Thursday, June 08, 2023

The Big Tech Censorship Machine Is Running in 2024

Meta slapped 180-day suspensions last week on the Instagram accounts of people working for Democrat Robert F. Kennedy Jr.’s presidential campaign—before a single message had been posted from those accounts. This came shortly after LinkedIn shut down Republican candidate Vivek Ramaswamy’s account, apparently for expressing disfavored opinions on China and climate change.

This censorship should worry anyone who cares about democracy in America. It isn’t only antidemocratic; it’s a thumb on the scale that could easily tip a tightly contested election.

After Mr. Ramaswamy tweeted about his ban, LinkedIn claimed it was a mistake and lifted it. And on Sunday, Meta lifted its ban against Mr. Kennedy’s personal Instagram account, which had been in place since 2021, and said it had removed restrictions on his campaign as well.

But what happens if these platforms impose similar restrictions in future—perhaps at a moment critical to the election? Under current law there is little recourse. The Federal Election Commission’s process is arcane, slow and generally feckless. In October 2020, weeks before the election, Twitter and other platforms famously censored stories about Hunter Biden’s laptop by the New York Post and others and locked the account of Donald Trump’s press secretary after she linked to that story. These acts of censorship might have affected the election’s outcome.

Yet in August 2021, the FEC ruled in Twitter’s favor. The commission claimed there was no proof that the company was trying to influence the election, and a Twitter official swore the company hadn’t “received any communications from or had any communications with representatives” of the Biden campaign. That seems to have been false. A Twitter email obtained by journalist Matt Taibbi revealed later that the Biden team and Twitter were in close contact in October 2020 and were working together to censor specific posts—some concerning Hunter Biden. But the practical point is that the FEC didn’t issue its ruling until nine months after the 2020 election—far too late to make a difference.

In any case, the only issue the FEC had authority to decide was whether Twitter’s censorship of the Hunter Biden story counted as a campaign contribution. The true legal stakes are much higher. The real question is one for the courts, not the FEC: What rights do social-media platforms have under the First Amendment? Are they more like television networks or telephone networks?

Television networks are First Amendment speakers, equivalent to newspapers. They can choose to create a political brand and explicitly favor or disfavor any candidate they want.

Telephone networks don’t have such a right. They also are private companies, but the law treats them as common carriers, which are forbidden to discriminate on the basis of political opinion. AT&T can’t cut off a political campaign’s access to telephone services; Verizon can’t block antiabortion calls as contrary to community standards. In exchange, telephone networks receive a huge legal prize: No one can sue them for what people say using their networks. That is an immunity of which Fox News and its competitors can only dream. Because of its First Amendment right as a speaker, a television network can be sued for defamation, invasion of privacy and other torts.

Bizarrely and uniquely, internet platforms get the best of both worlds. When accused of censorship, they claim to be First Amendment speakers, constitutionally entitled to discriminate against viewpoints they dislike. And the courts have almost invariably agreed. But companies such as Meta and Google don’t pay the price for that privilege. When it comes to who is responsible for what is said on their platforms, they insist they are like telephone networks—immune from lawsuits. Congress awarded them that immunity through Section 230 of the 1996 Communications Decency Act.

The mistake lies not in this immunity, but in giving the behemoth social-media platforms the protections accorded to First Amendment speakers. A social-media post is far more public than a telephone call, but no one thinks Meta is speaking through Instagram stories. No one thinks Microsoft—LinkedIn’s owner—is speaking when users network with one another on that platform. These networks carry millions of people’s communications, which is why they should be protected from defamation suits, like telephone networks. But it is a mistake to view them as First Amendment speakers, entitled to censor with impunity.

As Justice Clarence Thomas recognized in an important solo concurrence in Biden v. Knight First Amendment Institute (2021), the big internet platforms “are at bottom communications networks,” and hence the right solution is to treat them like telephone companies and enact “laws that restrict [their] right to exclude.” Congress should amend Section 230, but not to make the platforms liable for what users say. The amended Section 230 should make the platforms liable if they censor a political campaign or any speech based on its political viewpoint.

Florida and Texas have already passed such laws, but courts have put those laws on hold, and it isn’t clear states have the power to regulate nationwide social-media platforms. That is why Congress needs to act. A new federal law should not only offer damages to those censored; it should offer expedited injunctive relief, so candidates can fight off censorship when it counts.





Stan B said...

Big Tech needs to be held responsible for putting their thumbs on the scales. Especially at Government's behest....

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