Richard Rodriguez – Social Media Legality

In 1996 Congress passed what is known as Section 230 of the Communications Decency Act (CDA) which provides immunity to website publishers for third-party content posted on their websites. The CDA holds that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This Act passed in 1996, was created in a different time and era, one that could hardly envision how fast the internet would grow in the coming years. In 1996, social media for instance consisted of a little-known social media website called Bolt, the idea of a global world wide web, was still very much in its infancy. The internet was still largely based on dial-up technology, and the government was looking to expand the reach of the internet. This Act is what laid the foundation for the explosion of Social Media, E-commerce, and a society that has grown tethered to the internet.

The advent of Smart-Phones in the late 2000s, coupled with the CDA, set the stage for a society that is constantly tethered to the internet and has allowed companies like Facebook, Twitter, YouTube, and Amazon to carve out niches within our now globally integrated society. Facebook alone in the 2nd quarter of 2021 has averaged over 1.9 billion daily users.

Recent studs conducted by the Pew Research Center show that “[m]ore than eight in ten Americans get news from digital services”

While older members of society still rely on news media online, the younger generation, namely those 18-29 years of age, receive their news via social media.

The role Social Media plays in the lives of the younger generation needs to be recognized. Social Media has grown at a far greater rate than anyone could imagine. Currently, Social Media operates under its modus operandi, completely free of government interference due to its classification as a private entity, and its protection under Section 230.

Throughout the 20th century when Television News Media dominated the scenes, laws were put into effect to ensure that television and radio broadcasters would be monitored by both the courts and government regulatory commissions. For example, “[t]o maintain a license, stations are required to meet a number of criteria. The equal-time rule, for instance, states that registered candidates running for office must be given equal opportunities for airtime and advertisements at non-cable television and radio stations beginning forty-five days before a primary election and sixty days before a general election.”

What these laws and regulations were put in place for was to ensure that the public interest in broadcasting was protected. To give substance to the public interest standard, Congress has from time to time enacted requirements for what constitutes the public interest in broadcasting. But Congress also gave the FCC broad discretion to formulate and revise the meaning of broadcasters’ public interest obligations as circumstances changed.

The Federal Communications Commission (FCC) authority is constrained by the first amendment but acts as an intermediary that can intervene to correct perceived inadequacies in overall industry performance, but it cannot trample on the broad editorial discretion of licensees. The Supreme Court has continuously upheld the public trustee model of broadcast regulation as constitutional. The criticisms of regulating social media center on the notion that they are purely private entities that do not fall under the purviews of the government, and yet these same issues are what presented themselves in the precedent-setting case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969. In this case, the court held that “rights of the listeners to information should prevail over those of the broadcasters.” The Court’s holding centered on the public right to information over the rights of a broadcast company to choose what it will share, this is exactly what is at issue today when we look at companies such as Facebook, Twitter, and Snapchat censuring political figures who post views that they feel may be inciteful of anger or violence.

In essence, what these organizations are doing is keeping information and views from the attention of the present-day viewer. The vessel for the information has changed, it is no longer found in television or radio but primarily through social media. Currently, television and broadcast media are restricted by Section 315(a) of the Communications Act and Section 73.1941 of the Commission’s rules which “require that if a station allows a legally qualified candidate for any public office to use its facilities (i.e., make a positive identifiable appearance on the air for at least four seconds), it must give equal opportunities to all other candidates for that office to also use the station.” This is a restriction that is nowhere to be found for Social Media organizations.

This is not meant to argue for one side or the other but merely to point out that there is a political discourse being stifled by these social media entities, that have shrouded themselves in the veils of a private entity. However, what these companies fail to mention is just how political they truly are. For instance, Facebook proclaims itself to be an unbiased source for all parties, and yet what it fails to mention is that currently, Facebook employs one of the largest lobbyist groups in Washington D.C. Four Facebooks lobbyist have worked directly in the office of House Speaker Pelosi. Pelosi herself has a very direct connection to Facebook, she and her husband own between $550,000 to over $1,000,000 in Facebook stock. None of this is illegal, however, it raises the question of just how unbiased is Facebook.

If the largest source of news for the coming generation is not television, radio, or news publications themselves, but rather Social Media such as Facebook, then how much power should they be allowed to wield without there being some form of regulation? The question being presented here is not a new one, but rather the same question asked in 1969, simply phrased differently. How much information is a citizen entitled to, and at what point does access to that information outweigh the rights of the organization to exercise its editorial discretion? I believe that the answer to that question is the same now as it was in 1969 and that the government ought to take steps similar to those taken with radio and television. What this looks like is ensuring that through Social Media, that the public has access to a significant amount of information on public issues so that its members can make rational political decisions. At the end of that day that it was at stake, the public’s ability to make rational political decisions.

These large Social Media conglomerates such as Facebook and Twitter have long outgrown their place as a private entity, they have grown into a public medium that has tethered itself to the realities of billions of people. Certain aspects of it need to be regulated, mainly those that interfere with the Public Interest, there are ways to regulate this without interfering with the overall First Amendment right of Free Speech for all Americans. Where however Social Media blends being a private forum for all people to express their ideas under firmly stated “terms and conditions”, and being an entity that strays into the political field whether it be by censoring heads of state, or by hiring over $50,000,000 worth of lobbyist in Washington D.C, there need to be some regulations put into place that draw the line that ensures the public still maintains the ability to make rational political decisions. Rational decisions that are not influenced by anyone organization. The time to address this issue is now when there is still a middle ground on how people receive their news and formulate opinions.

Before we get started, I want you to take a few minutes and answer the following questions to yourself:

Do you spend a lot of time thinking about social media or planning to use social media?
Do you feel urges to use social media more and more?
Do you use social media to forget about personal problems?
Do you often try to reduce the use of social media without success?
Do you become restless or troubled if unable to use social media?
Do you use social media so much that it has had a negative impact on your job or studies?

How did you answer these questions? If you answered yes to more than three of these questions then according to the Addiction Center you may have or be developing a Social Media Addiction. Research has shown that there is an undeniable link between social media use, negative mental health, and low self-esteem. Negative emotional reactions are not only produced due to the social pressure of sharing things with others but also the comparison of material things and lifestyles that these sites promote.
On Instagram and Facebook, users see curated content – advertisements and posts that are specifically designed to appeal to you based on your interests. Individuals today unlike any other time in history are seeing how other people live, and how their lifestyles differ significantly from their own. This sense of self-worth is what is being used to curate information, children at a young age are being taught that if you are not a millionaire then you are not successful, and they are creating barometers of success based on invisible benchmarks, this is leading to an increase in suicide and depression among young adults.

Social Media has become a stimulant whose effects mimic that of someone addicted to gambling, and recreational drugs. It has been shown that retweets, likes, and shares from these sites affect the dopamine part of the brain that becomes associated with reward. “[I]t’s estimated that people talk about themselves around 30 to 40% of the time; however, social media is all about showing off one’s life and accomplishments, so people talk about themselves a staggering 80% of the time. When a person posts a picture and gets positive social feedback, it stimulates the brain to release dopamine, which again rewards that behavior and perpetuates the social media habit.” “Chasing the high”, is a common theme among individuals with addictive personalities, and when you see people on Social Media posting every aspect of their lives, from the meal they ate to their weekend getaway, and everything in between, that is what your chasing, but the high is the satisfaction of other people liking your post. We have all been there you post a picture or a moment of great importance in your life, and the likes and reactions start pouring in, the reaction you garner from that love, differs significantly from the reaction you get when there is no reaction. A recent Harvard study showed that “the act of disclosing information about oneself activates the same part of the brain that is associated with the sensation of pleasure, the same pleasure that we get from eating food, getting money or having even had sex.” Our brains have become to associate self-disclosure with being a rewarding experience. Ask yourself when was the last time you posted something about a family or friend who died, why was this moment of sadness worth sharing with the world? Researchers in this Harvard Study found that “when people got to share their thoughts with a friend or family member, there was a larger amount of activity in the reward region of their brain, and less of a reward sensation when they were told their thoughts would be kept private.”

“The social nature of our brains is biologically based,” said lead researcher Matthew Lieberman, Ph.D., a UCLA professor of psychology and psychiatry and biobehavioral sciences. This in itself helps you to understand where Social Media has gone to, it has evolved into a system that takes advantage of our biological makeup, “although Facebook might not have been designed with the dorsomedial prefrontal cortex in mind, the social network is very much in sync with how our brains are wired.” There is a reason when your mind is idling the first thing it wants to do is to check Social Media, Liberman one of the founders of the study of social cognitive neuroscience explains that “When I want to take a break from work, the brain network that comes on is the same network we use when we’re looking through our Facebook timeline and seeing what our friends are up to. . . That’s what our brain wants to do, especially when we take a break from work that requires other brain networks.”

This is a very real issue, that has very real consequences. The suicide rate for children and teens is rising. According to a September 2020 report by the U.S. Department of Health and Human Services, the suicide rate for pediatric patients rose 57.4% from 2007 to 2018. It is the second-largest cause of death in children, falling short only of accidents. Teens in the U.S. who spend more than 3 hours a day on social media may be at a heightened risk for mental health issues, according to a 2019 study in JAMA Psychiatry. The study, which was adjusted for previous mental health diagnoses, concludes that while adolescents using social media more intensively have an increased risk of internalizing problems or reporting mental health concerns, more research is needed on “whether setting limits on daily social media use, increasing media literacy, and redesigning social media platforms are effective means of reducing the burden of mental health problems in this population.” Social Media has become a coping mechanism for some to deal with their stress, loneliness, or depression. We have all come into contact with someone who posts their entire life on social media, and more often than not we might brush it off, even make a crude joke, but in fact, this is someone who is hurting and looking for help in a place that does not offer any solitude.

I write about this to emphasize a very real, and dangerous issue that is growing worse every single day. For far too long Social Media have hidden behind a shield of immunity.

Section 230, a provision of the 1996 Communications Decency Act that shields social media companies from liability for content posted by their users and allows them to remove lawful but objectionable posts. Section 230 states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230)

In 1996 when this Law was introduced and passed, the internet was still in its infancy, and no one at that time could have ever envisioned how big it would become. At this point, Social Media Corporations operate in an almost Omnipotent capacity. Creating their governing boards, and moderators to filter out negative information. However, while the focus is often on the information being put out by the users what gets ignored is how that same information gets directed to the consumer. You see Facebook, Snap Chat, Twitter, even YouTube, rely on the consumer commonly known as “influencers” to direct posts, and information to the consumer also known as the “User”, to direct advertisement and product placement. To accomplish their goals which at the end of the day is the same as anyone Corporation to create a profit, information is directed at a person that will keep their attention. At this point, there are little to no regulations, on how information is directed at an individual. For instance, the FCC has rules in place that “limits the number of time broadcasters, cable operators, and satellite providers can devote to advertisements during children’s programs.” however, there are no such rules when dealing with children, there is only one such case in which the FTC has levied any fines for directed content at Children. Yet this suit was based more on the notion that Google through their subsidiary YouTube “illegally collected personal information from children without their parents’ consent.” When dealing with an advertisement for children Google itself sets the parameters.

Social Media has grown too large for itself and has far outgrown its place as a private entity that cannot be regulated. The FCC was created in 1934 to replace the outdated Federal Radio Commission an outdated entity. Therefore, just as it was recognized in 1934 that technology calls for change, today we need to call on Congress to regulate Social Media, it is not too farfetched to say that our Children and our Children’s futures depend on this.

In my next blog, I will post how regulation on Social Media could look and explain in more detail how Social Media has grown too big for itself.

Author: Richard Rodriguez

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