Friday, March 1, 2024 | 2 a.m.
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At issue in front of the Supreme Court, at least ostensibly, is free speech. There’s also an issue of fairness and, in my humble opinion, the court has a chance to win two giant battles at once.
The issues arise from laws in Texas and Florida that attempt to prevent social media companies — Facebook, YouTube, X (formerly Twitter) — from discriminating against users from a particular political viewpoint. The perception is that those companies were anti-conservative, or at least anti-Donald Trump, in the way they curated content.
It’s important to keep in mind one simple principle: Those companies are not the government. They can do whatever they want. If they want to ban me or block my posts because they don’t like what I’m saying, that’s fine. They are not violating my rights. I have no constitutional right to put videos on YouTube.
So it follows logically that the government cannot tell those companies what to do, either, in terms of regulating speech. To do so would be an intrusion by the government into the realm of free speech, which is protected by the First Amendment. Think of it this way: The government can’t tell a newspaper what to put on its editorial page, or what not to include or exclude from its news pages. Same principle applies.
So those laws, in my humble opinion, are an unconstitutional overreach.
That’s also the argument those companies used in front of the court this week, which is more than a little ironic.
I say that because they have in other contexts argued that they are not like newspapers, in the sense that they don’t edit content or make choices about what to include or exclude. Therefore, they say, they should not be legally liable for that content.
This is preposterous, and has been from the beginning. Of course they make editing decisions — even if the editor is an algorithm, the creation of that algorithm is a decision about what sort of content to promote and what to exclude.
I’ve said this before, and I’ll continue to say it: We at newspapers are liable for whatever we publish. If you submit a letter to the editor that libels your ex-wife, and we run it, then guess what? You’re getting sued, and so are we, and we’ll lose.
But if you put that crap on Facebook? Facebook gets off scot-free — all because of a 1996 act of Congress. Congress could undo that act, just as easily as it created it. But the big-tech lobby has prevented that, and so we are left with the ridiculous situation that Facebook gets preferential treatment under the law compared with the local newspapers that actually try to get things right and provide facts to subscribers.
A decision this June by the court could not only more clearly define the First Amendment in the internet age — it could definitively establish the concept that these companies are content providers, and therefore ought to play by the same rules as the rest of us.
Ned Seaton is a columnist for The Manhattan (Kan.) Mercury.
