Many Americans, including me, have had frustrating experiences with the moderation of content on social media platforms. Andrew Ferguson, the president of the Federal Trade Federal Commission, wants us to know that such experiences are not only boring or perplexed; They are “non -American” and “potentially illegal”.
Ferguson, who began to solicit complaints concerning the “censorship of major technologies” last week, praises his initiative as a blow against “the tyranny of Big Tech” and “an important step in the restoration of freedom of expression”. But as Brendan Carr, the president of the Federal Commission for Federal Communications, Ferguson flexes his regulatory powers in a way that undermines freedom of expression by mixing private editorial choices.
Last July, the Supreme Court recognized that social media platforms, to decide what speech to accommodate and how to present it, mainly fulfills the same function as the newspapers which decide articles to publish. “Traditional publishers and publishers,” wrote Judge Elena Kagan in majority opinion, “select and shape the expression of other parties in their own organized speech products” and “we have repeatedly said that laws reducing their editorial choices must meet the requirements of the first amendment”.
This principle, “said Kagan,” does not change because the organized compilation went from the physical world to the virtual world. In the latter, as in the first, the efforts of the government to modify a compilation published by the expression third party are subject to a judicial examination for the respect of the first amendment. »»
This decision concerned the laws of Florida and Texas which, such as the dubious affirmation of the regulatory authority of Ferguson, aimed to fight against the “censorship of major technologies” by limiting the moderation of the content. Texas said its law was necessary to prevent “discrimination of points of view”, which is presumed unconstitutional when the government does.
“The innocent consonance sentence does not buy the prohibited objective,” said Kagan. “Texas does not like how these platforms select and moderate the content, and wants them to create a different expressive product, communicating different values and priorities. But under the first amendment, it is a preference that Texas cannot impose. »»
Ferguson tries something similar by suggesting that social media platforms can participate in “unjust or deceptive” business practices when they “refuse or degrade” “access to services” of users according to the “contents of user discourse”. In practice, guaranteeing the “equitable” treatment of users means replacing the editorial decisions that the FTC judges opaque, unreasonable, inconsistent or discriminatory.
The challenge of ensuring that social media is “fair and balanced” is illustrated by an FTC complaint in 2004 against Fox News. Two left -wing advocacy groups said that use by the slogan by the media was a misleading advertising. The evaluation of this complaint, noted the president of the FFTC, Timothy Muris, would require “the assessment of the content” of the media coverage of the chain – a survey seized by the first amendment.
Ferguson’s investigation also works on judgments protected by the Constitution. Its admitted objective is to increase the diversity of opinions expressed on social networks. Like Texas, he wants platforms to offer “a different expressive product” which better corresponds to his personal preferences.
The conservatives rightly opposed when the Biden administration has put pressure on social media platforms to remove “disinformation” which it considered a threat to public health, democracy or national security. They are rightly skeptical about the laws that encourage platforms to reprimand the “hate speech”, a similar amorphous category which, whatever the definition, is undoubtedly covered by the first amendment.
These conservatives should not applaud Ferguson as he tries to put the go thumb on the scale in the name of equity. If the FTC can be deemed editorial away to achieve what a republican majority think is the right mixture of opinions, a future commission controlled by the Democrats can apply a different program.
“Calling something of censorship does not make it thus, and supervising the moderation of the content as” unfair or deceptive commercial practices “does not by magic the first amendment,” notes Ari Cohn, principal lawyer of technological policy at the foundation of individual rights and expression. “And as always, beware – the claimed authority when we are in power will always exist when we are not.”
Jacob Sullum is editor -in -chief of Reason magazine. Follow it on Twitter: @jacobsultum.
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