Old laws, new systems
As Rishad Tobaccowala says sometimes "the future does not fit in the containers of the past." We need Congress to help us define new containers for information, culture, and community.
When I think Justice Alito is making sense about the inapplicability of precedent, it's time for new law.
The Supreme Court heard arguments for nearly four hours yesterday on a pair of cases challenging laws in Florida and Texas that restrict internet company’s ability to moderate content on their platforms. This isn't a ConLaw class, and I am not a legal scholar or even a lawyer. But as an expert in the interplay between these systems and our civic institutions and society, what is clear from listening to both the attorneys, judges, and justices trying to deal with the essential legal frameworks around the systems that society increasingly relies for information, community building, and culture creation is that our old laws do not comprehend our new systems.
Just because a platform has become essential doesn't make it a common carrier.
Just because people use platforms for speech doesn't mean the platforms are exercising free speech when they make decisions about content or usage or promotion or algorithms.
Just because people use a platform to find and consume information doesn’t make the spaces it provides press or news or journalistic as our laws and our Constitutions defines those words.
The containers and categories in current law do not cleanly or effectively apply to our current media and information systems especially the platforms we generically bundle together as “social media.” And extrapolating the right to and regulations of free speech which should be an individual right and free press which should apply to journalism and common carriers which should apply to utilities is dangerous and potentially grants technology platforms unprecedented and wildly unintentional powers and rights completely unforeseen by these frameworks. We need new definitions and new frameworks for a new era.
These platforms want everything they do to fall under a right to free speech that they do not and should not enjoy. Citizens United extended the previous existing right to of spending money on political direct advocacy as independent expenditures to corporations and unions, but that is only one form of speech, and expanding speech to include these other behaviors is a huge mistake. We should not put them beyond the reach of regulators. Tim Wu illuminates this part of the challenge with the current issues at work here in the NY Times, but the money quote is his conclusion:
“The tech industry doesn’t need less accountability.”
Just because legislation is hard (especially right now); technology systems are complex; and new definitions are tricky are not valid reasons for our elected officials to abdicate their responsibilities. And especially not to a judicial branch even less well-suited to make these decisions and choices in an even less democratic fashion using even worse tools. And while The Supreme Court may avoid a ruling on a procedural grounds, Congress should embrace their opportunity to lead. These questions are fundamentally about how we want a pluralistic and vibrant public sphere to illuminate the world and our lives, lead to more freedom and more connectivity, and build greater empathy for more people. And how we get those things from the tools we use to express our individual rights should begin with a real discussion about freedom and needs in the people's house and from voices beyond — and does not require that we share individual rights with these platforms.
Congress: do your job.