Commentary: It is not the government’s job to promote ‘fairness’ online

What’s good for the pâtisserie is good for the platform.

A man wearing a face mask walks near a TV screen showing an image of U.S. President Donald Trump's twitter during a news program at the Seoul Railway Station in Seoul, South Korea, Friday, Oct. 2, 2020. Trump said early Friday that he and first lady Melania Trump have tested positive for the coronavirus, a stunning announcement that plunges the country deeper into uncertainty just a month before the presidential election. (AP Photo/Lee Jin-man)

When Utah Gov. Spencer Cox vetoed a bill that attempted to enable lawsuits against social media companies for “unfair” content moderation, he blamed “technical issues.” The bill’s sponsors said they’d revamp the bill and try again. But any attempt to pass such a bill pits Utah lawmakers in a losing battle against the First Amendment, and against the arguments that they once made against forcing private parties to convey messages they disagree with.

Until recently, Utah Republicans fiercely defended the First Amendment right to disassociate oneself from ideas or beliefs that one objects to. In 2017, Jack Phillips, a Colorado baker, went all the way to the Supreme Court to defend his right not to bake a custom cake celebrating a same-sex wedding — and won. In a friend of the court brief, 22 of 24 Utah Senate Republicans supported the baker. Invoking the First Amendment rights of “conscientious objectors” to free speech, free association, and free exercise of religion, they asked the court to stop Colorado from forcing Masterpiece Cakeshop to engage in expression that Mr. Phillips objected to.

But Utah Republicans now argue that social media companies should be forced to do precisely what they believed the baker shouldn’t be forced to do. While Cox was right to veto SB228, the “technical issues” raised by this bill run far deeper than whatever he had in mind.

The bill has two main parts. First, websites could be sued for “inconsistencies” in the way they remove content or ban users. But deciding what constitutes “misinformation,” “abuse,” “hate speech,” etc. is no less subjective than Phillips’s judgments about gay marriage.

Second, the bill demands “transparency” about such decision-making. The constitutional problem would be obvious if a state attempted to regulate the way newspapers decide whether to carry op-eds or how Fox News booked guests — or to require “transparency” about their decision-making. But the analysis isn’t different for websites.

As U.S. Supreme Court Justice Antonin Scalia declared, “The basic principles of freedom of speech and the press … do not vary when a new and different medium for communication appears.”

These aren’t just “technical issues.” They are the very same core First Amendment issues raised by Masterpiece Cakeshop: When can the government compel a private party to carry or participate in expression antithetical to their values?

In 1995, conservatives cheered when the Supreme Court ruled that the organizers of Boston’s St. Patrick’s Day Parade could not be compelled to allow LGBTQ groups to carry signs in their parade because “the parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole.” The parade organizers had the same rights as any speaker not to be perceived as endorsing something they found objectionable.

Likewise, even if social media websites don’t convey a particular, “overall message,” users reasonably perceive that, if a social media doesn’t take down offensive content, this reflects the site operator’s editorial judgment. Advertisers also risk being associated with objectionable content.

Like Masterpiece Cakeshop, social media companies exert active editorial control over what content they will host. And they don’t hide that control: Every user agrees to the terms of service, which reserve broad discretion to remove objectionable speech. Content moderation, like selecting parade participants or setting boundaries on what messages one wishes to put on a cake, is an inherently expressive act that conveys which messages a website operator wishes to disassociate from.

If forcing a baker to create a cake infringes on his First Amendment right to convey only the messages that he wishes to, so, too, does forcing a website to carry messages that it does not wish to. What’s good for the pâtisserie is good for the platform.

What Republicans are arguing for is a new Fairness Doctrine for the internet — despite steadfastly opposing the original Fairness Doctrine for broadcasting for decades. Utah Republicans should remember what President Reagan said when he ended the Fairness Doctrine: the “obvious intent of the First Amendment … is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium.” It just isn’t the government’s job to police the “fairness” of speech.

Berin Szóka

Berin Szóka (@BerinSzoka) is president of TechFreedom, a think tank dedicated to technology law and policy.

Ari Cohn (@AriCohn) is a First Amendment and defamation lawyer, and Senior Adjunct Fellow for Section 230 issues at TechFreedom.

Ari Cohn (@AriCohn) is a First Amendment and defamation lawyer, and Senior Adjunct Fellow for Section 230 issues at TechFreedom.