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Kent Nishimura

The case brought by tech companies that <a href="https://www.washingtonpost.com/technology/2024/02/25/supreme-court-social-media-free-speech/" target=_blank>reached the Supreme Court</a> this week might involve a lot of complicated legalese, but it actually hinges on a simple, unsettled question — one that will define how we treat social media platforms for decades to come.

Have Facebook and X, formerly Twitter, now become the modern equivalent of public utilities, like your phone service or electric company? Or are they media organizations like The Post?

This is the crux of the conundrum facing the justices. The case stems from <a href="https://www.washingtonpost.com/technology/2024/02/26/supreme-court-social-media-netchoice-texas-florida/" target=_blank>harebrained laws passed</a> by the Florida and Texas legislatures (try to contain your surprise), which barred social media platforms from kicking conservative firebrands off their sites. Texas holds that the tech companies are 21st-century utilities that have to be regulated to ensure equal access.

Industry groups funded by Big Tech, meanwhile, have sued to invalidate the law, claiming that they have the same First Amendment rights as any other media company — including the right (if not the responsibility) to decide which content is in the public interest and which isn’t.

The debate here has been a long time coming. It <a href="https://www.washingtonpost.com/opinions/2023/02/09/biden-congress-tech-section-230-privacy-antitrust/" target=_blank>remains unresolved</a>, in part, because the tech companies themselves have always tried to have it both ways.

When outraged leftists demand more regulation around content that spreads hatred or misinformation, the companies are quick to assert that they are essentially pipelines for public discourse, rather than content providers. In fact, Congress codified this argument with something called <a href="https://www.cnbc.com/2020/02/19/what-is-section-230-and-why-do-some-people-want-to-change-it.html" target=_blank>Section 230</a>, a provision that <a href="https://www.washingtonpost.com/opinions/2023/03/19/section-230-chatgpt-internet-regulation/" target=_blank>shields social media companies</a> from the same kind of legal jeopardy that a newspaper might face for printing something false.

But when the right tries to impose some version of political neutrality, as it did in Texas, the same companies embrace exactly the opposite conceit — that they are media companies, no different from any news site, and thus can’t be forced to publish content they find offensive.

If <a href="https://www.washingtonpost.com/opinions/2023/02/22/supreme-court-big-tech-section-230/" target=_blank>they can’t decide</a> which kind of company they really are, it’s now up to the justices to decide for them, I guess.

Writing in the <a href="https://www.nytimes.com/2024/02/26/opinion/texas-tech-supreme-court.html" target=_blank>New York Times</a> this week, Tim Wu — a left-leaning law professor at Columbia University and much more of an expert than I am in all of this — argued that the court should uphold the Texas law and treat the tech companies as though they were utilities.

Wu doesn’t like the law itself, but striking it down, he says, would effectively bar any kind of government regulation of social media platforms, under the theory that there’s no difference, constitutionally speaking, between editors at CNN and an algorithm at Instagram.

I have some sympathy for this argument, in part because I’ve worked for two of these companies in my career. (I spent five years as the national political columnist for Yahoo and then published a newsletter on Meta’s now-defunct Bulletin platform.) I can attest to the idea that <a href="https://www.washingtonpost.com/opinions/2023/02/20/big-tech-meta-google-amazon/" target=_blank>tech companies behave nothing</a> like traditional journalism outlets. They’re run by engineers who might as well be wiring your house for cable or fixing your water main for all they care about the quality of information you consume online.

And yet, as a nonlawyer, I ultimately come down on the other side of the argument — that social media companies really aren’t utilities at all. They maintain no infrastructures of their own — no pipes or towers. They provide no service that we can’t live without — nothing as basic as drinking water or electric lights. They require no government license to operate. Most important, they enjoy no monopoly, however much it may feel that way in the moment.

Twenty-five years ago, <a href="https://www.youtube.com/watch?v=bjP4s7UUnK8" target=_blank>AOL was a behemoth</a> of email and message boards; now it’s as much a relic as dial-up internet. There’s nothing stopping anyone from creating a new social media platform, and there’s every reason to think that Facebook or X — or even Google, in the coming age of artificial intelligence — will be surpassed by some product yet to be invented.

In truth, these tech companies are now content providers who make editorial decisions every day about which posts to promote and which to bury. They are purveyors and aggregators of speech, and it seems to me that they have to be entitled to the same free speech protections as any other kind of media.

But here’s the catch: They ought to be <a href="https://www.washingtonpost.com/opinions/2024/02/01/zuckerberg-silicon-valley-congress/" target=_blank>just as accountable</a> for their content, too. Which is why, if the Texas law is in fact unconstitutional, <a href="https://www.washingtonpost.com/opinions/2023/05/19/section-230-supreme-court-congress-internet-google-twitter/" target=_blank>then Section 230</a> — which was adopted almost 30 years ago now, when the internet was in its infancy — should be thrown out as well, or at least revised. The way to police social media companies is to make them liable for the damage they cause.

That doesn’t mean you should be able to successfully sue a tech company for every dumb post that has harmful or even tragic consequences. It means that social media sites should be held to a minimum standard of care. To use the language of libel law, any company that exhibits “reckless disregard” for the accuracy of its content should be on the hook for the cost of making it right.

<a href="https://www.washingtonpost.com/opinions/how-congress-could-destroy-social-media/2019/07/13/bf69673a-a4d2-11e9-bd56-eac6bb02d01d_story.html" target=_blank>Wherever one falls in this debate</a>, however, it’s time for the tech companies to choose a lane — or to have one chosen for them. If you’re a public utility, then you’re answerable to government regulations. If you’re a media company, then you’re answerable to the courts.

What you can’t be is both things at once, and answerable to nothing.

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Matt Bai, a Washington Post contributing columnist, is a journalist, author and screenwriter. He spent more than a decade at the New York Times, where he was chief political writer for the Sunday magazine and a columnist for the newspaper. 

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