The simplest way to untangle the Gordian knot of free speech principles, norms, and law on social media is to cut it entirely:
What transpires on social media is not speech; what transpires on social media is commerce.
An anonymous friend of JVL recently suggested that social media terms of service should be entirely rewritten to resemble those of a house party—in short, that they be public notice that there are no hard rules, only the judgement of party host. If the host likes you, or thinks you’re good for the life of the party, then your antics are warmly tolerated. If the host doesn’t like you, you piss off his girlfriend, or you carelessly break something valuable, then you’re kicked out. You have no right to expect that two sides to an argument will receive equal treatment. You have no rights of due process. You have no rights of appeal. A house party host is an enlightened despot.
House-party rules for social media are ultimately the rules which social media must adopt because those are the rules by which they actually operate. More importantly, they are the only rules by which social media can operate. The scale of content is simply too large to moderate. To even attempt universal moderation by uniform, evenly applied rules and policies would require social media firms to employ as moderators a larger share of the population than did the Stasi.
However social media firms presently pretend that there are such policies and point to very fair-sounding statements of “rules” and very lawyerly “terms of service” to maintain this pretense. This is what must stop. It is a form of Roger Goodell-ism, which I define as
1) Having a stated set of rules, policies, and procedures in order to maintain the respectability and legal safe-harbor they confer, but . . .
2) Operating in practice on a completely arbitrary basis, while . . .
3) Insisting your actions are pursuant to the stated policies, despite obvious evidence to the contrary. However . . .
4) If any PR furor related to (3) lasts more than 72 hours, you retroactively invent a new policy which would justify your actions and . . .
5) Insist that this new policy has always existed, again despite obvious evidence to the contrary. You then . . .
6) Ostentatiously enforce this new policy two or three times, in the mode of a make-up call, to cases where it doesn’t apply, before finally . . .
7) Letting the new policy lapse quietly and merge with the existing set of unenforced and unfollowed policies once the PR furor has abated. But most importantly you . . .
8) Never, ever, ever admit that any of the above actions were a mistake for three years (five in some states).
There’s nothing, in principle, wrong with Goodellism at a house party. It is merely a more baroque method of exercising a host’s natural authority. A Goodellist host is simply a step down from an enlightened despot to the more typical pompous, blowhard despot. They’re in the same species.
The reason Goodellism is particularly galling as an operating ethos of social media firms is that social media is not a house party. Social media a corporate-sponsored festival extravaganza complete with premium VIP sections, paid celebrity appearances, #brands who pay money for the right to pay more money to #models to push free samples, and food trucks who pay for their spots. It’s a business.
Everything is fun and games until there’s money involved. If you throw a house party and kick people out for no good reason because it’s your party, and you cry if you want to—that’s your right, and should be your right. Your home is your castle.
If, however, you tell everyone this party will be on a Caribbean island, sell VIP tickets to it, get corporate sponsorship, and your guests pay international airfare to attend, only to find themselves marooned on said island with PB&Js and maybe enough water to survive for a week, then you go to prison, become the subject of half a dozen prestige documentaries, and get universally recognized as symbolic of the times.
The business of social media is business.
A huge number of people and organizations use social media for business purposes. Companies pay money to advertise. They pay money to full-time employees whose entire job is to manage the company’s communications through social media. They pay professional marketers to design corporate messaging to maximize “engagement.” A constellation of #influencers use it as their primary income and occupation. The social media firms themselves are major publicly traded corporations of a size to merit automatic FTC scrutiny of their corporate transactions. When social media firms behave arbitrarily and contrary to their stated policies, there may be a quantifiable economic impact.
The law is almost there when it comes to the critical precedent which will be necessary to making social media firms behave like the businesses they actually are. Rather than press the point in court (that’s a whole different rant), the state of New York settled with Devumi over the fake-followers scandal revealed in 2018. For those unfamiliar, Devumi (now defunct) was a company which created large numbers of social media accounts which at casual glance appeared to be ordinary people. For a fee, one could pay Devumi to have these accounts follow oneself, or for Devumi to generate a unique, bespoke set of more convincing follower accounts. This could be done either for reasons of simple vanity or because more followers means more product placement dollars to an #influencer.
It remains the stated position of the New York state attorney general that the latter behavior is fraud and false advertising. This is the correct position. It is fraud and the best estimate of the scale by which advertisers are being defrauded in this way is over $1B a year. One can (as I do) consider the entire business of marketing through #influencers #promoting #brands to be inherently rotten and skeezy, but there’s no principled line between it and gold medalists getting on the Wheaties box. Gross as it is, it is a legitimate business and all parties involved deserve the protection of the law regarding fraud.
The key precedent that needs to be established is that social media users are part of a business even if most of them just think they’re there for the party. Because even for them, the party’s only free because someone in corporate bizdev paid for their ticket in order to market something to them.
If the users of social media are parts of businesses and the social media companies are themselves businesses, then the relationship of user to platform is not that of a guest to a host, but of one business doing business with another business. That’s how law and society should view the situation because that’s what the situation actually is. Social media is B2B.
When you’re in a B2B situation, what you cannot do is be dishonest about what the rules are. If the real rules are house-party rules—which, to repeat, they actually are and must be—then you have to say so, out loud, and in writing.
The terms of service and community rules posted by a social media platform are above all other things a solicitation of business. When you solicit business by posting your corporate policies and then don’t even attempt to follow those policies, there’s a word for that: fraud.
One cannot host a raucous party in the back and simultaneously maintain a clean-cut businesslike appearance up front.
That’s a mullet, and no civilized society can tolerate mullets.