Congress Can’t Regulate Social Media

Rep. Marjorie Taylor Greene is on a rampage after Twitter deactivated her account and Facebook placed her on probation over controversial coronavirus claims that fact-checkers flagged as misinformation.

The Florida Republican frothed and fumed against “Big Tech censors,” the “Silicon Valley Cartel” and “social media oligarchs” in a Monday fundraising email. She joins a chorus of complainers on both sides of the aisle who want Congress to rein in the internet’s most popular social networks.

So much for new beginnings in 2022. The Electronic Frontier Foundation dubbed 2021 “the year lawmakers tried to regulate online speech,” and all signs point to the same pitched battle continuing unabated. Each ill-fated fight, from demands for political neutrality on the right to calls for rewriting social media’s addictive algorithms on the left, will end in the same predictable stalemate.

Would-be reformers have set their sights on Section 230, a once-obscure provision in the Communications Decency Act of 1996 that’s become every Facebook foe’s favorite bogeyman. They’re aiming too low. The expansive government oversight they crave isn’t possible without gutting the First Amendment.

Section 230 is a simple piece of legislation with a singular purpose. It shields websites that host third-party user content from liability for others’ words. If I spread lies to deliberately harm your reputation, you can sue me for libel. But you can’t go after the deep-pocketed companies whose products I used to amplify my misbegotten message.

That’s all Section 230 does, and it’s crucial. The modern internet as we know it, from social media and message boards to every newspaper, magazine and TV news website that allows user comments, relies on the premise that there’s no vicarious liability. But the 26-word law has zilch to do with content moderation.

There is no “publisher vs. platform” distinction setting different legal standards for sites that take a hands-off or evenhanded approach to user comments and those that exercise editorial control reflecting corporate viewpoints and values. That’s a fiction invented from whole cloth. The word “platform” doesn’t even appear in Section 230’s scant text.

Politicians are quick to rail against “censorship” and invoke freedom of speech when they’re booted from Facebook or Twitter for breaking the rules. They’re confusing private companies with government agencies. The First Amendment constrains the latter and protects the former.

Taking Section 230 off the books or adding a ban on banishings wouldn’t change the calculus. Lawmakers can’t tell businesses what they must allow or may not allow on their websites.

Florida and Texas already tried. Both states enacted laws prohibiting political favoritism in social media moderation last year, and federal judges struck them down for defying decades of First Amendment precedent. An act of Congress is no less subject to constitutional compliance tests.

While conservatives lead the charge to regulate moderation, progressives are at the forefront of equally misguided efforts to impose social responsibility standards.

Facebook and YouTube are under fire for writing algorithms that keep users hooked by populating their feeds with conflict, conspiracy theories and hate, while Instagram is accused of fueling a rise in depression and eating disorders among teen girls.

A Tuesday story on Time magazine’s website compares Big Tech to Big Tobacco and suggests similar social welfare reforms. Reporter Megan McCluskey quotes two academics who opine that Congress can order tweaks to websites’ recommendation engines.

If the reporter had interviewed a law professor, such flights of fancy would be swiftly deflated. Government has no more latitude to impose its preferences on the complex computer code operating in the background of a website than the plain-English text displayed on its homepage.

“The law considers an algorithm to be just as much a form of free speech as, say, a musical score,” intellectual property attorney Veronika Balbuzanova explains in an American Bar Association article.

Courts allow some regulation of commercial speech, such as prohibitions on false advertising. But the beef is with websites’ operability, not their marketing. The kinds of content Facebook and Twitter choose to show their users is more editorial decision than sales pitch.

Kick, scream, stamp your feet, write all the laws you like, but neither Congress nor the statehouse will rein in social media. You have the U.S. Constitution to blame — or thank.

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