In his quixotic bid to buy and reform Twitter, Elon Musk swiftly arrived at the same place nearly every tech mogul does: he doesn’t want censorship, but he does want to be able to suppress some legal speech. In a matter of weeks, Musk moved from saying that Twitter users should be “able to speak freely within the bounds of the law” to saying that Twitter should take down content that is “wrong and bad.”
This rapid evolution was hardly surprising to anyone who follows online content moderation issues. A platform overrun with the legal content Twitter currently prohibits—including barely-legal pornography, scams, extreme violence, and worse—would bring public condemnation and alienate both users and advertisers. Not only would that cut into Twitter’s profits, but it would also greatly reduce the platform’s value as a megaphone for power users like Musk. Presumably some combination of these concerns drove his shift from opposing all censorship to opposing “bad” speech.
American lawmakers don’t have Musk’s options for policing speech online. Many seem not to appreciate just how much content falls into the “lawful but awful” category—speech that is offensive or morally repugnant to many people but protected by the First Amendment. This blind spot can profoundly distort policymakers’ expectations about the consequences of platform regulation.
The constitutional limits on platform regulation seem increasingly up for grabs. Platforms’ concentrated power over important channels of public discourse makes them, in the eyes of many observers, threats to democracy. It also makes them highly attractive levers for government control over online speech. Any analysis of new platform regulation must look closely at the rights and roles of internet users, online platforms, and the state. It also needs to be smart about the extra-legal factors—what Larry Lessig once called the “norms, markets, and architecture”—that shape laws’ real-world impact. Lawmakers will make unwise choices if they disregard social norms and market demand for content moderation. By the same token, they may tie their hands unnecessarily if they assume that the internet’s current architecture is immutable.
Who Governs Lawful Speech Online?
Like Elon Musk, many internet users and politicians want to reduce platform “censorship.” But they still want someone to weed out much of the barrage of spam, gore, and other “bad” speech that the Internet has to offer. Broadly speaking, this curation could be done by three entities: platforms, governments, or users. Each choice has real upsides—and real downsides.
Conclusion
Today’s major internet platforms wield unprecedented and concentrated power over speech. Critics’ desire to reduce that power is understandable. But “common carriage” rules that flood social media with barely legal garbage would not be an improvement. And laws that preserve centralized power over speech, only to move it into the hands of the government, range from impractical to dystopian. The best policy responses are the ones contemplated in middleware models and in Section 230 itself—disrupting concentrated power over speech and putting more control in the hands of users.
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