The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Net Neutrality and the Social Media Regulation Debate
A lot of the comments on the Social Media as Common Carriers? thread mentioned the "net neutrality" debate from some years ago. And I do think it offers an interesting analog and an interesting contrast.
Now I didn't have a strong opinion on that debate back then (I don't think I posted at all about it, and, if I did, I doubt it was to express an opinion), and I think that was mostly because it seemed to be about technocratic and economic matters. To quote a Wired summary of the issue,
Net Neutrality the idea that internet service providers like Comcast and Verizon should treat all content flowing through their cables and cell towers equally. That means they shouldn't be able to slide some data into "fast lanes" while blocking or otherwise discriminating against other material. In other words, these companies shouldn't be able to block you from accessing a service like Skype, or slow down Netflix or Hulu, in order to encourage you to keep your cable package or buy a different video-streaming service.
Now that may well be an important issue related to consumer welfare and to innovation—so many technocratic and economic matters are—but it didn't feel to be within my academic wheelhouse, which has to do with free speech. It seemed to be the sort of technocratic and economic question that I could leave to technocrats and economists. True, there was an obvious potential implication for political debate:
Other advocates highlight the importance of net neutrality to free expression: a handful of large telecommunications companies dominate the broadband market, which puts an enormous amount of power into their hands to suppress particular views or limit online speech to those who can pay the most.
But it seemed purely hypothetical, at least when I first heard about the net neutrality debate, likely somewhere around 2005-10.
Social media platform decisions, on the other hand, aren't about companies fighting over shares of the economic pie, and possible implications for our streaming service costs. They are about "Whose Rules Should Govern How Americans Speak with Other Americans?" They're not just about potential to "suppress particular views"; they're about the current reality (coupled, of course, with the potential that the zone of suppression is getting even broader, and will likely get broader still).
Facebook and Twitter aren't trying to charge premium prices for entertainment; they're trying to control what viewpoints can and can't be expressed in "the modern public square." Unsurprisingly, that's disturbing even to people who never cared enough about net neutrality to acquire an informed opinion about that debate.
Of course, now that we've seen how some Big Tech companies are willing to use their "enormous amounts of power … to suppress particular views," in a way that I would definitely not have predicted in 2005-10 or even more recently than that, perhaps those of us who sat out the Net Neutrality debates should reconsider. Perhaps we should worry that the Comcasts and Verizons of the world will indeed decide to leverage their economic power into political power, by deciding which viewpoints to block. Live and learn! (Or, to quote the more pessimistic Russian proverb, "live a lifetime, learn a lifetime, you'll still die a fool.")
Still, I think that explains why many of us who left net neutrality to the telecom experts have gotten much more fired up about the social media deplatforming debates. To quote Justice Scalia in Morrison v. Olson (the independent counsel case):
Frequently an issue of this sort will come before [us] clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
