I will make no attempt to hold myself out as one with expertise on the “big data” models of Facebook, Google, You Tube, et al. I barely know what an algorithm is, but it is pretty clear that these monster near-monopolists are very near the edge of a major regulatory pushback in their attempt to “have it both ways”. What do I mean? The Communications Decency Act of 1996 says this about the role of internet platform companies: They offer “a forum for a true diversity of political discourse, unique opportunities for cultural development and myriad avenues for intellectual activity”. They are talking about the companies that recently banned hard right commentator Alex Jones, censored conservative PragerU posts, shut down an online storefront selling gun designs, and increasingly patrol their sites for what they consider “hate mail”.
In a recent article, law professor Glenn Harlan Reynolds explains that if these platforms were publishers, none of these actions would be a problem, because publishers are responsible for their decisions and can be held liable. But under the current law they are treated as conduits, vehicles that others use to spread their own ideas, and they aren’t legally responsible for what other people publish on their sites. Back to my point–they want it both ways: complete control over content without liability as publishers. So far, they are getting away with it, but they are on the edge, particularly when it comes to the First Amendment.
In Matal v. Tam in 2017 the Supreme Court unanimously reaffirmed that there is no “hate speech” exception to the First Amendment. Justice Samuel Alito put it this way in his opinion: “The idea that the government may restrict speech expressing ideas that offend….strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate'”. Granted, this reaffirmation applies to government restrictions, but the fact that these near-monopolistic tech giants play such a dominant role in controlling what views get aired and published will put enormous pressure on Congress to act. And if they do, this won’t end well. Better to have these companies accept the fact that this phase of their model has run its course and that they must decide what they are–publisher or conduit–and act accordingly.