In response to a recent ProMarket post about the Twitter Files, professor Tom Ginsburg points out that the toughest question lies in the meaning of neutrality.

Stefano Feltri raises all the right questions about the Twitter Files. We should ask why this is not getting more public attention and debate.  But his last comment misses an important point: there is no neutral position when it comes to the platforms. 

Feltri argues that “Twitter should not interfere with content that users share on its platform, especially if it is journalism.” Leaving aside the pregnant question about what exactly counts as journalism in our era, I take him to mean that humans who work at Twitter should not manipulate the distribution of stories on the basis of their own views of the content’s accuracy. This seems quite right to me, and extends as well to the principal owner. But “sharing” on twitter is not a natural phenomenon.  It is a highly mediated act, involving proprietary algorithmic distribution that no user is in a position to understand.  Twitter is “interfering” with speech by its very act of directing who sees what and when.

This point is just one of the many reasons the social media is such a wicked problem.  In the traditional town square, speakers and listeners are in a direct, unmediated relationship, which both constrains the reach of the communication but also imbues it with power, and subjects it to social norms.  In the traditional media, as Feltri rightly points out, editors assume control over content and thus take on responsibility for what they publish.  Algorithms act in somewhat the same way in terms of directing content to users, but because they are merely transmitting, the platforms are not responsible (at least so long as Sec 230 lasts) for the content in the way an actual speaker or publisher would be. The result is a cesspool of content that is clearly legal (at least in the United States) but hardly of any social value. Death threats, racist and sexist speech, and violent imagery abound, often with real-world consequences.  This is what three decades of the internet have brought us?

I don’t have answers, but I do note the courts are wrestling with the problem. Last year, in an opinion, Justice Clarence Thomas expressed concern about the impact of the platforms on political speech.  He analogized them to “common carriers”, an old notion under which network industries like railroads and telephones could be compelled to be neutral about their speech.  Meanwhile the States of Florida and Texas have adopted legislation requiring “neutrality” in platforms’ content regulation.  This in itself is an absurd notion: it might for example require a post against sexual harassment to be “balanced” with one that argued in favor of it.  In September 2022, the Fifth Circuit Court of Appeals upheld the Texas Bill, setting up a Supreme Court case on the topic. Keep your popcorn close at hand, but try not to spend too much time on Twitter in the meantime.

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