Legal scholar Cass R. Sunstein, Asharq Al-Awsat, January 17, 2021, argues that the government can help regulate the social media without censorship. He notes that under the First Amendment there is speech that is not protected, lies and false information that cause serious harm. He suggests that warnings could be attached to lies, “This statement is FALSE.” Governments might consider building on existing approaches, says Sunstein, perhaps by enacting into law the best social media practices, and thus requiring their widespread adoption.
Emily Bazelon, The New York Times, January 26, 2021, says the January insurrection was aided by open and free forums. “And while Americans’ freedoms of speech and the press were vital to exposing this assault,” she wrote, “they were also among its causes. Right-wing media helped seed destabilizing lies; elected officials helped them grow; and the democratizing power of social media spread them, steadily, from one node to the next.” “We are uncomfortable with government doing it [regulating speech]; Bazelon continues, “we are uncomfortable with Silicon Valley doing it. But we are also uncomfortable with nobody doing it at all. This is a hard place to be — or, perhaps, two rocks and a hard place.” Some kind of regulation may be possible. There is precedent for intervening to protect democracy while allowing free speech, namely, the fairness policy adopted for the broadcasting industry in 1949.