Lost in the debate about social media as the “marketplace of ideas” for the Age of Algorithms is the physicality of social media, or more specifically the lack thereof. The difference between the physically located marketplace of ideas for the first 250 years of the United States, and the marketplace of ideas hereafter, will add significant ramifications to the First Amendment that few are discussing now.
There is no doubt that social media is the soap box of the 21st Century. The Supreme Court has already concurred in this obvious argument. Yet, this comparison is weak. The platform of the speech-giver of old was completely physical, whether that platform was a stage or a park corner. One essential element of Free Speech rights was the ability to gain access to a public venue without losing that right just because of what one wants to say. At least the speech giver and the government official intent on preventing the speech both knew where the venue was located where the speech would occur.
The Age of Algorithms has changed that completely. Social media is not dependent on a location, let alone an advantageous one like a popular park corner, and so those exercising their free speech rights can do so literally anywhere in the world. That makes taking government action to prevent hate speech a difficult thing. If Twitter were to decide tomorrow to move its social media network to a Nigerian server tomorrow (just for example), its U.S. users would not see any difference on their computer screens. Yet, any U.S. government regulation of alleged hate crime, or even obvious crimes like sex trafficking, might not be able to reach outside of U.S. borders. So, the ability of a government to respond to the negative effects of communication might be getting more difficult.
Of course, the U.S. government could block Twitter from gaining access to U.S. computers, much like China blocks Google from the computers of its citizens. That would not put an end to Twitter itself, particularly if the sovereign where Twitter was located decided to be more sympathetic to Twitter—and its billions of dollars of revenue.
Perhaps more importantly, the moment the U.S. government decides to block a social media site due to its content, that is censorship of speech based on its content. That, in turn, is almost never permitted under the First Amendment. So, the U.S. government’s only tool to respond to harmful social media would actually result in the protection of that harmful social media in almost all cases.
On the other hand, consider what happens if the U.S. government tries to take steps to prevent censorship by social media’s owners? Well, those owners could simply move their social media servers to a more friendly jurisdiction, meaning one that values tax revenues and employment of its citizens over free speech in the United States.
This is yet another reason that the United States must come up with an alternative to social media, at least in its present form, as the marketplace of ideas for the Age of Algorithms. There is so much that can and will go wrong if social media is the primary means by which ideas and discourse are disseminated. Ultimately, both those the individual wanting to speak who is kicked offline and the government trying to prevent illegal communications via social media will be frustrated in their efforts, and the only winner will be the social media owner, generated revenues in a completely unregulated location.
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