Social media content moderation has stirred controversies for a number of years. “Fake news” on social media has been decried as a threat to democracy. Politicians pressured social media companies in the run-up to the 2020 election, and cries of misinformation have been frequent in the policy debate over COVID-19.

Concerns with political bias by social media companies go back even further, to at least the 2012 presidential race, when Facebook chose to allow the Obama campaign better access to Facebook’s social graph than it did the Romney campaign. These concerns have continued with worries that content moderation is in effect censoring certain viewpoints.

These concerns have resulted in disparate calls for regulation. President Joe Biden and former President Donald Trump have both called for reforms of Section 230 protections for interactive computer services, such as social media. Other observers advocate regulating social media as public utilities or common carriers. Some people suggest imposing transparency standards on content moderation practices. In contrast to these calls for regulation, my AEI colleague Daniel Lyons explains that any government regulation of content moderation could run afoul of social media companies’ First Amendment rights.

The various regulations proposed to date have some serious problems. One complication is the potential constitutional issue of not allowing social media companies to decide what content can be on their sites. Indeed, as controversial as content moderation is, the success of moderated sites demonstrates their value.

The other problems center on the business models that would be imposed. Common carrier and public utility business models are untested in the social media space and may not be commercially viable because users may not find them as useful or enjoyable. Even if the business models are viable, the regulations force an artificial sameness across social media sites. This sameness would likely lead to there being only one social media site, which is what happens when there are economies of scale for providing a product that is the same for all providers.

One possible solution to these challenges would be regulation that requires a social media site to offer users a public portal. (Incentives would be preferable but perhaps infeasible if social media platforms have constitutional rights to their preferred content moderation practices.) The social media company could keep its moderated portal, such as Facebook’s or Twitter’s home pages, and allow users to access a public portal where they could access all content allowable under the First Amendment, including content the company doesn’t allow on its moderated portal. (For a more detailed explanation of the public portal, please see my paper here.)

Requiring a public portal allows users to experience the freedom of speech that the Constitution requires the government not to prohibit. Freedom of speech is important because it allows open competition among ideas, enables the mental development that comes when a person engages with ideas contrary to the person’s accepted notions, enables democratic forms of government, and allows societies to enhance their adaptability, cohesion, and resiliency as members engage with their differences.

Providing a public portal should not affect a social media company’s profitability, because the moderated portal remains intact. Indeed, if users like the public portal, they might spend more time with the social media site, which could increase profits. The public option does not hinder a business’s ability to innovate, because the business retains its permissionless innovation rights.

One potential challenge to the public portal option is that courts might find it compels speech with which the social media provider disagrees, even though the company is allowed to maintain its freedom of speech on its moderated portal. Perhaps such a finding could be averted by allowing the business to leave its brand off the public portal. This would allow the business to disassociate from the content it does not want on its moderated portal.

As policymakers debate rules for content moderation, they should be mindful of the importance of freedom of speech for both social media companies and their users—and of the importance of business viability. If new policies create user options rather than impose controls, we can have both greater freedom and more economic value.

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