December 2, 2020

If You’re Reporting On Trump’s Supposed Plans For ‘Anti-Conservative Bias’ Panel, Shouldn’t You Mention The 1st Amendment?

By Mike Masnick
Over the weekend, the Wall Street Journal reported that “President Trump is considering establishing a panel to review complaints of anti-conservative bias on social media.” That story is likely behind a paywall, though Fox News (natch) reposted most of it and lots of tech news sites wrote up their own versions of the report.

The basis is exactly what you think it is. A bunch of Trump supporters have been falsely insisting that social media companies are unfairly “biased” against conservatives. There is exactly zero evidence to date to support this. There are a few anecdotes of whiny assholes, who violated terms of service, losing service, and a few anecdotes of just not very good content moderation (though, those seem to fall pretty broadly across the political spectrum). There is no indication that any of the moderation activity is unfairly targeting conservatives or even that there is any “bias” at all. I’m sure some people will rush to the comments here with one of two reactions: they will either call me “blind” and complain that I’m simply not looking around (though they will present no actual evidence) or they will cite a few meaningless anecdotes, ignoring that a few anecdotes on platforms that have to make literally millions of moderation choices, is not evidence of bias.

But, more importantly: the government can’t do anything even if they were biased. And this is where all of the reporting I’ve seen so far falls down. Most clearly, the government simply cannot force platforms to moderate in a certain way. That would violate the 1st Amendment. So even if a panel is formed, it couldn’t actually do anything to change things, beyond just being an annoying pest. But, it seems like the media should be making this clear. Any panel cannot force internet companies to treat political viewpoints in some different manner. That’s a blatant 1st Amendment problem.

Separately, even the formation of the panel may very well present a 1st Amendment problem on its own, because it is clearly the government using its will to try to pressure private companies into treating certain political viewpoints differently. Remember what Judge Posner wrote in Dart v. Backpage, in which he dinged a sheriff, Thomas Dart, for merely sending a letter that was vaguely threatening to the free speech rights of an internet platform: ” Some public officials doubtless disapprove
of bars, or pets and therefore pet supplies, or yard sales, or
lawyers,… or men dating
men or women dating women—but… it would
be a clear abuse of power for public officials to try to eliminate them not by expressing an opinion but by threatening
… third parties, with legal or other coercive governmental action.”

Just because government officials are upset with 1st Amendment protected speech choices of the companies, that does not mean they can do something that is obviously a threat of coercive action.

Anyone — including the Wall Street Journal — reporting on this stuff owes it to their readers to make that clear. Tragically, so far none of the reports I’ve seen have done so.