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(l-r): David Vladeck, Andrea Matwyshyn, Sam Halabi and Jerry Ellig

Free speech, free press or free for all? Social media and the first amendmentWASHINGTON — Legal scholars debated the best means of regulating social media for false or harmful content while also preserving the First Amendment protections for free speech in a forum held April 25 at the National Press Club.

The panel was part of the annual Hurley-Sloan Symposium, a University of Missouri-sponsored event entitled, “Free Speech, Free Press or Free for All? Social Media and the First Amendment.” The symposium brought legal scholars and journalists together to discuss free speech in the age of instant communication.

MU Associate Professor of Law and Director of the Center for Intellectual Property & Entrepreneurship Sam Halabi moderated the panel of legal scholars in a spirited discussion about the future of accountability for those responsible for filtering content and the consequences of banning certain forms of speech online.

This discussion came during an uncertain time for the future of online speech regulation. Last month, Facebook CEO Mark Zuckerberg published an opinion piece in the Washington Post calling for the establishment of new standards for filtering online content, even insisting on government intervention.

This piece made waves in the news as journalists and policy experts alike debated the possible exceptions that should be made in limiting speech online and the blind spots in our country’s current approach toward social media regulation.

Facebook’s internal struggles to create an effective, unbiased method of filtering speech without suppressing opinion have become a public chronicle after the company admitted to shortcomings in handling fake news over the past several years.

Thursday’s panel was ultimately tasked with answering the question: Who should really be held accountable for monitoring online speech and what does a fair and effective system for monitoring speech look like?

Former Director of the of the Bureau of Consumer Protection at the Federal Trade Commission and Georgetown legal scholar David Vladeck kicked off the discussion by outlining the hurdles government agencies face when attempting to protect consumer interests with regard to social media.

For one, Vladeck says, the FTC’s size poses a challenge to enforcing statutes against big tech companies. According to Vladeck, it is difficult for an enforcement case to gain traction when the 450-person Bureau of Consumer Protection must make a case against a tech company with at least 30 lawyers directly employed and many dozens or hundreds of others representing them through large law firms.

In order to mount an enforcement case, the FTC must also prove preventable harm to the consumer. Within the scope of social media, there is little infrastructure and legal precedent, making it difficult for these cases to prosecute actions that happen in a matter of seconds online, Vladeck says.

The FTC’s pitfalls are nowhere more evident than in the case of Facebook’s harvesting of data for the data brokerage firm and strategic political consultant, Cambridge Analytica - a case in which the FTC had little power to prosecute.

“Zuckerberg originally used the terminology of a ‘Supreme Court,’ which is a terrible idea,” Chander said. “Because when you’re trying to tell governments you’re not really a government, it might not be a good idea to dress yourself up in the language of government.”

Andrea Matwyshyn, co-director for the Center for Law, Innovation and Creativity at Northeastern University agreed with Vladeck, but focused on the potential of the government to prosecute against big tech harm. Matwyshyn argued that there are a plethora of legal tools available that are not being used to their highest utility.

According to Matwyshyn, there are “chiseled solutions” that exist to protect consumers that are not being applied to tech companies. Matwyshyn says that tech companies could be held accountable for hastily releasing products and engaging in false advertising.

She also insisted that social media companies’ classification of their products as being “free”  is disingenuous when consumer data is being used to generate profit.

Echoing Vladeck, Matwyshyn addressed the fact that the FTC was under-resourced and proposed a new addition to the agency for tech practices, which would consist of technologists and attorneys who could oversee these issues.

Although not all attendees agreed that regulatory consumer protection efforts necessarily benefited the consumer.

Jerry Ellig, professor at the George Washington University Regulatory Studies Center, voiced his concern for an encroachment on user space and freedom from regulatory costs that would ultimately fall onto the consumer.

Ellig says browser notifications that intrude on the user’s screen space are a result of the consumer bearing the cost for a government regulation and he warned about hastily-written policy with good intentions that go against consumer interests.

“Our intuitions about some of these things are not necessarily right”, Ellig says.

Anupam Chander (l) and Jeff KoseffIn November, Zuckerberg floated the idea of creating a Supreme Court-like body to oversee appeals about content decisions.

Georgetown University law professor Anupam Chander told Thursday’s panel that a Facebook Supreme Court is, “the worst idea, except for all the others.”

Chander noted that Zuckerberg has shifted to referring to the entity as an independent body.

“Zuckerberg originally used the terminology of a ‘Supreme Court,’ which is a terrible idea,” Chander said. “Because when you’re trying to tell governments you’re not really a government, it might not be a good idea to dress yourself up in the language of government.”

One attendee asked the panel how equipped lawmakers are to modify Section 230 of the Communications Decency Act, which prevents internet companies from being held liable for content posted on their platforms.

Jeff Kosseff, who teaches cybersecurity law at the U.S. Naval Academy, literally wrote the book on Section 230, titled, “The 26 Words That Created the Internet.”

Kosseff said that lawmakers on both sides of the aisle are hoping to get rid of Section 230.

“What I haven’t heard in the discussion is: what next?,” Kosseff said. “What does the internet look like when we don’t have any Section 230 protections at all anymore?”

Noah Boucher is a student at the Missouri School of Journalism. He served as a Congressional intern in the office of Representative Emanuel Cleaver II in Spring 2019 helping to increase the congressman's social media presence. Annika Merrilees is currently working on her master's degree at the Missouri School of Journalism. They were enrolled in the school's Washington program for the Spring 2019 semester.



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