Are companies like YouTube, Facebook, and Twitter open technology platforms or publishers with curated content? For years, Big Tech giants have tried to have it both ways, exploiting special legal protections to enrich themselves while behaving like publishers without the liabilities.
When Facebook CEO Mark Zuckerberg testified before the Senate Commerce and Judiciary committees, Senator Dan Sullivan asked him directly, “Are you a tech company, or are you the world’s largest publisher?”
“I view us as a tech company,” replied Zuckerberg.
But Facebook changed its tune less than three months later. In a California courtroom, Facebook lawyer Sonal Mehta attempting to fend off a lawsuit by declaring the social media giant a publisher. “The publisher discretion is a free speech right irrespective of what technological means is used,” Mehta argued. “A newspaper has a publisher function whether they are doing it on their website, in a printed copy, or through the news alerts.” So Facebook is a platform for the purposes of avoiding difficult questions on Capitol Hill but a publisher for the purposes of beating a lawsuit.
Big Tech’s business model relies on this distinction between platforms and publishers, codified in a little-known provision of a 23-year-old law. The Communications Decency Act, passed by Congress in 1996, states, “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.” In other words, online platforms largely cannot be held liable for the content they host, allowing technology companies to avoid issues of defamation and copyright infringement. This special protection allowed innovation on the Internet to explode over the passed quarter-century. The companies that led that innovation would retain those privileges so long as they did not behave like publishers.
This week, by demonetizing the channel of conservative comedian Steven Crowder, YouTube decided to operate as a publisher. No longer will the former platform even pretend to neutrality. “Even if a creator’s content doesn’t violate our community guidelines,” YouTube explained in a statement, “we will take a look at the broader context and impact, and if their behavior is egregious and harms the broader community, we may take action.” Regardless of its own stated rules and guidelines, YouTube may now arbitrarily shut down any channel it doesn’t like.
As Senator Ted Cruz explained directly to Mark Zuckerberg, “The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum.” Once Big Tech companies choose to operate as publishers, they must lose those lucrative protections.
YouTube has made its choice. Conservatives should make them face the consequences.