Democratic Discourse and the Impunity of Media and Tech Corporations

This piece is part of a biweekly series written by David A. Foster (Center bias), based on his new book, Moderates of the World, Unite! Read the first post in the series. 

To deal with our systemically-deranged public discourse—brought about by the changes to the national information environment of the last three decades—solutions are needed that match the scale of the problem. Almost certainly including legislative solutions that might impinge on corporate power and privilege.

But corporate power is not something to be underestimated, particularly in media and tech. Here are three illustrations.

Twitter/X and Elon Musk

When Elon Musk acquired Twitter, power over a major, global communication platform became concentrated into the hands of a single individual. Musk maintains an iron control over his platform, and has often brushed back government actions that could interfere with that control.

Musk is a self-proclaimed free speech “absolutist.” Does this mean that X lets users say whatever they want? Hardly. X's policies has a long list of things that will get you kicked off the platform or your tweet suspended. Statutory prohibitions like child pornography, of course. But also “spam,” association with violent or hateful entities, election interference, and “hateful conduct.”

X decides what each of these mean, and, more generally, carefully controls how its platform is accessed. This user warning message illustrates that X can prevent any "artificial" activity that it does not want.

It doesn’t much seem like free speech absolutism. Nor—more importantly—does this even begin to reveal how X's carefully-crafted algorithms decide which accounts and tweets to demote and which (such as Mr. Musk's own) to amplify.

As a gesture of transparency, Musk in 2023 published code for X's recommendation algorithm. It was, however, a mere ruse, because the behavior of machine learning algorithms depends mainly on the data and methods with which the model is trained. No one outside of X can see what biases are thusly injected, and so there is no actual accountability to the public.

Should we feel uncomfortable that Elon Musk has made our democratic discourse his personal plaything? I don't think he's a bad guy: the world will always be full of people with a passion for wealth, fame, power, and notoriety. Mr. Musk has legally been making decisions that further his own interests and dreams. Unfortunately, the rest of us have little say.

X illustrates one way that personal and corporate interests are prioritized over the collective need for a healthy democratic discourse. It doesn't protect free speech, it distorts it.

Untouchable Corporate Media

Second, consider the modern world of political media. Corporations that own newspapers or television networks are practically immune to regulation or censure because of the First Amendment's freedom of press clause.

Which is troubling, because the internet has destroyed their revenue model, and their financial desperation has led most of them to cater to partisan audiences with daily content that flatters and outrages. Polarization has thereby become institutionalized in the media space. But...this is the Fourth Estate! The part of our system that's supposed to help the citizenry to supervise its government.

In the modern era, one Supreme Court precedent in particular has firmly prevented government intrusion: Miami Herald v. Tornillo (1974). Because of its importance for insulating media corporations from inconvenience, it's worthwhile to examine it briefly.

The State of Florida in 1972 had a “right of reply” law which permitted a political candidate whose personal character had been attacked in the newspaper to demand that the newspaper print a reply by the candidate, free of charge. In striking down this law, the Court's formal opinion stated (emphasis added):

The Florida statute exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting from the compelled printing of a reply is exacted in terms of the cost in printing and composing time and materials and in taking up space that could be devoted to other material the newspaper may have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the finite technological limitations of time that confront a broadcaster but it is not correct to say that, as an economic reality, a newspaper can proceed to infinite expansion of its column space to accommodate the replies that a government agency determines or a statute commands the readers should have available. 

Of course, much has changed in the fifty years since 1974. For example, an online newspaper does not have the same physical space limitations that a printed newspaper does.

Further, it is not unprecedented for the Court to apply the First Amendment differently to different types of media. For example, the Court during that same time period upheld regulations (such as the Equal Time Rule) requiring radio broadcasters to provide airtime for similar rights of reply. And the Fairness Doctrine, despite being terminated during the Reagan administration, was never ruled as unconstitutional.

Yet, even today, Tornillo provides an iron shield around the editorial privileges of media owners and against any government action that could indirectly interfere with any of their profit-driven preferences. Freedom of the press trumps the public interest.

Digital platforms are of course quite different from newspapers: the instantaneous global reach, the presentation interfaces, the algorithmic promotion, the billions of posts. Ludicrously, though, the Tornillo precedent has now been coopted by social media companies who argue that, despite the new, different characteristics of online digital platforms, and despite a statutory grant of immunity from liability for user content, the semi-automated moderation on their massive platforms should nevertheless be regarded as untouchable "editorial" rights, just like newspaper editors.

Which brings us to our third illustration of corporate power.

NetChoice versus Texas' State Government

Recently in Texas, the Republican-controlled legislature passed a bill requiring social media companies to stop censoring hate speech and other First-Amendment-protected opinion speech. Instagram, X, YouTube, TikTok... no longer would any of these be allowed to take down or even demote partisan speech, however vile.

Unsurprisingly, the social media companies funded an advocacy organization which challenged the law and obtained a stay of enforcement, quickly sending the Texas case up to the US Supreme Court.

The Supreme Court has sent it back down to the appellate court with a stern caution about First Amendment encroachment. What does that mean? In essence, that corporations in the private sector have free speech rights which should not be regulated.

In the face of this judicial atmosphere, what Congressperson is eager to introduce (aside from safe “save the children” bills) any legislation regulating social media?

In the past thirty years, the Supreme Court has been expanding free speech protections for corporations: not only in the well-known Citizens United decision, but for various types of “corporate expression.” The trend has been termed “neoliberalism in law,” and its underlying theory is that the marketplace of ideas will do its magical optimization work if it is left alone as completely as possible.

Is it not ironic that, in the same three decades that public discourse has been progressively deranged by media and tech corporations, the Supreme Court has meanwhile been adding to their power and impunity?

What Next?

In this series, several legislative proposals will be described that can get our democratic discourse back to a healthier quality. It is obvious, though, that the state of affairs just described could be a serious impediment to getting Congress to take them up.

Congress does in fact have the power to push back on these corporations. But it is afraid to. The industry's lobbyists and advocacy groups are aggressive and well-funded. And freedom of speech is one of the few things that all Americans agree on; any insinuation (whether or not made in good faith) of potential tampering with the First Amendment could trigger uproar.

The real “blocker” of Congressional action is that the public fetishizes the First Amendment, but does not understand its purpose and scope. In the next installment of this series, I'll address this problem and suggest a path forward.

After that, on finally to the good stuff: six major proposals to “fix” our public discourse, in six individual articles.