Congress Must Continue to Ignore Calls to Regulate Controversial Speech on Social Media

Last month, the Anti-Defamation League awarded its International Leadership Award to actor and comedian Sacha Baron Cohen. During his acceptance speech, Cohen let loose his frustrations with social media and the proliferation of lies, conspiracy theories, and fake news. He blamed the rise in hate-based violence on “a handful of internet companies” that he characterized as “the greatest propaganda machine in history.” Though a bit hyperbolic at times, his argument was hardly without merit

Insisting that this issue isn’t about “limiting anyone’s free speech,” Cohen directed most of his ire at Facebook CEO Mark Zuckerberg. Zuckerberg has previously emphasized his commitment to maintaining an online environment that fosters freedom of expression and the free exchange of ideas and opinions. Cohen’s retort is that “freedom of speech is not freedom of reach.” He rightly points out that the First Amendment of the U.S. Constitution does not apply to private tech companies in Silicon Valley, and that Facebook in particular is in no way obligated to provide a platform to hateful, dishonest speakers. His position boils down to the notion that social media giants have a moral obligation to police the criminals, conspiracy theorists, and propaganda artists that use platforms like Facebook as instruments of manipulation. And judging by the warm reception his speech received on social media, he certainly isn’t the only one who feels that way.

But is it time for the government to get involved? On this question, Cohen trips over an enormous contradiction which distracts from the sound moral principles that buttress his promotion of greater corporate accountability. Early in his speech, he acknowledges that the First Amendment prohibits Congress from passing any laws that abridge the freedom of speech—which is, of course, indisputably correct. But shortly thereafter, he seems to suggest that Congress should just shrug off their constitutional restraints and take up the task of doing exactly that which the First Amendment forbids.

“Now here’s an idea. Instead of letting the Silicon Six [Facebook CEO Mark Zuckerberg, Alphabet Inc. CEO Sundar Pichai, Alphabet Inc. co-founders Larry Page and Sergey Brin, YouTube CEO Susan Wojcicki, and Twitter CEO Jack Dorsey] decide the fate of the world, let our elected representatives, voted for by the people of every democracy in the world, have at least some say.”

Here, Cohen is pushing Congress to do what he already admits they cannot do. The First Amendment is incredibly broad; it doesn’t only cover hateful speech, but also various forms of dishonest speech as well. Here in the U.S., our elected representatives have no legal authority to forcibly drive racists, homophobes, holocaust deniers, or anti-vaccine activists off any private platform. Is Cohen simply unaware of the full range of expressions protected by the Constitution, or is he proposing that we modify the very principle of freedom of expression so as to hook social media users onto very short leashes that can then be placed in the hands of paternalistic government regulators?

Either way, Cohen’s vision for a government-regulated internet isn’t any less dangerous than the system we have now. He points out that tech companies suffer from a financial conflict of interest that discourages them from regulating themselves, but what about the conflict of interest that would arise if Congress chose to heed Cohen’s call to action? Social media has become an enormously powerful political tool. Politicians already use it to help build their brands, connect with voters, and network with activists and allies. Trump himself uses it every day to attack his critics and reframe media narratives about his presidency. I can’t think of anything that legislators in Congress would love more than the opportunity to author a new social media rulebook designed to muffle the voices of their online critics while simultaneously boosting the influence of their ideological allies on Twitter, Facebook, and YouTube. 

We’ll just vote them out if they pull a stunt like that, you say? Color me skeptical. Most voters exhibit a consequentialist worldview. They care first and foremost about results. So when their political tribe stands to benefit from an arguably immoral or even blatantly illegal government action, Americans will often ignore or forgive that action without hesitation or delay. That’s one of the reasons why government accountability is so difficult to come by, and it’s reason enough to never trust any politician of any political stripe with the power to regulate controversial speech in either the digital world or real world. Cohen never once addresses this aspect of the debate. He never acknowledges the partisan biases that would undoubtedly impair the government’s ability to act as a fair and impartial arbiter of acceptable online speech. 

The principal flaw in Cohen’s argument, though, is found in the false choice he appears to present to his audience. In response to Zuckerberg’s stated commitment to a very broad definition of freedom of expression, Cohen argues that “our freedoms are not only an end in themselves, they’re also the means to another end—as you say here in the U.S., the right to life, liberty and the pursuit of happiness.” He then notes that “these rights are threatened by hate, conspiracies and lies” and proposes that the “ultimate aim of society should be to make sure that people are not targeted, not harassed and not murdered because of who they are, where they come from, who they love or how they pray.”

This is an effective emotional appeal and sounds eminently reasonable, but the logic behind it doesn’t hold up to scrutiny. Cohen is essentially framing free speech as an obstacle to progress, but any student of history will tell you that just the opposite is true. The legal right to self-expression has been the most effective mechanism for positive change in the history of the United States. From the abolitionist organizations of the 18th and 19th centuries to the much more recent movement for marriage equality, the First Amendment has spurred the evolution of American society by shielding the righteous minority from the authoritarian impulses of the majority. Any future legislation that threatens to compromise the integrity of that shield—even if it’s aimed at irresponsible, terribly managed tech companies that have consistently failed in their duty to deal with the trolls, bots, and bigots that infect their platforms—should be declared a nonstarter and dealt a swift defeat. It must be made crystal clear that when it comes to the issue of controversial speech on the internet, the pathway to a middle ground will never be carved through or around the First Amendment. There can be no compromise on that point.

Cohen does offer a couple of good alternative ideas worth discussing. He celebrates Twitter’s recent decision to ban political ads on their platform and argues that if Facebook refuses to do the same, they should at least fact-check the ads that are submitted to them and refuse to publish the ones that are false. Personally, I would prefer to see Facebook follow Twitter’s lead and ban political ads altogether. Doing so would absolve the company of the fact-checking responsibilities for which they are ill-equipped to handle.

Cohen also complains that on social media, politicians aren’t held to the same standards as the rest of us. He’s correct, in my opinion. When public figures violate a platform’s terms of service, they should receive the same penalties as any other user would receive for the same behavior. This point applies to celebrities as well. If that means having to kick a few famous people off Twitter or Facebook, so be it.

Of course, neither of those suggestions should be mandated by government fiat. But the government need not involve itself in this controversy anyway. Cohen’s wish to democratize the regulation of free expression on social media has already been fulfilled by the very same Constitution that precludes government regulation of hateful, offensive, and misleading speech. I’m talking, of course, about consumer democracy, which provides Cohen and his like-minded supporters every tool they need to effect the change they’re seeking. They can start petitions, organize demonstrations, and utilize plenty of other measures protected by the First Amendment to achieve their goals. If they believe Zuckerberg’s definition of free speech is too liberal, they can plead with advertisers to stop doing business with Facebook. If they feel YouTube has become a breeding ground for extremism, they can inundate Susan Wojcicki with letters and emails in protest of the company’s practices. If they’re convinced that Jack Dorsey isn’t doing enough to drive Russian bots off Twitter, they can threaten to boycott the platform until their demands are met. That’s democracy done right, and it’s precisely the kind of action Cohen should be advocating.  

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