With every censored post, suspended account, or banned user, conservative and liberal populists renew their calls to regulate social media giants. They often make arguments from a monopolistic standpoint, that Big Tech companies have grown so large as to constitute public forums and, therefore, users have a constitutional right to access platforms free from viewpoint discrimination.
To an extent, they are right. A few social media companies have captured the lion’s share of the marketplace, and online influence is almost entirely dependent on access to Twitter, Instagram, Facebook, and YouTube. Big Tech critics argue that platform access is a civil right to the extent a user doesn’t engage in unlawful or unprotected speech. If denied access, they think a user ought to be able to obtain an injunction from a court and perhaps be awarded statutory damages.
The merits of this legal argument aside, I’d like to offer another approach that doesn’t require making a tenuous and debateable First Amendment claim.
But first, we have to acknowledge that the economic gains from the relationship between social media companies and users is pretty one-sided.
On the one hand, users have the benefit of free services which allow them to post photos, videos, and thoughts for their friends, family, and other followers. In rare cases, users can gain fame and wealth from large followings. Brands and companies also receive the benefit of free (in most cases) advertising on platforms.
Yet on the other hand, social media giants profit from users, both from advertising dollars as well as the acquisition and sale of personal information. This means social media companies profit off individual users at a rate severely disproportionate to any benefit users derive. It’s clear, for instance, that aggregating data on millennials is more lucrative for companies than it is beneficial for millennials to be able to post online.
However, social media services are free, and individuals agree to companies’ terms of use. So, theoretically, we know what we are agreeing to with this inequity.
But what about when a conservative’s speech on social media is limited, censored, or entirely banned? Social media companies already possess all the data from the user, as well as the information from the engagement of other users with the banned or censored user’s content.
It’s unlikely social media companies would be unable to eliminate the information they gained from such a user after the fact. This means that long after the contractual relationship between said user and social media companies has ended, these giants still profit off a user who has been banned or otherwise censored.
There are numerous principles of law that could provide standing for an individual in such a situation to sue a social media company for platform access, or at least enjoin a social media company from profiting off a user after censorship.
First, states could allow standing for ill-gotten gains from a user’s data after being banned. If a user’s data was sold after being banned or if discussion of a banned user drove traffic that led to a social media giant profiting, that ought to be considered an illegal gain since the contractual benefit a user possessed by access has been terminated.
Second, from a privacy standpoint, states could enact legislation that requires social media companies to essentially buy a user out if censored or banned in order to forfeit privacy. There is no evidence to indicate social media companies purge all information on deplatformed users.
And, since they don’t, a banned user should be compensated.
Social media access is necessary for social relevance. If social media companies choose to ban or censor posts that aren’t unlawful, they ought to be forced to compensate users for gains received after the user no longer enjoys the benefit of such a service. Balancing the economic outcomes of users and social media companies will increase openness and encourage more speech while diminishing privacy abuses.
Tyler Grant is an attorney and freelance writer.
