A Commentary on Media History, Law and It’s Abuse

2015 sparked one of the largest movements of populism in modern times.  Big Tech, an arm of the establishment, has taken the stance of censors.  To them, under the gaze of the hypodermic needle theory, we are simply not responsible enough to be our own individuals. We, the people, bound only to our maker and the Constitution, will not be silenced. 

Since the colonial era, American media has been stifled by suppression. After lifting the monarchical restraints preceding the English Civil War (1640-60), freedom of speech and press became de facto. Parliaments passing of the 1662 Licensing Act required all printers to acquire permission from the government before the publication of any literary pieces, newsletters, or pamphlets. Following the Glorious Revolution of 1688, the Licensing Act became defunct, allowing print without government authorization. In the 1730s, an editor-publisher of the New York Weekly Journal, John Peter Zenger, investigated the New York colonial government writing several critical publications. New York’s government accused Zenger of printing “seditious libel,” arresting him in 1734. Andrew Hamilton, brother of Alexander, represented Zenger in the libel suit. He successfully argued that if the print was truthful, it was not libelous. From thereon, truth became the defense in libel suits.

As colonial America’s thirst for freedom heightened, the crown imposed the Stamp Act of 1765. Printing firms were required to pay a tax on newspapers or pamphlets and even simple playing cards. Censorship of the printed word provided more angst, enough to fight for independence.

Post Revolution, America needed to decide how to protect its citizens’ speech. James Madison led the cause for Congress to pass the federal “Bill of Rights,” including the First Amendment, protecting free speech and the press. The interpretation of the first amendment became problematic with the 1798 Alien and Sedition Acts. The Sedition Act was, to some extent, intended to suppress opposition to Federalist President John Adams’ policies.  Democratic-Republicans claimed it violated the First and 10^th Amendments. Political rivalry among media was just at its infant stages at this point. Federalists and Democratic-Republicans would continue to fight back and forth, even after the Sedition Acts expiration in 1801.

In the 20^th century, Congress weighed in on the press’ freedom with the Espionage Act of 1917. The law allowed the suppression of pro-German or other subversive newspapers. This authorized the Postmaster-General to seize any “seditious” publications. During this period, President Woodrow Wilson’s administration established the ad hoc Committee on Public Information to regulate war news releases to the press. The 1918 Sedition Act extended the Espionage Act to prohibit attacks on the Constitution, military, flag, or United States. 

The passage of the Radio Commission of 1927 required broadcast companies to apply for federal licenses to broadcast. The Federal Communication Commission later replaced the law in 1934. The FCC created a code for broadcast regulation with enforcement through licensing control. In 1949, the “Fairness Doctrine” granted equal access to varied viewpoints. At the time, broadcast companies, not print, were required to follow such guidelines to renew their licenses. In 1987, the FCC repealed the Fairness Doctrine with the exception of “personal or political statements” (Pickard 116).

Diminished regulation followed the 1996 Telecommunications Act.  Radio and television were deregulated, allowing for much more diverse viewpoints leading to the rise of “talk radio” and cable news outlets. The 20^th century’s limitation on freedom of the press was through “prior restraint,” whereby the government attempts to prevent publication – the most famous case being New York Times v. United States (1971).  The Rand Corporation, a prominent American think-tank, leaked to the New York Times, Washington Post, and St. Louis Post-Dispatch a forty-seven volume Pentagon policy analysis of the Vietnam War’s origins and progress.  Employees Daniel Ellsberg and J. Anthony Russo were prosecuted for violating government secrecy pledges.  The government intervened to stop further publication after the first installment of the Pentagon Papers. Ultimately, the Supreme Court ruled that the Pentagon Papers did not contain information that would endanger national security.

Regulation concerns came with the expansion of the internet.  “Net neutrality” or network neutrality was first recommended in 1999 by President Bill Clinton’s FCC chairman, William Kennard. In 2010, President Barack Obama’s Democrat-led FCC established internet operations subject to FCC “common carrier” rules for telecommunications. All internet content, from emails to audios and videos, would be treated equally.  Through net neutrality, a government agency obtained regulatory control over a vast internet system and its operations. However, in 2017, President Donald J. Trump, with new FCC appointees, terminated the net neutrality policy.   

Today’s social media platforms bear a striking resemblance to traditional media. Their main difference is that they do not edit content; however, they algorithmically organize it. Social media also uses excessive amounts of personal data, and its markets are more niche. Both have a significant impact on the individual and public discourse, being mediums for free expression and democratic discourse. They are also both profit-oriented, making them less likely to adhere to the public’s interest. Nonetheless, social media platforms are still expected to transmit information without bias or imposing agenda. Freedom of expression, the right to receive information and participate in public discourse are prominent facets of a sustainable democracy. Individuals are provided the opportunity to build themselves up through social media and internet blogs. Years ago, this was celebrated as providing equal opportunities to all viewpoints and elevating democracy to a level never seen before. “Cyber-optimists” viewed this as a real chance for minority views to be heard.  

Social media platforms’ purpose is simply meant to deliver and facilitate communication, not produce or edit content. They are only to intervene to alter or remove information reported by users within the community. Platform moderation is used to facilitate interaction through algorithms. Tools to amplify content are available, allowing for manipulation of the perception of content and expand its reach, affecting the public discourse. Theoretically, algorithmic design should lead to ideal outcomes. However, small aspects of the software can distort the “marketplace of ideas.”

Some believe social media is a right granted under the framing of free speech. A counter to this claim is that these social media companies are private corporations, so they hold no such legal obligation. However, considering only a handful of multinational corporations control social media platforms, these services are limited. With such a range of communication, they have become a dominant force in our democratic society. Consequently, they have a duty to provide services to customers without discrimination or bias.

Several social media platforms have systems in place to provide the “safest” user experience. The notice-and-takedown system pressures service providers to make the judgment on whether the content is lawful or not. This tends to be abused to stifle competitors’ content, leading to removal or suspension. On the other hand, notice-and-notice requires the service provider to forward the notice to the original content provider, if possible, otherwise it is removed. Original creators of questionable content are called to take responsibility for their content and manage disputes on the individual level. This method has led to abuse at the hands of copyright holders, pressuring for settlements, earned monies, or removing content.  Platforms are not beholden to any obligation to monitor content since they are not responsible for any third-party content. Since they are neither authors nor publishers, they are not responsible for activity on the platform. They simply facilitate, disseminate, profile or not, manage accounts, and cooperate with respective authorities.

Approximately one year ago, conservative comedian Steven Crowder’s YouTube channel was demonetized – losing the ability to make money off his channel. His offense was allegedly harassing former Vox journalist Carlos Maza, referring to him as a “lispy queer.” It should be noted that at the time, Maza himself used this phrase to describe himself in his Twitter profile.  Maza’s fight was not about “homophobia” or “hate speech”; it was an ideological takedown. In a series of tweets, Maza called on YouTube to ban Steven Crowder.  Crowder was eventually demonetized on YouTube.

In May of 2020, Twitter announced it would begin to label tweets deemed false or disputed concerning COVID-19. Facebook was already ahead of the curve, labeling and striking down alleged fictitious content. Misinformation is a great concern, but to add labels is simply a band-aid to the problem. According to MIT research: “when people see that some posts on social media have warning labels, they are far more likely to assume, incorrectly, that all the posts without these warning labels have been verified by fact-checks.” Selective fact-checking is indeed a form of censorship. Muzzling speech tends to amplify the speaker and the message.  The phenomenon of the forbidden fruit is a part of human nature.  Books tend to become even more popular after they are banned. Conspiracy theories are even worse.  Banning conspiratorial content drives “conspiracy-minded” individuals to push even harder, primarily because it is anti-authoritative.

In more recent days, we have seen censorship interfere with American presidential elections. The New York Post attempted to post on social media an article about Joe Biden and his son’s dealings with the Ukrainian gas company, Burisma. At the time, Joe Biden had been supervising the Obama Administration’s Ukraine policy when his son, Hunter, had been on Burisma’s board. Twitter and, to a lesser extent, Facebook took content moderation to another level. Twitter users were unable to post a link to the Post article.  The New York Post’s Twitter account with 1.8 million followers was indefinitely locked, as well as White House spokesperson Kayleigh McEnany’s, the “Team Trump” campaign account, and Politico journalist Jake Sherman’s Twitter claimed the Post story violated its “hacked materials” policy. The Post claimed the emails were found on a laptop in a Delaware repair shop. The owner of the repair shop gave them to Donald Trump’s attorney, Rudy Giuliani. To this day, the Biden campaign never denied the authenticity of the emails or the laptop.

U.S. Twitter has even allowed China to scapegoat the fault of COVID-19 onto the American military. Spokesperson & Deputy Director General, Information Department, Foreign Ministry of China Lijian Zhao posted articles indicating the virus originated in the United States: “It might be US army who brought the epidemic to Wuhan.” Meanwhile, Big Tech censors any American article speculating China’s role in the pandemic. Facebook has even censored a Fox News article with claims from a “top virologist and whistleblower” stating the “Chinese government intentionally manufactured and released the COVID-19 virus…”

When White House social media director, Dan Scavino, posted a video of Joe Biden stuttering: “Because we cannot get re-elect, we cannot win this re-election.  Excuse me, we can only re-elect Donald Trump,” Twitter flagged this immediately as “manipulated media.” Yet when edited content of President Trump is posted, it is not limited or taken down. Michael Bloomberg’s former senior adviser, Tim O’Brien, spliced audio clips of the President to portray he did not believe the validity or seriousness of COVID-19. Biden has tweeted similar clips without any form of restriction.   Furthermore, YouTube has removed over three hundred Trump campaign ads just over the summer of 2019. Google being ad revenue driven, refused service to conservative sites based on what its staff deemed “offensive.” 

The problem conservatives have upon them is that those aware of the censorship are a tiny sliver of the population. They may be motivated enough to take action, but they have no significant impact on the market. They do, however, have access to government power through representatives, such as congresspersons and senators. A counterargument is that social media is in the private sector and is meant to build a private community, so government intervention is not warranted. Section 230 has been considered for revocation, but that may not be the answer.

Conservatives need to call for a reconstruction of online liberties by reaching the very large indifferent audience of Americans to portray the problem. A starting point could be the Steven Crowder demonetization. The First Amendment provides free speech provisions preventing federal, state, and local governments from internet censorship, including social media. Social media companies being private and of non-governmental interests, have more freedom in restricting content on their platforms. Under Section 230 of the Communications Decency Act, social media platforms are generally not liable for their users’ content. Through “safe harbor” provisions under the Digital Millennium Copyright Act, they are protected from “liability for monetary damages pertaining to copyright infringement activities of their users” as long as they comply with takedown notices. This protection from liability incentivizes social media companies to monitor and remove certain content from their sites. Social media platforms use “content filtering” or “content monitoring” in order to remove content. On sites like YouTube, content is algorithmically removed before even being aired.

Becoming a user on any social media platform, the individual agrees to the terms of service. Violation of any of the terms of service can result in a removal of the account. Social media companies also reserve the right to change or revise their terms of service at any time, even without informing its users. Although individuals have the right not to participate in social media, the platforms are rather limited. The lack of transparency and consistency has been an issue, displaying blatant bias of left-wing ideology.

Section 230 uses the “Good Samaritan” technique. “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.” Social media companies are platforms, not publishers, and they are granted immunity from abusive content. With that, these platforms have civil liability. They are not liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Platform providers are also not liable for “any action taken to engage or make available to information content providers or others the technical means to restrict access to material described as objectionable.”

Platform providers should explain how algorithms function for the sake of transparency. Users should have access to the tools which they would like to use or not. Verification of trustworthiness should be outsourced to eliminate internal bias. With Big Tech primarily headquartered in Silicon Valley, a vacuum of “common ideological culture” exists. When there is a monoculture, opinion and belief become fact. Big Tech disproportionately draws from elite academies that tend to be the “most blue of educational institutions.” Employees consist of the young coastal elite that tend to be of the left persuasion. Some ideological diversity is a necessity to maintain fairness and balance.

Individuals who are regarded as public figures should have tightened scrutiny on these platforms. They tend to have their accounts verified, demonstrating their vast communicative power, so with it they should hold the same level of responsibility. The three categories of users should be as follows: private individuals acting on their own accord, professionals acting in their own capacities, and professionals related to public issues or service. A three-tiered approach may be better than the simple private versus public figure approach currently implemented.

A very vital aspect of social media, personal data, requires some scrutiny.  Personal data is used to tailor content and maximize engagement, but it can also manipulate opinions. This violates the users’ right to privacy and protection. Even simple social media activities of liking and sharing content provide personal data collected by advertisers without any notification to the user. The user also cannot opt-out. Personal data has become a currency for social media and its advertisers.  It may be understandable, but it is certainly not justified. The recognition of personal data ownership needs to be addressed, and companies that deal with users’ personal data should treat them as confidential. Legal liability should be opened against these platforms to ensure protection.

Government intervention might be too intrusive, and hitting these companies with antitrust will not change Silicon Valley’s leftist ideology. For starters, we should re-evaluate Section 230 to interpret it in a less broad sense. Everyone should be able to express their own opinions, thoughts, or viewpoints through social media. Rules of conduct should represent the populace, not the Big Tech overlords of Silicon Valley. Nevertheless, the Orwellian times are here, and they may be here to stay.

Works Cited

“47 U.S. Code § 230 – Protection for Private Blocking and Screening of Offensive Material.” Legal Information Institute, Legal Information Institute, http://www.law.cornell.edu/uscode/text/47/230. 

“47 U.S. Code § 230 – Protection for Private Blocking and Screening of Offensive Material.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/uscode/text/47/230. 

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Pickard, Victor. 2014. America’s Battle for Media Democracy. New York: Cambridge University Press.

Rudenstine, David. 1996. The Day the Presses Stopped: A History of the Pentagon Papers Case. Berkeley, CA: University of California Press.

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“Social Media Censorship and the Law.” Findlaw, 18 Nov. 2018, civilrights.findlaw.com/enforcing-your-civil-rights/social-media-censorship-and-the-law.html. 

Weinstein, Mark. “Why Social Media Censorship Is Worse than Useless.” New York Post, New York Post, 23 May 2020, nypost.com/2020/05/22/why-social-media-censorship-is-worse-than-useless/.