Redefining Social Media Could Destroy It

Back in the day, supermarkets and other local businesses mounted a cork board on a wall so folks could tack up notices of local activities, lost pet alerts, used goods for sale, guitar or piano lessons, roommates wanted, wanted posters, et al. The cork board-owning business, of course, was never thought to be responsible for what notices its customers tacked up. But, because it was its bulletin board, the business could arbitrarily remove any posted item it wanted to.

“Published” media, by contrast, unless otherwise specifically noted, is responsible for what it prints, posts or broadcasts. Newspapers, magazines, books, websites, TV and radio stations publish/broadcast only what they decide at their own discretion. If a publisher prints, posts or broadcasts something libelous, defaming or offensive, said publisher can be sued.

There is a huge legal and business model chasm between these two information and content distribution systems, a chasm in which today’s social media sites uncomfortably exist. Are Twitter, Facebook, YouTube, Instagram, TikTok, et al, more like bulletin boards—not responsible for what is posted but within their rights to remove anything they want—or are they publishers, responsible for everything they post?

Platform/bulletin board or publisher? That is the social media industry legal question at the heart of the recent dust-up between Twitter and President Trump. A desire by the Administration to reclassify social media companies as publishers responsible for content could represent an existential threat to the industry.

Section 230
Social media sites, of course, claim that they are more akin to bulletin board owners, not publishers, and therefore are not responsible for the content posted by third parties. Their entire business model is reliant on someone else generating content for them, and only removing content that violates their own (often vague) rules.

The law supports social media’s bulletin board, not publisher, status. According to section 230 of the Communication Decency Act of 1995-6, written in the dawn of the web and largely to indemnify sites onto which users post obscene material:

“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.”

Last month, Twitter added fact-checking links and warnings to several of President Trump’s tweets, but didn’t remove them, which it could have defended under the bulletin board model. Two days later, the Trump Administration issued an Executive Order accusing Twitter of censorship and First Amendment violations. The President opined that:

“When large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”

The Administration’s executive order laid out a raft of potential corrective regulatory and legal actions. But the U.S. Supreme Court has made regulation of how social media companies act difficult. In Manhattan Community Access Corp. v. Halleck, an October 2018 ruling , the majority found that a “private entity…who opens its property for speech…is not subject to First Amendment constraints on its editorial discretion.”

SCOTUS’s ruling seems to leave little federal regulatory wiggle room, save one: redefining social media. As laid out in the executive order, the Administration insists that social media companies “should properly lose the limited liability shield” provided by section 230 “…and be exposed to liability like any traditional editor and publisher that is not an online provider.”

There are significant reasons why the redefinition of social media would not be desirable for government administrations or for social media companies. They also punctuate why the controversy will likely blow over.

A Social Media Apocalypse
Faced with potential legal, regulatory or legislative redefinition, Facebook founder Mark Zuckerberg defensively jumped in to proclaim that “Internet platforms should not be arbiters of truth.” In a May 31 post, Zuckerberg further explained Facebook’s non-interference approach, noting: “…our position is that we should enable as much expression as possible” and that “our overall philosophy is that it is better to have this discussion out in the open.”

Zuckerberg’s laissez faire attitude is understandable. If defined as a publisher and open to liability, social media sites would be responsible for content posted under their banner. Considering that social media thrives on unvetted and sometimes false information, as well as possibly libelous and defaming material, elimination of section 230 protection would likely result in an avalanche of defamation and libel lawsuits.

To avoid this, all social media content would therefore have to be curated before posting, a likely unsustainable logistical, technical and economic burden. Social media would lose its immediacy, anonymity and raison d’être.

Double-Edged Sword
Perhaps even worse for politicians, the loss of social media means the loss of the largely filter-free, free and unchecked megaphone that is so effective at direct communication with the citizenry—regardless of the content’s veracity.

Since the interested parties don’t really want social media to disappear, the brouhaha will likely blow over. When it does, social media companies might, for better or for worse, feel emboldened to more aggressively police what is posted on their legally protected cork boards.