolf of Wall Street” – after someone on a Prodigy-run message board had accused Stratton Oakmont of fraud.

The author of the legislation, then Washington Rep. Ron Wyden, was concerned that if Internet companies were treated as publishers they would be sued into oblivion, killing the baby of the Internet in its crib. If a tech company was financially liable every time an Internet troll called someone a liar or a Nazi or claimed Jim Jones was cheating on his wife we’d never have Facebook or Twitter or YouTube or Yelp or customer reviews on Amazon or doctor reviews on Healthgrades.com or memes on Instagram or virtually anything involving user input.

But we do have Facebook and Twitter and YouTube and Amazon and Apple. Using the shield of 230 these companies grew not only to become the biggest and most valuable companies on the planet, but they also became the most powerful companies in the everyday lives of Americans as it relates to free speech and the exchange of ideas. Americans barely read newspapers anymore. In 1995 the year before 230 was written, 23% of Americans read a newspaper on a daily basis. Today that number stands at 8.3%. In 1995 0% of Americans used Facebook or YouTube or Twitter on a daily basis… because they didn’t exist. Today 74% of Americans use Facebook every day, 51% use YouTube and 42% use Twitter. Overall in 2019 Americans spent an average of 395 minutes on the Internet verses 11 minutes reading newspapers. They are no longer “as the publisher” they are publishers.

Essentially, social media has become the de jure American town square of the 21st century. That is where we get our information, where we exchange ideas and where we interact with one another. And they became that because of 230, based on the premise that they did not exercise editorial control.

But now today, when they have become the modern equivalent of the town square they’ve decided they do indeed have editorial control over their platforms. They most certainly have that right, but their choosing to do so should remove from them the shield of 230.

Of course all of this comes down to the 1st Amendment and the right of Americans to speak out without censorship or coercion by the government. But Twitter and Facebook aren’t the government you say. That’s true. But they have become so ubiquitous, so dominating, so central to an American’s freedom of speech that they are actually more powerful than the government. Not sure about that? Take a look at Knight First Amendment Institute v. Trump where President Trump tried to block from following him on Twitter accounts with whom he disagreed. In forcing Trump to unblock the unwanted followers the court said Trump’s account bears “all the trappings of an official, state-run account” and is “one of the White House’s main vehicles for conducting official business.”

So, if these social media giants have become the modern town square for the exchange of American ideas, if they are violating the spirit of the law that provided them with the ability to successfully become such, and if a federal appeals court agrees that their platform is “one of the White House’s main vehicles for conducting official business.” they should no longer the protections 230 accorded. They should be treated as the publishers they have willingly become and should be at risk for all the liabilities, financial and otherwise that come with that.  

That does not necessarily mean that 230 should be eliminated. On the contrary. Its protections can and do function as intended, allowing small online firms to give users platforms to exchange ideas without fear of being financially ruined because of a content that someone doesn’t agree with.

But for those tech companies who violate the premise of lack of control of editorial content 230 should no longer apply. They could of course step back and adhere to the idea of not exercising editorial control, but they won’t. It’s no longer about building a successful company or getting rich for Jack Dorsey and Mark Zuckerberg. They both have that in spades. No, now it’s about power, and their power to remake America (for now) into what they think it should look like. They want Donald Trump on their platforms not because of what he says or who he is. They want Donald Trump off their platforms because his words resonate with so many regular, blue collar Americans, because he inspires patriotism in America and because he wants Americans to be free of the yoke of government control over virtually every aspect of their lives.

At the end of the day, it’s not Donald Trump they fear. It’s freedom of thought. It’s freedom of expression. It’s ideas they can’t control that they fear. And most of all, it’s you and your desire to live your life as you see fit. In a free market they’re welcome to go out and build any kind of platform they want and use editorial control to stifle as much speech on it as they wish. But they can’t do that behind a government provided shield of protection. It’s one or the other. They can’t have it both ways.

We've already seen the kind of damage such information control can do to our social cohesion and our political process.  Do we need to wait until America is plunged into a full scale civil war before we realize that allowing a tiny minority of tech oligarchs to control our speech forums is probably not conducive to a free society?