Where do social media sites fall in the discussion about freedom of speech?

For the last few years or so, people have been talking about the need to consider regulating social media. What, exactly, would this mean, and where are the likely boundaries?

We begin with the First Amendment. To refresh your memory, it says, “Congress shall make no law...abridging the freedom of speech, or of the press…”

Shall we categorize social media as the press? To be fair, social media does mirror the press of the 18th century in that they are private, rather than governmental entities. Also, anyone with sufficient resources and moxie can start one.

Newspapers and pamphlets (the press of that era) were not meant for back-and-forth communication. They were understood to represent the opinion of the publisher first, foremost and all but exclusively. A newspaper might run letters from readers, but doing so, and the choice of which letters to run, as well as whether or how to edit those letters, is strictly the newspaper’s prerogative. So not exactly analogous.

Are social media sites common carriers? These are media, like the telegraph and telephone, that charge customers for relaying messages. You might, at first, think that there is no similarity since social media sites are typically available at no charge to the user. Actually, it is more accurate to say that there is no apparent charge. Social media sties are advertising media. Like broadcast media, we pay with our time and attention. Common carriers and broadcast media are regulated by the Federal government, largely on the notion that they constitute interstate commerce, which the Constitution explicitly allows Congress to make laws about.

I should point out that social media sites are not totally advertising dependent. They also collect and market data about their consumers. Print and broadcast media use such data, but leave its collection and marketing to others.

Elon Musk has stated that, as a privately owned company, he will free Twitter from censorship. Censorship, of course, isn't really the issue. An entity modifying content on their platform in response to real or perceived market forces is not censorship.

Why is ‘Blazing Saddles’ bleeped on basic cable? Because if it wasn’t, there would be pressure to move that channel from ‘family appropriate’ basic cable and as a result of that move, the operator would lose ad revenue. Not the same as government interference.

When mass media mediums first appear, they are operated (and legislated) by those who are of a different media culture. It takes a generation for the natives of the new medium to fully realize it and for those who legislate to draft legislation that appropriately addresses its idiosyncrasies. Facebook is less than 20 years old. It is not out of line to suggest that social media has not yet achieved maturity, nor have we as a society found our way to deciding what its proper role is or should be.

Even so, such considerations must begin. Are social media privately owned property beyond the jurisdiction of regulators, or does the government have a legitimate interest in policing their operations like those of other communications media?

So long as social media produce revenue, they constitute commerce, and are therefore apparently subject to Congressional authority. To what extent does policing the content on social media platforms represent censorship, rather than simply tailoring product to the demands of the market? What guardrails, if any, should be placed on collecting data from people who use a social media platform?

We as a society, (and, as a consequence, our legislators and regulators) must come up with answers that combine constitutional considerations, commercial realities and hopefully common sense. Otherwise, things aren't likely to improve.

Kalman Socolof is a Professor Emeritus of Radio-TV Broadcasting at Herkimer College.

This article originally appeared on Observer-Dispatch: Essay: Let's discuss the First Amendment, censorship and social media