The growing concerns about social media–especially platforms’ moderation of users’ posts–are just the most recent and visible examples of an older conundrum: how do we define and restrain the misuse of power?
When the U.S. Constitution was drafted, concerns about the infringement of individual rights focused almost entirely on government, because only government entities had the power to prescribe and proscribe individual behaviors and punish those who failed to conform. Accordingly, the Bill of Rights restrained only government (initially, only the federal government, which was seen as a greater threat than the state and local units of government that were included in its prohibitions after passage of the 14th Amendment.)
To state the glaringly obvious, in the 200+ years since passage of the original Bill of Rights, a lot of things have changed.
Governments aren’t the only entities exercising considerable authority over our lives–major corporations, a number of them global in scope, not only influence government but engage in negative behaviors that directly affect millions of people, from polluting the environment to exploiting third-world labor. Scholars have belatedly come to question whether the Bill of Rights shouldn’t be applied more broadly–to restrain all entities large enough or powerful enough to invade individual rights.
I have absolutely no idea how that might work.( It probably wouldn’t.) /That said, we are at a point where we absolutely must contend with the inordinate power exercised by private, non-governmental organizations, and especially by Facebook, Twitter, et al.
Twitter and Instagram just removed antisemitic posts from Kanye West and temporarily banned him from their platforms. It just goes to show … um, what?
How good these tech companies are at content moderation? Or how irresponsible they are for “muzzling” controversial views from the extreme right? (Defenders of West, such as the Indiana attorney general, Todd Rokita, are incensed that he’s been banned.) Or how arbitrary these giant megaphones are in making these decisions? (What would Elon Musk do about Kanye West?)
Call it the Kayne West paradox: do the social media giants have a duty to take down noxious content or a duty to post it? And who decides?
As Reich quite accurately notes, these platforms, with their huge size and extraordinary power over what’s communicated, exert enormous sway over the American public. And they are utterly unaccountable to that public.
Two cases pending before the Supreme Court illustrate the underlying dilemma:
One case involves Section 230 of Communications Decency Act of 1996. That section gives social media platforms protection from liability for what’s posted on them. In that case, plaintiffs claim that social media ( YouTube in one case,Twitter in the other) led to the deaths of family members at the hands of terrorists. In another case, the plaintiffs are arguing that the First Amendment forbids these platforms from being more vigilant. That case arises from a Texas law that allows Texans and the state’s attorney general to sue social media giants for “unfairly” banning or censoring them based on political ideology.
It’s an almost impossible quandary – until you realize that these questions arise because of the huge political and social power of these companies, and their lack of accountability.
In reality, they aren’t just for-profit companies. By virtue of their size and power, their decisions have enormous public consequences.
Reich is betting is that the Court will treat them as common carriers, like railroads or telephone lines. Common carriers can’t engage in unreasonable discrimination in who uses them, must charge just and reasonable prices, and must provide reasonable care to the public.
But is there any reason to trust the government to do a better job of content moderation than the giants do on their own? (I hate to imagine what would happen under a Republican FCC.)
So are we inevitably locked into the Kanye West paradox?
Or is there a third and better alternative to the bleak choice between leaving content moderation up to the giant unaccountable firms or to a polarized government?
The answer is yes. It’s to address the underlying problem directly: the monopoly power possessed by the giant social media companies.
The way to do this is apply the antitrust laws – and break them up.
My guess is that this is where we’ll end up, eventually. There’s no other reasonable choice. As Winston Churchill is reputed to have said: “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”
It’s hard to disagree. And actually, a far more aggressive approach to anti-trust would solve more problems than those we are experiencing with social media…