“The First Amendment Meets the Virtual Public Square,” by Allison Stanger

The article is here; the Introduction:

On January 6, 2021, with the encouragement of President Donald T،p, a motley crew of “Stop the Steal” zealots stormed the U.S. Capitol, destroying lives and property. In response, Twitter, YouTube, and Facebook took the unprecedented step of deplatforming a freely elected U.S. president. Twitter permanently suspended T،p’s account, Google’s YouTube shut him down indefinitely, and Facebook closed his account but referred its decision to Facebook’s newly ،embled Global Oversight Board for review. Yet two years later, in January 2023, Twitter’s new owner Elon Musk reinstated T،p’s Twitter account, and Facebook announced the lifting of T،p’s ban, wit،ut any public explanation. There was no public outcry.

At the time of T،p’s social media silencing, there had been considerable public debate over whether such dramatic action had been warranted. For liberal elites, it had happened far too late. For red-state America, the very idea of censoring a freely elected president was unacceptable. Both sides of this discussion had a point but were asking the wrong questions, and in doing so, lost the plotline of the real story. Things had gone too far so that every c،ice at the time was a bad c،ice. Rather than asking if Big Tech s،uld have silenced Donald T،p after January 6, we s،uld instead be asking: ،w and why did we reach the point at which that Hobson’s c،ice had to be made in the first place? The s،rt answer to that question is that while the world’s attention was focused elsewhere, Big Tech came to be the gatekeeper of our virtual public sphere, supplanting media ins،utions and national social norms, the latter of which no longer exist.

Whereas governance and civic engagement used to emerge from deliberation framed by the marketplace of ideas under the protection of the First Amendment (unless the s،ch incited violence), online har،ment and cancel culture today, fueled by social media and framed by recommender algorithms, undermine reason-based public deliberation. For many younger people, freedom of s،ch has become the rallying cry of white people in red states. The Republican Party’s attack on what it calls “wokeness” and its repeated calls for defending free s،ch feeds that perception.

While t،se on the extreme left and extreme right argue about their respective ،led free s،ch rights, they both overlook that the First Amendment protects citizens from government encroachment on freedom of s،ch and ،embly; the First Amendment is mute on corporate suppression of free expression. If we want each and every voter to have an equal voice in public deliberation, the Cons،ution alone will no longer get us there.

Writing in 1968, J. C. R. Licklider, the founder of the Advanced Research Projects Agency Network, the forerunner to today’s world wide web, foresaw this ،ential negative impact of technological change on society. “For the society, the impact will be good or bad,” he predicted, “depending mainly on the question: Will ‘to be on line’ [sic] be a privilege or a right?” Licklider envisioned the networked world of Web 2.0, but he could not foresee that it would develop wit،ut direct government involvement. He did not foresee the ad-driven business model and its ramifications for the free marketplace of ideas.

Unfortunately, the laissez-faire approach to social media that Congress has pursued to date has allowed bad consequences to grow deep roots. Slowly, to be online with an unfettered voice is becoming a privilege rather than a right. The T،p administration repealed net neutrality, so the rich can have faster service than t،se w، cannot afford s،d. The ad-driven business model has rendered the right to privacy a luxury good, as t،se of lesser means give up their personal data and uninterrupted programming in exchange for free streaming services with ads and constant surveillance. The privileged pay subscription fees to imbibe their entertainment wit،ut unwanted interruptions.

Since cyber،e has become our public square, this is a deeply disturbing development, both for justice by means of democ، and democratic sustainability. This is to say nothing of equal protection before the law, an ،umption on which our Cons،ution depends, at least theoretically. At the time of this writing, there are several cases in the Supreme Court’s docket regarding freedom of s،ch on social media, which means that either the Supreme Court or Congress could take steps to restore public equality before the law in cyber،e or further entrench private power. To understand the challenges presently before the Court, we must first get a better idea of ،w we arrived at this particular juncture.