Revisiting Indecency: Considering a Medium-Specific Regulatory Approach to Disinformation and Hate Speech on Social Media.

• Author: Napoli, Philip M.

TABLE OF CONTENTS I. Introduction 298 II. Technological Particularism and U.S. Media Regulation 302 III. Origins, Rationales, and History of Broadcast Indecency 303 A. Origins 304 B. Toward Greater Clarity 305 C. The Supreme Court and Indecency 307 D. The Pervasiveness Rationale 307 IV. Extending the Broadcast Indecency Logic: Disinformation, Hate Speech, and Social Media 309 A. Motivations 310 B. Rationales 314 V. Conclusion 317 I. INTRODUCTION

Evidence of political, psychological, medical, and cultural harms associated with social media continues to mount, particularly in light of the many revelations contained within the documents and testimony shared by Facebook whistleblower Frances Haugen. (1) In many countries, efforts to impose regulatory safeguards related to the social responsibilities of these platforms are underway. (2) In the U.S., however, we have seen relatively little consequential action at the federal level beyond ongoing antitrust inquiries, a continuing array of congressional hearings, and a series of bills that show few signs of passing. (3)

One obvious explanation for this pattern is the predominantly laissezfaire model of media regulation that has existed in the U.S., fortified by a First Amendment tradition that has erected substantial barriers to most forms of government intervention. (4) There are, of course, compelling and justifiable reasons to insulate media from regulatory intervention thoroughly laid out in long traditions of democratic theory, First Amendment jurisprudence, and legal scholarship. (5) The basic underlying premise is that the media must remain free from government interference for democracy to function effectively. The crowning irony of the current moment is that this commitment to an unregulated media sector, in which the inevitable clash between truth and falsity leads to an informed citizenry through the invisible hand of the marketplace of ideas, may evolve from its 250-year tradition of sustaining American democracy to being a driving force behind its downfall. (6)

That being said, the prospect of government intervention remains as threatening to a well-informed citizenry and the effective functioning of the democratic process as ever (7)--perhaps more so in light of the rising political extremism in the U.S. that has emboldened political actors to attack and subvert the independence and credibility of the media sector. (8)

In this context, debates over the appropriate regulatory framework to apply to social media platforms have persisted. These deliberations have turned to the question of whether useful precedents may be found in the regulatory approaches applied to older communications technologies. For instance, there is a line of reasoning contending that the common carrier model that has traditionally applied to telephony is the appropriate fit. (9) Legislation applying this framework to social media platforms has been introduced in Congress, which would restrict platforms' ability to engage in editorial decision-making regarding the content that they carry, and instead, compel them to behave like neutral common carriers. (10) State-level legislation has passed in Texas and Florida imposing this model on social media platforms. (11) Both pieces of legislation were blocked from going into effect by the Supreme Court and the U.S. Court of Appeals for the Eleventh Circuit, respectively. (12) However, in the case of the Texas legislation, the U.S. Court of Appeals for the Fifth Circuit recently upheld the legislation's characterization of social media platforms as common carriers, concluding that "Platforms fall within the historical scope of the common carrier doctrine," which "undermines their attempt to characterize their censorship as 'speech.'" (13)

Another widely-embraced point of reference involves treating social media platforms like traditional publishers. (14) Doing so would involve removing the wide-ranging immunity from legal liability for content dissemination that platforms currently enjoy under Section 230 of the Communications Decency Act. (15) Traditional publishers receive no such wide-ranging immunity from liability for the content they produce. (16)

Critics have pointed out that neither component of this common carrier/publisher binary seems appropriate or satisfactory for the context at hand, and that a need for an alternative to either of these two models is required. (17) Nonetheless, there is another potentially relevant legacy media framework that has been largely ignored within current policy deliberations--broadcasting. This Article explores this third path and considers the potential applicability of applying elements of the regulatory framework developed for terrestrial broadcasting to social media platforms. This Article begins from the premise that current conditions compel us to explore whether there might be lessons from the broadcast regulatory model that are relevant to the contemporary challenges posed by the prevalence and impact of disinformation and hate speech on social media. As previous research has illustrated, there are a variety of aspects of broadcast regulation that could be relevant to how policymakers approach social media. (18)

Extending this previous work, the focal point of this analysis is that, alone amongst media technologies, broadcasting has a legally recognized and regulatable category of speech--indecency--that is exclusive to that medium. It may not be immediately clear why a discussion of broadcast indecency is relevant to contemporary concerns about disinformation and hate speech on social media. This Article's core argument is that the philosophy underlying the creation and enforcement of indecency regulations--that a particular medium may have sufficiently distinctive characteristics that justifies the creation and regulation of a category of speech exclusive to that medium--may merit consideration as an approach to dealing with social media content moderation.

The purpose of this Article, then, is to revisit the origins and rationales of the indecency standard in broadcasting and to consider what aspects of the broadcast indecency context can potentially inform current policy deliberations about whether and how to address disinformation and hate speech on digital platforms. As is increasingly clear, social media platforms are fundamentally different from broadcast media in as many ways as they are similar. (19) For this reason, there may be more utility than is commonly assumed in revisiting the history, rationales, and implementation of broadcast regulation as a point of reference for considering legal and regulatory approaches to social media platforms.

The first section of this Article provides an overview of the pattern of technological particularism that has characterized media law, regulation, and policy in the U.S. As this section illustrates, the legal and regulatory frameworks for media in the U.S. have been built around the notion that the nature of the regulatory requirements and First Amendment protections that apply are, to some extent, a function of the distinctive technological characteristics of each medium. (20)

The next section explores the motivations, rationales, and implementation approach of the indecency standard in terrestrial broadcasting. As this section illustrates, the indecency standard represents a singular effort by policymakers and the courts to construct and maintain a category of speech that is exclusive to a particular medium, and that comes with its own unique regulatory treatment under the First Amendment. In addressing the core rationale for the creation of the indecency category of speech, this section necessarily delves into the pervasiveness rationale for media regulation. (21)

The third section of this Article focuses on whether indecency provides a relevant template for approaching the problems of disinformation and hate speech on social media. This analytical focus reflects the fact that while discussions about the possibility of government intervention into the operation of social media platforms are accelerating, (22) the fundamental question regarding how such interventions could be justified in the face of First Amendment scrutiny has received relatively little attention. Thus, this section considers the parallels across broadcast indecency and social media disinformation and hate speech in terms of regulatory motivations and rationales.

The concluding section summarizes the argument and considers next steps in developing this perspective into a more comprehensive policy proposal. This section also considers the question of whether the adoption of this approach is an inevitable path to government overreach and how this approach might interface with current policy proposals.

2. TECHNOLOGICAL PARTICULARISM AND U.S. MEDIA REGULATION

   The term "technological particularism" has been applied in the media regulation context to describe policymakers' tendency to impose different regulatory frameworks on different communications media, with these different regulatory models derived in large part from their different technological characteristics. (23) These disparate regulatory frameworks can vary across a variety of dimensions, but perhaps most important to this analysis is the fact that these frameworks can differ in terms of the degree of First Amendment protection afforded to individual speakers. (24) As the Supreme Court noted in applying this logic to the unique regulatory framework that policymakers had constructed for broadcasting, "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." (25)

   This regulatory approach, with its varying degrees of First Amendment protection, has been subjected to extensive critique, with many legal scholars critical of conduit-based justifications for differing degrees of First Amendment protection. (26) As technological change (most...