In Which A Bunch Of Us Try To Explain The 1st Amendment To Jeff Sessions Concerning 'Social Media Bias'

from the you'd-think-he'd-understand-it-already dept

A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to "discuss" how to deal with the imaginary problem of "political bias" on social media platforms actually represented a serious First Amendment problem. The government simply isn't allowed to pressure companies into any sort of compelled speech, and yet it appears that's exactly what these law enforcement officials were trying to do.

Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

We write to express our concern over your plans to convene a meeting of state attorneys general later this month “to discuss a growing concern that [operators of popular social media services and search engines] may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.” The First Amendment bars the government from attempting to “correct” the first alleged problem, political bias, including through the antitrust laws, and sharply limits how the antitrust laws can be used against anticompetitive behavior beyond editorial bias. Essentially, antitrust law can prescribe anticompetitive economic conduct but “cannot be used to require a speaker to include certain material in its speech product.” … For all these reasons, we are skeptical that there are any grounds for legal action that could arise out of your inquiry.

The letter also highlights why the very idea of a "fairness doctrine" for the internet is Constitutionally impossible, not to mention ridiculous, given that the push for it is coming from the very same Republicans who have spent years falsely "warning" that the Democrats wanted to bring back a "fairness doctrine" for broadcast TV.

A Fairness Doctrine for the Internet Would Be Unconstitutional. The President and top congressional Republicans have talked about the need to ensure the “fairness” of social media platforms and search engines. Consciously or otherwise, this invokes not antitrust law but the “Fairness Doctrine” imposed on radio and television broadcasters by the Federal Communications Commission from 1949 until 1987. In theory, the Fairness Doctrine required broadcasters to represent a wide spectrum of opinion on controversial issues of public importance. The Supreme Court upheld this Doctrine in Red Lion (1969) — but only because it declined to extend the full protection of the First Amendment to broadcasters on the grounds that they received government licenses to use a scarce public resource: the airwaves. Five years later, the Court categorically rejected mandating that newspapers offer a right of reply. Anything like the Fairness Doctrine would undoubtedly be struck down as unconstitutional if applied to any other media — whether to Fox News (the cable network) or Internet media.... Ironically, it was conservatives who led the fight to repeal the Fairness Doctrine over four decades — because it hurt conservatives most: The threat of losing an FCC license discouraged broadcasters from including non-mainstream voices in their coverage and made impossible alternative media offerings with an unabashed conservative “bias.” Indeed, it was President Reagan’s FCC that repealed the Fairness Doctrine in 1987.

The letter, targeted at Jeff Sessions repeatedly reminds him how such a tool might be used in the other direction as well:

The last thing conservatives should want is a Democratic administration with such arbitrary power (or a Republican administration, for that matter). A Warren administration, say, could use such powers to coerce existing social media sites and search engines to disadvantage conservatives (in the name of neutrality and fairness, and stopping “fake news,” of course) and also to prohibit the “Facebook for conservatives” network recently called for by Donald Trump, Jr.

It's quite incredible that we're even discussing this. A fairness doctrine doesn't make any sense, and is broadly unconstitutional for a whole host of reasons. What's bizarre and troubling is how quickly those who like to wear blue or red uniforms like to rush to it as soon as they feel one area of the media is "biased" against them, not recognizing how it would clearly be used in other areas of the media as well.

While it appears that Sessions' gathering with Attornerys General will happen, hopefully all it serves to do is remind them all that the First Amendment exists, and that they are Constitutionally prohibited from messing with how online platforms present content.

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Filed Under: antitrust, attorneys general, compelled speech, doj, first amendment, free speech, jeff sessions, political bias, search bias, social media, state ags

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