Saturday, August 18, 2018

Free speech and social media

Free Speech in the Age of Digital Platforms - Foundation for Economic Education - John Samples, Cato Institute:

August 17, 2018 - "Last week Facebook, Google, and Apple removed videos and podcasts by [a] prominent conspiracy theorist.... Many people are debating these actions, and rightly so....

"The tech companies have the right to govern speech on their platforms; Facebook has practiced such 'content moderation' for at least a decade.... The managers of the platform are agents of the shareholders; they have the power to act on their behalf in this and other matters. (On the other hand, if their decision to ban ... was driven by political animus, they would be shirking their duties and imposing agency costs on shareholders). As private actors, the managers are not constrained by the First Amendment. They could and should remove [someone if] they reasonably believed he drives users off the platform and thereby harms shareholders....

"I see two limits on business logic as a way of governing social media: free speech and fear.

"Elites in the United States value free speech in an abstract sense, apart from legal limits on government. Platform managers are free of the First Amendment, but not of those cultural expectations.

"Fear informs online struggles over speech. The right believes that platform managers are overwhelmingly left-leaning and ... trying to drive everyone on the right off their platforms and into the political wilderness.... The left fears people like [the banned guy] having access to a mainstream audience leading to electoral victories by authoritarians....

"The platforms need legitimacy for their governance. In other words, they need for users (and others) to accept their right to govern (including the power to exclude). Legitimacy would confer authority on the decisions of the platform managers.... What [Max] Weber called rational-legal authority seems to be the only choice for the platforms. In other words, they need a process (or due process) that looks like the rule of law (and not the rule of tech employees).

"Facebook seems to be trying to establish rational-legal authority. It set out Community Standards that guide governing speech.... But do the Community Standards respect the culture of free speech?... Their basic law ... contravenes American free speech legal doctrine. Hate speech is protected by the First Amendment, but not by Facebook.

"I conclude that either Facebook’s standard violates the culture of free speech or it reflects a difference between the culture of free speech (which does not include hate speech) and American First Amendment legal doctrine. If the latter, Facebook’s recognition of the difference will foster a greater gap between culture and law.... This asymmetry between inside the companies and outside is not good for the freedom of speech. It is also not good for the legitimacy of content moderation.

"As a legal matter, social media companies have broad discretion to police their platforms. That is how it should be. But they need to make their authority legitimate. If they do not, elected officials may one day act to compel fairness or assuage fears. As always, that will not be good news for the freedom of speech or limited government."

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