Indiana joins petition asking FCC to review how social media regulates political speech

Curtis Hill

Indiana joined forces with several states last week to urge the Federal Communications Commission to look at how political speech is moderated on popular social media websites. 

Indiana Attorney General Curtis Hill signed onto a letter with the attorneys general from Texas, Louisiana and Missouri. Their statement comes alongside an executive order President Donald Trump issued in May requiring the National Telecommunications and Information Association to submit a petition clarifying to the Federal Communications Commission what responsibilities social media platforms have in policing their websites for criminal activity and speech.

Of particular concern to Trump, the NTIA and the letter from the attorneys general is Section 230 of the federal Communications Decency Act, which formed in 1996 as the internet was getting off the ground. Section 230 gave important legal protections to platforms like social media websites, providing them broad immunity when it comes to user speech. 

The letter from the attorneys general refers to recent efforts by Twitter and others to fact check false or misleading claims about hot-button issues like COVID-19 and the 2020 election.

For example, Twitter flagged a post this summer from President Donald Trump that claimed mail-in voting leads to increased voter fraud. The flag posted by Twitter called this claim misleading and linked to news stories refuting it.

The attorneys general argue efforts like this do more harm than good, calling it a form of speech suppression.

“Unfortunately, examples are legion of online platforms downplaying, editing, or even suppressing political speech that bears no relationship to the traditionally regulated categories of speech,” the letter reads. “YouTube and Facebook, in turn, have removed content — including materials posted by licensed physicians that, in their view, constitutes ‘misinformation’ about COVID-19.”

The letter also asks the FCC to clarify social media platforms aren’t immune from challenge if they endorse or otherwise promote content from a user that might violate state law. It also calls on the FCC to reinforce the role social media plays in combating criminal activity, including illegal sex trafficking.

For the attorneys general, social media sites are the equivalent of public squares that should be open to free and honest debate. In the letter, they argue social media websites should be more transparent about when, how and why they limit speech.

“These online public squares cannot be truly free, however, unless the participants understand the rules of the forum, and competition is able to provide alternatives when speech restrictions go too far,” the letter reads. “That market cannot operate, or even come into being, unless those who use online platforms and those who wish to compete with them have timely access to accurate information about critical content moderation policies.”

But the concerns raised by the attorneys general miss an important point, said Joseph Tomain, a lecturer at Indiana University’s Maurer School of Law who researches the intersections between cybersecurity, personal privacy and communications.

A person upset with Twitter’s fact-checking policies, for example, is free to join an alternative social media platform or even create their own. One example is the newly created Parler, what some conservative users have pinned as a “free speech” alternative to Twitter.

And what makes that kind of competition possible — the real “marketplace of ideas,” Tomain explained — is a concept the attorneys general aren’t discussing: Net neutrality.

“If some of the concerns in this letter are legitimate, as opposed to political rhetoric, then I hope that the state attorneys general support net neutrality,” Tomain said. “Because that is a great way to avoid censorship and suppression of speech.”

Net neutrality ensures internet service providers can’t penalize users for using certain products or creating new platforms that might be in competition with the provider.

Under the Obama administration in 2015, the FCC created new rules that would have protected net neutrality. But those rules were repealed under the Trump administration, leaving net neutrality a matter yet to be resolved and one largely ignored in some circles claiming their speech has been suppressed. Other rules surrounding user privacy were also removed by Congress in 2017, rolling back limitations on what information internet service providers can collect from users.

And some studies indicate these matters aren’t partisan, at least among constituents. A poll by the Huffington Post and YouGov in 2017 found 72% of both Republicans and Democrats did not approve of the administration’s decision to erase the privacy rules.

Tomain also said efforts by social media platforms to fact-check or moderate content — without removing it — is not suppression of speech.

“It’s just more speech,” Tomain said. “And so, if Twitter wants to add its own fact-checking to a post that it does not take down, that’s not suppression of speech. That’s Twitter’s own speech.”

When that happens — when a platform moderates and adds its own speech — users can take more direct action and claim they’ve been defamed, their privacy has been invaded and more, Tomain said.

Steve Key, executive director of the Hoosier State Press Association, which represents publishers across Indiana, noted the attorneys general, the president and citizens alike have good reason to be concerned about political speech.

“Political speech is at the core of free speech in a democracy, so it should always be a public concern,” Key said.

And social media platforms have evolved far past the “bulletin boards” of the early internet that prompted Section 230 in the first place. Like Tomain, Key said it’s clear conversations need to be had about them, whether regarding transparency on the platforms or how to educate users and protecting the platforms from political manipulation.

Officials at Facebook also recently announced they would restrict when political ads can be posted to the platform leading up to November’s general election. Leaders at the company said the effort is in response to voter manipulation that occurred on the platform in the 2016 presidential election. Investigations since 2016 have found Russian users, for example, used prominent social media sites to spread propaganda relating to the election.

“Rather than becoming a tool, social media became a place of manipulation,” Key said. “And that can have a detrimental effect in the political process.”

Erica Irish is the 2020 Russell Pulliam editor for TheStatehouseFile.com, a news website powered by Franklin College journalism students.

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