Tech giants are set to take the regulation of online speech into their own hands
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Over the past few years, there has been a push by various federal agencies to control, or restrict, online speech, and specifically online political speech. With Donald TrumpDonald John TrumpNew EPA rule would expand Trump officials' powers to reject FOIA requests Democratic senator introduces bill to ban gun silencers Democrats: Ex-Commerce aide said Ross asked him to examine adding census citizenship question MORE’s election as president of the United States, some argue that this push will likely temporarily stop. But will it?

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The brief answer is, “No.” The tactics are simply going to shift from regulatory processes to encouraging companies to control online speech through “voluntary” measures that include categorizing uncomfortable political speech as “hate,” “improper,” or “fake.” 

 

Instead of relying on traditional newspapers or broadcast and cable networks for news, people increasingly rely on social media sites for news relevant to them. Given how social media company news feeds work, people access news stories confirming existing beliefs more than stories challenging existing biases. Social media sites do not as much change minds as provide ideological echo chambers for news consumers. 

During the Obama administration, progressive interests from the White House to outside groups, such as Slate, the New York Times, Public Knowledge, and Google, have tried to regulate online political speech through the Federal Election Commission, Federal Communications Commission and other federal agencies. 

The FEC, for example, sought to promulgate rules that would prohibit companies “with even the tiniest foreign ownership” from covering political races and to require donor disclosure information for videos posted online. The FEC has not been the only agency to attempt to compel donor disclosure. An investigation by the House Committee on Oversight and Government Reform in 2013 revealed the Securities and Exchange Commission was under similar pressure from “elected officials and special interest groups as part of a government-wide effort to stifle political speech.” 

The FCC has adopted regulations laying the foundation for the control of online political speech. The 2015 Open Internet Order, or “net neutrality,” according to FCC Commissioner Ajit Pai provides the FCC the framework it needs to control the content provided by websites such as Fox News and the Drudge Report.

Now that the Obama administration’s control of federal agencies is coming to a close, progressives will shift their schemes to the corporate boardroom. A couple examples highlight what to expect with respect to the change in tactics.  First, Facebook, Twitter, Microsoft and other companies agreed to remove posts filled with “hate speech” in Europe. Second, social media services and search engines are taking steps to identify and remove “fake” news stories.  

Technology companies worked with the European Union to create a “code of conduct” aimed at controlling speech European countries believe is improper. The code “establishes ‘public commitments’ for the companies, including the requirement to review the ‘majority of valid notifications for removal of illegal hate speech’ in less than 24 hours.”

The European conception of free speech, or hate speech, is completely different from the American conception of free speech. European countries are required, by treaty, to enact laws protecting “the reputation and rights of others” and to outlaw “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence.” In other words, if a group of people believe a post harms their reputation, they may compel social media companies to remove it. 

Some experts blame the election of Trump on the dissemination of so-called “fake” news through social media outlets. While people shared stories with no basis in fact, “fake” in this context refers to stories supporting a particular political perspective, which perspective is contrary to a desired narrative. 

Technology companies, spurred by stories linking fake news to acts of violence among other influences, have started taking steps to identify sources of “fake news,” refuse to promote such sources, or make it difficult for people to share stories from these sources. In applying algorithms or using curators to identify and remove fake news stories, technology companies are acting as news editors and publishers, inserting their own judgment into their users’ news feeds. 

As technology companies, or academics, label sources from one side of the political aisle as “fake,” they create excuses to discriminate against those sources. As technology companies discriminate against a particular political viewpoint, they fulfill the ultimate objective progressives are encouraging in front of agencies: the regulation and silencing of online political speech.  

Attempts to regulate online political speech will shift from the government to the boardrooms of technology companies as President-elect Trump installs his appointees in federal agencies. Technology companies are implementing political speech restrictions in Europe through voluntary agreements and laying the foundation for discriminating against political speech in the United States through self-imposed rules.

Jonathon Hauenschild, J.D. is the director for the American Legislative Exchange Council’s Task Force on Communications and Technology.


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