Revisiting Indecency: Considering a Medium-Specific Regulatory Approach to Disinformation and Hate Speech on Social Media

Evidence of political, psychological, medical, and cultural harms associated with social media continues to mount, particularly in light of the many revelations contained within the documents and testimony shared by Facebook whistleblower Frances Haugen. In many countries, efforts to impose regulatory safeguards related to the social responsibilities of these platforms are underway. In the US, however, we have seen relatively little consequential action at the federal level beyond ongoing antitrust inquiries, a continuing array of congressional hearings, and a series of bills that show few signs of passing. Are there aspects of broadcast indecency regulation that are relevant to policy deliberations about disinformation and hate speech on social media? Indecency is unique in that policymakers created a category of speech exclusive to the legal and regulatory context of a specific medium. Further, disinformation and hate speech could similarly be carved out as categories of speech that receive less First Amendment protection exclusively within the social media context. Such an approach could clear a path for modest government interventions directed at imposing greater accountability and responsibility on social media platforms.