By Michael Alley
Last April, the European Union enacted the Digital Services Act that would force tech companies, such as Twitter, Facebook, YouTube, and other internet services, to censor misinformation and report how their algorithms are used to promote divisive content.[1] Many see this as a positive change. One reason is that many people who have spent time on social media or other areas of cyberspace encounter violent and defamatory information promoted by technology companies to drive engagement. The issue is that maximizing engagement can increase polarization by amplifying divisive content.[2]
Citizens and government officials in the United States are divided on how to regulate content and speech in cyberspace.[3] Many are opposed to limiting freedom of speech. In contrast, others feel that more action needs to be taken to prevent misinformation, violent content, and illegal activity.[4] With the void of regulation and the fear of a hands-on approach from the government, tech companies have implemented their own mechanisms for controlling content by users.[5] Many of these actions bring into doubt how capable these tech companies are at regulating themselves proportionality.[6]
Twitter has undergone many changes, with Elon Musk buying the new company. He has been particularly polarizing for his support of free speech. But as we have seen, there are limits to just how far Musk is willing to go.[7] In late 2022, Musk banned Kanye West for inciting violence against Jewish people, a move many applauded in the Twitter community.[8] But the issue of proportionality comes in when people ask why the Supreme Leader of Iran has not been banned for his comments calling for genocide against the Jewish people.[9] Twitter has shown that they are willing to ban accounts of state leaders as it did with President Trump (when he spread misinformation regarding the 2020 election results). Why has Twitter not taken similar action with Supreme Leader Khamenei of Iran? They can and they should.
Even before Musk bought Twitter, there was concern about censorship surrounding the COVID-19 health crisis. When Musk purchased the company, he stated that he would no longer enforce the company’s COVID-19 policy.[10] Some public health officials and epidemiologists criticized the move, such as epidemiologist Eric Feigl-Ding stating that it was a threat to public health.[11] But others applaud the move. One epidemiologist and professor of Medicine at Stanford University, Jay Bhattacharya, is one of these people. Twitter had hidden his tweets during COVID-19 and suppressed his message. Dr. Bhattacharya advocated for age-based analysis of COVID-19 risks and for public schools to remain open during the pandemic.[12] Defenders of Bhattacharya and free speech argued that Twitter tech executives with minimal health education censored a professor who works at one of the most prestigious Universities in the country and is a top expert in health policy for infectious diseases because he was spreading “misinformation” about a new and evolving health crisis.[13]
Although citizens and government officials have very different ideas of what should be permitted online, enforcement must be uniform across these platforms. It erodes public trust when enforcement is not proportional. On the other hand, the increase in hate speech, violence, defamation, and explicit content on these platforms undermines trust. European authorities have decided how to regulate these platforms, and we are quickly approaching the day when the United States must make the same decision. What legal guardrails is the U.S. government willing to put on these platforms?
[1] Adam Satariano, E.U. Takes Aim at Social Media’s Harms With Landmark New Law, N.Y. Times (Apr. 22, 2022), https://www.nytimes.com/2022/04/22/technology/european-union-social-media-law.html.
[2]Paul Barrett et al., How tech platforms fuel U.S. political polarization and what government can do about it, Brookings (Sept. 27, 2021), https://www.brookings.edu/blog/techtank/2021/09/27/how-tech-platforms-fuel-u-s-political-polarization-and-what-government-can-do-about-it/.
[3] Marcin Rojszczak, Online content filtering in EU law – A coherent framework or jigsaw puzzle?, Elsevier (2022), https://www.sciencedirect.com/science/article/pii/S0267364922000826#sec0003.
[4] Id.
[5] Id.
[6] Id.
[7] Rachel Lerman et al., Elon Musk says Kanye West suspended from Twitter after swastika Tweet, Wash. Post (Dec. 2, 2022, 1:19 PM), https://www.washingtonpost.com/technology/2022/12/02/kanye-west-twitter-suspended-elon-musk/.
[8] Id.
[9] Sean Burch, Twitter Rules Don’t Block Iran’s Ayatollah From Calling Israel ‘Cancerous Tumor,’ Jack Dorsey Says, Yahoo (Oct. 28, 2020), https://www.yahoo.com/video/twitter-rules-don-t-block-164900158.html.
[10] David Klepper, Twitter ends enforcement of COVID misinformation policy, AP News (Nov. 29, 2022), https://apnews.com/article/twitter-ends-covid-misinformation-policy-cc232c9ce0f193c505bbc63bf57ecad6.
[11] Id.
[12] Justin Hart, The Twitter Blacklisting of Jay Bhattacharya: The social-media platform revealed that many had been censored and shadow-banned, WSJ Opinion (Dec. 9, 2022, 6:23 PM), https://www.wsj.com/articles/the-twitter-blacklisting-of-jay-bhattacharya-medical-expert-covid-lockdown-stanford-doctor-shadow-banned-censorship-11670621083.
[13] Id.
Image Source: https://knowledge.wharton.upenn.edu/podcast/knowledge-at-wharton-podcast/twitter-and-free-speech-what-is-musks-plan/