“Congress shall make no law… abridging the freedom of speech” (US Const. amend. I). But what, exactly, is freedom of speech—and what violates it? This question has been thrust into the public eye with the advent of social media in recent times. Digital platforms allow information to be spread exponentially faster across a much wider audience, and thus have the potential to be much more impactful. Regulating this spread of information has become similarly important—and divisive.
Regulating content certainly has its benefits. For example, misinformation can be especially harmful. As writer Roxane Gay puts it, misinformation “contributed to the Jan. 6 insurrection,” as well as “helped prolong the Covid-19 pandemic,” and “encouraged people to do dangerous things such as injecting bleach or taking Ivermectin, a horse deworming paste.” If social media sites had curated the information they distributed, these harmful effects might have been avoided.
However, problems arise when it comes time to classify said “misinformation.” If Facebook decided to censor anti-vaccine sentiments, I would wager that most of us would support them. If they began to delete posts using misinformation to support Donald Trump, those with right-leaning political views would likely become enraged. The story certainly changes depending on who is reacting to the news and its censorship, and it can be argued that giving social media sites the power to censor information gives them the power to censor anything. Although the examples above are extreme, the same concept also applies to less radical sentiments. Censorship doesn’t seem like a problem when it only affects topics that we disagree with, but this power of censorship can be a slippery slope.
So, it seems relatively clear-cut: social media sites shouldn’t be allowed to censor information, as their own bias would leak into their efforts to do so. This isn’t just a hypothetical, however. The law currently allows private businesses, including social media companies, to curate speech on their platforms as they desire. Social media sites have always had control over what information they display, and we have yet to see or notice this excess censorship.
In fact, the danger comes not from social media abusing their power to censor, but from the government doing so. Some states such as Texas and Florida have recently been attempting to classify digital platforms as common carriers: “a special class of business that dominates a market and provides a public service.” In these states, digital platforms are privately owned but regulated by the government. Railroads, ferries, and cellular companies are all common carriers, and the government thus has power over how they regulate their services. Social media sites’ “service” are the content they put out; if they were classified as a common carrier, the government would be able to prevent them from regulating their content.
At face value, the government preventing social media sites from abusing their power may seem like a clear positive, but the government is prone to the same bias that any digital platform is. As the American Civil Liberties Union puts it, “[S]tates (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. But the way the First Amendment achieves that goal is by preventing the government from ‘tilt[ing] public debate in a preferred direction… the government generally cannot compel private actors to host or promote speech they would prefer to exclude, even if the goal is to increase viewpoint diversity.”
The First Amendment was created to stop Congress from abridging our freedom of speech, not abridging the behavior of private companies. Allowing the government control over said private businesses is, in fact, exactly what the First Amendment aims to prevent. The power of private companies is limited—they can only censor what people choose to post on their site. On the other hand, if the government had the power to regulate social media, it could “impose its own vision of what online speech should look like,” stifling dissenting opinions across the internet.
