This is post #8 of a multi-part series.

In Part 7 of his paper “How to regulate (and not regulate) social media“, Professor Jack Balkin considers two alternatives to direct social media regulation: (1) the creation of a state-owned social media platform, and (2) turning social media and search engines into public utilities, like water and power companies. To his credit, Prof Balkin quickly rejects these two alternatives.

In brief, the main problem with a state-owned social media platform is that, unlike private companies like Facebook and Twitter, state actors must provide a hearing before taking any adverse action against a user, a requirement that would make content moderation costly and time-consuming. Worse yet, a state-run platform would not be able to censor hate speech, since courts have ruled that hate speech is protected speech under the First Amendment.

What about the public utility model? According to Balkin (p. 87), if social media platforms and search engines were converted into public utilities, they “would give up advertising altogether and simply provide access and content moderation services in return for a fixed monthly subscription fee.” The problem with this solution, however, is that Balkin fears that this option might have the effect of reducing the overall number of social media platforms, depending on the price elasticity of the subscription fee. Today, I can use any number of social media services for free, but if I had to pay to use a social media platform, I might cut down on my use of social media. (But would that be such a bad thing?)

For my part, I am more open to the public utility model because, in reality, social media is not “free”. In exchange for the right to post pictures and connect with “friends” on any given social media platform, the user is granting the owner of the platform the right to use the data generated by his use of the platform. Personally, I would rather pay a subscription fee and keep the rights to my data. Also, the subscription fee could be a modest one, perhaps as little $1/month, considering the large number of users many social media companies have.

Note: I will review the last two parts of Balkin’s paper (Parts 8 to 9) in my next post.