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Trump Misfires At Social Media Censorship, Misses Commercial Argument

May 30, 2020


Trump Misfires At Social Media Censorship, Misses Commercial Argument

American President Donald Trump issued Thursday an “executive order” to regulate social media networks like Facebook, Twitter, YouTube and Instagram, in particular, their practices and perhaps their algorithms for curating, “shadowbanning” or otherwise affecting the reach and visibility of certain content and participants on those platforms.

The order represents a potentially huge government overreach, threatening an exercise of mammoth government power to regulate, chill and perhaps overtly discourage free speech, while in the name of protecting it. But it also represents a huge missed opportunity: It does not emphasize the role of social media in providing channels for economic communication, to wit, advertising, marketing and promotion. 

When those social media companies interfere with audience interaction to change who sees what, they affect the advertising reach of participants including major sponsors as well as many other users (entrepreneurs) who built businesses upon their platforms. Those media practices implicate interstate commerce as to which the United States Constitution granted a specifically enumerated power to its legislature (e.g., Congress) to regulate. (If you want a citation, see Article I, section 8 of the Constitution’s Bill of Rights.) While the idea of the federal government interfering with private businesses strikes some as an illicit abuse of state power, at least the commerce clause would provide a colorable theory upon which a legitimate-sounding argument for governmental regulatory action to be based.

It helps to look at history to get a sense of the cultural and economic intertwining between regular speech and commercial speech. The first communications media was quite low-tech. It consisted of armies of scribes, painstakingly transcribing texts and even stone tablets one by one. Call that Flintstones Era social media.

Since then, we’ve had the printing press, and a growing use of broadsheets to spread opinions – – and to advertise.

Generations of merchants used rudimentary broadcast and print media to market their goods and services. The communications media were vital in developing the mass market, where goods could be marketed to customers beyond the physical local reach of the merchant and enabling customers to access goods far beyond their own traveling ability. 

In the last decade, social media has supplanted traditional print and broadcast media. The executive order thus far misses the chance to emphasize that social media platforms exert a disproportionate “gatekeeper” role which is vital to the economic life of much of the world. Both merchants and customers use social media, whether for promotion or for shopping. Social media platforms thus have the power to affect, and interfere with, the economic communications of their users. 

Free speech is not merely opinion. It is more than politics. It extends to all corners of our lives. It also goes beyond the freedom from government restriction codified in the United States Constitution (remember, the United States relies on founding documents which limit the powers of the government, as distinguished from many other countries which list enumerated rights to their peoples). Free speech is cultural. It is also economic. Free speech and free markets go hand in hand. One cannot transact freely, bargain knowledgeably and negotiate without restriction, when speech is restricted.

It is in this economic context that the activities of social media platforms, whether legal or not, can be viewed with an eye to determining whether they are interfering with commerce and the economic activities of the people. 

Wouldn’t that be a much more compelling argument?