The consequences of social media’s giant experiment

The actions of Facebook and Twitter to ban President Donald Trump are protected by Section 230 of the 1996 Communications Act. This is the same Section 230 behind which social media companies have sheltered to protect them from liability for the dissemination of the hate, lies and conspiracies that ultimately led to the assault on the U.S. Capitol on January 6. These actions are better late than never. But the proverbial horse has left the barn. These editorial and business judgements do, however, demonstrate how companies have ample ability to act conscientiously to protect the responsible use of their platforms. When algorithms make decisions about which incoming content to select and to whom it is sent, the machines are making a protected editorial decision. Unlike the editorial decisions of traditional media whose editorial decisions are publicly announced in print or on screen and uniformly seen by everyone, the platforms’ determinations are secret: neither publicly announced nor uniformly available. The algorithmic editorial decision is only accidentally discoverable as to the source of the information and even that it is being distributed. Requiring the platforms to provide an open API (application programming interface) to their inflow and outflow, with appropriate privacy protections, would not interfere with editorial decision-making. It would, however, allow third parties to build their own algorithms so that, like other media, the results of the editorial process are seen by all. Expecting social media companies to exercise responsibility over their practices is not a First Amendment issue. It is not government control or choice over the flow of information. It is rather the responsible exercise of free speech. Long ago it was determined that the lie that shouted “FIRE!” in a crowded theater was not free speech. We must now determine what is the equivalent of “FIRE!” in the crowded digital theater.

[Tom Wheeler is a former chairman of the Federal Communications Commission]