As a former Google engineer, perhaps I should be spreading the gospel of technology and how Silicon Valley is revolutionizing everything and “making the world a better place.” Instead, I come with more ancient wisdom. There’s nothing new under the sun.
In its early days, the possibilities of the Internet seemed limitless. In 2011, Wael Ghonim, a former Google executive and prominent Arab Spring activist, famously said, “If you want to liberate society, all you need is the Internet.” At the time, experts believed that social media could be a force for good, spreading democracy across the Middle East. (Maybe his CEOs at big tech companies will be hailed as liberators.) A few years later, that promise faded into obscurity.
Since 2011, Facebook has been implicated in the Rohingya genocide in Myanmar. And at a Senate hearing on online child safety, Sen. Josh Hawley (R-Missouri) asked Mark Zuckerberg to give advice to parents whose children committed suicide or were exploited because of Instagram. forced an apology. But Instagram pales in comparison to TikTok, which is literally controlled by China’s communist regime.
The crisis has spawned a number of legislative proposals, including a bill to force China to sell TikTok under the threat of a ban, the Kids Online Safety Act, and numerous age verification bills at the state level. But every time a new bill appears, an army of critics armed with talking points from 2011 will claim it violates the First Amendment. Often they say: Reno v. ACLU (1997), repealed laws regulating online obscene content to protect children.
But if reno Isn’t this the only relevant Supreme Court precedent? In a world where nothing is new, we should also consider First Amendment cases involving old media like cable TV.
Before the advent of cable television, Americans watched television via broadcast (antenna). Channels included his local ABC, NBC, and CBS stations. Cable used to offer many more channels than broadcast, but because cable companies compete with broadcast for advertising revenue, cable companies were forced to distribute local broadcast channels even if consumers wanted them. I also had a strong incentive not to.
A fight over advertising revenue? Anti-competitive behavior that increases profits but hurts consumers? That sounds a lot like what Big Tech is doing today.
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When cable companies began dropping broadcast channels, then-FCC Commissioner James Cuello warned Congress that the practice was just the “tip of the iceberg.” In response, Congress enacted mandatory provisions forcing cable companies to broadcast local broadcast channels. In two cases, both are named Turner Broadcasting System v. FCCTBS and others argued that the law violated the First Amendment.
The Supreme Court issued its first ruling upholding mandatory carry, holding that such requirements are content-neutral and subject only to intermediate scrutiny (Turner I (1994), which subsequently passed a judgment that survived interim scrutiny (Turner II (1997). in contrast, reno, the Supreme Court overturned the law based on content. Content-based laws are subject to intense scrutiny and are often described as “draconian in theory but deadly in practice.”
Critics have always assumed that modern social media laws are unconstitutional under: renobut what if they are constitutional instead? turner?
After all, the TikTok bill is content-neutral, targeting social media platforms based on foreign ownership rather than the platform’s content. The Kids Online Safety Act is likely to be content neutral. A properly drafted social media age verification law would be content neutral.
Age verification for pornography is an exception.belongs to a special category thanks to Ginsburg vs. New York (1968), giving Congress more discretion in protecting children from sexual content. This case played a key role in the Fifth Circuit’s decision to uphold Texas’ age verification law against pornographic sites.
The legal issues remain the same for both cable and social media. That is, whether the law is content-neutral and, if so, whether it can withstand intermediate scrutiny. Although the facts that courts evaluate are different on social media, the core legal issue remains the same. There’s nothing new under the sun.
Of course, even if a law should be content-neutral in theory, lawmakers need to consider the details to ensure it is content-neutral in practice. Age verification laws in Ohio and Arkansas (both blocked by courts) serve as a warning of what can happen if you don’t verify your age. But if lawmakers insist on details, they should not fear the “experts” who will inevitably argue that their bill is unconstitutional.
Mike Wacker is a software engineer and technologist who previously served as a Congressional Technology Fellow.
The views expressed in this article are the author’s own.
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Newsweek is committed to challenging conventional wisdom, finding common ground and finding connections.
Newsweek is committed to challenging conventional wisdom, finding common ground and finding connections.
