Big Tech’s Big Mess

The modern era has brought its fair share of political role reversals. For most of the second half of the 20th century, freedom of expression was a priority of the liberal establishment with groups like the ACLU leading the charge to protect flag burning, the dissemination of anti-American ideas, and a long list of indecencies.

For more than a decade, free speech in America has become a cause of the right as an increasingly puritanical progressive movement works to shut down those who disagree with its ideology. Both sides of the phenomenon were largely born on college campuses. But it has long spread to multiple stages, the most prominent of which has lately become “big tech,” giant social media companies who play an omnipresent role in public dialogue and news reporting.

Accusations that Facebook and Twitter selectively enforce their standards and policies of acceptable use along political lines that favor the left predate the Capitol riots on January 6. Shortly after the election, many pointed fingers at what appeared to be a planned shutdown of news related to accusations of corruption by Hunter Biden.

Yet, since protests against the final certification of election results ended in a violent incursion into the Capitol, big tech banished former President Donald Trump and some of his vocal supporters from its forums, bringing the debate over the power Silicon Valley holds to the fore.

“Ultimately, big tech used the Capitol Riots as an excuse to banish conservative speech from the internet, which is what they wanted to do for a long time,” said Mrs. Keisha Russell, an attorney for First Liberty, a law firm focusing on religious liberty issues. “If you look at their record over the past year, it’s clear that not everybody has been censored in the same way. The principal issue is that it’s time to take a look at how much control big tech has and that there needs to be a more neutral way to control violent speech.”

Mainstream social media is still home to a long list of conservative and right-leaning politicians and media personalities. Yet, as failed claims of election fraud were seen as the key cause of the violence in Washington, those perpetuating such accusations, including the former President, his legal advisor Rudy Giuliani, and many others, found themselves shut down by Twitter, Facebook, and others who claimed such speech violated their use policies.

Irrespective of one’s opinion of the role election fraud accusations played in the riots, it is difficult to say that social media companies have applied their standards across the board. A long list of dictators still use the platforms to spread propaganda against their enemies. Iran’s Ayatollah Ali Khamenei has an active Twitter account with more than 880,000 followers which he regularly uses to call for “death” to America and Israel. Despite a nominal effort to fight use by ISIS and other terror groups, social media played a key role in the Islamic State’s recruitment and incitement and was seen as the key driving force behind a scourge of stabbing attacks against Jews in Israel a few years ago.

Only a few months ago, it was Twitter’s former CEO Dick Costolo who said, “Me-first capitalists who think you can separate society from business are going to be the first people lined up against the wall and shot in the revolution.”

A recent Wall Street Journal editorial quoted Russian dissident Alexei Navalny as saying, “Don’t tell me he was banned for violating Twitter rules. I get death threats here every day for many years, and Twitter doesn’t ban anyone.”

Even in the event that social media companies would admit that their bans are politically motivated (a charge they emphatically deny), there is little that can be done to change their behavior, as they are privately held entities.

A response to complaints about the decisions these companies have made is often that the free marketplace allows for competition to arise and impose different standards. Some did just that when a group of right-wing social media actors created Parler in 2018. Since then, it has become a popular forum for a wide range of pro-Trump voices, but after it was discovered that Parler was heavily used by those who coordinated the Capitol Riots, Apple and other providers swiftly pulled it from use, essentially rendering the service unusable.

“It can’t be that everything on Parler is objectionable,” said Mrs. Russell. “Liberal tech companies have said, ‘Well, set up a conservative platform.’ That’s what people did, but now Apple shut down a company that was not only a competitor but that offered competing ideas.”

While the pro-Trump camp has been quick to point to Silicon Valley’s known leftward leaning to explain the shutdown, motivations, beyond attempting to curb further violence, might have little to do with ideology.

“This has more to do with business than politics,” said Samuel J. Abrams, a professor of political science at Sarah Lawrence College, and a visiting scholar at the conservative American Enterprise Institute. “These companies had opportunities to cancel Trump for years and they resisted doing it. I don’t think they wanted to do it now, and Twitter’s volume has dropped quite a bit from shutting him down. But if they would not have taken him down, I think they would have faced a lot of backlash from the new administration and from Congress.”

Professor Abrams said that while social media giants began with idealistic mottoes about altruism and creating a global community, maximizing profits has long taken priority.

“[Social media companies] have a fear of being broken up,” he said. “There is a lack of regulation and they don’t want to have their channels turned into a public utility when they are making so much money. I suspect that we’re going to see more purging in both directions [of the political spectrum] to try to quiet calls that government should be doing more to control them.”

Many instances of social media censorship have been broadly cheered. This past October, Mark Zuckerberg, Facebook’s CEO, announced plans to ban Holocaust denial from his platform.

Last February, under pressure from New Jersey’s attorney general’s office, Facebook shut down Rise Up Ocean County, a group that nominally focused on overdevelopment and corruption, but was widely seen as fomenting animus against Orthodox Jews in and around Lakewood.

Even so, many other forms of offensive and potentially dangerous speech remain and with billions of posts per day, it is difficult to imagine a monitoring system that would apply rules neutrally rather than guided by political preferences, financial considerations, or vocal and well-funded advocacy.

The muddy waters of private property rights, the First Amendment, and an evolving medium that plays an outsized role in public life make questions of if or what government should be doing more of to control social media companies difficult.

“Under current law, Twitter and Facebook are not bound by the First Amendment and there are no laws that require a company to give a voice to views it does not like. They could decide, ‘We are pro-police and we are not giving a forum to anybody who speaks about police brutality’ or do the same against pro-Trump voices,” said Eugene Volokh, a legal scholar and professor at UCLA School of Law. “The question becomes what the law should be.”

Even for many with an inclination toward letting consumers do their own regulating in the open market, big tech’s ability to make Parler virtually inaccessible put anti-monopoly strategies on the table.

“This might be the new Standard Oil or Ma Bell moment for America,” said Professor Abrams. “I would like to let the market decide, but it’s hard to deny that these companies do have too much control over content and it might be time to have some hard conversations about whether they have gotten too big.”

An especially controversial part of the conversation has centered on the now famous Section 230 of the 1996 Communications Decency Act. The law labels social media companies as hosts rather than publishers, freeing them from responsibility for content and giving them broad leeway to monitor their forums as they deem appropriate.

A year ago, then-candidate Joseph Biden said he would repeal the law as it had given cover to the spread of too much misinformation, but has since said little on the subject. Former President Trump called for the law’s repeal as well, targeting the companies’ free hand in censoring and attaching warning labels to statements made. After his election loss, Mr. Trump tried to attach a repeal of 230 in the annual defense budget, but the move was rejected by lawmakers.

Should the Biden administration follow through on statements that the law would be reviewed, Democrats would likely push for greater oversight and censorship of content.

The protection the law provides to social media companies makes questions about whether their preferences undercut their status as a neutral forum legally significant.

“Section 230 has its pros and cons,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “It gives tech companies immunity in areas where they would otherwise be liable; it also gives them discretion. Were Congress to remove it, [companies] would become liable, but the result would likely be much more censorship and taking down of information.”

One solution that would address concerns over selectively silencing speech is to change social media companies’ status to that of a common carrier, similar to what phone companies do when they facilitate a private conversation.

“If someone used their cell phone to organize a riot, the police would catch them and prosecute them rather than cancel their service,” said Professor Volokh. “Most of us would be quite bothered if your phone company canceled service because they don’t like your politics, and we’re not expecting Google to cancel email accounts of people who might be racists or extremists.”

Mrs. Russell of First Liberty tended to favor forums left truly open and neutral, saying that companies should not be arbitrators of what is true or good, a test she thought best left to users. She was also concerned that leaving determinations about what was acceptable speech to big tech or government could easily result in censorship of traditional religious beliefs that run contrary to progressive ideology.

“We’ve heard from clients for years claiming that they’ve been censored [on social media],” said Mrs. Russell. “Big tech has already demonstrated that they will not tolerate certain religious views that they don’t agree with.”

Some worry that this approach could be fraught for religious groups for the opposite reason. Should laws be changed to require neutrality in forums, those operated by religious groups could potentially find their hands tied in censoring content they deem inappropriate.

The common carrier approach would push companies to hew much closer to their original mission as a free stage for communication, but would severely handicap efforts to reign in speech seen as dangerous. While some politicians have been quick to endorse one approach or the other, broad consensus seems to abound among experts that there will be no quick or easy solutions to the problems big tech has wrought.

“This is going to be very messy,” said Professor Abrams. “Even for a small government person like myself, there need to be standards and consequences just like other media have to deal with and it’s probably time to think more about what is the true public good here. [Social media] can’t continue completely uncontrolled, as we’ve already seen too much of the negative consequences of that.”