Congress Shall Make No Law: The Debate Over Social Media and Free Speech


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Over the past few months, the Senate Judiciary Committee has held a number of hearings surrounding tech companies and content moderation.

“This claim about election fraud is disputed.” This phrase has become synonymous with the Twitter accounts of the President of the United States and his supporters as the social media platform attempted to fact-check tweets about the 2020 presidential election (until Trump’s Twitter account was permanently suspended on January 8th, 2021, due to his role inciting his followers to storm the U.S. Capitol on January 6th, 2021). If you had scrolled through the 45th President’s feed before it was suspended, you would have seen this phrase pop up constantly in blue text underneath Trump’s tweets as well as his retweets from others, all of which falsely claimed that the presidency was stolen from Mr. Trump via wide-scale election fraud. 

A similar situation happened in late October 2020, also concerning Twitter. Users were greeted with the message “Warning: This link may be unsafe” if they tried to post a link to a New York Post story surrounding allegations of Hunter Biden’s business wrongdoings while his father, Joe Biden, was still in office as Vice-President. The Post itself was blocked by Twitter from using its official account. Many others who posted the link, even journalists reporting on the story’s existence, were temporarily removed from the platform as well. 

In both cases, lawmakers decided to bring the CEOs of multiple major tech corporations (notably Jack Dorsey of Twitter, Mark Zuckerberg of Facebook, Tim Cook of Apple, and Sundar Pichai of Google) in front of various congressional bodies, including the Senate Judiciary Committee, and ask questions surrounding their mishandling of these cases.

Democrats have been concerned about the role of social media in manipulating narratives, ever since Russian interference in the 2016 election that happened largely on social media sites like Facebook. They view Twitter’s attempts at labeling misinformed tweets to be insufficient. At recent congressional hearings, Senator Mazie Hirono (D-HI) said she had “serious questions about the effectiveness of…[the] labels.” 

At the same hearing, Senator Patrick Leahy (D-VT) said that sites “can and must do better” regarding content moderation. “You have to limit hate speech, limit dangerous disinformation. That’s a significant challenge,” Leahy said. 

Republicans, on the other hand, are concerned about freedom of speech, feeling that social media companies unfairly censor content in the name of moderation. Twitter’s response to The New York Post Hunter Biden story has repeatedly been used as an example of this. “The three witnesses we have before the committee today collectively pose the single biggest threat to free speech in America and the greatest threat we have to free and fair elections,” said Senator Ted Cruz (R-TX) in his opening statement at a congressional hearing in late October 2020. “Of the three players before us, Twitter’s conduct has by far been the most egregious.” Cruz then went on to question the CEO of Twitter, asking “Mr. Dorsey, who the hell elected you? And put you in charge of what the media are allowed to report and what the American people are allowed to hear?”

The positions of the two parties could not be more dramatically opposed to one another. If we were to listen to the Democrats and curb disinformation, the amount of content taken down or censored would increase.  On the other hand, if we were to listen to the Republicans and protect social media users’ freedom of speech, the amount of disinformation on social media platforms would increase. So while hearings have come and gone, there is little hope for actual reform to come from Congress anytime soon. If the country would like to see progress, it needs to choose a direction to progress in. 

That leads Americans to the pressing question: of the two perceived threats, disinformation and censorship, which is more dangerous?  Perhaps that question should be rewritten. Of the freedoms that each of our two political factions perceives as being under threat, freedom from disinformation and freedom from censorship, which is more important? Now the answer becomes clear.

The right to free speech is what is called a negative right as it can only be taken away by an action. Freedom from disinformation is called a positive right since it can only be guaranteed with action.  For the government to guarantee one’s freedom of speech, it must simply stop itself from infringing on that right. Contrarily, for the government to guarantee one’s freedom from disinformation, it must actively stop others from spreading disinformation. 

To properly guarantee a positive right to somebody is to inevitably infringe on somebody else’s negative rights. In some cases, this must be permitted, such as having to guarantee the positive right of protection from violence by infringing on the negative right to free speech, even including incitement of violence. However, what we cannot do is to allow companies like Facebook and Twitter to draw that line for themselves. The first amendment does not apply to private companies, but freedom of speech is more than just the laws that govern it. The internet is the new public square and should be treated as such; the private companies that run it should not have full control.

There are a number of proposed solutions, such as modifying the language of Section 230 of the Communications Decency Act. The law currently protects internet companies who regulate content from legal liability from what is said on their websites. Before this law was passed, companies that did not moderate were considered “platforms,” and companies that did moderate were considered “publishers.” Only platforms were given protection from liability, where publishers were not. The law was written to ensure that companies could still moderate their content to a degree without suffering legal consequences. However, many feel the language of the act to be too vague. The law currently allows websites to moderate “availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” It is the “otherwise objectionable” portion that many see as a catch-all that allows websites to engage in any form of moderation, even censorship, with no consequences.  Simply removing those three words might by itself offer a massive improvement on the current situation. Regardless, whatever Congress ends up doing, it must advance the unprecedented level of freedom of expression that this country has enjoyed into the internet age. 

Democrats have been concerned about the role of social media in manipulating narratives, ever since Russian interference in the 2016 election that happened largely on social media sites like Facebook.