We\u2019ve heard the cry for years. \u201cHow can Facebook<\/em> delete MY comments. That\u2019s a violation of my FREEDOM OF SPEECH\u201d. 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. <\/p>\n\n\n\n They claim it\u2019s \u201cUNAMERICAN\u201d to censor speech, any kind of speech, even the kind that invokes hate. There\u2019s even controversy about the short term for explaining that kind of speech, \u201chate-speech\u201d. The term itself sounds like something out of Orwell\u2019s 1984, <\/em>like the Ministry of Peace that waged war, or the Ministry of Truth that pushed propaganda.<\/p>\n\n\n\n Now the great state of Florida has waded \u201calligator deep\u201d 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 \u201cinconsistent\u201d regulation of what they put on social media.<\/p>\n\n\n\n On the face of it, telling Facebook <\/em>and the rest <\/em>what to do sounds almost \u201cnormal\u201d. 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 \u201cF\u2014K Biden\u201d sign hanging on your neighbor\u2019s porch, you might think it\u2019s inappropriate for one to be across the street from an elementary school, but it\u2019s the classic definition of \u201cfreedom of speech\u201d. We don\u2019t want the government telling us what we can say.<\/p>\n\n\n\n And that fits right into the actual wording of the Constitution that provides \u201cfreedom of speech\u201d.\u00a0\u00a0The First Amendment states:\u00a0\u00a0\u201cCongress shall make no law\u2026abridging the freedom of speech or of the press\u201d.\u00a0\u00a0And there it is \u2013 Congress, and by the extension of the 14th<\/sup>\u00a0Amendment, the state governments as well, cannot regulate most speech.\u00a0\u00a0So if the government can\u2019t regulate it, why should\u00a0Facebook\u00a0<\/em>and\u00a0Twitter\u00a0<\/em>and all the rest be allowed to?<\/p>\n\n\n\n There\u2019s 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 \u201cgovernment\u201d. When you sign onto Facebook <\/em>or the rest, you are actually creating a contract with those companies. And in the great tradition of contract law, you are establishing a \u201cquid pro quo\u201d relationship. You get to use Facebook <\/em>without paying a fee. But Facebook <\/em>gets to use your information, selling it to advertisers and others. And they also get to follow your usage, saving \u201cwhere you go\u201d, so they can more specifically direct those who do pay – to you.<\/p>\n\n\n\n So social media isn\u2019t restricted by the First Amendment. They are more like that restaurant down the street, the one with the \u201cno shoes, no shirt, (no mask), no service\u201d 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\u2019t 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.<\/p>\n\n\n\n Those discriminatory regulations are based on the \u201cinterstate commerce clause\u201d in Article I of the Constitution. Since those businesses are involved in interstate commerce, even the \u201cMom and Pop\u201d caf\u00e9 down the street, certain areas of their operation can be regulated by the Federal government. There\u2019s interstate commerce on the corner in Pataskala? Sure \u2013 the potatoes come from Idaho, the orange juice from Florida, and the apple sauce from Michigan. <\/p>\n\n\n\n So now that we are buried in Constitutional Law, here\u2019s the dilemma. The Federal government can regulate some private business discriminatory behavior under the \u201ccommerce clause\u201d. But guaranteeing \u201cfreedom of speech\u201d under the First Amendment is not a requirement of those companies, only of the government itself. The \u201claw\u201d regards those corporations as \u201centities\u201d with their own \u201cright\u201d to determine what happens in their places of business. That\u2019s even if the place of business is right here, on the computer screen, all over the world.<\/p>\n\n\n\n But, as any astute law student would now suggest, why can\u2019t the government regulate those businesses under the laws against discrimination, just like they do the Mom and Pop Caf\u00e9. Then the government would \u201cjust\u201d have to show that Facebook <\/em>was discriminating against a protected class of people \u2013 and regulation could be applied.<\/p>\n\n\n\n Well, Congress could.\u00a0\u00a0That\u2019s the main purpose of the millions of dollars spent by the social media giants in lobbying the Federal government; preventing Federal regulation.\u00a0\u00a0\u00a0And, so far, that lobbying effort has been very successful.\u00a0\u00a0Social media companies have managed to portray Congress as \u201cunfit\u201d to regulate their highly technical industry, and prevented all attempts to control what goes on their platform.\u00a0\u00a0\u201cWe can regulate ourselves,” they say \u2013 “we already do with graphic violence and pornography\u201d.\u00a0\u00a0<\/p>\n\n\n\n There\u2019s a lot to be said for regulating social media.\u00a0\u00a0It\u2019s profound impact on our political life means that private individuals like Mark Zuckerberg and Jack Dorsey are making decisions that impact our collective future.\u00a0\u00a0We can trust that they will do what\u2019s profitable for their business.\u00a0\u00a0But can we trust and that it will be in the best interest of the nation?<\/p>\n\n\n\n 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 \u201cinterstate\u201d, and in fact, international. That would be the job of Congress. <\/p>\n\n\n\n If they\u2019re up to it. <\/p>\n","protected":false},"excerpt":{"rendered":"Who Is Regulated<\/h3>\n\n\n\n
Mom and Pop<\/h3>\n\n\n\n
Interstate Commerce<\/h3>\n\n\n\n
Congressional Power<\/h3>\n\n\n\n