Social Media Power and the Newspaper/Broadcaster Analogy
Another excerpt from my Social Media as Common Carriers? article (see also this thread). We’re still on Part I, which asks whether it might make sense to mandate viewpoint neutrality of social media platforms, in at least some contexts—but if you’re waiting for the First Amendment analysis of whether such mandates are constitutional, we’ll be turning to that shortly.
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Now of course there have also long been rich, powerful organizations with the power to influence public debate: newspapers and broadcasters. Everything Justice Stevens said about business corporations generally in Citizens United also applies to newspaper corporations.
To be sure, some media outlets, such as magazines of opinion, acquire power because their audience agrees with their views; that might distinguish them from other businesses whose power has “little or no correlation to the public’s support for the corporation’s political ideas.” But that’s not so for many of the most powerful media outlets, such as newspapers: Especially when there was only one newspaper in town, people often subscribed to it because of its classifieds, coupons, TV listings, or nonpolitical local affairs coverage, not because they agreed with its ideology.
Yet newspapers and broadcasters have long been seen as entitled to pick and choose which opinions to publish. And I support the continued freedom of newspapers and broadcasters to make such choices, both as a policy matter and as a First Amendment right (more on that in the next Part). Newspapers and broadcasters shouldn’t be seen as common carriers, because of three related features of such media.
[1.] The limited space in a newspaper and limited time on a broadcast channel make editorial judgment necessary. A newspaper can’t publish all the items submitted to it (especially given how many submissions it would get if it had such an obligation). Nor can a newspaper even adhere to a viewpoint neutrality rule, given the number of viewpoints, thoughtful or crank, that could be submitted on any subject. Twitter and Facebook, on the other hand, can host all viewpoints. When they exclude certain viewpoints—a tiny fraction of all the items that are posted on their services—they are certainly not doing it to save disk space.
[2.] Readers and viewers rely on newspapers and broadcasters to help avoid information overload, as well as to exclude material that readers and viewers might find offensive or useless. For these publishers to be useful to the public, they need to publish 1% (or perhaps much less) of all the viewpoints available for them to publish.
Twitter and Facebook, on the other hand, even when they delete some views, likely distribute 99% of all the viewpoints submitted to their services. Readers don’t count on social media platforms to fight information overload using their hosting decisions (though readers may count on social media platforms to select the most interesting material in their recommendation decisions).
[3.] Both for newspapers and particular broadcasts, readers and viewers tend to consume them as a coherent product—they may read a newspaper (or at least a section) cover to cover, or watch a whole half-hour newscast, or even keep a channel on for hours on end. They do this to get an aggregate speech product, “today’s news” (or perhaps “this weekly magazine’s viewpoint on the past week’s news”), again trusting the publisher’s editorial judgment. Requiring publishers to include certain material in the product denies viewers the coherent speech product that they seek.
The major platforms, on the other hand, are not generally in the business of providing “coherent and consistent messaging” the way that, say, an ideologically minded magazine or cable news channel might be. Even if Facebook and Twitter deliberately exclude some viewpoints, the aggregate of all the material they host is very far from coher
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