“Congress shall make no law … abridging the freedom of speech, or of the press.” For centuries, these words have protected the right of every American to express themselves and allowed the free press to flourish. At a time when these ideals are being tested and questioned – perhaps more than ever before – it is important that we reflect on where we are and where we are going in the face of the vast technological changes that are impacting our press and our democratic systems, especially the rise of the big tech platforms and their role in making editorial decisions previously delegated to newspaper publishers.
Newspapers perform a vital role in our society – delivering information to local communities and keeping the public abreast of developments of national and international importance. For centuries, they have been the main moderators of public expression. Although the First Amendment protects the free speech of individuals and the press against undue government regulation, it is not unfettered. Newspapers that print defamatory or harmful speech can still be held liable under state law. In many ways, the internet has had a great equalizing effect on free speech, allowing anyone with an internet connection access to publishing platforms. Government policies incentivize digital companies to allow free speech on their platforms without significant content moderation; however, problems start to arise when these companies move away from acting as neutral content platforms and start making unaccountable editorial decisions.
Today, big tech companies like Google and Facebook have effectively become digital publishers, deciding what content people see and when. These decisions are made by opaque algorithms that do a lackluster job separating quality content from misinformation and fake news. The result is the proliferation of false information across the web. In addition, the online platforms regularly censor offensive or criminal content. These decisions by the tech companies often lack transparency and can be a combination of automatic content-filtering and human evaluation.
No one can argue with social media companies removing hate speech and offensive content – think Alex Jones’s alt-right propaganda – but in making these decisions, the platforms should admit that they are not merely neutral information exchanges, but rather active editors.
It isn’t just outside observers who have noted that the tech platforms resemble traditional publishers – the tech companies themselves have admitted as much in court proceedings. In the case Six4Three v. Facebook, where an app developer sued Facebook for its refusal to grant access to user data, Facebook referred to its decision to limit data access as a “quintessential publishing function.” Facebook also made the argument that this publishing function includes deciding what to publish and what not to publish. Yet, Facebook has consistently refused to describe itself as a publisher in public statements. This exhibits the unashamed tendency of the big tech companies to claim the benefits that come with being a publisher when it suits them, while refusing to accept any of the societal responsibility that comes with it.
One reason for this may be that the very law that was designed to foster their growth two decades ago – Section 230 of the Communications Decency Act – also grants them broad immunities from liability for the user content they publish. In fact, Section 230 specifically states that online services shall not be treated as the “publishers” of any information provided by another party. The law allows online platforms to “restrict access to or availability of” offensive and “otherwise objectionable” material without fear of civil liability. Online platforms can therefore publish whatever user or third-party content they wish – while deciding what not to publish – without any repercussions.
Instead of trusted, accountable publishers determining what constitutes real news, web and social media companies that have no regulatory oversight now make those decisions for us. These actions by big tech companies affect citizens’ fundamental rights and civil dialogue well beyond the confines of the online platforms, with little to no option for citizens to protect their right to free speech.
While we must continue to celebrate the rights and privileges granted to us by the First Amendment, we must also protect those rights for the generations to come and develop new rules for the digital era.
Johannes Munter is Director, Copyright and International Policy, and Associate Counsel at the News Media Alliance.