CHANGES COMING IN PUBLISHING WORLD

When lower courts disagree, that’s what higher courts are made for.

Lower courts have been handed the complex problem(s) of what to do with social media platforms and the editing thereof. Or, alternatively, social media platforms and censorship. Depending on your point of view, a decision on whether to remove posts on these platforms could be either.

Now that at least a couple of appeals courts have weighed in on the matter — and ruled differently — it doesn’t take imagination to think the United States Supreme Court will have to make a decision. Maybe soon.

This debate has been with us almost since the beginning of the internet. Section 230 of the Communications Decency Act — passed in 1996 — says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider … .”

And there you have the 26 words that invented the internet.

Because of those words, social media platforms have acted as public bulletin boards for speech. Bulletin boards don’t edit. As long as social media outfits didn’t edit, they couldn’t be held responsible for content. Which makes them different from publishers — like, say, newspapers — who very much edit, and can be held liable for content.

But things have changed. Social media companies have been editing. Twitter kicked the president of the U.S. off its platform after the Jan. 6 riots. Other platforms “tag” content if they think it’s necessary. Some remove content. Will the courts rule them publishers (and responsible for content)?

Some thoughts:

The rationale for Section 230 in giving immunity to online tech platforms is the argument they are common carriers, like telephone companies. Telephone companies don’t cut off the conversation if somebody on one end of the line says something mean or incorrect.

But that immunity is in the balance now that social media companies edit content. They can’t have their cake and eat it, too. They can’t claim to be a telephone company but act like an editor.

If they want to become publishers, come on in. But Facebook has nearly 3 billion users, posting in most of the world’s languages. It would not be feasible for many of these online social media networks to hire enough editors to proofread everything.

So what should happen?

The only workable solution we can see at this point is to make these tech platforms publishers, or “news organizations” under the law, since they keep disseminating news and deciding what to delete or maintain.

This might be difficult, but not impossible. It will probably result in their having fewer users. This means these companies will have to shrink their size, which probably means shrinking their profits. But the law and government don’t guarantee any company’s profits.

If they want to remain the same size, they must forfeit the right to edit content. And in that case, the government could then consider regulating their profits the way it does common carriers.

Would the world benefit from a smaller Facebook, Twitter and Google? Some might argue yes.

If users didn’t like the way they were edited, they could stop using the platform and go to another. With every site responsible for content under the laws of defamation, there would probably be many more tech platforms other than the big three.

Just like people who don’t like the way The New York Times or The Wall Street Journal are edited, they can go elsewhere.

Editing is a skill, a calling, a responsibility. Nobody said it is cheap. If the big tech companies want to be publishers, they can join the club.

But then they couldn’t enjoy the legal protections of bulletin boards.

And if they don’t want to make that decision, the highest court in the land might have to make it for them.