Many social media websites have identified themselves as both “platforms” and “publishers” simultaneously, which has resulted in lawsuits, rule-bending, unfair treatment of their users, and general confusion. These issues could be resolved by requiring social media websites to label themselves as either a “publisher” or a “platform,” not both at once. This distinction is necessary because websites have a history of demonstrating unfair bias when banning users and deleting content alongside a record of unaccountability when it comes to libel, direct calls to violence, and other illegal activity occurring online.
Some social media websites claim to be neutral platforms while also making obviously biased censorship decisions. YouTube, for example, has had an infamous history of restricting and sometimes deleting videos its users upload. Steven Crowder, a conservative comedian, uploaded a video in November 2017 during which he went undercover at an event and filmed himself speaking with others (Crowder). This video was deleted from the website within hours; YouTube claimed it violated their terms of service due to the fact that he videotaped others without their permission (Crowder). However, Vermont, the location of the filming, is a single-party consent state, so YouTube’s terms do not coincide with the law. Since they could not have been held legally liable for anything in the video, there was no reason for YouTube to take it down other than a political agenda. This incident stands out even more sorely when compared with the Logan Paul “suicide forest” scandal. On December 31, 2017, YouTube celebrity Logan Paul uploaded a video to his channel that involved him visiting a Japanese forest and filming a man who had hanged himself on a tree—under the guise of raising suicide awareness (Palladino). An image of the dead body was featured in the thumbnail of the video, which was unrestricted (visible to all users) and sat atop the “trending” page for hours. YouTube itself did not delete the video; the removal in this case was performed by Paul himself after he faced online backlash. Surely Paul’s is a worse offense, so why did YouTube only feel a need to censor in Crowder’s case? If YouTube is to be regarded as a publisher, it must be held responsible and legally liable for all of its content—not just the content with which its higher-ups do not agree. On the other hand, if it wants to yield this responsibility, it must step back and allow free expression from every one of its users.
In a similar instance, on August 7, 2018, YouTube—along with Facebook, Apple, and Spotify—removed all the content of conspiracy theorist Alex Jones and his company, Infowars, and barred him from further uploading to their websites (Madrigal). Twitter, the only prominent website used by Jones that did not participate in this ban, stated that “the public conversation” is best served when “journalists document, validate, and refute” wild claims and conspiracies—not when media platforms strictly regulate them (Jarvis). However, Twitter has been accused of the censorship of other prominent political commentators, such as the permanent ban of Breitbart reporter Milo Yiannopoulos in 2016 (Moreno).
Facebook has received heavy criticism on this front, and the question of whether it is a publisher or platform has come up in both its congressional hearings and current lawsuits. Sonal Mehta, one of Facebook’s attorneys, claimed that “publisher” is the correct identification, and that it is “a free speech right irrespective of what technological means is used” (Breland; Levin). Its other lawyers have also argued that it is “a company that makes editorial decisions…about ‘what not to publish’” (Levin).
There is nothing inherently wrong with removing content from a website that is a clear violation of the law or its own terms of service—but if the website has the power to remove content, it must take on the responsibility of removing all such content, and when that responsibility is acquired, the website becomes responsible for ensuring that each and every post uploaded by each and every user follows the rules. It becomes a publisher, like Scholastic or The New York Times. The problem lies in the fact that many social media companies believe they can cherry-pick which pieces of the “publisher” outfit they wear and escape liability. In previous court filings, Facebook claimed to be simply a “computer service” that should not be “treated as the publisher” of users’ content (Levin). Eric Goldman, law professor at Santa Clara University, stated that it is “politically expedient [for Facebook] to deflect responsibility for making editorial judgements by claiming to be a platform…But it makes editorial decisions all the time” (Levin). Researchers have uncovered that Facebook “is actively campaigning to promote ‘better speech’ over hate speech in a coordinated international campaign…to combat the rhetoric of the far right,” proving likely that they are trying to push a political agenda while claiming neutrality (Bell). Weeks before the Alex Jones ban, Facebook CEO Mark Zuckerberg stated that his website will allow users to upload any content they wish, “even if people might disagree with it or find it offensive,” as long as they are “not trying to organize harm against someone” (Madrigal). This statement directly contradicts both his company’s attorneys and his own actions against Jones.
One of the reasons these companies believe they can escape repercussions is Section 230 of the Communications Decency Act, a piece of legislation that asserted that online platforms cannot be held responsible for content uploaded by users, even that which is “defamatory, fraudulent, or otherwise unlawful” (Candeub and Epstein; Levin). Senator Ted Cruz, among others, reasoned in Zuckerberg’s congressional hearing that “in order to be protected by Section 230, companies like Facebook should be ‘neutral public forums,’” and if they choose to censor or delete content, they should be identified as a “publisher or speaker” (Candeub and Epstein). While the legislation did state that social media platforms could remove content they determined to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” it also clarifies that said content “‘must, at a minimum, involve or be similar’ to obscenity, violence, or harassment” (Candeub and Epstein). Unfortunately, this aspect has been abused and used to “justify censorship” (Candeub and Epstein). Jane Kirtley, a University of Minnesota law professor, articulated this when she said that these websites are arguing they are “publisher[s] making editorial judgements,” only to later “turn around and claim that they are protected under [Section 230] because they are not publishers” (Levin). Section 230 cannot be used to protect free speech while also being weaponized as a justification for controlling and censoring the speech of social media users.
It is not surprising that Facebook wants to take on a “publisher” role considering that its forums are riddled with propaganda, fake news, and illegal content (Levin). Retaining the label of “platform,” however, has allowed this website and many others to get away with unfair treatment of users. Zuckerberg himself believes that “holocaust deniers, for example, shouldn’t be kicked off the platform” because it’s not “Facebook’s job to moderate their comments,” (Wood) but he has also stated that Facebook “feel[s] responsibility for the content on [its] platform” (Kelly). This blatant hypocrisy cannot be allowed to continue any longer. Social media companies are arguably the “world’s largest distributer[s] of news” and should, therefore, be held to the same standards as CNN or FOX (Kelly). If these websites truly do wish to remain neutral platforms, they will not be “subject to any laws requiring that they monitor illegal activity,” but they must not regulate the content of their users (Kelly). If they are not going to take responsibility for illegal activity, they cannot claim to be responsible for taking down so-called “hate speech” and unfavorable ideas—they cannot take the best of both worlds and ignore the consequences.
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