Petition to the Supreme Court
I’m not a lawyer. But I do know some things about media, after a career that started in advertising for Fortune 50 clients and then continued as an entrepreneur in “new media”. The purpose of this petition is to ask you to consider that your past decisions have created a “perfect storm” to re-vitalize “real time reach” and its power to silence criticism and free speech (even without censorship) on Social Media.
The free speech amendment was written when ideas spread slowly. Great leaders with good ideas (Abe Lincoln, Martin Luther King) naturally evolved, after years of practice of oration and debate. Modern communication technology artificially accelerates the reach of leaders. The first politician to use it was Hitler, whose ideas exploited human anger and hate to cancel rational questioning and debate, intentionally violating the principle of free speech. The same year he came from no where to be elected, 1934, the Communication Act of 1934 established the FCC to add friction to this power by making broadcasters responsible for damages and limit ownership reach to protect the public interest.
I’m sharing this because “real time reach” is not common knowledge. I witnessed it shrink, when cable fragmented audiences with 100’s of channel choices. And I see that Social Media companies have acquired “real time reach” by financially capitalizing on their exemption from liability and huge increases in political ad spending due to the Supreme Court Citizens United vs. FEC decision. Ad spending has increased due to increased demand for scarce “real time reach”, certainly not because advertising is more effective, with response rates less than 1%.
The Supreme Court may ignore these facts and this significant increase in “real time reach”. But it is taking a risk. The risk of maintaining the status quo, with the now powerful “real time reach” on Social Media, is to let the influence we’re seeing at Columbia University protests and other campuses run free without the friction created by The Communication Act of 1934 when broadcast’s “real time reach” was first exploited by Hitler.
This petition argues that injustice is caused by inconsistency in rules or their enforcement. Free speech is one of the most inconsistently defined in both. The audience doesn’t realize that one media will self-censure to prevent spreading lies that damage individuals and the public interest, but on another, lies and and slander are the most effective way to engage clicks and profit. The rules should be consistent for all media, regardless of technology for transmission and the threat of liability based on scarcity, using “real time reach” to measure it.
The intent behind the Communication Act of 1934 was in the spirit of the great American Experiment: the hypothesis that individuals can be trusted with freedom, when rules motivate them to respect everyone else’s rights to do the same. Internet law has also been a legal experiment, but in my opinion the rules have failed because a lack of rules de-motivates respect for everyone’s rights.
The lack of rules has been exploited by those with financial and social power to silence individuals. The internet media’s exemptions from the FCC’s rules designed to protect public interest has allowed internet companies to profit, consolidate reach, allowing leaders with resources to weaponize the speed of “real time reach” with a chilling effect on individual speech (with or without direct censorship).
Eric Hoffer’s seminal book, “The True Believer: Thoughts on the Nature of Mass Movements”, raises concern about how frustrated people can be galvanized by leaders to align their thoughts and sacrifice their lives for significant change. And, Rene Girard’s mimetic theory explains why - our fundamental desire to want what others have or want. But not all movements or wants have bad consequences. The American Revolutionists were true believers in the great American freedom experiment, just as the followers of Abraham Lincoln were true believers in the emancipation of slaves, and the followers of Martin Luther King, were true believers of the power of love over violence to achieve equal rights for all. But some leaders of mass movements are toxic, for example, Hitler.
Before mass communication technology, leaders were “tested” by the friction of how slowly messages spread organically. Friction happens when Free Speech preserves the right of individuals to question and hear criticism of leaders. The speed of post-modern communication technology removed this “natural” friction. Hitler was the first to test this effect of “real time media”.
Hitler took advantage of timing - post-WWI discontent that made people hunger for change. But he also leveraged technology for the first time in history to achieve what I call “real time reach”: everyone heard his speeches at the same time because his presidential campaign accelerated the sales of radios to the German population in 1933. No one thinks of Hitler’s election as an advertising case study, but the formula is the same as the most effective modern advertising campaigns: Timing (when people are most receptive to change) x “real time reach” = catalyst for peer pressure (when people talk about it).
Timing is key to all these movements, but Hitler exploited “real time reach” to accelerate it so quickly, peer pressure would become cancel culture - intimidating individuals with questions or debate - to galvanize support at scale so quickly it is impossible to stop. Very powerful. Hitler was elected president in the next year, 1934.
Did Hitler’s success help to inspire the US Communications Act of 1934 to establish the FCC to license and regulate broadcast media? We may never know. The FCC licenses and regulates the emerging broadcast (over the air) and telephone/telegraph (over wire) industries which together (message goes out to everyone and they call everyone they know) make “real time reach” powerful. The purpose of this Act was not to empower the government to censure broadcasters, (although it must have been discussed after watching how Hitler came out of nowhere to win the presidency of Germany), but to make broadcasters think twice about the liability of allowing an advertiser, commercial or political, employee or someone they interview on air to intentionally slander or make false claims.
The consequence was “the clearance department” (well known behind the scenes, but may not be transparent to the audience, the Supreme Court, or Congress), where content producers meet friction, forcing them to think and verify before they speak. On first impression, some may believe that this choked free speech - but professionals often admit that the ethical standards for journalism and advertising benefitted from this friction.
Another way the FCC slows the speed of “real time reach” is by restricting any one individual or company from owning too much reach. This restriction assures that one company’s clearance department’s rejection doesn’t preclude another from accepting it. Then, in the 1950’s, the Fairness Doctrine required equal time for opposing views. It was later rescinded in the 1980’s when cable channels fragmented audiences and no one imagined that any technology could realize the “real time reach” of network television. Only ten years before, in the 1970’s, while Vietnam protests spread across college campuses, “the FCC called the doctrine the ‘single most important requirement of operation in the public interest – the sine qua non for grant of a renewal of license.’”
The purpose of this petition is ask the Court to consider that rules have preserved the natural friction of a free market of ideas in the history of media and exempting the internet from these rules is a mistake. Here are three proposals:
First, ask Congress to limit internet media’s 230 exemption so they may be liable for damages from slander by design - i.e., amplifying or black-listing - and by exposing young people to content that legacy media may not.
Secondly, the Supreme Court’s decisions should leave the door open for Internet Media Company ownership to be restricted by the FCC to limit reach and protect public interest.
Thirdly, to ask the Supreme Court to reverse the Citizens United decision which allows all media companies to profit from amplifying leaders with money and celebrity to weaponize the power of “real time reach”.
First, here’s why the Supreme Court should ask Congress to limit internet media’s 230 exemption so they may be liable for damages from slander by design - i.e., amplifying or black-listing - and by exposing young people to content that legacy media may not.
The EFF (Electronic Freedom Foundation) argues that Section 230 is good for freedom of speech. Is EFF independent and objective when it is funded by internet companies and interested individuals and even accepts internet employee stock as donations?
On Social Media, all voices are not equal. Anyone with money or celebrity can use a negative word in their tweet or headline, to increase clicks, weaponizing “real time reach” to drown out all other voices and pull the peer pressure trigger to cancel anyone who questions them, just as Hitler did.
How many people can they reach on Social Media? Today, daily Social Media reach achieves the scarcest legacy media program “real time reach” event - the Super Bowl.
U.S. adults spend 55.8 minutes per day on TikTok.
4.43 billion minutes divided by 55.8 minutes is 79.4 million people a day on TikTok, alone.
Social Media eclipses the now eroded “real time reach” of legacy broadcast media. Mainstream Media top news shows reach only 2 million people, less than 1% of the population and almost all of them are over 50, they have a long way to go to reach 79.4 million.
While the Social Media companies will tell you that this extraordinary “real time reach” represents how many people they help keep in touch with close friends and family, the truth is that the power of Social Media’s existence coincides with destroying friendships, just as it did in the days of Hitler’s exploitation of “real time reach”:
Additionally, if liable for damages to under age people who do not meet the age restrictions in their terms of use, these internet media companies would be motivated to fund innovation to solve the problem of verifying age with digital IDs, without violating privacy rights. (EFF could partner with the IIW and other digital identity initiatives around the world to oversee as an independent non-profit - something technologists have been working on for over 30 years). Government restriction on corporate free enterprise isn’t unprecedented to protect individuals, especially young people. Government has rightly restricted corporations and organizations’ freedom to profit from exploiting individuals, especially malleable young people - for example - requiring an ID to buy cigarettes and alcohol. A little Mom & Pop business could lose everything because a $15/hr employee sold liquor to a minor. But there are no repercussions for Internet Media companies exposing 10 year olds to toxic leaders, not to mention, porn, bullying, drug pushers and sex traffickers.
The Supreme Court has validated the 230 exemption once, RENO vs ACLU. Now that the Supreme Court is making a decision on Murthy vs. Missouri, remember that no one contemplated government employees would threaten to reverse Section 230, Social Media’s extraordinary protection from liability, to coerce them to censure experts who questioned the government.
Why shouldn’t Social Media companies be liable for what they, by algorithm design, (not their audience’s vote) choose to amplify? What about the damage done to the careers of blacklisted experts (Murthy v Missouri), not to mention the health of individuals who may have benefitted from the freedom to hear what they had to say? If liability had not been exempted, government employees would have had nothing to threaten companies to coerce them to censure government critics. Will the Supreme Court really validate Section 230, without limiting the exemptions, a second time?
How much have they profited from this freedom from liability? Enough to acquire companies to consolidate their reach and restore potential “real time reach.”
Second, the Supreme Court’s decisions should leave the door open for the Internet Media Companies ownership to be restricted by the FCC to limit reach and protect public interest.
For all those who thought Social Media would strengthen the American Experiment by making it easier for all voices to be heard, I hope I have explained why that can not happen as long as it is possible to profit from anyone with money and celebrity to exploit “Real Time Reach” to stir divide and destroy friendships and family.
When the Internet emerged in the late 1990’s, the government gave Social Media companies unprecedented freedom to profit with no restriction on scale of ownership and consolidation. Meanwhile, internet media companies have used those profits to acquire companies that expand their reach (and shelved technology to perpetuate the myth that threats to their freedom to profit, like digital ID verification, is impossible). To protect public interest and preserve a free market for ideas, the FCC should apply the same ownership restrictions across all media technologies. To correct the past, re-consider the Fairness Doctrine for digital media - which is inherently more capable than analog media of designing it into their algorithm and being held accountable. The outcome will be to add friction to the “real time reach” - only made possible by modern technology and never anticipated when crafting the Free Speech amendment - and allow the cream, democracy should nurture, to rise to the top.
Third, here’s why the Supreme Court should reverse Citizens United vs. FEC.
The Netchoice case vs new laws in Florida and Texas to protect emerging leaders from censorship is naive to the de facto censorship power of “real time reach” that only the very endowed leaders can afford, thanks to Citizens United vs. FEC. Social Media companies are quick to take their money to weaponize “real time reach” and use those funds to increase their exclusive reach, essentially eliminating a free market of ideas. How much money would be removed, to level the playing field, if Citizens United vs. FEC were reversed or at least capped? How many alternative channels would then emerge to create more friction to “real time reach” as in the days of cable? If the Supreme Court can reverse Roe vs. Wade, why not reverse Citizens United?
Social Media technology exploitation is the reason we have such bad choices to choose from on Election Day. My hypothesis is that leaders, whose intent is to divide and conquer, weaponize “real time reach” to drown out leaders with more organic followers. These leaders whose intent is to build something better, strengthen with time, debate, conversation. The higher standards of legacy media are the result of FCC rules that incentivized the clearance department to force content producers to think before they speak. Social Media companies need to be incentivized to create these higher standards. They may create even better more accountable standards. They may even find that higher standards make their “real time reach” more valuable because standards improve credibility. These decisions will free future leaders to slowly emerge the hard and honest way, as Abraham Lincoln and Malcolm Luther King did, to empower others, more than themselves, to build something better.
Commenters: Can we agree that this internet legal experiment has failed:
to protect individual free speech and public interest,
to protect young individuals from being damaged by internet media design to maximize profits
to preserve the natural friction that “tests” emerging leaders?
Also welcome any ideas that are better than the specific proposals I’ve made here to correct these failures.