Freedom of Speech in the Digital Era - Social Media Companies need more supervision and regulations

By: Xin Tong

A new era has started in the United States since President Biden was sworn in under the watchful eyes of the people around the world, and the chaos he has inherited is gradually being addressed. Twitter and Facebook are also back to normal: There have been fewer hate speeches, and less glorification of violence. Thousands of accounts that air the unwelcomed voices have been banned by the two main social media platforms, including those of former President Trump. 

Social media oligarchs show us how easily they can erase people’s traces of existence. Entering the twenty-first century, freedom of speech increasingly depends on a third group of players: privately-owned social media companies that support and govern the digital public sphere that people use to communicate. Technology companies’ ever-expanding capacities for private surveillance and control lead naturally to a new form of private governance. Therefore, compared with the paper media era, private social media companies today need more supervision and regulations.  

Columbia University Law Professor Jack Balkin explained in his paper that the current social media regulations are like a micro-version of the government: people have to get machine’s or someone else’s permission before they can say something online. When internet-infrastructure companies block, filter, or take down content that they believe to be inappropriate, users do not get to speak until someone in the company decides that they can regain permission. Social media companies decide whether, what, and when their users get to speak. In this way, our 21st century digital era has recreated the prior restraints of the 16th and 17th centuries, offering a new version of prior restraints – big private companies have the right to review content and decide whether to prevent their users’ publication or not. 

Consequently, social media companies become the new arbiters of social spaces. Kate Klonick, the law professor at St. John’s University, has explained how these new governors have started to shape our value system. Faced with an unpredictable collection of all types of people around the world, these companies use a new way to govern: promulgate and enforce the values and norms that their own communities stood for. These internet companies did so through a combination of contract (like terms of service) and code. Over time, these social media companies, originally thought of as just technology companies, accepted their roles as community governors and developed a bureaucratic system to effectively implement their private governance role. 

Due to the specialty of these big social media companies, their relationship with the government has been both close and distant. Nation-states attempt to co-opt and coerce private social media companies to take on state functions of speech regulation and surveillance. When these big companies develop the capability to establish government bureaucracies, nation-states seek to harness that capacity to accomplish the nation-state’s governance goals. What is certain is that social media companies rely on their special identity to live in a grey zone – maximum avoidance of government supervision.

This private bureaucracy causes a new concern: private social media companies act as a private bureaucracy, implementing their own policies and using their influential platforms to bring more people to enter into their discourse system. Such a system will gradually exclude groups that disagree with their own community’s voices, thus marginalizing and ultimately deleting these voices. From Hong Kong to Myanmar, MAGA to Gamestop, social media companies use their power to promulgate their ideological beliefs, turning social sharing platforms into an arena of ideological conflicts.   

Indeed, people can argue that when you agree with these social media companies’ terms of service you should not be surprised when they decide to terminate your account because you violate some of their rules. However, in the digital era, the characteristic feature of 21st century social media companies is not merely to enable mass participation. In doing so they also develop more effective ways for influence as they have already become a powerful source of information.

Government, technology companies, and end-users form a triangle in this digital era. Social media companies should not always use the excuse that they are private entities out to maximize economic and political benefits for themselves. As a political and economic platform in the digital age, social media companies have an obligation to accept more supervision and regulation.