Photo by photocreo.
Time for a hard look in the mirror? We’ve been on a social media bender for years, and I’m thinking January 1, 2017 might be the day we begin to sober up and come to grips with its more negative effects. When I began writing about all this stuff in 2011, it was partly in response to the fact that people seemed too eager to give the internet industry itself a free pass on the ill-effects of several major platforms because the internet writ large is perceived as so essential to democracy. And thanks to social media, the internet became an extension of our egos, in much the same way that liquor makes us all good looking and smart.
In January of 2012, a relatively small cadre of internet wonks rallied people to shout down SOPA—a bill almost nobody understood—and progressives in particular congratulated themselves for participating in “true democracy in action.” It scared the hell out of me because it was not democracy in action but industry-backed manipulation disguised as democracy. Or as just one example of its insidious nature, the campaign was partly driven by the same anonymous denizens of a site called 4Chan, whence come many agitators of the alt-right that people now realize is a thing. My left-leaning friends who helped drive SOPA over the cliff failed to recognize the dark genie they’d let out of the bottle. Forget that SOPA was not the toxic legislation everyone had been told it was; that’s just a minor, nagging detail. What matters is that the campaign against it was a blueprint for circumventing the democratic process itself.
The capacity to unleash thoughtless reaction in any number of directions is a power we have ceded to social media platforms. If spurious Trump-tweets are disconcerting to you, I’d note that this was the same pavlovian mechanism at work in the anti-SOPA campaign and is more or less the manner in which we continue to dumb down the most complex issues into bites, memes, and zingers. Kind of like those big ideas that seem really smart while under the influence, but are best left unfulfilled in the harsh reality of the ensuing hangover. So, here’s a question: Is a platform like Twitter valuable because people get to respond to what a politician might say, or is it toxic because it gives a politician a round-the-clock platform for riling people up with some insipid one-liner in the first place? Hint: Twitter is fine for sharing links but a stupid way to discuss real issues. The word twit is right there in the name.
With all the attention the election has focused on fake news and manipulation of information by a foreign power, it has been interesting to observe—at least anecdotally—a renewed sense of vigilance about the sources of information people choose to share or cite on Facebook. It was not surprising, of course, that some folks wanted to blame the platform operators for failing to weed out fake news. And although it isn’t exactly Facebook’s fault that people are happy to believe nonsense in the first place, the medium is still the message; and it is a medium that instantly rewards what’s popular, not necessarily what is true, decent, thoughtful, or fair. That was what frightened me about the anti-SOPA campaign—that suddenly being “right” en masse completely overwhelmed common sense, rational analysis, or the exchange of ideas. The fact that nobody happened to be right was just bitter icing on the cake.
I’ve seen people respond to the fake news problem with the sentiment that they don’t want corporations like Facebook editing what we see online, but the fact is these entities already do edit what we see, but in a manner that serves their advertising and data-harvesting interests. So, while they’re at it, as long as people are going to use search engines and social media for acquiring news and information, the OSPs could be better corporate citizens and take a harder look at the negative effects that their anything-goes approach can have on business and consumers; on politics and journalism; on social behaviors and discourse; and even on the advertising that is their bread-and-butter.
One question I ask now is whether or not this sudden, wider realization that the internet may be chockfull of garbage—and is highly vulnerable to manipulation—will change the mood of the public with regard to giving OSPs quite so much latitude to sweep a million sins under the rug of the First Amendment. Invariably, whether we’re talking about copyright infringement, counterfeit operations, or predators, criminals, and terrorists using legal platforms for illegal purposes, the general response from Google & Friends has been that these problems cannot be addressed without harming otherwise protected speech. It’s been an effective message but largely not a true one—especially when an OSP may earn revenue from the activities of bad actors and good actors at the same time.
In recent weeks, two stories trended about harassment of Muslims—one on the New York subway and one on a Delta flight—that proved to be false. The second of these was perpetrated by a known prankster, who creates these spectacles for his YouTube channel. Historically, the progressive view would be to defend his free speech rights in defense of YouTube itself; but creating false claims of harassment is not only not protected speech, it is purposely throwing fuel on an already dangerous fire. Is YouTube required to support this guy’s channel because of the First Amendment? Absolutely not. No more than they are required to support terrorist recruiting videos or videos demonstrating how to hack someone’s computer or videos that infringe the rights of musicians or other creators.
In reality, web platforms do not have the kind of constraints under the First Amendment that they often claim. The First Amendment protects American citizens and entities against censorship by state actors, while a privately-owned business like a social media site can adopt nearly any Terms of Service its operators choose. Quite simply, YouTube could decide tomorrow to become a platform exclusively for videos featuring left-handed, yodeling, Ukrainian, sword swallowers, and the creators of the millions of videos that would consequently be removed would not be able to make a First Amendment infringement claim against the company. To the contrary, such a suit would be in conflict with the First Amendment rights of YouTube, which happen to be the same rights that allow a newspaper to employ editorial oversight of its content.
Getting Real About Free Speech
The big question is instantly tricky, of course, because the new president-elect is the first in living memory to voice such an openly hostile relationship with the free press and free speech; and we can, therefore, imagine real policy that could become legit First Amendment challenges. As such, it’s a good time to make more sober distinctions between actual First Amendment threats and perceived ones. Because for the last several years, the internet industry has successfully labeled just about every effort to enforce reasonable, legal protections for consumers and businesses as a threat to free speech. But mitigating tangible harm in cyberspace is not in conflict with the First Amendment any more than it is in physical space. In fact, it is often less of an issue because the harmful actors are neither located in the U.S. nor U.S. citizens, which means they do not technically enjoy—or even necessarily respect—First Amendment protections.
Of course, the conversation is probably going to get a lot dicier now. One major flaw of the Obama administration was that it gave way too much latitude to Google and other Silicon Valley firms to shape policy in a number of areas. If the Trump administration and Congress take meaningful action to mitigate various types of harm online, the internet industry and the “digital rights” activists will likely amp up their free speech and “open internet” rhetoric, which will play even louder against the drumbeat of the Trump administration than it did during the Obama years.
Even trickier is the possibility that the new Executive really will advocate policies that run afoul of constitutional protections; and we don’t honestly know the extent to which Silicon Valley firms, to whom we’ve volunteered so much information, will cooperate. One way or another, it’s going to be a bumpy damn ride, and a lot of crazy shit is going to fly around the web in the coming years—a lot of it disposable, trendy nonsense that will only further divide people who might otherwise find social and political common ground.
We’ve already seen attempts by the EFF, Techdirt, and the Press Freedom Foundation to conflate Trump’s press censorship rhetoric with the News Media Alliance’s interests in protecting its own copyrights online. And we can expect more of this kind of blurry messaging in the months and years to come. I believe these parties mean well, or want to mean well, but they’re still so drunk from the tech-utopian punchbowl that they don’t notice the bowl is full of all-sorts.*
With their over-broad invocations of the First Amendment, and their love of online anonymity, the tech-utopian observers fail to acknowledge the role major online platforms have played in making our political process uglier than it was 20 years ago. We’ve managed to recreate the outrageous theatrics of the turbulent 19th century rather than the more contemplative and moderated environment we had promised ourselves for the 21st. Rational people are suddenly noticing that we’ve entered what they’re calling a post-truth era, which sounds to my ear like the queen mother of unintended consequences for what was billed as the “information age.”
In a recent video, Robert Reich recommended that people find opportunities to talk to one another in real life, especially if they are on opposite sides of the Trump divide. Personally, I think he has the right idea. After five years working on a non-partisan issue like copyright, I have become friends with some extraordinarily brilliant, generous, and empathetic individuals who are traditionally conservative and whom I certainly trust to uphold the core principles of the Republic, even as we discuss different views on a wide variety of issues.
Traditionally, in physical space, people are human beings whose personal narratives and opinions remain invisible to one another. On social media platforms, it’s the opposite; everyone’s narrative is on display while their basic humanity remains invisible. In this sense, social media’s promise to “connect” us is a bit of a humbug. Not that I would advocate outright abstention any more than I intend to give up scotch; but the start of 2017 is probably a good time for a reality check and a freshly moderated approach to the pros and cons of these platforms.
*All-sorts was a cask full of the combined dregs from drinks left on tables in a tavern, including God-knows how much backwash. A cup of all-sorts was the cheapest drink available, and for good reason.
