2020 Essays

Social Media Regulation in the Public Interest: Some Lessons from History

Samples, John; Matzko, Paul

"For two decades after the courts struck down the Communications Decency Act in 1997, direct government regulation of the internet was a political third rail. That era of digital salutary neglect arguably contributed to American dominance in consumer software applications; if software has eaten the world, to extend Marc Andreessen’s metaphor, the all-you-can-eat buffet line started in the United States. As a result, U.S. tech hubs have been the destination for global capital and skilled immigrants, mitigating the economic effects of the Great Stagnation as the manufacturing industry moved overseas.

Recently, however, there has been growing support for internet regulation. Remarkably for an era of heightened political polarization, representatives of both major U.S. parties have called for antitrust action against big tech companies. These critics argue that the companies’ market dominance leads to excessive political influence and poor outcomes for consumers. This paper does not address these antitrust issues.

Instead we examine another plausible regulatory response to market domination: public oversight of private companies according to a public interest standard. The prospect of a new era of public interest oversight should not be dismissed out of hand. Multiple politicians from both parties have called for the federal government to take an active role in fighting various online social ills, including hate speech, gun-related content, political bias, and sexual trafficking. In theory, public interest regulation could address these ills while also dealing with market power. In practice, public interest regulation could very well fail to accomplish those goals while creating negative unintended consequences.

The first section of this essay explores the growing interest in cross-applying the public interest standard from broadcasting to the internet. The second section recounts the history of the standard and the problems it created for free speech. The third section considers the implications of our historical analysis for public and private policymaking going forward."