The following essay is about history. But it’s about content to be used by future historians. The Supreme Court is going to decide how current events will be evaluated by future generations. The Supreme Court is going to decide if future historians will have to sift through the contradictions between the truth and the pseudo-history offered by people that chose to lie.
The Supreme Court said in Gertz v Welch (1974) that there is no speech value to a lie. While lies have no value as speech, lies have found its home in the marketplace. For many, social media has become the marketplace host where lies can be monetized.
Facebook has roughly 240 million users in the US. The company posts its criteria for acceptable and unacceptable content. None of the criteria for exclusion relate to political viewpoints. However, the Texas legislature has concluded with its bill “relating to censorship of or certain other interference with digital expression, including expression on social media platforms or through electronic mail messages,” that Facebook is deleting content for its political point of view. The bill allows any Texas resident who has their content banned based on perceived political motives on Facebook to sue the company. The law also allows suing YouTube and Twitter.
This bill will perhaps assuage the majority of Americans that believe social media already restrict content based on its political bent. Pew Research found that 90% of Republicans and 59% of Democrats believe social media sites censor political content.
The bill passed by Texas Republicans declare Facebook and the like to be “common carriers.” This is the same designation given to Bell Telephone when it was allowed its monopoly on our home phones, back when we all had home phones linked by wire. This is the same designation given to companies that provide transportation of goods and similar services. All such entities deemed common carriers must hold themselves out for all to use, regardless of the nature of the user. Bell Telephone had to passively allow all speech and all users.
Such a designation is consistent with the nature of Section 230 of the Telecommunication Act of ’96. Section 230 says that "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" (47 U.S.C. § 230). Essentially the section of the law clears social media of any responsibility for its content. Those covered by this section are considered passive conduits for its content.
President Trump sought to limit Section 230, along with Senators Rubio and Hawley saying that Facebook was censoring content it should not and that 230 offered too much protection. Democrat Ron Wyden, among the authors of Section 230, believed that Facebook was not sufficiently active in limiting bad content.
Social media can censor content. It is not a First Amendment matter as they are not a government agency. If given common carrier status, its ability to censor content or specific users could be challenged.
Whether determining social media as a common carrier is an elevation of status is a matter of perspective.
But changing its status to such would mean it could not censor speech or limit any user’s ability to publish. Speech related to racism, homophobia and xenophobia would receive all protection given to any other speech. Perhaps such protection should be offered. Perhaps Milton’s Marketplace of Ideas provides a model for what social media should be—a flea market of ideas in which, in Milton’s hopes, the best of ideas would rise to the top.
The case of Milkovich v. Lorain Journal Co. (1990) concluded that while Gertz assertion that there is no such thing as a false opinion was true, often opinions are stated in ways that they could be understood by the average person to be factual assertions. Essentially, if a statement could be proven true of false, it is not as much an offer of an opinion as an assertion of fact. Did Milton anticipate the marketplace could be inhabited by such manipulation as social media often offer.
So, should Texas legislatures prevail in the upcoming challenges to this law? Should social media be considered common carriers?
Facebook has stock holders dependent on continuing its hold of its marketplace share. Throughout media history, media have self-regulated as a means to forestall government regulation and consumer boycotts. One could argue that social media do such self-regulation merely to maintain good standing in the court of public opinion. Or one could argue that social media act as good Samaritans protecting the public from lies and hate. Whatever the motivation, social media delete content. Of course, some argue its censorship is often based on political ideology.
Parenthetically, my brother and I have separately been suspended by Facebook for posting sarcastic comments of a more liberal nature. We were suspended for spreading lies. In both our cases we could make arguments our content was clearly satirical and not assertion of fact. We did not consider our suspensions to be politically motivated. Many conservatives argue that certain censorship of some assertions of a conservative bent were solely political motivated. These claims are without evidence of a purely political motivation. Of course, the 240+ million Facebook users of America are not privy to the discussions that go into when content is removed or users suspended.
There are other legal arguments related to this that can be included, though engaging such discussions must allow the premise that certain social media are common carriers. Texas legislatures making such an assertion does not make it so.
So why is this post in a blog dedicated to history? Why does it matter whether Facebook is able to censor content? If our media content is to become the artifacts of future historical study, the nature of that content is of great importance. Social media is important today as a tool of access to the world and but will also serve as a tool for the historians of the future to give context to the events that shape our time. The nature of that content to be analyzed will be decided by how courts look at this bill by the Texas legislature. Perhaps historians will look past certain lies and opinions stated as factual assertions. Will future historians view social media as an artifact of an idealistic marketplace of ideas that suffered many of the worst case scenarios enabled by the noble vision? Or will the legislative fight to enable lies be viewed as an artifact of a broken society? Perhaps we have not yet seen the moment Milton counted on: that when all possible viewpoints are offered, the best ideas will rise to the top.
https://www.texastribune.org/2023/09/29/supreme-court-texas-social-media-law/
https://transparency.fb.com/policies/community-standards/ facebook community standards
https://capitol.texas.gov/BillLookup/History.aspx?LegSess=872&Bill=HB20
https://mtsu.edu/first-amendment/article/563/milkovich-v-lorain-journal-co
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