By / Jun 1

On Monday, May 24, Florida Gov. Ron DeSantis (R) signed a new bill into law regulating content moderation and online governance in the state on social media platforms. This bill is the first state bill to become law on these issues, with other states including Arkansas, Kentucky, Oklahoma, and Utah currently considering similar legislation. 

DeSantis championed the bill as a collaborative effort at the press conference where he signed the bill into law, highlighting how these major social media companies have inconsistently applied their often ill-defined content moderation policies or have not been transparent in the application or design of those policies.

What is in the bill?

The Florida legislature passed SB 7072 Stop Social Media Censorship Act the week before, which includes multiple provisions curtailing content moderation in the state, such as empowering the state election commission to impose fines — up to $250,000 per day if a statewide candidate is banned from the platforms, with lesser fines for candidate of local office. 

The bill contains other major provisions like prohibiting the platforms from taking “any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast” and forbidding the removal of content from news outlets above a certain size. It also empowers Floridians to sue these platforms as individuals if they believe that content moderation standards or policies have been inconsistently applied to them. The stated intent of the bill is to regulate the powerful social media companies that some argue have unfairly moderated content and users on an ideological basis, often interpreted through a partisan lens.

DeSantis tweeted, “Floridians are being guaranteed protection against the Silicon Valley power grab on speech, thought, and content. We the people are standing up to tech totalitarianism with the signing of Florida’s Big Tech Bill.” The governor decried that these “Big Tech” companies act as a “council of censors” and mentioned that they should be treated like common carriers

Similar arguments were made by Supreme Court Justice Clarence Thomas in an April concurrence released alongside a decision on a 2017 lawsuit brought concerning President Trump’s blocking of individual users on Twitter. Of note, the Florida bill would not apply to Trump’s permanent suspension from Twitter and the indefinite ban from Facebook, which has been a controversial decision recently upheld by the newly created Oversight Board. The Florida bill only applies to candidates for state office, but its wide-ranging effects will likely be seen throughout the rest of the nation.

Big Tech censorship

Social media and the outsized influence of technology companies on our public discourse is one of the rare bipartisan points of agreement in society today. But there is little agreement on the particulars. Progressives traditionally argue for more content moderation, especially with the growing influence of misinformation, fake news, and hate speech online. Conservatives, though, have long argued for less moderation due to the notion that conservative speech and values have been unfairly taken down or suppressed — with some users being banned or even specific social media platforms being shut down completely, simply because of the prevailing ideological agenda in Silicon Valley.

These debates are often categorized under the moniker of “Big Tech,” which is designed to signify the outsized influence and ubiquity of these media platforms in the public sphere, though the term fails to account for some of the largest “big tech” companies in the United States, including Microsoft, Disney, Comcast, Verizon, and others. It also is focused on American companies, excluding tech and media giants such as Tencent and Alibaba of China who have concerning records on free speech and religious expression due to the rule of the Chinese Communist Party. The term is specifically intended to include companies like Facebook, Alphabet (Google/Youtube), and Amazon, as well as companies with much smaller user bases that have enormous influence in the digital public square, such as Twitter.

The Florida bill immediately drew criticism from across the ideological perspectives, but for very different reasons. More progressive outlets mocked the bill for its blatant disregard for free speech and spoke of a plethora of lawsuits to be filed challenging the constitutionality of the bill. The Washington Post interviewed Santa Clara University law professor Eric Goldman, who “described the bill as bad policy and warned that some of its provisions are ‘obviously unconstitutional’ because they restrict the editorial discretion of online publishers.”

Goldman also pointed out that the Florida bill may run afoul of Section 230 of the Communications Decency Act, which is designed to shield these companies from litigation over third-party content on their platforms. Section 230 was enacted in 1996 on a bi-partisian basis to encourage these platforms to moderate content under “good faith” policies, removing content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” Conservative and free speech attorney David French argues, “the bill’s provisions compel private corporations to host (and also promote through application of their algorithms) speech they would otherwise reject. Not only do these provisions of state law conflict with (Section 230), they violate key First Amendment precedents that grant private citizens broad protections against compelled speech, protect the independent political speech of private corporations, and protect all Americans against vague and overbroad statutes.”

While some conservatives support the intent of the bill, they spoke of the overly broad nature of the bill and the interesting carve outs for certain companies operating in Florida. The carve out is for “any information service, system, Internet search engine, or access access software provider operated by a company that owns and operates a theme park or entertainment complex.” This would exempt Disney and Comcast/Universal from these new moderation and content rules, even as they operate in the mass media space.

Other noted conservatives such as Henry Olsen of the Ethics and Public Policy Center and Andrew Walker of Southern Seminary argue that this bill is needed in order to ensure access to all political speech, similar to the common carrier regulations on television, radio, and print media. Walker notes that in a world of competing visions of the goods, certain rights can and should be curtailed in the pursuit of the common good of access to information, especially political speech. It should be mentioned that while this access to political speech is a public good, we also should call our public and civic leaders to higher standards of truthfulness and decorum given the role and responsibilities they have by nature of their position in society.

Though this debate isn’t actually over access to all political speech in general but particular access to speech that is deemed by these companies as inciting violence or spreading misinformation that negatively affects the common good of safety and truthfulness. 

But there is a concerning track record of these companies labeling certain religious and social beliefs as inherently bigotted and hateful, in particular issues surrounding transgenderism and human sexuality. As a people who claim an objective understanding of truth and human nature, we must be cautious to not label speech we disagree with as misinformation, which is common throughout our increasingly polarized and tribalistic society. Misinformation is not in the eye of the beholder, even if it has become a partisan tool.

The role of government in seeking the common good

As many noted public and political theologians have argued, the government does have a role in protecting the rights of citizens and the common good but up to a point. David VanDrunen argues in his recent book, Politics After Christendom, “every human community and institution must reckon with the degree of diversity it will embrace, or at least tolerate. No institution can stand completely open.” The question about the role of government in these debates is to what extent should the government be involved and what degree of toleration will be applied when disparate views of the common good and human dignity clash in the digital public square.

Does it actually serve the best interest of the public if a politician or user pushes misinformation to the extent that it actually leads to violence? Does the good of safety ever outweigh the good of free speech? Is free speech actually an instrumental good whose goal is to push back on the over reaching hand of government instead of private entities with their own speech rights? Obviously governments are accountable to the public in ways that the technology industry isn’t, but are we comfortable with that level of power over private entities and speech residing with the government, especially if those in charge may change with the next election cycle?

These are complicated questions that are often layered in partisan politics and talking points that need to be addressed in a nuanced and careful manner, particularly by those in the conservative movement. Many of these exact questions have been debated for decades by those specializing in content moderation and digital governance, well before many of these flashpoint issues arose to public awareness. 

While I am unable to expand on each of these issues in this essay, it is important for Christians to understand the nuance of this debate and the potential ramification of these decisions to the common good. One of the key areas of work to be done is building out a public theology for the digital age, which includes a policy oriented advocacy effort with these influential companies rather than simply relying on the government to dictate and set the rules.

While the coverage of this Florida bill has primarily focused on access for politicians, it is much broader than that and will have far-reaching implications on the relationship between the government, the people, and these companies who provide these platforms for society. The bill actually is reminiscent at certain parts to the privacy laws implemented in the GDPR and CCPA giving individual citizens the right to sue these companies for violating their “rights”. In the case of GDPR and CCPA, it’s the often ill-defined right to privacy grounded in the unfettered pursuit of expressive individualism, and in the case of this Florida law, the unfettered pursuit of free speech. Though, all rights must be balanced in this broken world and oriented to the good, the problem is that our society and the larger world have very different visions of the good. 

This leads to very different approaches to solutions for the rise of these platforms and their influence in the digital public square. Even amongst conservatives, there are radically different understandings of the role of government, free speech, and regulation. But we must keep in mind that while there are differences in approach, many of those involved in these debates have the same overall goals. Demonizing or outlandishly mocking friends will not push the conversation forward or achieve the goals of balancing these freedoms in the digital public square. The differences often lie in engagement, rather than the content of the actual issues. 

Need for policy-oriented engagement

While this debate continues, two areas of involvement are crucial from Christians: we need a more robust public engagement on these moderation policy issues and a way to rally together for a common change. One element of this vision for the digital public square is significant investment in key institutions that are equipped to work with the policy and moderation teams at these companies, instead of simply opting for social media activism. 

This means earning a seat at the table through long-term nuanced and thoughtful engagement on particular policy issues such as privacy, hate speech, violence, international governance, and more. Historically, this is exactly how the conservative movement has seen such progress on issues such as abortion, free speech, and religious freedom. These policy issues typically involve NGOs and think tanks devoted to governmental affairs. But what if these institutions took a similar approach to the technology industry by building our teams to organize engagement and develop resources to better inform these companies on faith perspectives and common good accommodations in a pluralistic society?

Instead of defaulting to a government that must step in to solve all of our problems, we need to seek policy-oriented solutions and common good accommodations if we are to see true and lasting change in better policies that better reflect the diversity of thought on some of the most important issues of the day and champion free expression for all.

By / Apr 12

Last week was a particularly busy week for the technology industry at the nation’s highest court. First, the United States Supreme Court ruled in Google’s favor in a decadeslong court battle with Oracle over the use of certain software code to build the Android operating system. Oracle claimed that Google’s use of the code violated federal copyright law. Then, the high court released its decision in the case Biden vs. Knight First Amendment Institute at Columbia University. This particular case was ruled moot, and the lower decision was dismissed. The case was originally titled Trump vs. Knight. It was changed with the inauguration of Joseph R. Biden since the case revolved around the question of the president’s ability to block access to the public on a social media platform.

What was the case about?

The original lawsuit was filed back in July 2017 by the Knight First Amendment Institute and seven social media users against President Trump on account that he had blocked these seven individuals on Twitter after they criticized him or his policies. Being blocked by the president meant that these users could no longer see or respond to his posts on the platform. As veteran court reporter Amy Howe wrote, “The plaintiffs alleged that blocking them on Twitter violated the First Amendment, and the district court agreed. The U.S. Court of Appeals for the 2nd Circuit upheld that ruling.” The lower court ruled that the president’s Twitter account was a public forum and that the government violated the rights of these individuals by blocking access to it.

On Aug. 20, 2020, a petition for a writ of certiorari was filed. The Supreme Court agreed to review the case, but it was also during an election year. In January, the Trump administration filed a brief indicating to “the justices that, although the 2nd Circuit’s decision was worthy of their review, the case would become moot once Joe Biden succeeded Trump as president on Jan. 20.” Amy Howe explains, “Trump had been sued as the president, rather than in his personal capacity, the administration explained, but Biden would not have any control over Trump’s Twitter account.” Then after the attack on the United States Capitol over alleged election fraud, President Trump was permanently suspended from Twitter over the claim that he incited the violence (even though the administration said that this suspension could be overturned, so that fact should not have bearing on the case.) All of these shifting circumstances ultimately led the court to grant the petition for a writ of certiorari, vacate the judgement, and remand the case back to the Second Circuit with instruction to dismiss the case as moot.

What does this case have to do with online content moderation?

On April 5, Justice Clarence Thomas released a concurring opinion alongside the court’s ruling. Justice Thomas explained in detail the court’s deliberations and the reasoning behind the decision to grant the petition for a writ of certiorari. But he went on to connect this case to the larger questions surrounding the immense responsibility and control that certain technology companies have in civic discourse given our public dependence on and the massive size of technology companies such as Facebook, Twitter, Amazon, and Google.

Justice Thomas writes, “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” He went on to state that the government might have a compelling interest to intervene in this new power dynamic by possibly limiting the right of a private company to exclude. Justice Thomas explained, “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.” He submitted two possible legal doctrines for consideration, designating social media as “common carriers” or as “public accommodations,” both of which are highly controversial in digital governance debates, especially among legal media scholars.

Justice Thomas argued that the “common carrier” designation has been applied to other industries with considerable market size, such as those in transportation and communication. These industries are given special privileges by the government, but also have restrictions placed on their ability to exclude. “By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.” This particular argument may overlook the difference between social media as simply a carrier of information, rather than a curator of that information posted by users. 

The other designation of “public accommodation” would apply regardless of the relative market size of the companies, given the ongoing scholarly debate about whether market power is a necessary aspect for a company to be considered a common carrier. Justice Thomas wrote that these companies may not “not ‘carry’ freight, passengers, or communications,” but nevertheless they could have their right to exclude curtailed given their public utility. “If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.” While he acknowledges that technology companies do indeed have their own First Amendment rights, he nevertheless argues that these rights may need to be diminished in light of the influence this industry has over our public discourse. This is a complex situation, especially for conservatives who traditionally resist the government’s intrusion into the rights of individuals and corporations.

Overall, Justice Thomas explores each of these options as well as their potential pitfalls throughout the concurrence. He rightly points out that these decisions would need to be enacted by various legislatures, but they also might be under the prerogative of the courts depending on the contours of the cases brought forth. This opinion, while not holding any enforceable action, is significant because a sitting Justice of the Supreme Court is making these types of arguments to reign in the power of the technology industry—an issue that both Democrats and Republican have been pursuing , even if on different ideological grounds.

What does this mean?

Justice Thomas acknowledged the tenuous realities in the current public policy debates over the role that these digital platforms play in our public discourse in light of their immense size and influence, including their ability to moderate user content. He is correct in saying that applying old doctrines to the new challenges of digital platforms is an extremely complicated matter, whether it be on issues of free speech, questions of public accommodation, or the nature of religious expression online.

As legal expert and free speech attorney David French correctly states, “Millions of Americans are deeply concerned about the power and reach of America’s largest tech companies, but their concerns often diverge sharply depending on their partisan affiliation.” French goes on to say, “The two sides are increasingly united in wanting more government regulation. They’re deeply divided as to what those regulations should say.” French, as others have pointed out, is concerned about government intervention in these matters since it may jeopardize the countless First Amendment victories that have been forged in recent years.

While Christians may disagree about the best path forward in these particular debates, we all must acknowledge that we live in a time where religious speech is increasingly seen as at odds with acceptable public discourse and free expression is often hampered in the pursuit of secularism. We need more believers engaged in this discussions who understand that the technology industry must be a major element in a full-orbed public theology. These types of decisions are crucial for the health of our democracy and the future of religion in the digital public square. 

Even with the immense complexity of these debates, one thing is abundantly clear: the dignity of our neighbor is at stake around the world. We must keep that truth central to this debate over digital governance, whether here in the United States or abroad under the repressive hand of authoritarian regimes. Though these issues may at times seem just to be about tweets, posts, and even the contours of particular content moderation policies, they must be seen as ways that human beings, created in God’s very image, are able to communicate, express themselves, and do life in an ever-increasing digital society.