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I'd like to thank the Academy

So if you've been twiddling your thumbs waiting for this, the third installment in my Free Speech Trilogy, I have one question for you: Why don't you have anything more interesting going on in your life? I mean, I'm grateful, don't get me wrong, but...you need to get out more. 

I'm just saying.

When last we left our intrepid hero (moi) we had visited two questions, and hopefully answered them, at least to some degree:

  1. What is, and isn't, the First Amendment? (Hint, it doesn't really protect you from anything other than government censorship.)
  2. How does social media change the rules? (Two ways: You can't escape it; and you can't navigate it independent of its technology-enabled echo chamber.)

This last installment is the most difficult, of course, because it seeks to answer the question: Now what? Instead of explaining where we are or how we got here, there are no clear cut answers. And, as a corollary to that, some days it can feel like there's no hope of getting back, or forward, to a time where it feels safe. 

DISCLAIMER: As I suggest above, this isn't going to be one of those light and breezy posts. No Taylor Swift. No Trader Joe's. And no Claudia Conway drama. This is a stab at serious and credible because the subject matter deserves it. Don't worry, I will get back to pithy irreverence quick as a bunny, I promise!

Good? Good. Let's go.

***

The way I see it, there are four broad categories of answers as to how to fix the dangerous vortex in which we find ourselves. I'm going to address them in ascending order of magnitude. At least I think that's how this is shaping up. First:

1. The Free Market

This could also be described as "what we have now." There are no firm governors on how media companies can shape and/or limit communication on their platforms, and while that ends up being a good thing on some days (like when gun-toting elected officials are stopped from inciting stupid people to riot), that is ultimately a happy accident because there is no safeguard against silencing less objectively dangerous people.

The way this method can evolve to address, if not resolve, the problem is by supporting people's freedom of choice as to which platform they choose to participate in. This is already beginning to happen. Mirroring the split in mainstream news between the liberal slant of CNN and the ultraconservative filter of Fox News and OAN, a social media platform called Parler introduced itself as an alternative to Twitter, appropriating the “free speech” label and becoming an instant hit with the pro-Trump crowd. Parler’s CEO, a millennial named John Matze, actually said, “We are the worlds (sic) last hope for free speech and free information.”

In addition to sounding a little like a certain moustachioed 1940s dictator, it so happens Matze said that when announcing Parler would be shutting down for a period of time because the large tech companies – Amazon, Google, etc. – were booting Parler off their servers in the wake of the January 6 Capitol insurrection. They claimed Parler was a festering petri dish of hate and criminal intent. (And yes, that is the opening to my proposed new Law and Order spinoff! Tuesdays on NBC!)

He said the app would probably shut down “for up to a week as we rebuild from scratch.” It was a month, but then Parler was back. By then, ex-President Trump (who had been banned from Twitter, YouTube, Facebook and Instagram) had announced plans to build his own social media platform which would, undoubtedly, be “tremendous.” While it’s been confirmed that he is actively working to make this happen, his chances of success are generally thought to be small. One professor at George Washington University's School of Media and Public Affairs was quoted, "Donald Trump says a lot of things. Before he was elected, he said he would rarely leave the White House and that he wouldn't have time to play golf and that he'd give up Twitter if elected."

But there were plenty of people who thought he could never make a legitimate presidential run, too, and look how that turned out.

Here’s the short story: the free market, which I support by the way, cannot address this issue. Why? The resources necessary to start and sustain a media company are considerable; it’s not like people with dissenting opinions can just print fliers in their basements. Despite the universal access the Internet promises, the rich still control the means. More important, the profit motive reigns; which means these platforms – old and new – will continue to be driven by the prospect of filling an unmet need in search of the Benjamins, regardless of ethical issues. 

Plus, and this is not a small point, do we serve good or evil by creating more and more ways to fracture us as a society?

I don’t want to get all Iron Man 3 (#nottherealMandarin) on you, but it’s not inconceivable that a single media magnate could simultaneously sponsor competing social media platforms that, in squaring off against one another, give him or her a virtual monopoly on discourse in America and beyond. Think about that for a minute, fix yourself a drink and, when you’re ready, let’s continue.

***

2. Self-regulation

This is not the same thing as the free market. This path suggests that the media companies themselves, through transparency, discipline, vigilance and collaboration, could agree to a universal code of ethics and behave according to them.

I am skeptical.

An outstanding article in the Harvard Business Review noted, “Before the internet era, several industries, such as movies, video games, broadcasting content, television advertising, and computerized airline reservation systems, faced similar issues and managed to self-regulate with some success. At the same time, these historical examples suggest that self-regulation worked best when there were credible threats of government regulation.”

Few things in life are as motivating as Big Government breathing down your neck.

The current law of the land, the Communications Decency Act of 1996, leaves some pretty big loopholes for media platforms that the Zuckerbergs of the world have taken full advantage of. One such loophole states, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, it exonerates the platform from liability for what is said by independent parties on their system. They are not a publisher, taking responsibility for what is produced and what is held back. They are simply the broad stretch of information superhighway on which billions of men and women travel.

Which made sense, on paper, in the late 90s. But think about how the landscape has changed in just 20 years. In just the last 4 years!

The law also includes a “good Samaritan” exception which allows platforms to remove content deemed obscene or offensive, as long as it is done in good faith. This is the authority the social media companies needed, and used, to ban Trump and others from their servers when it became clear they were willfully spreading misinformation and, ultimately, inciting people to violence.

This brings us full-circle: Something bad happened in January; and some commercial enterprises took corrective action based on their legal rights and responsibilities. But what does “good faith” mean? How do you measure it? 

I believe a credible case can be made for limiting the transmission of speech calling for violence against any people: blacks, Asians, even legislators. For me the tipping point is probably right there, around the violence part. I have called ultraconservative people nasty names, and ultraliberal ones as well - I don't play well with ultras, I guess. But I have never suggested we should band together as a community and kill anyone.

That feels like a line to me. Cross the line, and you invoke the “in good faith” clause.

But we are left with the key issue unresolved: the major law in place protects the speech on these platforms and absolves the owners of liability while giving them the privilege of acting “in good faith” when they believe a line has been crossed. How do you standardize that line, and how do you enforce it?

Some people believe the way to do it is by creating an impartial gathering of competitors to determine specific standards and jointly police them. Think about the Motion Picture Association and the concept we have come to know as film ratings.


According to the MPA’s website, the organization is, “the leading advocate of the film, television, and streaming industry around the world. The MPA’s members currently include; Disney, Netflix, Paramount, Sony, Universal, and Warner Bros.”

If this were a Marvel movie, it would be like if The Avengers were the actual governing body of the superhero industry. Those (like me) who are MCU devotees know that this explicitly doesn’t happen. Instead, the Sakovia Accords are invoked, applying international government controls over the heroes, albeit ineffectively.

In 1968 the film industry ducked government regulation (First Amendment! First Amendment!) by creating the Classification and Ratings Administration (CARA), a board allegedly composed of an independent group of parents, which is responsible for the singular, consistent rating system that gave us such feel-good hits as PG-13 and NC-17.

Now, we could argue the efficacy of the film rating system. We could debate whether, in an Internet fueled era, they are even relevant anymore. Back in the day, you could sneak into an R-rated movie if you knew how to sneak past the acne-pocked theater attendant. Today you can jailbreak a Firestick and watch whatever the hell you want, whenever you want. For that matter, I would suggest minors are specifically and uniquely qualified to circumvent the ratings system in this manner!

But that’s not the point. The point is, for more than 50 years the film industry has managed to stave off government regulation by regulating motion picture content “in good faith.” Said good faith is evidenced by the creation of an alliance of enemies and the enforcement of a set of published standards. Not perfect, but 50 years is a good run and it doesn’t appear to be in any immediate danger of dissolution.

I would rate this option a B- on the grand scale. It seems like it could work and it has worked in other instances, in other industries. Clearly the companies themselves should be motivated to adopt a measure like this one because the absence of any regulation will almost surely result in legislation; and that can only be detrimental to their balance sheets.

***

3. States’ rights

Wait, are we back to talking about Hamilton? Are statutory solutions a possible answer?

You wouldn’t think so, given the ubiquity of social media and its general disregard for geographic boundaries, but there is some precedent.

According to an article on the American Bar Association website entitled, In the Age of Social Media, Expand the Reach of the First Amendment, “The New Jersey Supreme Court has applied the free expression provision of its state constitution to allow individuals to challenge restrictive bylaw provisions of private homeowner associations. The state high court wrote: ‘In New Jersey, an individual’s affirmative right to speak freely is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.’ (Mazdabrook Commons Homeowners Association v. Khan, 210 N.J. 482, 493 (2012).)”

This is exciting to me, because I hate my Homeowners’ Association and would do a naked dance around a bonfire if I could…well, if I could dance naked around a bonfire without getting a nasty email and a fine. Sadly, I do not live in New Jersey.

This case probably had something to do with putting rainbow flags or some such thing on a front lawn in a private community where expression of such progressive views is frowned upon. That doesn’t sound much like the free speech we’re fighting over on social media. But you can see where some states have extended the protection of free speech within their borders to include limits placed on citizens by private, non-government entities.

The concept works, presumably. But ultimately the geography torpedoes this one. Twitter can’t worry if I’m in New Jersey or Pennsylvania. And what if I’m tweeting while on the Walt Whitman Bridge on my way to Ocean City for a vacation with my family? Besides the fact that I should not be doing that while driving, there’s no reasonable expectation or logic to having different rules or different access on one side of the river compared to the other.

This one’s busted, I’m afraid. Which leads us to the Big One.

***

4. Back to the First Amendment

As the article referenced above suggests, there are those who would dust off Madison’s Bill of Rights and give them a paint job for the new millennium. The article notes that “legal commentator Benjamin F. Jackson cogently explained in a 2014 law review article that ‘[P]ublic communications by users of social network websites deserve First Amendment protection because they simultaneously invoke three of the interests protected by the First Amendment: freedom of speech, freedom of the press, and freedom of association.’”

Even before the Internet, in 1985, a legal scholar named Erwin Chemerinsky argued:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values.

Makes a First Amendment-amendment sound like a slam-dunk, doesn’t it? But wait.

According to Article 5 of the US Constitution, any amendment must be passed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. THEN it has to be ratified by three-quarters of the states. Not surprisingly, there have been several proposed amendments, seemingly non-controversial ones, that have passed Congress but died un-ratified by enough states. They include:

  • An amendment prohibiting any US citizen from holding elected office if he or she has “any title of nobility or honour… from any emperor, king, prince or foreign power.”
  • A 1924 amendment governing child labor laws at the federal level.
  • The famous Equal Rights Amendment of 1982. That’s right folks, there’s no constitutional guarantee that “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
  • And, of course, the ongoing amendment granting citizens of the District of Columbia elected representation in Congress. Sucks to be you, DC.

The weirdest one by far is Article Thirteen, which was actually signed by President James Buchanan in 1861 even though his signature was not required for passage. Article Thirteen, had it been ratified, would have protected slavery (along with other domestic policies governed at the state level) from interference or abolishment by the federal government. In his first inaugural address on March 4, 1861, Abraham Lincoln said of this, known as the Corwin Amendment: “I understand a proposed amendment to the Constitution—which amendment, however, I have not seen—has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service ... holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.”

Which is funny, because of course as the Civil War ultimately turned in favor of the Union, Lincoln risked his legacy and ultimately his life to eliminate slavery at the national level. Accordingly, the ultimate 13th Amendment – which WAS ratified by the required 27 of then 36 United States on December 6, 1865 – abolished slavery and involuntary servitude, except as punishment for a crime.

Not to put too fine a point on it, let me ask the obvious question: If we can’t agree on equal rights for men and women or granting elected representation to US citizens actually living in our nation’s capitol, what are the odds we could amend the Constitution to modify the First Amendment, arguably our most basic and foundational constitutional protection, to govern the operation of private entities?

Yeah, that’s what I think, too.

***

So what’s the answer? Well, to be fair I started off telling you there isn’t one, which makes this both interesting and frustrating. 

Having said that, if I had to weigh in on a single strategy I think it would be to push – hard – for legislation regulating social media companies’ power to limit speech, even speech considered to be objectionable. Now before you call me a commie pinko bastard, hear me out.

I don’t believe in that legislation. I don’t think legislation like that would pass. I absolutely don’t support an amendment to the First Amendment. But I do believe, with all my heart, that people will consistently behave in their own self-interest, and large corporations are nothing if not people. Rich people. People who have learned to enjoy being rich.

So let's use their self-interest for the common good. Only a strong campaign to interfere with their rights under capitalism will be powerful enough to promote any type of effective self-regulation by the industry. (Harvard said so, and I believe it to be true.) They have to believe they are about to lose their autonomy, their ability to own the end-to-end means of production, if they are to evolve of their own accord, for the benefit of the rest of us.

This strategy is not without risk

Especially in the current political climate, a loud, weaponized group of people could manage to propose and maybe even pass legislation that would strengthen the government’s hold over how social media platforms regulate our discourse. While open to challenge, this could be done without the procedural burden of a constitutional amendment. I don’t believe this would be a step in the right direction. I don’t believe I’ve ever seen the government take something that was broken in the private sector and make it work better, and I have no faith they could do it in this instance.

I’ve been wrong before. But to quote a former boss and mentor from early in my career, I'm right more often than I'm wrong.

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