Hate Speech
We’ve heard the cry for years. “How can Facebook delete MY comments. That’s a violation of my FREEDOM OF SPEECH”. It has been a complaint of the far right, the far left and a myriad of other folks who use social media as their main form of expression.
They claim it’s “UNAMERICAN” to censor speech, any kind of speech, even the kind that invokes hate. There’s even controversy about the short term for explaining that kind of speech, “hate-speech”. The term itself sounds like something out of Orwell’s 1984, like the Ministry of Peace that waged war, or the Ministry of Truth that pushed propaganda.
Now the great state of Florida has waded “alligator deep” into the fray. This week Governor DeSantis signed into law regulations restricting social media platforms from banning a political candidate for more than fourteen days at a time. It also makes it easier for private citizens to sue those platforms for “inconsistent” regulation of what they put on social media.
Who Is Regulated
On the face of it, telling Facebook and the rest what to do sounds almost “normal”. We are used to hearing these kinds of regulations. Schools must allow freedom of expression and so do our communities. You might not like the “F—K Biden” sign hanging on your neighbor’s porch, you might think it’s inappropriate for one to be across the street from an elementary school, but it’s the classic definition of “freedom of speech”. We don’t want the government telling us what we can say.
And that fits right into the actual wording of the Constitution that provides “freedom of speech”. The First Amendment states: “Congress shall make no law…abridging the freedom of speech or of the press”. And there it is – Congress, and by the extension of the 14th Amendment, the state governments as well, cannot regulate most speech. So if the government can’t regulate it, why should Facebook and Twitter and all the rest be allowed to?
There’s a simple answer to that: social media platforms are not the government. They are companies, massive in scope and interaction, international in reach, but individual companies none-the-less. They are not “government”. When you sign onto Facebook or the rest, you are actually creating a contract with those companies. And in the great tradition of contract law, you are establishing a “quid pro quo” relationship. You get to use Facebook without paying a fee. But Facebook gets to use your information, selling it to advertisers and others. And they also get to follow your usage, saving “where you go”, so they can more specifically direct those who do pay – to you.
Mom and Pop
So social media isn’t restricted by the First Amendment. They are more like that restaurant down the street, the one with the “no shoes, no shirt, (no mask), no service” sign in the window. If you go into that restaurant and throw your food at others, you might get thrown out. If you make a big scene over how your eggs were done, you might be banned from coming back. We don’t restrict privately owned restaurants from those actions, with certain very narrow exceptions. If it can be shown that the restaurant is discriminating based on race, religion, sexual identification, or ethnic origin, then there are legal restrictions. Other than that, they can control who they serve, and what they serve.
Those discriminatory regulations are based on the “interstate commerce clause” in Article I of the Constitution. Since those businesses are involved in interstate commerce, even the “Mom and Pop” café down the street, certain areas of their operation can be regulated by the Federal government. There’s interstate commerce on the corner in Pataskala? Sure – the potatoes come from Idaho, the orange juice from Florida, and the apple sauce from Michigan.
Interstate Commerce
So now that we are buried in Constitutional Law, here’s the dilemma. The Federal government can regulate some private business discriminatory behavior under the “commerce clause”. But guaranteeing “freedom of speech” under the First Amendment is not a requirement of those companies, only of the government itself. The “law” regards those corporations as “entities” with their own “right” to determine what happens in their places of business. That’s even if the place of business is right here, on the computer screen, all over the world.
But, as any astute law student would now suggest, why can’t the government regulate those businesses under the laws against discrimination, just like they do the Mom and Pop Café. Then the government would “just” have to show that Facebook was discriminating against a protected class of people – and regulation could be applied.
Congressional Power
Well, Congress could. That’s the main purpose of the millions of dollars spent by the social media giants in lobbying the Federal government; preventing Federal regulation. And, so far, that lobbying effort has been very successful. Social media companies have managed to portray Congress as “unfit” to regulate their highly technical industry, and prevented all attempts to control what goes on their platform. “We can regulate ourselves,” they say – “we already do with graphic violence and pornography”.
There’s a lot to be said for regulating social media. It’s profound impact on our political life means that private individuals like Mark Zuckerberg and Jack Dorsey are making decisions that impact our collective future. We can trust that they will do what’s profitable for their business. But can we trust and that it will be in the best interest of the nation?
One thing we can be sure of. No single state, like Florida, will be able to enforce regulations on a company that is by definition “interstate”, and in fact, international. That would be the job of Congress.
If they’re up to it.
