How Can Hate Speech, Conspiracy Theories, etc., be Banned on Social Media?

The legal answer to that question depends on how the courts treat the status of social media providers. The political answer depends on who and what you want to ban? The fragile Democratic control of Congress faces a steep challenge in passing legislation to answer these questions. And they must get the courts to accept their solution as not infringing on First Amendment rights.

Let’s look at regulating free speech on social media from the perspectives of the courts and Congress. The first is concerned with legal precedents, the latter with the politics of passing legislation. But both are about determining who will exercise political power in defining what can of free speech is allowed on the internet.

The Courts Perspective

Two years ago, in March 2019, the Congressional Research Service issued an analysis of Free Speech and the Regulation of Social Media Content. Quite simply, social media sites provide platforms for content originally generated by users. According to the CRS review of court decisions, social media has been treated “like news editors, who generally receive the full protections of the First Amendment when making editorial decisions.” In effect, these private companies can remove or alter the user’s content and determine how content is presented: who…