Legal precent today applying law intended for newspapers is not updated to account for the altered motivations capitalism gives to publishing corporations. Early editorial choice law gave newspapers sweeping leeway on what to publish from first amendment rights. In modern American, where the forces of capitalism have increased much more than what the early law was written for, several nuances under editorial choice have changed.
Section 230 of the Communications Decency Act¹ prevents social media companies from being held legally responsible for hosting or removing third-party content. An early and popular interpretation of Section 230 was ruled in Zeran v. America, where a federal appeals court held that the law protects social media companies from being held liable for decisions about “whether to publish, withdraw, postpone, or alter content” due to editorial choice². This is reinforced in last year’s _NetChoice, LLC. v. Paxton ruling_³*.* These rulings are an interesting generalization of the first amendment to social media platforms.
The NetChoice case’s interpretation of the original law, a state law prohibiting large social media platforms from removing posts based on the content of their posts, as trying to “rebalance the speech market” as an overstep in government power stood out to me. Outside of conversations about first amendment rights and content neutrality, both the NetChoice and Zeran rulings position social media companies as entities that hold editorial choice, implying that they hold similar societal positions and responsibilities as newspapers.
While these rulings protect free speech, they leave a gap in the law of accountability for the methods used in internal regulation of what content is on sites. Legal protection of editorial choice is a beneficial protection for helping newspapers survive, and a well deserved protection for prioritizing free speech (sometimes) at the expense of profits. The judges’ intent in the new regulations was to generalize this interpretation to social media platforms, as both case reports mention the principle of freedom of speech advancing society. However, it’s clear that most social media platofrms prioritize profits over free speech and thus dont stand at the same disadvantages as newpsapers do, and aren’t entitled to the same protections.
For today’s large corporations, the automated nature of how certain posts are suppressed or boosted, which today is based on the amount of attention it gets from users, is fundamentally not conducive to free speech for the purposes of advancing society because the algorithms in use were designed for the purposes of growing the platform’s popularity through attention grabbing content. Historically, it was reasonable that editorial choice was respected more because most newspapers did not function as corporations as strongly as social media corporations do, as the newspaper industry’s culture values free speech more and profits less. As social media becomes a more prominent form of publication and profits become a higher priority as a norm in the publication industry, protection of editorial choice or changes with what counts as editorial choice needs to change as well to fit societal shifts.
Across industries, the same shifts in increased prioritization of profits and decreased prioritization of democracy have occured (ie: Healthcare privitization and elite higher education). As we create federal frameworks for AI regulation, we need to keep in mind that AI functionally is a profit driven version of individualization, and keep strong safeguards and accountability to combat the shift in industry priorities in mind.