Social Media Companies’ Bad Week Ends with Executive Order
Social media companies, the First Amendment and Section 230 of the Communications Decency Act recently had a roller-coaster week. First, YouTube found it had a China problem. Then, Twitter decided to “fact check” a tweet by the President, which resulted in a controversial executive order. The bad week, though, should not serve as a basis for regulation by the executive branch.
Any analysis of these events should be prefaced by two key facts. First, the First Amendment restricts government conduct, not actions by private companies. Second, content moderation is difficult. It is an inexact science executed by ordinary people who are imperfect and make mistakes.
For anyone unfamiliar with it, Section 230 of the Communications Decency Act is a law that ensures authors of online posts, or creators of online content, are held responsible for their creations. It also permits websites to remove content they believe is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 helped create the internet we know today, including sites like eBay, Amazon, Yelp, Facebook, YouTube and Snapchat. The law supports trillions of dollars of value, hundreds of thousands of jobs and products or services many people cannot do without.
Social media platforms’ bad week started when YouTube found its content moderation software automatically deleted comments containing one of two Chinese phrases, which roughly translated to “communist bandit” and “Fifty-Cent Party.” YouTube claimed the deletions were accidental, the result of an error in its automatic detection software.
There are several plausible explanations for YouTube’s automatic deletions. One explanation, as The Verge notes, involves coordinated action by pro-Chinese Communist Party users. These users “may have mass-reported these terms, triggering some sort of automated response that added them to the platform’s filters.”
The week got worse for social media platforms when Twitter decided to fact check President Trump. The tweet in question warned that the mass use of mail-in ballots during the 2020 election will increase the rate of voter fraud. Putting aside whether voter fraud occurs, this appears to be the first time Twitter “fact-checked” a public official. Even more, the fact-check policy Twitter referenced is dated May 2020, and appears to be drafted in response to the tweets.
The decision to fact-check President Trump looks bad for Twitter. A number of other public figures have lied, stretched the truth and so on, with nary a peep from Twitter CEO Jack Dorsey or other senior company leadership. Intellectual honesty demands, going forward, if Twitter is going to fact-check the President regarding predictions, then it ought also to fact check predictions from former Vice-President Joe Biden, Speaker Nancy Pelosi and others.
Rather than ignore the slight or urge supporters to abandon the social media platform, the Trump Administration decided to go the regulatory route.
The President’s executive order tries to interpret and narrow the intermediate liability protections afforded by Section 230, in a very roundabout way, it asks the FCC to clarify part of the law, directs the FTC to investigate social media companies for unfair and deceptive trade practices, tells the Attorney General to coordinate state investigations of unfair and deceptive trade practices and prohibits the federal government from spending money to advertise on social media platforms.
The order violates a number of constitutional provisions, such as the First Amendment. The Amendment guarantees that government cannot enact standards prohibiting or requiring speech — it does not guarantee that anyone can post any content on any platform. The order violates the First Amendment by threatening platforms with regulations and endless litigation unless they host speech the government deems representative of the “conservative” political viewpoint.
As mentioned above, Section 230, is a law passed in 1996. In addition to helping create the internet we know today, it ensures platforms are not treated as publishers of third party content while holding the platforms responsible for the content they create.
One can debate whether Section 230 should continue to exist as Congress wrote it back in 1996. What cannot be debated is that the order is the wrong way to change the law. The order wants agencies to narrow the interpretation of various provisions not through legislation, but interpretation and rule making—the primary functions of the legislative and judicial branches of government.
Social media platforms have had a bad week. The companies are going to make mistakes when moderating content. Innovation means acknowledging the imperfect nature of man and allowing companies to experiment and correct their own mistakes and not allowing the mistakes to form the basis of federal regulatory action.