In an epic sidestep to one of society’s most pressing issues, the Supreme Court this week suggested that Congress – not the courts – decide whether Twitter, Facebook, and Google can continue to be held harmless for the lies and incendiary content they post.
The court’s decision not to address big tech’s rules-free permissions stemmed from a lawsuit filed by the family of a 2017 ISIS attack victim who wanted the tech companies held liable for allowing ISIS to post content to recruit assassins. Justice Clarence Thomas held that giant tech companies shouldn’t be held liable for “illegal” or even “terrible” user posts because there wasn’t a clear connection between the posts and the attacks. Moreover, Thomas reasoned that if tech companies were held responsible for user content, it is possible to hold cell phone companies, email providers, and the entire internet liable, too.
Like legislators and the courts, Justice Thomas fails to understand that there is a distinct difference between phone conversations, private email or internet posts, and Facebook, Twitter, and Google posts that are surrounded by advertising.
It’s true that since 1996 courts and legislators have treated Facebook, Twitter, YouTube, and others as technology “platforms,” like telephone companies, with no responsibility for moderating users’ speech. But these companies evolved long ago from technology companies offering internet-access companies into full-fledged media, with the same content-sharing, ad-supported business model as legacy newspapers, radio stations, and television broadcasters. Except Congress granted them an enormous unfair advantage: While publishers and broadcasters must cover the cost – and liability – of verifying their words and images, digital media companies operate without content restraints or consequences.
Their rules-free permissions have given online media a superpower, an engine to balloon their audiences to a worldwide scale that dwarfs traditional media. One company, Meta, the parent company of Facebook, reaches 70 percent of monthly global internet users.
With a humongous scale, online media companies can offer advertisers unmatched pricing, reach, or audience. It’s basic math: while legacy publishers and broadcasters are limited to selling advertisers thousands or, possibly, millions of readers or viewers, companies like Facebook can offer advertisers billions of users, along with users’ sensitive personal information. This combination allows buyers to target their buys in unlimited, price-effective ways. And they love it: Google, Meta, and Twitter sold $284 billion in advertising in 2022 – far outpacing the total revenue of every television and radio broadcaster and newspaper and magazine publisher worldwide.
The issue of whether Big Tech companies are essentially advertising giant advertising engines is no longer in question. The CEO of YouTube, Susan Wojcicki, was once named “the most important person in advertising.” And last week, Twitter owner, Elon Musk, replaced himself as CEO with a career advertising executive who previously headed global advertising at NBC and other broadcasters.
When asked why he hired an ad executive to head Twitter, Musk told interviewer David Faber: “Twitter is highly dependent on advertising.”
Digital tech’s operating advantage is the singular reason why independent publishers and broadcasters are firing responsible journalists and folding. They can’t compete against social media’s volume of users and access to personal information.
But there is a simple solution to the problem: Revise Section 230 of the 27-year-old Telecommunications Act to require digital media whose business models are based on advertising revenue to review and moderate all users’ content. Take away their unfair advantage.
The impact would be immediate: To avoid a tsunami of lawsuits, Facebook, Twitter, and other media tech would need to immediately flag misinformation. Impossible? Sure, if they continue trying to serve billions of users worldwide. More likely, they’d be forced to dramatically shrink their audiences to a level at which their user content could be monitored by humans (instead of technology that hasn’t worked). So, they’d need to hire hundreds of thousands, perhaps millions, of editor-moderators. This would cost them so much that they’d need to raise their advertising pricing to levels where they could no longer drive every other rules-following publisher and broadcaster out of business.
The law was drafted in an era when it seemed sensible not to let regulation stifle innovation in nascent internet tech companies. The industry was dominated by interactive service providers (ISPs) like CompuServe and America Online (AOL), which provided dial-up access along so-called “chat rooms,” seemingly friendly enclaves for connecting with other users. No one at that time could foresee these companies maturing into world-spanning ad machines capable of crushing competition and benefiting from the spread of misinformation.
So far, legislators seeking to reign in big tech companies have offered several proposals, including awkward anti-trust mechanisms, to right-size digital media companies. Others suggest various ways to regulate online speech, but they alarm free speech advocates and fail to address the enormous scale and complexity of the problem.
In fact, the cleanest way to manage misinformation and protect free speech rights is ending online media’s rules-free publishing rights. Online companies that don’t rely on advertising – and are therefore aligned with Section 230’s original intent — would still be able to post user content freely and support themselves with subscription fees and donations, which many do currently.
A slight adjustment to a decades-old Communications and Decency Act would produce rapid results and right-size the media landscape. And it would give regulation-abiding newspapers, broadcasters, and digital players a competitive chance.
And it might even restore civil discourse and our faith in Democratic elections.
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Art Howe is a former Pulitzer Prize-winning journalist who has spent 35 years starting and building transformative media, technology, and life science companies. He co-founded Philadelphia-based immunotherapy company, Imvax ® in 2015 and currently works with several biotech startups. Prior to Imvax, Howe was in the media and technology industry. He managed and launched more than 40 newspapers, specialty publications, event marketing companies, and high-growth tech startups. Howe holds an undergraduate degree from the University of Pennsylvania and an MBA from the Wharton School.
