By Daniel Lyons

Last week, House Democrats introduced another bill designed to alter social media companies’
business practices — this time by punishing “personalized algorithms.” This is
the latest in a yearlong bipartisan assault on Section 230 of the
Communications Decency Act, the primary statute governing hosting of
user-generated content online.

Given the ongoing heat and light on this issue, it’s
important to recognize that Section 230 is not the only legal framework in
play. Even without Section 230, another significant obstacle exists to both
parties’ efforts to micromanage platforms’ editorial decisions: the First
Amendment.

The First Amendment
right of editorial control

Over 40 years ago, the Supreme Court unanimously recognized that the First Amendment protects editorial choices of what content to publish and how. Miami Herald v. Tornillo involved a constitutional challenge to Florida’s “right to reply” statute, which required newspapers to print a political candidate’s response to criticism printed by the paper. The Herald published an editorial critical of union boss Pat Tornillo, a House of Representatives candidate who would later be imprisoned for embezzling millions from the union’s coffers. When the newspaper refused to publish Tornillo’s response, Tornillo sued under Florida law. But the Supreme Court found that the First Amendment prohibits the government from intruding into editors’ functions. The court continued:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.

The court ultimately concluded that governmental regulation of
this “crucial process” cannot “be exercised consistent with First Amendment
guarantees.”

Importantly, the court recognized its decision could lead to
stifling of certain viewpoints. Tornillo argued that concentration of media in
a handful of corporations requires the government to enforce equal access in
the interests of fairness and accuracy. (Read:
“The First Amendment interest of the public in being informed is said to be in
peril because the ‘marketplace of ideas’ is today a monopoly controlled by the
owners of the market.”) But the court explained that “however much validity may
be found in these arguments,” government-coerced access was an unconstitutional
solution. Justice Byron White’s concurrence stated starkly: “Liberty of the
press is in peril as soon as the government tries to compel what is to go into
a newspaper.”

Prior restraint

The First Amendment also protects against government censorship, even in the public interest. In New York Times v. United States, the Richard Nixon administration sought to prohibit the Paper of Record from printing the Pentagon Papers, a classified study about the Vietnam War. But the court found that the government did not overcome the “heavy presumption against” government suppression of content, no matter how harmful publication might be. Justice William Brennan’s concurrence explained that even in wartime, “only proof that publication must inevitably, directly, and immediately” jeopardize lives “can support even the issuance of an interim restraining order.”

Applicability to
modern platforms

Read together, the Tornillo and Pentagon Papers cases shield
platforms from the strongest impulses from the right and left in the campaign
against Big Tech. Republicans want to force Facebook and its competitors to
include conservative viewpoints. But Tornillo is clear that “a compulsion to publish that which ‘reason’
tells them should not be published is unconstitutional.” Similarly, Democrats
want to stamp out disinformation and other harmful material online, but the
Pentagon Papers case puts a “heavy presumption against” actions that, in Justice
Hugo Black’s words, would “abrogate the fundamental law embodied in the First
Amendment.” The government can compel neither publication nor suppression of
content by private actors. Editorial control also presumably encompasses
subsidiary decisions, such as how to display certain information (even by
algorithm), which are the high-tech equivalents of deciding which story goes on
the front page and which is buried on page 13.

Not immune from
consequences

Of course, freedom of speech does not insulate the speaker
from consequences for the message. Printing a libelous statement can lead to
damages; printing classified material can lead to jail. And the First Amendment
provides no greater shield from consequences of online speech than offline.
That’s where the rubber hits the road in the Section 230 debate, which is
primarily a shield against consequences.

But the constitutional backdrop shows how the stakes differ
for the right and left. If Section 230 is repealed, the left may achieve some
aims. Private law doctrines, such as defamation, could expose platforms to
liability for what users say, which could lead platforms to take down legally
questionable content. But after Tornillo, no comparable private law doctrine
would compel platforms to host material against their will.

Republicans should tread lightly. Their current flailing
against Big Tech could lead to greater deplatforming of the right, not less.

The post Facebook’s First Amendment rights complicate Section 230 debate appeared first on American Enterprise Institute – AEI.