It is not for the government to promote “fairness” online



What’s good for the baking is good for the platform.

A man wearing a face mask walks near a TV screen showing a twitter image of U.S. President Donald Trump during a news program at Seoul Station in Seoul, South Korea on Friday, October 2, 2020. Trump said on Friday morning that he and First Lady Melania Trump tested positive for the coronavirus, a startling announcement that puts the country deeper into uncertainty with a month away from the presidential election. (AP Photo / Lee Jin-man)

When Utah Gov. Spencer Cox vetoed a bill that attempted to allow lawsuits against social media companies for moderating “unfair” content, he blamed “technical issues”. The sponsors of the bill said they would revamp the bill and try again. But any attempt to pass such a bill pits Utah lawmakers in a losing battle against the First Amendment and the arguments they once made against forcing private parties to. transmit messages with which they do not agree.

Until recently, Republicans in Utah have fiercely defended the right of the First Amendment to disassociate themselves from any ideas or beliefs that are opposed. In 2017, Colorado baker Jack Phillips went all the way to the Supreme Court to defend his right not to make a personalized cake celebrating a same-sex marriage – and won. In a friend of the court record, 22 of 24 Republicans in the Utah Senate supported the baker. Citing the First Amendment rights of “conscientious objectors” to free speech, association and the free exercise of religion, they asked the court to prevent Colorado from forcing Masterpiece Cakeshop to engage in an expression that Mr. Phillips objected to.

But Republicans in Utah are now arguing that social media companies should be forced to do precisely what they thought the baker shouldn’t be forced to do. While Cox was right to veto SB228, the “technical issues” raised by this bill run far deeper than he had in mind.

The bill has two main parts. First, websites could be sued for “inconsistencies” in the way they remove content or ban users. But deciding what constitutes “disinformation”, “abuse”, “hate speech”, etc. is no less subjective than Phillips’ judgments on same-sex marriage.

Second, the bill requires “transparency” about such decision-making. The constitutional problem would be obvious if a state attempted to regulate how newspapers decide to run editorials, or the way Fox News books guests – or demand “transparency” in their decision-making. But analysis is no different for websites.

As US Supreme Court Justice Antonin Scalia said, “the basic principles of freedom of speech and of the press… do not change when a new and different medium of communication emerges. “

These are not just “technical problems”. These are the same fundamental First Amendment issues raised by Masterpiece Cakeshop: When can the government force a private party to wear or participate in an expression that is contrary to its values?

In 1995, the conserva and the expression of each unit is perceived by the spectators as part of the whole. The parade organizers had the same rights as any speaker not to be seen as endorsing something they found objectionable.

Likewise, even if social media websites do not convey a particular “global message”, users reasonably perceive that if a social media does not remove offensive content, it reflects the editorial judgment of the site operator. Advertisers are also at risk of being associated with objectionable content.

Like Masterpiece Cakeshop, social media companies exercise active editorial control over the content they will host. And they do not hide this control: each user accepts the terms of use, which reserve a wide discretion to suppress objectionable speech. Moderation of content, such as selecting parade participants or setting the boundaries of the messages one wishes to put on a cake, is an inherently expressive act that conveys messages that a website operator wishes to disassociate from.

If forcing a baker to create a cake violates his First Amendment right to deliver only messages he wants, so does forcing a website to deliver messages he does not want. What’s good for the baking is good for the platform.

What Republicans are defending is a new Internet fairness doctrine – despite strong opposition to the original fairness doctrine for broadcast for decades. Republicans in Utah should remember what President Reagan said when he put an end to the doctrine of fairness: “The obvious intention of the First Amendment … is to promote vigorous public debate and diversity. points of view in the public forum as a whole, and not on any particular medium. It is simply not the government’s job to monitor the “fairness” of speech.

Berin Szoka (@BerinSzoka) is President of TechFreedom, a think tank dedicated to tech law and policy.

Ari Cohn (@AriCohn) is a First Amendment and Defamation Lawyer, and Senior Adjunct Fellow for Section 230 Issues at TechFreedom.

Ari cohn (@AriCohn) is a First Amendment and Defamation Lawyer, and Senior Adjunct Fellow for Section 230 Issues at TechFreedom.


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