This is the crux of the challenge facing judges. The incident stems from a haphazard law passed by the Florida and Texas legislatures that prohibits social media platforms from kicking conservative provocative brands off their sites (Suppress your surprise) ). Texas argues that high-tech companies are 21st century public utilities and must be regulated to ensure equal access.
On the other hand, Big Tech-funded trade associations have the right (if not the responsibility) to decide what content is in the public interest and what content is in the public interest. The company is suing to invalidate the law, arguing that it has the same First Amendment rights as media companies. it’s not.
The discussion here has been going on for a long time. This problem remains unresolved, in part because technology companies themselves have always tried to solve it both ways.
As enraged leftists demand further regulation of content that spreads hate and misinformation, the companies are quick to argue that they are not content providers, but essentially conduits for public debate. In fact, Congress codified this argument in something called Section 230. This provision protects social media companies from the same kind of legal jeopardy that newspapers can face if they publish false content.
But when the right tries to impose some form of political neutrality, as it did in Texas, those same companies adopt exactly the opposite conceit. They say they can’t be forced to publish because they’re a media company, no different than any other news site. Content they find offensive.
If we can’t determine what kind of company they actually are, I think a judge will decide.
Writing in the New York Times this week, Tim Wu (a left-wing law professor at Columbia University and a far more expert on this issue than I am) says the court will uphold the Texas law and treat tech companies the same way. I argued that it should. Although they were utilities.
Wu doesn’t like the law itself, but the theory is that repealing it would constitutionally make no difference between CNN’s editors and Instagram’s algorithm, which would prevent any government regulation of social media platforms. will also be effectively banned, he says. .
I sympathize with this argument to some extent. That’s because I’ve worked for two of these companies during my career. (He worked for five years as a national politics columnist at Yahoo, then published a newsletter on Meta’s now-defunct Bulletin platform.) The idea that tech companies behave very differently than traditional journalistic outlets. I can prove that. They’re run by engineers who care as much about the quality of the information they consume online as they do about running cables in your house or fixing your water pipes.
Still, as a non-lawyer, I ultimately stand on the other side of this argument: social media companies aren’t really public utilities at all. They don’t maintain their own infrastructure, they don’t maintain pipes or towers. They do not provide services that we cannot live without. There is nothing more basic than drinking water and electricity. No government permission is required to operate. Most importantly, they do not enjoy exclusivity, even if it feels like it at that moment.
Twenty-five years ago, AOL was an email and bulletin board behemoth. Now it’s as much a relic as dial-up Internet. There’s nothing stopping someone from creating a new social media platform. There’s good reason to think that Facebook, X, or even Google in the coming age of artificial intelligence, will be overtaken by products that haven’t been invented yet.
In fact, these technology companies are now content providers who make editorial decisions every day about which posts to promote and which to bury. They are purveyors of speech, collectors of information, and it seems to me that they are entitled to the same free speech protections as other types of media.
But there’s a catch. They should be responsible for their content as well. That’s why if the Texas law is de facto unconstitutional, Section 230 (which was adopted nearly 30 years ago, in the early days of the Internet) should also be struck down or at least amended. . The way to crack down on social media companies is to hold them accountable for the harm they cause.
But that doesn’t mean you should be able to successfully sue tech companies for every stupid post that has harmful or tragic consequences. This means that social media sites require a minimum of caution. To use the language of defamation law, companies that “recklessly disregard” the accuracy of their content should pay a price to get it right.
But whichever side you fall on in this debate, it’s time for tech companies to choose which lane to take, or to have them choose one over the other. If you are a utility, you are obligated to follow government regulations. If you are a media company, you have a duty to be held accountable in court.
What you cannot do is satisfy both at the same time and be unable to answer anything.