Social Media – Colliding with Liability

After a point, “admiring the problem” gets you nowhere. You need solutions, and so – this analysis lays out the problem and solutions – to social media’s runaway political bias.

We know the problem: Social media has unprecedented power to control public dialogue – personal, political, cultural – in modern America. They manage entry and exit, not just speech but people and their political, business, and cultural viewpoints.

They run the globe’s electronic “public square,” adjudicating who can say what, when, where, with which words, what presumed intent, subject to cancellation, removal, reputational damage.

Due to their size, reach, economic power, and government protection – notably, Section 230 of the 1996 Communications Decency Act – they operate with near impunity.

These companies have overstepped.  They continue suppressing disfavored views. They have changed a legal shield into a sword. They claim the right to censorship, viewpoint suppression, disenfranchisement of conservative voices, emasculating dialogue, impugning people. That is about to change. They have no right to trash First Amendment rights.

Six observations. 

First, social media’s reliance on Section 230 to justify aberrant behavior, including nod-and-wink censorship under government protection, may soon end.  Whatever Congress does with Section 230, the First Amendment is not so easily skirted.

To date, cases have been sidelined by Section 230, but most were in the liberal 9th Circuit, none yet hit the Supreme Court. See, e.g., https://www.theverge.com/2020/5/27/21272066/social-media-bias-laura-loomer-larry-klayman-twitter-google-facebook-loss. They will, just wait.

Companies claim they can violate the First Amendment, since they are private. But not so fast: If the government shields them, they may lose that private status.  The government cannot outsource censorship, any more than it can contract to shut down churches or confiscate guns.

Whatever Congress’ intent in 1996, Section 230’s protection is thinning. Used to suppress conservative viewpoints, it becomes unconstitutional.  Section 230 reads: “No … interactive computer service shall be held liable on account of . . . any action voluntarily taken in good faith 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.”

But that text does not trump a constitutional right.  No time, place or manner restriction justifies political bias – any more than “cruel and unusual” punishments can be legislated over 8^th Amendment protections. Whether “liability” refers to damages or guilt, whether “good faith” or with bias, whether blocking “material” or people, monopolies or not, whatever “objectionable” means, social media cannot hide behind government protection and shoot at constitutional rights.

The comeback is that the “Commerce Clause” allows regulation of commerce – but not open-ended authority to suppress viewpoints, push political prejudice, ban websites, organizations, and people on matters of public concern in a public forum. While the clause has been stretched, it was never meant for throttling the First Amendment, or censoring political opponents.

Cases can be imagined in which damaged, disenfranchised, removed individuals, companies, organizations, and politicians claim the government has sanctioned social media to act as an agent of political censorship, punishing viewpoints, violating the Constitution. Ultimately, no statute protects social media from owning that liability.

Third, social media – if ever immune – has graduated. They are not “common carriers,” but exercise “editorial control.” They are a “public forum,” government-protected venue for free speech, debate, and assembly. As such, they are on a collision course with general liability. The Supreme Court has foreshadowed this. See, e.g., https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/internet-first-amendment; https://www.merriam-webster.com/legal/public%20forum; https://www.law.cornell.edu/constitution-conan/amendment-1/the-public-forum; https://www.law.cornell.edu/supremecourt/text/15-1194.

Fourth, antitrust laws – reigning in monopolies – are being trained on social media, companies censoring, limiting competition, colluding, being predatory, erecting barriers to entry. Antitrust laws assure competition, bar unfair advantage, level the field. Already, 46 states have filed antitrust suits. The Federal Trade Commission filed for “illegal monopolization.” See, e.g., https://www.cbsnews.com/news/facebook-antitrust-lawsuit-ftc-46-states-instagram-whatsapp/; https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization.

Fifth, tort liability is expanding. Class action and individual suits are lining up, asserting tortious violations from defamation and invasion of privacy to economic torts. Expect more. See, e.g., https://www.foxnews.com/opinion/social-media-and-trial-lawyers-a-match-made-in-tort-hell;

Sixth, Congress is not the only body looking at regulation, or passing laws that promote lawsuits against social media. States are saying “enough.” High tech has run out their leash. https://www.wsj.com/articles/social-medias-liability-shield-is-under-assault-11606402800; https://arstechnica.com/tech-policy/2021/01/facebook-and-twitter-could-be-sued-for-censorship-under-proposed-state-law/.

Social media has overstepped. If 2020 made them look untouchable, 2021 will change that narrative. America has had enough, wants remedies, is sick of citizens being suppressed, foreign influence advanced, and lack of accountability. Stay tuned, pendulums always swing back. See, e.g.,  https://m.theepochtimes.com/big-tech-aiding-beijing-in-its-push-for-global-dominance-sen-blackburn-says_3713135.html; https://www.wsj.com/articles/the-constitution-can-crack-section-230-11611946851