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In an unprecedented display of private censorship, Twitter, Facebook and other major social media platforms suspended former President Trumps accounts, preventing him from communicating with his millions of followers. Many Americans were relieved, finally, to see limits placed onTrumps ability to spread misinformation and sow discord. But few should be sanguine attheprospect of unaccountable technology monopolies serving asthenations speech police.

Social media platforms such as Facebook and Twitter also have allegedly deletedtheposts and accounts of racial justice advocates at home and human rights activists abroad, especially when they have been critical of government power.

That private technology platforms exert unparalleled power over political discourse is deeply undemocratic.

To be clear, this is not a First Amendment issue.TheFirst Amendments protection of free speech applies only tothegovernment and not to private companies. But it is an issue of profound importance with regard to free speech andtheright of speakers to express their message and of their audience to hear it.

Congress, though, can regulate social media platforms by federal law and hasthepower to pass legislation that forbids designated social media platforms from discriminating against users and content onthebasis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats andtheintentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content.

Congress hastheconstitutional authority to enact such legislation, and it has exercised this authority inthepast. Starting in 1949, through what became known asthefairness doctrine,theFederal Communication Commission (FCC) required broadcast licensees to discuss controversial issues of public importance and to ensuretheexpression of contrasting viewpoints. IntheCommunications Act of 1959, Congress explicitly acknowledged the obligation of broadcasters to operate inthepublic interest and to afford reasonable opportunity forthediscussion of conflicting views on issues of public importance.

TheSupreme Court upheldtheconstitutionality ofthefairness doctrine in Red Lion Broadcasting Co. v. FCC (1969). TheCourt held thattheFirst Amendment does not preventthegovernment from requiring a broadcast licensee to conduct itself as a fiduciary with obligations to present views and voices that are representative of its community. Otherwise, broadcasters would have unfettered power to communicate onlytheviews of those with whom they agreed.

In Red Lion and subsequent cases,theSupreme Court has said thatthegovernment can regulatethespeech of broadcasters so long as its action is substantially related to achieving an important government purpose. For example, in Turner Broadcasting System v. FCC (1997),theCourt rejected a First Amendment challenge tothemust carry provisions oftheCable Act of 1992, which forced cable television providers to dedicate some of their channels to local broadcast television stations. In doing so,theCourt recognizedtheneed to promotethedissemination of information from multiple sources in order to counteractthemonopoly power of cable companies.

Based on these cases, a nondiscrimination doctrine applied to technology platforms with monopoly power should also be upheld.TheRed Lion decision rests in part onthescarcity ofthebroadcast spectrum, but private monopoly power over speech exists not only whenthegovernment grants a broadcast license, but also when a social media platform dominates public discourse. In truth,thepower that platforms such as Twitter and Facebook possess is far greater than that of individual broadcasters who compete with one another as well as with satellite and cable networks.

A federal law preventing social media companies from discriminating onthebasis of political views would enhance free speech by preventing monopoly suppression of particular views, thereby ensuring that competing voices are heard over social media. Such a provision would be narrowly tailored because it requires only that platforms refrain from censoring speech onthebasis of its political content. In contrast, underthefairness doctrine, broadcast licensees were required to identify issues of public importance and present contrasting viewpoints. These aspects ofthefairness doctrine have been criticized, but a nondiscrimination doctrine does not require identifying and promoting particular views.

Finally, social media platforms do not and should not receivethesame protections affordedthepress. In Miami Herald v. Tornillo (1974),theSupreme Court invalidated a Florida law that granted political candidatestheright to reply to attacks on their record by a newspaper because it infringed onthe newspapers editorial freedom. However, under Section 230 oftheCommunications Decency Act of 1996, providers of an interactive computer service are not publishers or speakers of third-party content provided on their service. Unlike newspapers, social media platforms are immune from lawsuits that arise from that content.

Free speech is threatened by both public and private censorship. But existing laws do little to limittheawesome power of todays social media monopolies to silencethespeech of whoever they oppose. By preventing social media platforms from discriminating, Congress can keep faith withtheFirst Amendment while ensuring that private monopolies do not controlthepublic sphere.

PrasadKrishnamurthy is a professor at the University of California, Berkeley School of Law. Erwin Chemerinsky is dean and a professor at the University of California, Berkeley School of Law.

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How Congress can prevent Big Tech from becoming the speech police | TheHill - The Hill