How Congress can prevent Big Tech from becoming the speech police

In an unprecedented display of private censorship, Twitter, Facebook and other major social media platforms suspended former President Trump’s accounts, preventing him from communicating with his millions of followers. Many Americans were relieved, finally, to see limits placed on Trump’s ability to spread misinformation and sow discord. But few should be sanguine at the prospect of unaccountable technology monopolies serving as the nation’s speech police. 

Social media platforms such as Facebook and Twitter also have allegedly deleted the posts and accounts of racial justice advocates at home and human rights activists abroad, especially when they have been critical of government power.

That private technology platforms exert unparalleled power over political discourse is deeply undemocratic. 

To be clear, this is not a First Amendment issue. The First Amendment’s protection of free speech applies only to the government and not to private companies. But it is an issue of profound importance with regard to free speech and the right of speakers to express their message and of their audience to hear it.

Congress, though, can regulate social media platforms by federal law and has the power to pass legislation that forbids designated social media platforms from discriminating against users and content on the basis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats and the intentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content.  

Congress has the constitutional authority to enact such legislation, and it has exercised this authority in the past. Starting in 1949, through what became known as the “fairness doctrine,” the Federal Communication Commission (FCC) required broadcast licensees to discuss controversial issues of public importance and to ensure the expression of contrasting viewpoints. In the Communications Act of 1959, Congress explicitly acknowledged the obligation of broadcasters “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” 

The Supreme Court upheld the constitutionality of the “fairness doctrine” in Red Lion Broadcasting Co. v. FCC (1969). The Court held that the First Amendment does not prevent the government from requiring a broadcast licensee to conduct itself as a fiduciary with obligations to present views and voices that are representative of its community. Otherwise, broadcasters would have “unfettered power” to communicate only the views of those with whom they agreed. 

In Red Lion and subsequent cases, the Supreme Court has said that the government can regulate the speech of broadcasters so long as its action is substantially related to achieving an important government purpose. For example, in Turner Broadcasting System v. FCC (1997), the Court rejected a First Amendment challenge to the “must carry” provisions of the Cable Act of 1992, which forced cable television providers to dedicate some of their channels to local broadcast television stations. In doing so, the Court recognized the need to promote the dissemination of information from multiple sources in order to counteract the monopoly power of cable companies.  

Based on these cases, a “nondiscrimination doctrine” applied to technology platforms with monopoly power should also be upheld. The Red Lion decision rests in part on the scarcity of the broadcast spectrum, but private monopoly power over speech exists not only when the government grants a broadcast license, but also when a social media platform dominates public discourse. In truth, the power that platforms such as Twitter and Facebook possess is far greater than that of individual broadcasters who compete with one another as well as with satellite and cable networks. 

A federal law preventing social media companies from discriminating on the basis of political views would enhance free speech by preventing monopoly suppression of particular views, thereby ensuring that competing voices are heard over social media. Such a provision would be narrowly tailored because it requires only that platforms refrain from censoring speech on the basis of its political content. In contrast, under the “fairness doctrine,” broadcast licensees were required to identify issues of public importance and present contrasting viewpoints. These aspects of the “fairness doctrine” have been criticized, but a “nondiscrimination doctrine” does not require identifying and promoting particular views. 

Finally, social media platforms do not and should not receive the same protections afforded the press. In Miami Herald v. Tornillo (1974), the Supreme Court invalidated a Florida law that granted political candidates the right to reply to attacks on their record by a newspaper because it infringed on the newspaper’s editorial freedom. However, under Section 230 of the Communications Decency Act of 1996, providers of an “interactive computer service” are not publishers or speakers of third-party content provided on their service. Unlike newspapers, social media platforms are immune from lawsuits that arise from that content. 

Free speech is threatened by both public and private censorship. But existing laws do little to limit the awesome power of today’s social media monopolies to silence the speech of whoever they oppose. By preventing social media platforms from discriminating, Congress can keep faith with the First Amendment while ensuring that private monopolies do not control the public sphere. 

Prasad Krishnamurthy is a professor at the University of California, Berkeley School of Law. Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.