By DOUG SHAVER
December 3, 2010
We’re hearing a lot about misinformation on social media such as Facebook, Twitter, or YouTube, and about whether the First Amendment should be applied to them. And what we’re hearing includes a lot of misinformation about the First Amendment itself.
There were things I wanted to write when I was a newspaperman that I could not write because my employers were not interested in publishing them. Most likely they felt this way because, in their judgment, too few of the newspaper’s subscribers would be interested in reading the stuff I wanted to write. Whatever their motivation, it was their decision. I got no benefit from freedom of the press because I didn’t own a printing press. My employers owned one, and they decided what it would be used to publish. For me to enjoy the same press freedom they enjoyed, I would have to get my own press.
Then came the World Wide Web, and I could have my own press just by setting up my own website. So I did, sometime early in the millennium. It has had to go through a couple of name changes, but for many years now has been www.dougshaver.net. And I discovered in due course that my employers were right about reader interest: So far, I haven’t gotten any. But the First Amendment can’t help me with that. I can publish whatever I want, and the government cannot say anything about it, but the government also cannot make anybody want to read what I publish.
Most writers accept that. We’re competing in a free market, and we can’t all be winners. Nobody has to pay to read any of my stuff, but they still need to invest some time, and I apparently don’t have what it takes to make their investment worthwhile. So be it. In a free market, there will be winners and losers, and I happen to be one of the losers.
OK. But what if, in this free market, the people in general are among the losers? What if the free market is not only depriving some writers of their income but also undermining our democracy? The question is current because so much of today’s political discourse happens on social media websites, all of them owned by large corporations, which many commentators refer to collectively as “tech giants.” Some of those tech giants are deciding that certain expressions of opinion, or certain assertions of alleged fact, will not be allowed on their sites. And they are claiming that in making these decisions, they are serving the public interest.
Of course no one believes that the tech giants’ primary motivation is the public interest. They operate their websites for the same reason my former employers published their newspapers: to make money by selling advertising. The financial dynamics are not quite the same, but in both cases there is a correlation between published content and attractiveness to potential advertisers.
This is not a new situation. Newspapers have depended on ad revenue since at least 1729, when Benjamin Franklin began publishing The Pennsylvania Gazette after purchasing it from its previous owner. The only alternative was to sell newspapers for a price that would cover publishing costs plus a profit margin, and the result would have been that only wealthy people could have afforded to read newspapers. There seems to have been a consensus that making the news available to just about everybody was worth whatever problems might have been associated with advertiser influence on the news. And besides, given the First Amendment, and market forces being what they were, there wasn’t much anybody could do about it. The people who paid the newspapers’ bills would decide what news was fit to print.
That decision always had to be made, and it still does. Notwithstanding the ambition of The New York Times’s motto, no newspaper could ever have published “All the News That’s Fit to Print.” Neither can any website, though Internet technology does allow anyone to publish far more content than any newspaper ever could. The difference—what makes this the Information Age—is that there are billions of websites. Whatever you want to know about current events or anything else, the facts are probably out there somewhere. Whether you can find it might depend on your skills using a search engine, but it’s there to be found.
But there’s the rub. Almost nobody knows how to use any search engine except Google, and Google, like the other tech giants, is supported by advertisers. This will have something to do with whether what you’re looking for shows up on Page 1 of Google’s search results or Page 995,354. So if you don’t see it first on the social media platforms, you’ll probably never see it.
This is bound to affect voting behavior, and our democracy is supposed to be about government by consent of the governed. In medicine and certain other fields, we have evolved the concept of informed consent. Similarly, a healthy democracy requires a properly informed electorate. Democracies can become dictatorships when the voters are victims of misinformation or disinformation campaigns. We rightly fear that governments themselves are especially prone to promulgate misinformation or disinformation, and so we prohibit them from controlling the voters’ sources of information. Thus we enshrine freedom of speech and the press. The government doesn’t get to decide what the voters can hear or read.
But doesn’t that leave us at the mercy of the tech giants? They now seem to have a degree of control over information that newspaper advertisers could only have fantasized about, and so some are suggesting that the First Amendment should restrict them as much as it does the government. Websites making this argument are legion, and one of them, which makes the case as well as any other, is run by the American Bar Association (“In the Age of Social Media, Expand the Reach of the First Amendment”, by David L. Hudson Jr.).
It’s a tempting notion, but we always need to be careful what we wish for. It is a given that democracy needs a properly informed electorate. No one is disputing that. It is also not disputed that in the present situation, the electorate is not being properly served by the dominant providers of information. But, the providers are protected by the First Amendment, and so the apparently obvious solution is to remove that protection. We don’t let the government control information, and so, some are claiming, we should not let the tech giants control it, either. But then, who will control it?
It is pointless to argue that nobody should be in control of our information, because right now nobody actually is in control. About a month before the recent election, the New York Post ran a scandalous story about Hunter Biden, whose father was the preferred candidate of nearly all the tech giants. Facebook and Twitter promptly tried to suppress any mention of the story on their platforms, and they justified their actions by claiming in effect that the story constituted disinformation. Did they thereby keep the electorate uninformed about the story? Hardly.
Every American who had any interest in the election knew about the Hunter Biden story, because news of the tech giants’ response to it was all over the Internet. Anybody who wanted to could read the story in its entirety, because the Post still had its own website, which remained accessible to anybody with an Internet connection. This was because (a) Facebook and Twitter don’t control any websites except their own and (b) the Post enjoys the same First Amendment protection as any other website owner.
There was much wailing about censorship, but this was an argument by redefinition. Censorship is something governments do. What publishers in any media do is editorial control, not censorship. This is not a semantic quibble. It is an observation that context is always relevant. It does matter that we’re talking in both instances about the exercise of power, but the exercise of governmental power is different enough from any other kind that certain distinctions always have to be made.
Freedom of expression, whether in speech or in writing, is most often justified in terms of a “marketplace of ideas.” The idea was explicated by, among others, John Stuart Mill in the second chapter of his 1859 book On Liberty and restated in numerous court decisions since then. However, whether the truth will inevitably emerge in a genuinely free and open debate is not the ultimate issue. The ultimate issue for a democracy is whether the government should be empowered to referee any such debate. It has become perfectly obvious that the commercial marketplace is not a reliably good referee, but anyone who thinks the government could do a better job has more faith in our political processes than I do.
It is also not the least bit obvious to me how we enhance press freedom by denying it to some people who have had it up to now. It is not logically possible to extend any freedom by taking it away from someone who already has it, but that is what we would be attempting if the tech giants were compelled to accept the constraints of the First Amendment.
But, maybe I’m missing something there. Maybe I’m seeing a contradiction where there really isn’t any. So let’s try a thought experiment. Let’s suppose that, either by Supreme Court decree or by constitutional amendment, Facebook and the other tech giants are compelled to go hands-off, just like the government does, with anybody who uses their platforms. Now, even with the First Amendment, the government can still impose some restrictions on speech or publication. So, does anybody think nobody will sue with a complaint that Facebook (or whoever) was either too hands-off or not hands-off enough? Of course not. Somebody will say, “Facebook violated my rights,” and then Facebook will reply, “No, we didn’t,” and then the dispute will have to be adjudicated. And by whom? By the government, of course. This could only increase the government’s power to regulate speech by multiplying opportunities for its involvement in public debate.
And this, it seems, is what advocates of a First Amendment extension really want. The tech giants can put whatever they like on their websites, and nobody has the power to make them add or delete anything. Somebody should have that power, we’re being told, because we’d be better off if they did. The electorate would be better informed, and we badly need a better informed electorate, do we not?
Indeed we do, but it isn’t going to happen by giving anyone, aside from the social media themselves, the power to decide what everybody gets to read on social media. And if somebody says, “But the advertisers already have that power,” then I say I’d rather let the advertisers have it than give it to the government. The advertisers don’t want anything from us except our money. As long as we buy their stuff, I don’t think they could care less what we post on social media. If what we post might threaten their revenues, then sure, they’ll try to discourage it, but as the Hunter Biden episode proved, they won’t have much success.
I would be far more worried if people motivated by something other than financial interests could tell the tech giants what they could or could not publish. Because I can’t help believing that if someone is trying to influence me but they aren’t trying to take my money, then they’re most likely trying to take my freedom.