In a recent guest post on this site, Prof. Adam Candeub offered a thoughtful critique of my argument that the government cannot use “common operator” status to severely limit the rights of social media companies to engage in moderation of the content on their sites. While I appreciate Candeub’s effort, I remain unrepentant. Indeed, a valuable aspect of his argument is that it highlights the dangerous implications of the common vector theory currently advanced by Texas and Florida in their attempts to defend their social media laws before the Supreme Court.
Candeub argues that state governments can impose common carrier status on social media companies based on their “market power” or simply because they need to be forced to “stay in their lane.” Both theories would have drastic implications for free speech.
As I have pointed out previously, social media companies certainly do not have anything close to monopoly power in the sense of being able to prevent widespread dissemination of speech that they refuse to host on their sites. All the examples of “censored” speech cited by Candeub and others – revelations about Hunter Biden’s laptop, anti-vaxxer speeches, criticism of Covid policy, speeches supporting Trump’s claims that the 2020 election was stolen from him, and so away — have received wide coverage elsewhere, particularly in mainstream right-wing media outlets, such as Fox News.
If the argument is that posting this speech on social media sites such as Twitter or Facebook would allow it to reach a larger audience or a different group of people than those reachable through other sites, that argument can be used to justify repeal of the right to speak. of a wide range of media outlets and other organizations. I explained why here:
While Twitter and Facebook do not actually monopolize the market for political information, it is certainly true that they reach several potential audiences that are difficult or impossible to reach in other ways. But, if this justified the obligation to renounce content restrictions, the same theory would rationalize imposing the same requirements on other types of media. Fox News, the New York TimesTHE Wall Street Journal, and a number of other major media and print media also reach large audiences that cannot always be easily reached in other ways. By this logic, they too can be forced to be common carriers!
Candeub is right on one point. It does we feel like he and I “live in different worlds”. I live in a world where there are numerous right-wing media outlets ready, willing, and able to widely disseminate speech that left-wing social media might prefer to exclude, and vice versa. And I live in a world where all of the views discussed above indeed enjoy wide currency. Don’t take my word for it! Search for them using Google (or any other search engine) and you’ll quickly see how easy it is to access them, even on sites with large audiences.
There is no monopoly power here. And if simple disproportionate influence – called “market power” – is enough to justify government coercion of social media companies to publish material they disapprove of, it can justify similar measures against any major media outlet. Fox News may be forced to air left-wing speech that it would otherwise reject New York Times he might be forced to publish more MAGA-type material, and so on.
The “stay in their lane” argument has similar dire implications. The “lane” occupied by social media companies has never been limited to completely “neutral” dissemination of material, regardless of point of view. They have always exercised editorial judgment and most consumers want it that way.
Candeub argues that this problem can be addressed by distinguishing “content” moderation from viewpoint restrictions, thus potentially allowing social media companies to still exclude material that constitutes “harassment” or is otherwise “unpleasant.” But content and point of view are often closely linked. For example, obscene content or unpleasant, “unpleasant” language are often used to make a point. Additionally, many users may prefer an experience free of views that they consider offensive or time-consuming, such as Holocaust denial or “flat earth” advocacy. Such substance-based curation is a standard feature of social media companies. All major social media sites, including Elon Musk’s Twitter/X, engage in this.
The benefit of competition and free market choice is that people who don’t like a company’s content moderation have other options. Candeub notes that many leftists remain on Twitter, despite Musk’s takeover and the introduction of rules they don’t like, suggesting this shows the company has “market power.” But, in reality, many Twitter users have left since he took over: a 23% decline in US usage since Musk took over in November 2022. Presumably, those leaving include many of those who most detest his policies.
The “common carrier” policies imposed by Texas and Florida and defended by Candeub would eliminate most of that choice. They would impose a single mandatory system of content regulation on all major social media companies. This type of coercion is an obvious threat to free speech.
Candeub also raises the now-familiar analogy between social media companies and businesses like phone companies and mail carriers. In a previous post on this topic, he criticized this analogy as follows:
With rare exceptions, phone calls and letters reach only a small and targeted audience. Unless they are illegally tapping your line, the general public does not and should not have access to your phone conversations. Ditto for your mail. In contrast, the whole point of most political speech on social media is the ability to reach a large audience all at once. But an information product that simultaneously reaches a large audience usually works best if it has at least some moderation rules and other constraints that allow consumers to find the material they want, while avoiding harassment, name-calling, and other things that make the experience annoying. unpleasant or simply a waste of time.
Candeub protests that “common carriers carried newspapers, magazines, and other material constituting political speech intended for a broad audience.” This overlooks the obvious reality that every single package transported by that carrier was actually directed to a specific individual or small group. It wasn’t in a place seen by millions of people at once. This, of course, is even more true for phone calls. On social media sites (and other websites with large audiences), content is visible to thousands or even millions of people at the same time. The latter scenario requires more extensive content control than the former.
Candeub suggests that social media users can control what they see through techniques such as content blocking. But such tools are imperfect. Regular users of sites like Twitter and Facebook often encounter content that they find annoying, time-consuming, or objectionable. Additionally, many users may find it annoying to constantly have to block material.
Others, by contrast, may prefer little or no content moderation. And that’s fine too! The existence of such divergent preferences is an important consideration against the possibility of the government imposing a one-size-fits-all content moderation policy for all platforms.
In the last part of his post, Prof. Candeub laments governments’ various efforts to “silence critics” by forcing social media companies to remove content. I am also against coercion. But it does not follow that “only Texas HB 20 stands” such dangers. Such claims overlook the obvious alternative of banning coercion across the board: with extremely rare exceptions, the government should equally be barred from forcing social media companies to remove content (as the Biden administration has apparently tried to do in some cases) and force them to put (as Texas and Florida try to do). Instead of fighting one type of speech coercion with another, we can apply the First Amendment and prevent both.