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Columnists

Social Media in Legal Limbo

January 26, 2021

Technology develops far more rapidly than government’s ability to monitor it. Before traffic lights, stop signs, or speed limits were deemed necessary, there had to be hundreds of thousands of ‘horseless carriages’ disrupting the established cultural norms. A similar situation now exists regarding services provided by Facebook, Twitter, Snapchat, Instagram, and other social media. Their impact on American life in the last twenty years has outpaced legal supervision.

The lies and misinformation conveyed on social media were instrumental in creating the climate that produced the attack on the Capitol on January 6. Well before that catastrophe, however, there were obvious social problems with media where anonymous persons could post political tirades based on falsehoods and doctored visuals with impunity. The only restraint on them was what the server decided was acceptable.

Congress has already begun to deal with this dreadful situation. Media tycoons have argued at Congressional committees that they are only a platform, a means of communication. They compare themselves to a telephone company that provides the mechanisms for people speaking with one another while having no responsibility for what is being said.

Social media critics respond that a fundamental difference is that phone service involves private conversations while social media is public discourse.  They wish to see social media treated as newspapers are treated. In short, social media should be responsible for what they choose to present to the public and should be held legally accountable for libel, slander, and other violations. Technically defined, slander occurs when there is a spoken defamatory attack on a person that is based on falsehoods. Libel is the written counterpart. Videos and postings on social media often combine the two.

While social media has many positive social assets, it is also a hotbed of libel, slander, and deliberate disinformation. A miffed teenager, for example, can use social media to post false statements about anyone she or he feels has offended them. The damage to the person attacked is permanent even if the accusations are withdrawn. More ominous are political extremists who indulge in invented data and even post life-threating messages. If identified, they often claim what they posted was meant to be a joke or an obvious hyperbole not to be taken literally. At present, the only judge of the validity of such rationales is the management of the service being used.

In the wake of the treasonous assault on the Capitol, social media such as Facebook, and Twitter closed or suspended the account of then President Trump who they now considered a dangerous person. This was not a denial of free speech as there was no effort stop the president speaking in other forums. The owners of a resource just decided that the president could not use their private property any longer even though they had profited greatly by carrying his comments for years. 

Whether that decision was a good one or not is irrelevant to the broader principle at stake. Should decisions about acceptable political discourse be unilaterally made by profit-driven private enterprises? Or should social media be regulated by the will of the people which is expressed in governmental regulations with disputes decided in the judicial system?

Scores of issues regarding social media’s power have emerged over the past decade. Most involve deceptive product descriptions and selling services. A great many are minor in and of themselves. Taken as a whole, however, they have considerable social and economic impact.

A social media issue I am personally aware of as a writer is violation of copyright. A new phenomenon is that it is now commonplace for people to use social media to post a book or essay without compensation to or permission of the author and original publisher.  The platform takes no responsibility for this violation of copyright. In essence this means the work has been stolen. The Authors Guild of America reports that over the past decade, its members have seen a 20-30% decline in their total income due to this practice. To be sure, this is a problem for a small number of people but is an example of the consequences of unregulated media.

I am a fervent supporter of free speech and equally wary of abusive government power. The regulation of social media, however, is one of those instances in which regulation is a far lesser evil than powerful, lawless entities. Exactly how Congress can regulate social media in a reasonable manner will take considerable study and debate. We want to retain the enormous benefits of social media, but we need to be assured its contents are based on realities and that those who deny those realities can be held legally accountable for their postings. For communication networks controlled by profit-seeking executives to make such decisions without legal restraint is unacceptable.

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