It is worth being clear about the astonishing thing the dominant U.S. tech companies have done in the last week. They have roadblocked the President of the United States. They have removed him from their platforms and have shut out an alternative social media platform that would have provided him separate route to address the public. No media companies have done this to a sitting President before, ever.
Was this the right choice? The companies faced a momentous decision. Anything they did would have significant consequences. But they had to make that decision from the position they occupy in the political system. They are not judges or regulators charged with protecting the public. They are private companies and current law gives them full discretion to leave Trump up or take him down.
As marketplace actors trying to do what is best for their companies, they have to consider whether the consequences of removing Trump will likely benefit them or likely hurt them. Based on that calculation, I might very well have counseled them to silence Trump for the remainder of his term. The risk is too great that they would be blamed by the public and policymakers for whatever violence he might stir up between now and January 20. The prudent course would be to deny him a platform from which he can rally his supporters to engage in another mob riot or worse.
Moreover, Trump and his allies soon will be out of power. Democrats will control the Administration, the regulatory agencies, the antitrust agencies and both Houses of Congress. These new political leaders are already skeptical that the social media companies did too little too late to control Trump’s posts and other chatter on their systems that led to the mob riot at the Capitol.
For years, the tech companies tolerated Trump, despite calls for them to delete, delay or demote his posts. I think that initial choice to defer to Trump up until now was actually correct from a public policy point of view. Social media companies should give substantial deference to public officials including Trump. Public officials should be allowed greater leeway with respect to a company’s content rules. They have enormous responsibility for making decisions that affect the lives of millions of citizens and there’s a public interest in what they have to say that overrides the normal operation of a company’s speech code.
Trump certainly tested the limits of that legitimate toleration over the years, but he crossed the line last week. At this point, the companies are right to rein him in.
On the other hand, the effectiveness of tech’s Trump roadblock should give us all pause. When 5 or 6 companies can silence the President of the United States with no process of accountability or review, too much power has accumulated in their hands. This was the heart of German Chancellor Angela Merkel’s reservations about the tech company actions.
Suppose CBS and NBC, the only radio networks in the country in the 1930s, decided that FDR’s fireside chats were attempts to rally the people to socialism, and refused to carry them. They didn’t do this, in part because a regulatory regime required them to provide public service, not just to serve their own interests or what they perceived to be the interests of the country.
I don’t have much hope that antitrust law as currently conceived and practiced would break up the power of tech companies, and in any case I’m not sure more competitive alternatives would improve the information disorder that infects our media landscape.
But Congress needs to set in place a regulatory framework for social media. The first task is to require platforms to put in place reasonable content moderation systems, including publishing their content rules and establishing transparency and accountability measures to ensure due process and redress. The second is to protect users from illegal and harmful activity on online platforms by requiring platforms to respond to well-constructed complaints concerning illegal activity and establishing limited liability for platforms who do not respond.
No one suspected before this week that such a reformed system would also need to contain standards for deplatforming a public official. But they are needed. If tech companies are going to make such a momentous decision, they need to be given guidelines to follow rather than have the country put its trust in the companies’ own self-interest. Obviously, a substantial risk that the official would use the platform to instigate mob violence would be one standard, but others need to be thought about and debated.
Moreover, the decision should not be theirs alone. Perhaps in an emergency they should be allowed to silence a country’s political leadership, but there has to be a process whereby a legitimate public body reviews that decision. We don’t have that today. We just say that they are private companies and can do whatever they want. That’s unacceptable and has to change.