Republicans have been understandably irate about content moderation decisions made by some social media platforms. Some complain that social media is not respecting their free speech rights, although the First Amendment prohibits government from forcing social media to carry speech they don’t want to carry. Now, Justice Clarence Thomas has aired his own views on First Amendment protections and mused about treating social media as “common carriers” and “public accommodations.”
Some conservatives see Thomas’ words as a recipe to stop social media platforms from moderating user posts on their services. I share conservative concerns about political bias, but let’s examine what Justice Thomas actually said and then consider what a nondiscrimination mandate would really mean for conservatives.
Despite what some commentators suggest, Justice Thomas never said that social media platforms are common carriers or public accommodations. He noted “similarities between some digital platforms and common carriers or places of public accommodation” and said those similarities “may give” policymakers leeway to regulate. But Thomas was careful not to say that social media platforms actually fall into these categories.
Thomas has good reason to be careful about that. Businesses that are common carriers must provide their services to the public without discretion about who they serve and what customers are allowed to say. However, courts have clarified that the common carrier label “describes not the legal obligations of a company but how the company does business.”
Unlike common carriers such as your mobile phone service provider, social media businesses have always engaged in discretion about content they allow on their platforms. It is central to a business model whose aim is to attract users and advertisers that drive revenue. One avenue of competition is what content is moderated: Some sites do not allow expletives or pornography; others moderate what they view as medical misinformation or bullying. Far from offering their services without discriminating, social media websites like Facebook spend billions of dollars and dedicate tens of thousands of workers to determining whether content violates their community standards.
Now, some Republicans are citing Thomas’s words to force social media to allow any speech that’s permitted under the First Amendment. Sure, that would stop social media from moderating user content in a politically biased way. But it would also leave up lots of content that is positively awful, making social media far more objectionable to users and advertisers. It’s a wide-open faucet for the worst user content, including bigotry, harassment, profanity, and pornographic images and videos.
While some say parental controls and safe-search might filter this filth, few users trust these filters to protect their children from the worst that Internet users come up with. The reason is math -- over 100 billion pieces of content are posted by users every single day. Offensive posts will be missed and many inoffensive images would be inadvertently flagged by the algorithms weeding through this overwhelming amount of content.
Much content Americans consider unsafe or offensive is a matter of context, and that further exacerbates the problem. Racial terms are not always racist and bullying is often near impossible to identify — unless you are the one being bullied.
Common carrier regulation applied to social media will lead to a dangerous and tortuous online experience that will do real harm to millions of children and families. That is a price that most conservatives would be hard-pressed to pay to reduce political bias in content moderation.
The fact is that, despite its flaws, the Internet has empowered conservative speech more than just about any other development in the past century. Today’s conservatives have forgotten that liberal media outlets used to run only an occasional column or letter from conservative elected officials or community leaders. Now, social media allows for millions of conservatives to directly share news and views with millions of Americans.
However, if the largest social media platforms are forced to allow any user post, they will become a cesspool of unfiltered filth and hatred that would make today’s social media look like Sunday morning television. Most Americans will stop using the large social media sites, and advertisers will stop paying for ads.
Sure, there will still be smaller sites like Parler and Rumble that will escape common carrier regulation, but those platforms cater to the followers of Donald Trump. Without Facebook, YouTube and Twitter, Republicans won’t reach large social media audiences to persuade moderate and independent voters not present on conservative social media alternatives. You know, the voters who decide elections in swing states, suburban districts, and nationally.
Conservatives should be vocal anytime social media is biased against our news and views. But we should also be careful not to throw the baby out with the bathwater. Thomas’s opinion certainly raises important questions, but conservatives should be careful about embracing a nondiscrimination mandate for social media. If we do, we will almost certainly end up creating an internet that is worse for everyone, especially for conservatives.