Considerations for a new Fairness Doctrine

Social media platforms are the new CBS/NBC/ABC. How will the government deal with that?

The Banning of the Trumpists will go down as a watershed event in the history of U.S. social media, but for the wrong reasons. Some people are claiming that the ban was ideologically driven — that tech companies booted Trump, Trumpists, and QAnon crazies from Twitter, Facebook, etc. because of their ideas. In fact, that was NOT why it happened.

Trump and the Trumpists were banned not because of their opinions or ideas or ideology, but because they encouraged and/or participated in a coup attempt against the United States Congress on January 6th. Inciting violence is different than having distasteful opinions. Trying to overthrow the nation’s duly elected democratic legislature is different than having distasteful opinions. (You can say that not wanting the U.S. to be violently overthrown is itself an ideological position, to which I respond: Please go away.)

But even though this shouldn’t be the moment when we have our long-overdue discussion about social media and ideology and fairness, it appears that it’s going to be the moment, so I guess let’s do this thing.

Basically I see four big questions to be here:

1. Should social media regulate speech?

2. Should government regulate social media’s regulation of speech?

3. What kind of speech should be encouraged vs. discouraged?

4. How might government regulation of social media regulation look?

The Great Conversation has failed

At the dawn of the internet and of social media — and especially of open-channel social media platforms like Twitter, where anyone could talk to anyone — there was great hope that once all of humanity could simply talk to each other, we would understand each other better, and move closer to concord on all manner of issues. To proponents of this idea, which I call the Great Conversation, the greatest danger was that social media participants would create “filter bubbles” and “echo chambers” that prevented them from encountering the opinions of those who disagreed with them. And if people said bad things or wrong things, the solution was simply for other people to say good things and right things in response.

This dream failed catastrophically, but it did not fail completely. Social media has indeed allowed people access to opinions and ideas they never would have otherwise encountered. White Americans now understand the daily realities of Black Americans much better than they used to, which has increased sympathy for Black people. Americans rarely leave their country, but now they have an opportunity to talk to foreigners all the time. And so on. We shouldn’t forget the effect social media has had on broadening people’s minds.

But like many new technologies, social media has bad consequences that threaten to overwhelm the good consequences if society doesn’t find ways to deal with them appropriately. Since 2014, the Great Conversation has turned from dream to nightmare. Anyone who spends a lot of time on Twitter (or Facebook politics groups and pages) already knows this all too well. What was supposed to be a progression towards mutual accord and understanding has become a playground for bad actors and an amplifier of social divisions.

Society has been collectively realizing this for years. Various studies have linked social media to the rise of negative partisanship in America — and, by logical extension, to the political violence now threatening the country. The man who invented the retweet button (and whose rock band I used to be a huge fan of back in college) now believes that he ruined the internet. The vast array of articles that have been written about Twitter’s toxicity is far too numerous to catalogue in this blog post.

The same is true of Facebook’s politics pages and groups as well, but Twitter especially is optimized for bad actors. In 2017 I tried to explain why Twitter (along with large parts of Facebook) has been captured by the “shouting class” — anyone with the time and the inclination to spend all day shouting on Twitter. Many of these people are what I call outrage entrepreneurs — people for whom inflaming conflict, spreading misinformation, and exacerbating social divisions are a route to attention and power. (Some scholars call them “influencers”, but I don’t want to confuse them with the people who advertise clothes on Instagram.) Trump, of course, was and is the ultimate outrage entrepreneur.

This is exactly why counter-speech is no solution to bad speech. The bad guys work all day and the good guys have to fight them as a hobby. In the days of media filters, we used specialized division of labor to keep Nazis and other bad people (mostly) out of the public consciousness; now, it’s just a regular thing that normal good people all have to spend some chunk of their time doing. That is not a sustainable strategy; it’s too stressful, it’s a giant time-waster, and no matter how many times you “ratio” the bad guys they never go away.

So social media platforms obviously have both an interest in reducing toxicity, both for the sake of their bottom lines and for society. Twitter has made many attempts to do this over the years — banning a few of the worst actors, letting people hide their tweets or even turn off replies, and so on. YouTube and Facebook have gone for more centralized content moderation. This has had some effect, and after the Banning of the Trumpists it may have even more effect.

But this sort of editorial decision scares a lot of people, because they worry that their opinions will lose them access to what they see as essential public squares.

Social media platforms as public squares

Some people say that because social media platforms are private companies, what they do is their choice and their business, and the government should have no part in that. Constitutionally, that’s certainly true — the First Amendment prevents the government from regulating what people say, not private companies. In fact, the First Amendment protects social media’s right to decide what goes on their platforms.

But just because the First Amendment doesn’t regulate social media platforms’ content moderation doesn’t mean that it’s not a free speech issue. The idea that government is the only actor in society that has the capability of taking away people’s freedom is a mid-20th century libertarian view of freedom that didn’t work even back in the mid-20th century. Between the government and individual citizens lie a variety of mezzanine authorities who have real power, and whose actions can lead to a real loss of liberty. I critiqued the naive libertarian view of freedom on my blog back in 2011:

An ideal libertarian society would leave the vast majority of people feeling profoundly constrained in many ways. This is because the freedom of the individual can be curtailed not only by the government, but by a large variety of intermediate powers like work bosses, neighborhood associations, self-organized ethnic movements, organized religions, tough violent men, or social conventions…whom I call "local bullies."…

In a perfect libertarian world, it is therefore possible for rich people to buy all the beaches and charge admission fees to whomever they want (or simply ban anyone they choose). In a libertarian world, a self-organized cartel of white people can, under certain conditions, get together and effectively prohibit black people from being able to go out to dinner in their own city. In a libertarian world, a corporate boss can use the threat of unemployment to force you into accepting unsafe working conditions. In other words, the local bullies are free to revoke the freedoms of individuals, using methods more subtle than overt violent coercion.

Such a world wouldn't feel incredibly free to the people in it.

Social media platforms are important mezzanine authorities because of network effects. In the absence of any top-down efforts to break up Twitter, there will only be one Twitter — the value of a platform increases based on the number of other people on that platform. That force relentlessly pushes platforms to consolidate. Exceptions, like when right-wingers formed Parler or Gab, happen only when Twitter’s management or some other authority forces some segment of users off of the dominant platform. Similar network effects exist for Facebook, YouTube, and Reddit, though probably to a weaker degree.

This is why social media platforms feel more like town squares than like private publications. You can certainly take your soapbox outside of town and yell all you want, but people are a lot less likely to wander by and hear you. There can only really be one town square, which is why people would feel less free if a private company bought it up and started deciding who wasn’t allowed to speak in the square. Similarly, the strong network effects of social media platforms mean that they own unique and central pieces of digital land — and if competitors replaced them, those competitors would then occupy the same piece of digital land.

So that’s why many people are so scared about the Banning of the Trumpists, even though it was obvious that they needed to be banned for national security reasons.

Interestingly, this isn’t the first time we’ve dealt with a natural oligopoly in the media and information space. The big social media platforms are, in effect, the new CBS/ABC/NBC, and we can learn from the way we dealt with the broadcast TV networks.

Towards a new Fairness Doctrine

In the mid 20th century, three large TV broadcasters — CBS, ABC, and NBC — dominated the airwaves, partly because of large entry costs, but partly because there was a limited amount of airwaves (the VHF spectrum). Later, cable news broke up this oligopoly, but it was powerful while it lasted. The news teams of the Big Three networks had an unprecedented amount of power over the information available to the average American.

But the Big Three were viewed as a force for moderation. There were probably several reasons for this — the breadth and diversity of their audience, and a post-WW2, Cold War desire to unify the country in the face of external threats. But there was also the Fairness Doctrine.

The FCC’s Fairness Doctrine, which lasted from 1949 to 1987, was basically institutionalized both-sides-ism. It required broadcasters to present opposing views on matters of public importance, though it didn’t require that these views be given equal time. It also did some other stuff, like requiring stations to notify people if “personal attacks” had been made on the air against them. Courts ruled that the FCC was allowed to impose these speech restrictions because of the fact that channels were limited— in effect, this treated the big broadcast networks like public squares.

The Fairness Doctrine died in the 80s, mainly because Republicans opposed it. But now the Banning of the Trumpists might open up political space to craft a new Fairness Doctrine — call it FD2 — to apply to social media platforms.

It’s not clear what the legal justification for this might be. I am not a lawyer or a legal expert, so I can’t really answer that question. Perhaps the government might argue that because social media uses publicly provided internet infrastructure, it’s subject to FCC control. Perhaps national security might be invoked. Perhaps it might be a government-encouraged voluntary industry pact like the Comics Code. Or perhaps lawyers might argue that digital network effects represent a public space that governments are allowed to regulate, just as they regulate limited VHF spectrum. I really have no idea.

But the bigger question is what FD2 might actually stipulate. Social media is a very different beast from broadcast TV. TV news is the ultimate “push” media, where content is created at great cost by centralized producers; social media is the ultimate “pull” media, where audience members themselves create and distribute the content. So it’s completely impossible to simply transpose the original Fairness Doctrine to social media platforms — they don’t actually create their content, so it’s not possible to require them to create additional, “fair” content.

An alternative idea might be that social media would have to apply political even-handedness in which content and which users it kicks off. In other words, Republicans might demand that if Twitter is going to kick off rightists, it must also kick off some leftists. Not an equal number, of course, just as the original Fairness Doctrine didn’t require equal time for opposing viewpoints. But FD2 might contain a rule that if you mass-ban one type of user for extremist ideology (rather than for national security reasons, as in the case of Trump), you have to ban at least some number of the opposing extremists.

In other words, if Twitter decided (as YouTube decided) that alt-right ideas simply weren’t welcome on its platform and were subject to mass banning, it might be able to satisfy a hypothetical FD2 by also mass-banning tankies.

This sort of FD2 might actually strengthen the strengths of social media — open discussion, empathy, idea discovery. Instead of creating echo chambers, it might draw people outside their echo chambers, by removing the worst actors from the opposing viewpoints and making it far less unpleasant to talk to those you disagree with.

FD2 would also take a lot of the uncertainty out of social media content moderation. Instead of everyone having to fear that they’d be banned if they disagreed politically, with the executives of Twitter or Facebook, they’d know that if they stayed within the bounds of reasonability they’d be in no danger, no matter which side they were on.

Of course, this would only be a marginal effect — there would inevitably be huge and contentious debates about what constituted an “extremist” on the Right or the Left, and whether Twitter or Facebook or YouTube secretly preferred one side to the other. But those debates are happening anyway; there’s just no avoiding them now. FD2 might at least tamp down the debates and force some kind of grudging general acceptance of public fairness.

Basically, after the Banning of the Trumpists, there’s no going back to the “free speech” era of social media content moderation. The only thing to do is push through the present era of paranoia and screeching, to something approximating the grudging detente of the mid-20th century. If a new Fairness Doctrine doesn’t happen, something else will have to fix social media, because the current equilibrium isn’t making people happy.

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