Social Media Regulation in Jeopardy

Social media has come to play a major role in American politics and culture through its ability to enable public discourse and disseminate information to a wide audience. In practice, social media platforms have incredible power in shaping public narratives nationally. Such power means that social media platforms are able to control discussions and the spread of ideas through content moderation. [1] As a result, the Texas legislature sought to protect its citizens' access and usage of social media by restricting the basis upon which companies can ban users and take down their content. The bill, known as HB 20, bars social media platforms from restricting posts made based solely on the user’s opinion. HB 20 also states that, should any content be restricted, that the social media platform disclose the rationale for the decision. [3] A similar law was also passed in Florida, though the case against HB 20 will also decide its fate as well.

After HB 20 was passed, the free-internet lobbying group Netchoice sought to halt the implementation of the law, arguing that the government was not able to dictate the censorship policies and practices of corporations under a litany of constitutional clauses, but most notably cited the First Amendment. [2] The Supreme Court granted the preliminary injunction sought by Netchoice and its partners and stated that they intend to hear the case. [2] The Supreme Court is seeking to answer two questions; first, whether or not government restrictions imposed on social media platforms violate the first amendment rights of platforms, and second, whether the requirement to disclose reasoning for censorship also violates the platform’s first amendment rights. [2]

While increased transparency on the part of social media companies sounds like an innocent goal, HB 20 would also have the effect of enabling individuals to post or promote potentially dangerous content. Since social media allows any user to have a voice, it is possible for users to express opinions and desires that are too far to either side of the political spectrum to sustain the democratic norms. [5] In fact, a lack of censorship power could also result in the emergence of propaganda from either foreign or domestic sources, as was seen during the 2016 election. [5] For this reason, social media also has the potential to be used for organizing individuals to undermine democratic processes without regulation that is incentivised to protect government interests.

On the other hand, supporters of HB 20 argue that social media platforms are effectively common carriers, which are strictly prohibited from discriminating against individuals, partly due to the value of the service that they provide. [4] Telecommunications companies fall under this umbrella, and by granting the title to social media platforms their importance to society will be cemented and further steps towards securing broad public access to social media may follow. Likewise, by enabling state’s to encroach upon the free speech rights of social media platforms, doors may open for further government or political involvement within the usage of social media.

Ultimately, the acceptance or rejection of HB 20 brings potential risks. By rejecting the state’s argument, an important avenue for public discourse and democratic engagement could potentially be co-opted by private interests. However, enabling the state to dictate censorship policies allows social media to be potentially co-opted by the state and allows individuals to promote propaganda, extremism, or terrorism. Democracy fundamentally relies on a culture and environment for free persuasion. By allowing any single entity, public or private, to control the mechanisms of discourse places that entity in tyrannical control of the entire democratic system.

An alternative option for the moderation of content on social media would be the effective removal of online anonymity. This could be achieved by utilizing some sort of personal information beyond a replaceable email or phone number to make an account on social media platforms. Depending on the sensitivity of the required data, it may or may not be available to the public, though their real name would be confirmed and displayed publicly. With a person’s true identity being directly tied to their messages and posts, individuals will be incentivised to self-regulate. While this does not mean that dangerous or false statements will stop being made altogether, it does mean that individuals will be responsible for their words. In practice, the removal of online anonymity from these platforms would begin to mimic pre-internet mechanisms of political discourse. Mechanisms which could not be fully halted or substantially hindered by outside influence but are regulated by the social conventions and held norms of the participants alone.