from the bad-politicians,-bad dept
Everyone these days seems to want to regulate social media. I mean, the reality is that social media is such a powerful tool for expression that everyone wants to regulate that expression. Sure, they can couch it in whatever fancy justifications they want, but at the end of the day, they’re still trying to regulate speech. And this is across the political spectrum. While, generally speaking, the Republican proposals are more unhinged, it’s not like the Democratic proposals are actually any more reasonable or constitutional.
The latest on the Democratic side to throw his hat in the ring is Colorado Senator Michael Bennet, who has a bizarre proposal for a new Digital Platform Commission. He compares it to the FDA, the FCC, and the more recent Consumer Financial Protection Bureau (CFPB). Except, this is different. Regulating social media means regulating speech. So the FDA and the CFPB examples are not relevant. The only one that actually involved regulating businesses engaged in the transmission of expression is the FCC, and that’s part of the reason why the FCC’s mandate has always been quite narrow, covering specific areas where there government can get involved: e.g., in regulating scarce spectrum.
Defenders of the law claim that it’s not there to regulate speech, but so much of what the bill tiptoes around is that Bennet is unhappy with what is clearly 1st Amendment protected activity by these websites. The bill kicks off by arguing that these websites have disseminated disinformation and hate speech — both of which are protected speech. It complains about them “abetting the collapse of trusted local journalism” which is a weird way to say “local journalism outfits failed to adapt.” It blames the websites for “radicalizing individuals to violence.” But you could just as easily say that about Fox News or OAN, but hopefully most people recognize how promulgating regulations in response to those organizations would be a serious 1st Amendment problem. It trots out a line claiming that social media has “enabled addiction” which is a claim that is often made, but without any real support or evidence.
It’s basically one big moral panic.
Anyway, what would this new Commission regulate? Well, a lot of stuff that touches on speech, even as it tries to pretend otherwise. Among other things, this Commission would be asked to issue rules on:
requirements for recommendation systems and other algorithmic processes of systemically important digital platforms to ensure that the algorithmic processes are fair, transparent, and without harmful, abusive, anticompetitive, or deceptive bias;
So, recommendations are opinions, and opinions are speech. That’s regulating speech. Also, given what we’ve seen with things like Texas’ social media law, which uses similar language, it’s not at all difficult to predict how a commission like this under a future Trump administration would push rules about “deceptive bias.”
I am perplexed at how a Democratic Senator could possibly write a law like this and not consider how a Trump administration would abuse it.
There’s a lot more in the bill, including other ideas that wouldn’t directly impact speech, but the whole thing is ridiculous. It’s setting up an entire new regulatory agency over social media. We know what happens in situations like this. You get regulatory capture (witness how often the FCC is controlled by telecom interests leading to a lack of competition).
You also get a death of innovation. Regulated industries are slow, lumbering, wasteful entities where it’s difficult, if not impossible, to generate new startups and competition. Effectively this bill would hand over most internet innovation to foreign companies.
It’s a ridiculously dangerous move.
I am perplexed. The last few years we’ve seen non-stop unhinged moral panic from both parties about the internet. As we noted last year, both parties are playing into this, because both parties are trying to twist the internet to their own interests. That’s not what the internet is for. The internet is supposed to be an open network for the public. Not managed by captured bureaucrats.
Filed Under: 1st amendment, digital platform commission, dpc, fcc, michael bennet, oversight, regulation, speech