Tech Firms Struggle To Police Content While Avoiding Bias

Take the post down. Put it back up. Stop policing speech. Start silencing extremists.

That’s just a sampling of the intense, often contradictory demands facing tech companies and their social media platforms as they try to oversee internet content without infringing on First Amendment rights. The pendulum has swung recently toward restricting hateful speech that could spawn violence, following a mass shooting in Texas in which the suspect had posted a racist screed online.

For Facebook, Google, Twitter, and others, it’s a no-win whipsaw, amplified by a drumbeat of accusations from President Donald Trump and his allies that their platforms are steeped in anti-conservative bias. With lawmakers and regulators in Washington poring over their business practices, the tech companies are anxious to avoid missteps — but finding criticism at every turn.

“There’s a thin line between disgusting and offensive speech, and political speech you just don’t like. People are blurring the lines,” says Jerry Ellig, a professor at George Washington University’s Regulatory Studies Center who was a policy official at the Federal Trade Commission.

Companies operating social media platforms have long enjoyed broad legal immunity for the posted content. Under the 1996 Communications Decency Act, they have a legal shield for both for the content they carry and for removing postings they deem offensive. Be it social media posts, uploaded videos, user reviews of restaurants or doctors, or classified ads — the shelter from lawsuits and prosecution has been a tent pole of social networking, and undoubtedly contributed to its growth.

But in the current climate of hostility toward Big Tech, that legal protection is getting a second look.

Legislation proposed last spring by Republican Sen. Josh Hawley of Missouri, an outspoken conservative critic, would require the companies to prove to regulators that they’re not using political bias to filter content. Failing to secure a bias-free audit from the government would mean a social media platform loses its immunity from legal action. It remains to be seen whether such a system could pass muster under the First Amendment.