I am enmeshed in a disagreement with esteemed and long-time Ethics Alarms commenter Chris Marschner regarding Texas’ HB 20 signed into law last year. It prohibits social media platforms with over 50 million monthly U.S. users from censoring posts based political positions and viewpoints. To my surprise (although considering the Court, maybe it shouldn’t have been) the Fifth Circuit helding that the right to free speech didn’t include the right to censor speech, a privately-owned platform. That opinion is here. I wrote that I didn’t understand the opinion at all, meaning that while I find the way social media platforms employ bias and partisan favoritism to censor posts using double standards profoundly unethical, I also think the Texas law is screamingly unconstitutional, and is likely to be held to be so by the U.S. Supreme Court. However, I understand the opinion better than I did thanks to Chris’s advocacy.
Here is his Comment of the Day on Item #4 of the post, “Sunday Consequential Ethics Epiphanies, 9/18/2022: On Incompetence, Diversity, Censorship And More..”
You and I are in complete agreement on the issue of viewpoint discrimination. I will counter that the service provided is not free. It is true that monetary compensation is not used but the Users barter for the service by providing valuable personal data and rights to the content they post online on an ongoing basis.
While Facebook does not sell users data directly it does so indirectly by serving as a middleman using its algorithm to serve up targeted advertising. That is the foundation of the business model from which the service derives its income.
One might argue that the perceived value of this trade is lopsided in favor of the user because of the billions of dollars needed to create and maintain the platform while all the user exchanges for access is giving the Service intelligence about the User. The problem with that argument is that it only appears lopsided because until the business model was developed the user has no individual means to collect financial compensation for them being subjected to an endless barrage of advertisements. Through this business model Users obtain an exchange of value by creating a social media account. In a sense, Facebook, et al serves as a medium of exchange which is the primary defining characteristic of money.
Obviously, in aggregate the value to advertisers must be large enough to pay the fees to social media firms so that they can make a profit. Without large numbers of Users social media cannot reach the economies of scale necessary to remain viable. In a sense, Users collectively agree to provide data in exchange for the ability to use the platform. If the platforms restrict who can say what to such a degree that the User base shrinks, then the value of the targeted advertisements shrinks in value. Assuming that restricting censorship would chill the creation of new platforms and subsequently chill speech that would suggest that creating a platform has few barriers to entry. I would say that creating a platform has huge barriers to entry especially in light of the vertical integration of existing platforms which can and have shuttered other upstart social media firms using their monopoly power. If a platform censors and Users no longer gain value because their speech is suppressed, those Users will end the relationship and the economies of scale that allowed the Service to be profitable may disappear and the Service goes away like the predecessor to Facebook, “MySpace”
My reading of the opinion would not subject blog sites or web-based newspapers to the public utility standard that would trigger the commerce clause. Facebook seems to want to paint itself as a mere platform to avoid being responsible for what it publishes and also have the right to publish only what it deems fit to print under the rubric of providing “safety”. Invoking “Safety” has become the operative means to restrict challenges to the ruling class. Sticks and stone might break my bones, but words will never hurt me needs to be the standard by which the term safety should be applied.