Phillips, Simington See No Easy Path for Speech Regulation
There’s no obvious path for the FTC or the FCC to regulate online platform speech, FTC Commissioner Noah Phillips and FCC Commissioner Nathan Simington agreed Wednesday. Policymakers struggle to regulate speech that violates community standards when they can’t identify consensus standards, Simington told a Federalist Society event, noting he’s not confident the FCC can or should do anything about speech on digital platforms. “There’s no consensus for speech regulation in the digital media era” and no obvious regulatory path forward, he said.
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Phillips agreed there’s no widespread agreement defining objectionable speech: “If you don’t have your object of your regulation in mind, the project of regulation becomes difficult, incoherent and very likely, especially in today’s divided America, to result in different answers, depending on who is in charge, which will result in a tremendous lack of clarity for business” and “a lot of unhappy consumers.”
Given congressional debate about Communications Decency Act Section 230 and former President Donald Trump’s social media executive order being revoked (see 2105140074), it’s good for regulators to step back, said Simington. He noted the FCC is within its right to interpret Section 230.
Section 230 protects some of the largest, most valuable companies, which have unprecedented control as “gatekeepers,” said AT&T Executive Vice President Joan Marsh. Platforms shouldn’t face a completely different rules for content moderation from traditional third-party content providers like book publishers and newspapers, she added. “Rethink” Section 230, she said, noting AT&T favors “reform, not repeal.” The company welcomes all ideas, she said, citing a recent opinion from Supreme Court Justice Clarence Thomas suggesting platforms could be treated like common carriers (see 2104090046). Marsh said the bottom line is that platforms need more accountability and transparency about their moderation decisions. Congress should subject them to the same transparency standards as ISPs on promoting and ranking content, she said. She suggested platforms could be required to earn immunity by meeting a duty of care standard achieved through transparency, including requirements to help users understand how content is generated, how data is used and what tools are available. It’s similar to ISP requirements for network management transparency, she said.
It’s ironic AT&T calls platforms “gatekeepers,” said Internet Association CEO Dane Snowden: Marsh suggests AT&T is worried about competition from internet platforms. Section 230 isn’t blanket immunity for Big Tech, he argued: It’s often used to protect the rights of newspapers, universities, libraries, employers and bloggers. He agreed platforms could be more transparent with moderation decisions: “We’re working on that.” He cautioned against sharing too much information because of “trolls” attempting to game the system.
Phillips warned against using antitrust law here. He noted some argue more competition can lead to better content moderation. Defining “better” content moderation is subjective, he said. He doesn’t agree with all of Twitter’s moderation decisions, but it’s hard to identify the company as a monopoly, he said, which suggests the moderation issues aren’t a competition problem.