WASHINGTON, Nov. 23, 2022 — As the Supreme Court prepares to hear two cases that could decide the future of content moderation, panellists at a Broadband Breakfast Live Online panel disagreed on the steps the platforms are taking can and should do to ensure fairness and protect freedom of expression.
Mike MasnikFounder and editor of Techdirt, argued that both sides of the aisle were trying to control the language in one way or another, pointing to laws in California and New York as liberal counterpoints to laws in Texas and Florida that refer to the Supreme head to court.
“They’re not that obvious, but they’re urging companies to moderation in a way,” he said. “And I think they’re unconstitutional as well.”
Censorship poses a greater threat to the ideal of free speech than a law that forces platforms to distribute certain content, he said Bret SwansonNonresident Senior Fellow at the American Enterprise Institute.
“Freedom of speech and pluralism as an ethos for the country and indeed for the West is more important than the First Amendment,” he said.
At the same time, content moderation legislation is being stalled by a sharp partisan divide, he said Markus MacCarthya nonresident Senior Fellow in Governance Studies at the Brookings Institution’s Center for Technology Innovation.
“Liberals and progressives want action to remove lies, hate speech and misinformation from social media, and conservatives want the same time for conservative voices, so there’s a stalemate that can’t budge,” he said. “I think it could be broken if, as I foresee, the Supreme Court says the only way to regulate social media companies is through transparency.”
Twitter’s past and current practices raise questions about prejudice and free speech
As we talk about it Elon Musk‘s controversial changes to Twitter’s content moderation practices, panelists also discussed the broader implications of Musk’s rhetoric around the topic.
“Declaring itself a free speech site without understanding what free speech actually means is something that doesn’t last very long,” Masnick said.
When a social media company like Twitter or Parler declares itself a “free speech site,” it’s really just sending a signal to some of the web’s worst people and trolls to start harassing, abusing and bigotry, he said .
This is not a sustainable business model, argued Masnick.
But Swanson went the opposite way. He called Musk’s takeover of Twitter “a truly seminal moment in the history and future of free speech,” calling it an antidote to “perhaps the most severe free speech collapse in American history.”
MacCarthy said he doesn’t believe the oft-repeated claim that Twitter was biased against conservatives before most Musks took power. “The only study I’ve seen of political pluralism on Twitter — and it was done by Twitter itself, back when they still had the staff to do something like this — suggested that Twitter’s reinforcement and recommendation engines actual conservative tweets over liberal favorites.”
Masnick agreed, pointing to other academic studies: “They seemed to bend over backwards to often allow conservatives to break the rules more than others,” he said.
Randolph MayPresident of the Free State Foundation said he was familiar with the studies but disagreed with their findings.
Citing the revelations from the laptop of Hunter Biden, a story the New York Post published in October 2020 about the Joe BidenHis son May said: “For me it was a consistent censorship action. Then, six months later, before a congressional committee, [Twitter CEO] Jack Dorsey said, ‘Oops, we made a big mistake taking down the New York Post articles.’”
Diverse possibilities for the future of content moderation
Despite his criticism of current practices, May said he doesn’t believe platforms should do away with content moderation practices altogether. He distinguished between topics that are subject to legitimate public debate and those that promote terrorism or facilitate sex trafficking. These types of posts should be subject to moderation practices, he said.
May made three suggestions for better content moderation practices: First, platforms should assume that they will not censor or downgrade material without clear evidence that their terms of service have been violated.
Second, platforms should work to enable tools that make it easier to personalize the user experience.
Eventually, the current state of Section 230 immunity should be replaced with an “adequacy standard,” he said.
Other panelists disagreed with the subjectivity of such a standard of appropriateness. MacCarthy highlighted Texas’ social media law, which prohibits discrimination based on viewpoint. “Point of view is undefined: What does that mean?” he asked.
“You mean you can’t get rid of Nazi speech, you can’t get rid of hate speech, you can’t get rid of racist speech? What does that mean? Nobody knows. And so here is a government demand that no one can interpret. If I were the Supreme Court, I would immediately invalidate that vagueness.”
MacCarthy predicted that the Supreme Court would reject the content-based provisions in the Texas and Florida statutes while upholding the transparency standard, which he said would open the door to bipartisan transparency legislation.
But for Masnick, even a mere transparency requirement would be an unsatisfactory outcome: “How would conservatives feel if the government said Fox News must be transparent about how it makes its editorial decisions?
“I think anyone would immediately recognize that this is a major concern of the First Amendment,” he said.
Our broadband breakfast live online events take place on Wednesdays at 12pm ET. Watch the Broadband Breakfast event or REGISTER HERE to join the entertainment.
Wednesday, November 23, 2022 at 12 p.m. ET – Elon and Ye and Donald, Oh My!
With Elon Musk With Twitter finally taking the reins after a tumultuous acquisition process, what additional new changes will occur in the world’s de facto public square? The richest man in the world has already recovered certain suspended accounts, including that of the former president donald trump Trump has made his own foray into the conservative social media world, as has the politically polarizing rapper Herpreviously KanyeWest, currently in the process of buying the right alternative platform Parler. Ye is no stranger to testing the limits of controversial speech. With Twitter in the hands of Musk, Parler in the process of being sold, and Trump’s Truth Social moving forward despite false starts, are we headed for a new era of conservative social media?
- Markus MacCarthyNonresident Senior Fellow in Governance Studies, Center for Technology Innovation, Brookings Institution
- Mike MasnikFounder and Publisher, Techdirt
- Randolph MayPresident of the Free State Foundation
- Bret SwansonNonresident Senior Fellow, American Enterprise Institute
- Drew Clark (Moderator), Editor and Publisher, Broadband Breakfast
- Articles on free speech and disinformation, entropy economics
- Thinking Clearly About Speaking Freely Series, The Free State Foundation
- Trump’s Twitter Account Restored as Truth Social Gets Merger Extension, Broadband Breakfast, November 22, 2022
- Experts reflect on Supreme Court decision to block social media law in Texas, Broadband Breakfast, June 2, 2022
- Narrow majority of Supreme Court blocks Texas law regulating social media platforms, Broadband Breakfast, May 31, 2022
- Parler Policy Exec hopes ‘permanent’ change in free speech on Twitter if Musk buys platform, Broadband Breakfast, May 16, 2022
- Experts warn of complete repeal of Section 230, Broadband Breakfast, November 22, 2021
- Broadband Breakfast Hosts Section 230 Debate, Broadband Breakfast, June 1, 2021
- Explanation: With the Florida Social Media Act, Section 230 is now in the legal spotlight, Broadband Breakfast, May 25, 2021
Markus MacCarthy is a Nonresident Senior Fellow in Governance Studies at the Center for Technology Innovation at Brookings. He is also an adjunct professor at Georgetown University in the Communications, Culture and Technology program of the Graduate School and in the Faculty of Humanities. He teaches courses in Governance of Emerging Technology, AI ethics, privacy, competition policy for technology, content moderation for social media, and speech ethics. He is also a Nonresident Senior Fellow at the Institute for Technology Law and Policy at Georgetown Law.
Mike Masnik is the founder and publisher of the popular Techdirt blog and founder of the Silicon Valley think tank, the Copia Institute. In both roles, he examines the intersection of technology, innovation, politics, law, civil liberties and business. His writings have been cited by Congress and the European Parliament. According to a study by the Harvard Berkman Center, Techdirt’s coverage of the SOPA copyright law made it the most linked media source during this debate.
Randolph May is Founder and President of the Free State Foundation, an independent, not-for-profit, free-market think tank founded in 2006. As a partner in major national law firms, he has worked in the areas of communications, administrative and regulatory law. From 1978 to 1981, May served as Assistant General Counsel and Associate General Counsel at the Federal Communications Commission. He is a past Chair of the Administrative Law and Regulatory Practices Division of the American Bar Association.
Bret Swanson is President of technology research firm Entropy Economics LLC, Nonresident Senior Fellow at the American Enterprise Institute, Visiting Fellow at the Krach Institute for Tech Diplomacy at Purdue University, and Chair of the Indiana Public Retirement System (INPRS). He writes the Infonomena newsletter at infonomena.substack.com.
Drew Clark (Moderator) is CEO of Breakfast Media LLC, publisher and publisher of BroadbandBreakfast.com, and a nationally recognized telecommunications attorney. Under the American Recovery and Reinvestment Act of 2009, he served as director of the State Broadband Initiative in Illinois. In light of the Infrastructure Investment and Employment Act of 2021, Attorney Clark is now helping fiber and wireless customers secure financing, identify markets, broker infrastructure and operate on public pathways.
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