[Cross-posted from Medium.]

In an age of hyper-partisanship, one issue unites the warring tribes of American politics like no other: hatred of “Big Tech.” You know, those evil bastards who gave us instantaneous access to a universe of information at little to no cost. Those treacherous villains! People are quick to forget the benefits of moving from a world of Information Poverty to one of Information Abundance, preferring to take for granted all they’ve been given and then find new things to complain about.

But what mostly unites people against large technology platforms is the feeling that they are just too big or too influential relative to other institutions, including government. I get some of that concern, even if I strongly disagree with many of their proposed solutions, such as the highly dangerous sledgehammer of antitrust breakups or sweeping speech controls. Breaking up large tech companies would not only compromise the many benefits they provide us with, but it would undermine America’s global standing as a leader in information and computational technology. We don’t want that. And speech codes or meddlesome algorithmic regulations are on a collision course with the First Amendment and will just result in endless litigation in the courts.

There’s a better path forward. As President Ronald Reagan rightly said in 1987 when vetoing a bill to reestablish the Fairness Doctrine, “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.” In other words, as I wrote in a previous essay about “The Classical Liberal Approach to Digital Media Free Speech Issues,” more innovation and competition are always superior to more regulation when it comes to encouraging speech and speech opportunities.

Can Government Get Things Just Right?

But what about the accusations we hear on both the left and right about tech companies failing to properly manage or moderate online content in some fashion? This is not only a concern for today’s most popular social media platforms, but it is a growing concern for the so-called Metaverse, where questions about content policies already surround activities and interactions on AR and VR systems.

The problem here is that different people want different things from digital platforms when it comes to content moderation. As I noted in a column for The Hill late last year:

there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

Thus, large digital intermediaries are expected to make all the problems of the world go away through a Goldilocks formula whereby digital platforms will get content moderation “just right.” It’s an impossible task with billions of voices speaking. Bureaucrats won’t do a better job refereeing these disputes, and letting them do so will turn every content spat into an endless regulatory proceeding.

What Algorithms Can and Cannot Do to Help

But we should be clear on one thing: These disputes will always be with us because every media platform in history has had some sort of content moderation policies, even if we didn’t call them that until recently. Creating what used to just be called guidelines or standards for information production and dissemination has always been a tricky business. But the big difference between the old and new days comes down to three big problems:

#1- the volume problem: There’s just a ton of content online to moderate today compared to the past.

#2- the subjectivity problem: Content moderation always involves “eye of the beholder” questions, but now there’s even more of those problems because of Problem #1.

#3- the crafty adversaries problem: There are a lot of people bound and determined to get around any rules or restrictions platforms impose, and they’ll find creative ways to do so.

These problems are nicely summarized in an excellent new AEI report by Alex Feerst on, “The Use of AI in Online Content Moderation.” This is the fifth in a series of new reports from the AEI’s Digital Platforms and American Life project. The goal of the project is to highlight how the “democratization of knowledge and influence comes with incredible opportunities but also immense challenges. How should policymakers think about the digital platforms that have become embedded in our social and civic life?” Various experts have been asked to sound off on that question and address different challenges. The series kicked off in April with an essay I wrote on “Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium.” More studies are coming.

In Feerst’s new report, the focus is squarely on the issue of algorithmic content moderation policies and procedures. Feerst provides a brilliant summary of how digital media platforms currently utilize AI to assist their content moderation efforts. He notes:

The short answer to the question “why AI” is scale — the sheer never-ending vastness of online speech. Scale is the prime mover of online platforms, at least in their current, mainly ad-based form and maybe in all incarnations. It’s impossible to internalize the dynamics of running a digital platform without first spending some serious time just sitting and meditating on the dizzying, sublime amounts of speech we are talking about: 500 million tweets a day comes out to 200 billion tweets each year. More than 50 billion photos have been uploaded to Instagram. Over 700,000 hours of video are uploaded to YouTube every day. I could go on. Expression that would previously have been ephemeral or limited in reach under the existing laws of nature and pre-digital publishing economics can now proliferate and move around the world. It turns out that, given the chance, we really like to hear ourselves talk.

So that’s the scale/volume problem in a nutshell. Algorithmic systems are absolutely going to be needed to help do some sifting and sorting, therefore.

What Do You Want to Do about Man-Boobs?

But then we immediately run into the subjectivity problem that pervades so many content moderation issues. When it comes to topics like hate speech, “There will be as many opinions as there are people. Three well-meaning civic groups will agree on four different definitions of hate speech,” Feerst notes.

Indeed, these eye-of-the-beholder judgment calls are ubiquitous and endlessly frustrating for content moderators. Let me tell you a quick story I told a Wall Street Journal reporter who asked me in 2019 why I gave up helping tech companies figure out how to handle these content moderation controversies. I had spent many years trying to help companies and trade associations figure this stuff out because I had been writing about these challenges since the late 1990s. But then finally I gave up. Why? Because of man boobs. Yes, man boobs. Here’s the summary of my story from that WSJ article:

Adam Thierer, a senior research fellow at the right-leaning Mercatus Center at George Mason University, says he used to consult with Facebook and other tech companies. The futility of trying to please all sides hit home after he heard complaints about a debate at YouTube over how much skin could be seen in breast-feeding videos.

While some argued the videos had medical purposes, other advisers wondered whether videos of shirtless men with large mammaries should be permitted as well. “I decided I don’t want to be the person who decides on whether man boobs are allowed,” says Mr. Thierer.

No, seriously. This has been one of the many crazy problems that content moderators have had to deal with. There are scumbag dudes with large mammaries who not only salaciously jiggle them around on camera for the world to see, but then even put whipped cream on their own boobs and lick it off. Now, if a woman does that and posts it on almost any mainstream platform, it’ll get quickly flagged (probably by an algorithmic filter) and probably immediately blocked. But if a dude with man boobs does the same thing, shouldn’t the policy be the same? Well, in our still very sexist world of double standards, policies can vary on that question. And I didn’t want any part of trying to figure out an answer to that question (and others like it), so I largely got out of the business of helping companies do so. Not even King Solomon could figure out a fair resolution to some of this stuff.

Algorithms can only help us so much here because, at some point, humans must tell the machines what to flag or block using some sort of subjective standard that will lead to all sorts of problems later. This is one reason why Feerst reminds us of another important rule here: “Don’t confuse a subjectivity problem for an accuracy problem, especially when you’re using automation technology.” As he notes:

If the things we’re doing are controversial among humans and it’s not even clear that humans judge them consistently, then using AI is not going to help. It’s just going to allow you to achieve the same controversial outcomes more quickly and in greater volume. In other words, if you can’t get 50 humans to agree on whether a particular post violates content rules, whether that content rule is well formulated, or whether that rule should exist, then why would automating this process help?

So Many Troublemakers (Sometimes Accidental)

The man boobs moderation story also reminds us that the crafty adversary problem will always haunt us, too. There are just so many bastards out there looking to cause trouble for whatever reason. “There will never be ‘set it and forget it’ technologies for these issues,” Feerst argues. “At best, it’s possible to imagine a state of dynamic equilibrium — eternal cops and robbers.”

That is exactly right. It’s a never-ending learning/coping process, as I noted in my earlier paper in the AEI series: “There is no Goldilocks formula that can get things just right” when it comes to many tech governance issues, especially content moderation issues. Muddling through is the new normal. And the exact same process is now unfolding for Metaverse content moderation. Algorithmic moderation helps us weed out the worst stuff and gives us a better chance of letting humans — with their limited time and resources — deal with the hardest problems (and problem-makers) out there.

Sometimes the content infractions may even be accidental. Here’s another embarrassing story involving me. I was asked last year to sit in on a VR meeting about content moderation in the Metaverse. I was wearing my headset and sitting at a virtual table with about 8 other people in the room. Back in my real-world office, I had my coffee mug sitting far to the right of me on a side table. After about 45 minutes of discussion, I realized that every time I reached way over to my right to grab my coffee mug in the real-world, my virtual self’s hand was reaching over and touching the crotch of the guy sitting next to me in the Metaverse! It looked like I was fondling the dude virtually! What a nightmare. I’m surprised someone didn’t report me for virtual harassment. I would have had to plead the coffee mug defense and throw myself on the mercy of the Meta-Court judge or jury.

Ok, so that’s a funny story, but you can imagine little mistakes like this happening all throughout the Metaverse as we slowly figure out how to interact normally in new virtual environments. We’ll have to rely on users and algorithms flagging some of the worst behaviors and then have humans evaluate the tough calls to the best of their abilities. But let’s not be fooled into thinking that humans can handle all these questions because the task at hand is too overwhelming and expensive for many platform operators. “Ten thousand employees here, ten thousand ergonomic mouse pads there, and pretty soon we’re talking about real money,” Feerst notes. “This is what the cost of running a platform looks like, once you’ve internalized the harmful and inexorable externalities we’ve learned about the hard way over the past decade.”

The Problem with “Explainability”

The key takeaway here is that content moderation at scale is messy, confusing, and unsatisfying. Do platforms need to be more transparent about how their algorithms work to do this screening? Yes, they do. But perfect transparency or “explainability” is impossible.

It’s hard to perfectly explain how algorithms work for the same reason it’s hard for your car mechanic to explain to you exactly how your car engine works. Except it’s even harder with algorithmic systems. As Feerst notes:

AI outputs can be hard to explain. In some cases, even the creators or managers of a particular product are no longer sure why it is functioning a particular way. It’s not like the formula to Coca-Cola; it’s constantly evolving. Requirements to “disclose the algorithm” may not help much if it means that companies will simply post a bunch of not especially meaningful code.

And if explainability was mandated by law, it’d instantly be gamed by still other troublemakers out there. A mandate to make AI perfectly transparent is an open invitation to every scam artist in the world to game platforms with new phishing attacks, spammy scams, and other such nonsense. Again, this is the “crafty adversaries” problem at work. Endless cat-and-mouse or, as Feerst says “eternal cops and robbers.”

So, in sum, content moderation — including algorithmic content moderation — is a nightmarishly difficult task, and there is no Goldilocks formula available to us that will help us get things just right. It’ll always just be endless experimentation and iteration with lots and lots of failures along the way. Learning by doing and constantly refining our systems and procedures is the key to helping us muddle through.

And if you think government will somehow figure this all out through some sort of top-down regulatory regime, ask yourself how well that worked out for Analog Era efforts to create “community standards” for broadcast radio and television. And then multiply that problem by a zillion. It cannot be done without severely undermining free speech and innovation. We don’t want to go down that path.

____________

Additional Reading

· “Again, We Should Not Ban All Teens from Social Media”

· “The Classical Liberal Approach to Digital Media Free Speech Issues”

· “AI Eats the World: Preparing for the Computational Revolution and the Policy Debates Ahead”

· “Left and right take aim at Big Tech — and the First Amendment“

· “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“

· “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“

· “Conservatives & Common Carriage: Contradictions & Challenges“

· “The Great Deplatforming of 2021“

· “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“

· “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“

· “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“

· “Sen. Hawley’s Moral Panic Over Social Media“

· “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“

· “The Not-So-SMART Act“

· “The Surprising Ideological Origins of Trump’s Communications Collectivism“

I have been covering telecom and Internet policy for almost 30 years now. During much of that time – which included a nine year stint at the Heritage Foundation — I have interacted with conservatives on various policy issues and often worked very closely with them to advance certain reforms.

If I divided my time in Tech Policy Land into two big chunks of time, I’d say the biggest tech-related policy issue for conservatives during the first 15 years I was in the business (roughly 1990 – 2005) was preventing the resurrection of the so-called Fairness Doctrine. And the biggest issue during the second 15-year period (roughly 2005 – present) was stopping the imposition of “Net neutrality” mandates on the Internet. In both cases, conservatives vociferously blasted the notion that unelected government bureaucrats should sit in judgment of what constituted “fairness” in media or “neutrality” online.

Many conservatives are suddenly changing their tune, however. President Trump and Sen. Ted Cruz, for example, have been increasingly critical of both traditional media and new tech companies in various public statements and suggested an openness to increased regulation. The President has gone after old and new media outlets alike, while Sen. Cruz (along with others like Sen. Lindsay Graham) has suggested during congressional hearings that increased oversight of social media platforms is needed, including potential antitrust action.

Meanwhile, during his short time in office, Sen. Josh Hawley (R-Mo.) has become one of the most vocal Internet critics on the Right. In a shockingly-worded USA Today editorial in late May, Hawley said, “social media wastes our time and resources” and is “a field of little productive value” that have only “given us an addiction economy.” He even referred to these sites as “parasites” and blamed them for a long list of social problems, leading him to suggest that, “we’d be better off if Facebook disappeared” along with various other sites and services.

Hawley’s moral panic over social media has now bubbled over into a regulatory crusade that would unleash federal bureaucrats on the Internet in an attempt to dictate “fair” speech on the Internet. He has introduced an astonishing piece of legislation aimed at undoing the liability protections that Internet providers rely upon to provide open platforms for speech and commerce. If Hawley’s absurdly misnamed new “Ending Support for Internet Censorship Act” is implemented, it would essentially combine the core elements of the Fairness Doctrine and Net Neutrality to create a massive new regulatory regime for the Internet.

The bill would gut the immunities Internet companies enjoy under 47 USC 230 (“Section 230”) of the Communications Decency Act. Eric Goldman of the Santa Clara University School of Law has described Section 230 as the “best Internet law” and “a big part of the reason why the Internet has been such a massive success.” Indeed, as I pointed out in a Forbes column on the occasion of its 15^th anniversary, Section 230 is “the foundation of our Internet freedoms” because it gives online intermediaries generous leeway to determine what content and commerce travels over their systems without the fear that they will be overwhelmed by lawsuits if other parties object to some of that content.

The Hawley bill would overturn this important legal framework for Internet freedom and instead replace it with a new “permissioned” approach. In true “Mother-May-I” style, Internet companies would need to apply for an “immunity certification” from the FTC, which would undertake investigations to determine if the petitioning platform satisfied a “requirement of politically unbiased content moderation.”

The vague language of the measure is an open invitation to massive political abuse. The entirety of the bill hinges upon the ability of Federal Trade Commission officials to define and enforce “political neutrality” online. Let’s consider what this will mean in practice.

Under the bill, the FTC must evaluate whether platforms have engaged in “politically biased moderation,” which is defined as moderation practices that are supposedly, “designed to negatively affect” or “disproportionately restricts or promote access to … a political party, political candidate, or political viewpoint.” As Blake Reid of the University of Colorado Law School rightly asks, “How, exactly, is the FTC supposed to figure out what the baseline is for ‘disproportionately restricting or promoting’? How much access or availability to information about political parties, candidates, or viewpoints is enough, or not enough, or too much?”

There is no Goldilocks formula for getting things just right when it comes to content moderation. It’s a trial-and-error process that is nightmarishly difficult because of the endless eye-of-the-beholder problems associated with constructing acceptable use policies for large speech platforms. We struggled with the same issues in the broadcast and cable era, but they have been magnified a million-fold in the era of the global Internet with the endless tsunami of new content that hits our screens and devices every day. “Do we want less moderation?” asks Sec, 230 guru Jeff Kosseff. “I think we need to look at that question hard.  Because we’re seeing two competing criticisms of Section 230,” he notes. “Some argue that there is too much moderation, others argue that there is not enough.”

The Hawley bill seems to imagine that a handful of FTC officials will magically be able to strike the right balance through regulatory investigations. That’s a pipe dream, of course, but let’s imagine for a moment that regulators could somehow sort through all the content on message boards, tweets, video clips, live streams, gaming sites, and whatever else, and then somehow figure out what constituted a violation of “political neutrality” in any given context. That would actually be a horrible result because let’s be perfectly clear about what that would really be: It would be a censorship board. By empowering unelected bureaucrats to make decisions about what constitutes “neutral” or “fair” speech, the Hawley measure would, as Elizabeth Nolan Brown of Reason summarizes, “put Washington in charge of Internet speech.” Or, as Sen. Ron Wyden argues more bluntly, the bill “will turn the federal government into Speech Police.” “Perhaps a more accurate title for this bill would be ‘Creating Internet Censorship Act,'” Eric Goldman is forced to conclude.

The measure is creating other strange bedfellows. You won’t see Berin Szoka of TechFreedom and Harold Feld of Public Knowledge ever agreeing on much, but they both quickly and correctly labelled Hawley’s bill a “Fairness Doctrine for the Internet.” That is quite right, and much like the old Fairness Doctrine, Hawley’s new Internet speech control regime would be open to endless political shenanigans as parties, policymakers, companies, and the various complainants line up to have their various political beefs heard and acted upon. “That’s the kind of thing Republicans said was unconstitutional (and subject to FCC agency capture and political manipulation) for decades,” says Daphne Keller of the Stanford Center for Internet & Society. Moreover, during the Net Neutrality holy wars, GOP conservatives endlessly blasted the notion that bureaucrats should be determining what constitute “neutrality” online because it, too, would result in abuses of the regulatory process. Yet, Sen. Hawley’s bill would now mandate that exact same thing.

What is even worse is that, as law professor Josh Blackman observes, “the bill also makes it exceedingly difficult to obtain a certification” because applicants need a supermajority of 4 of the 5 FTC Commissioners. This is public choice fiasco waiting to happen. Anyone who has studied the long, sordid history of broadcast radio and television licensing understands the danger associated with politicizing certification processes. The lawyers and lobbyists in the DC “swamp” will benefit from all the petitioning and paperwork, but it is not clear how creating a regulatory certification regime for Internet speech really benefits the general public (or even conservatives, for that matter).

Former FTC Commissioner Josh Wright identifies another obvious problem with the Hawley Bill: it “offers the choice of death by bureaucratic board or the plaintiffs’ bar.” That’s because by weakening Sec. 230’s protections, Hawley’s bill could open the floodgates to waves of frivolous legal claims in the courts if companies can’t get (or lose) certification. The irony of that result, of course, is that this bill could become a massive gift to the tort bar that Republicans love to hate!

Of course, if the law ever gets to court, it might be ruled unconstitutional. “The terms ‘politically biased’ and ‘moderation’ would have vagueness and overbreadth problems, as they can chill protected speech,” Josh Blackman argues. So it could, perhaps, be thrown out like earlier online censorship efforts. But a lot of harm could be done—both to online speech and competition—in the years leading up to a final determination about the law’s constitutionality by higher courts.

What is most outrageous about all this is that the core rationale behind Hawley’s effort—the idea that conservatives are somehow uniquely disadvantaged by large social media platforms—is utterly preposterous. In May, the Trump Administration launched a “tech bias” portal which “asked Americans to share their stories of suspected political bias.” The portal is already closed and it is unclear what, if anything, will come out of this effort. But this move and Hawley’s proposal point to the broader trend of conservatives getting more comfortable asking Big Government to redress imaginary grievances about supposed “bias” or “exclusion.”

In reality, today’s social media tools and platforms have been the greatest thing that ever happened to conservatives. Mr. Trump owes his presidency to his unparalleled ability to directly reach his audience through Twitter and other platforms. As recently as June 12, President Trump tweeted, “The Fake News has never been more dishonest than it is today. Thank goodness we can fight back on Social Media.” Well, there you have it!

Beyond the President, one need only peruse any social media site for a few minutes to find an endless stream of conservative perspectives on display. This isn’t exclusion; it’s amplification on steroids. Conservatives have more soapboxes to stand on and preach than ever before in the history of this nation.

Finally, if they were true to their philosophical priors, then conservatives also would not be insisting that they have any sort of “right” to be on any platform. These are private platforms, after all, and it is outrageous to suggest that conservatives (or any other person or group) are entitled to have a spot on any other them.

Some conservatives are fond of ridiculing liberals for being “snowflakes” when it comes to other free speech matters, such as free speech on college campuses. Many times they are right. But one has to ask who the real snowflakes are when conservative lawmakers are calling on regulatory bureaucracies to reorder speech on private platform based on the mythical fear of not getting “fair” treatment. One also cannot help but wonder if those conservatives have thought through how this new Internet regulatory regime will play out once a more liberal administration takes back the reins of power. Conservatives will only have themselves to blame when the Speech Police come for them.

Addendum: Several folks have pointed out another irony associated with Hawley’s bill is that it would greatly expand the powers of the administrative state, which conservatives already (correctly) feel has too much broad, unaccountable power. I should have said more on that point, but here’s a nice comment from David French of National Review, which alludes to that problem and then ties it back to my closing argument above: i.e., that this proposal will come back to haunt conservatives in the long-run:

when coercion locks in — especially when that coercion is tied to constitutionally suspect broad and vague policies that delegate immense powers to the federal government — conservatives should sound the alarm. One of the best ways to evaluate the merits of legislation is to ask yourself whether the bill would still seem wise if the power you give the government were to end up in the hands of your political opponents. Is Hawley striking a blow for freedom if he ends up handing oversight of Facebook’s political content to Bernie Sanders? I think not.

Additional thoughts on the Hawley bill:

Josh Wright

Daphne Keller

Blake Reid

TechFreedom

Josh Blackman

Sen. Ron Wyden

Jeff Kosseff

Eric Goldman

CCIA

NetChoice

Internet Association

David French at National Review

John Samples

I got some feedback from readers about my post last night regarding the irony of the FCC’s newly-created MySpace page containing some rather vulgar user comments. I wondered if the agency would continue to allow such comments when the agency regulates similar words when they are uttered on broadcast TV or radio.  A few people asked me why the agency hasn’t bother using the comment management tools that MySpace puts at the public’s disposal.  It’s a good question, and actually I’m not sure why they didn’t do that right from the start.  Perhaps the agency is concerned about being accused of censoring public comment. [Incidentally, the White House and some federal agencies have MySpace pages, so perhaps I need to look into how those agencies manage comments.]

Regardless, the FCC now has taken steps to deal with this. John Eggerton of Broadcasting & Cable and Kim Hart of The Hill point out that the agency has removed some vulgar comments on their MySpace page (namely, any comment with the F-bomb in it).  And I assume the agency is now taking steps to screen comments going forward. For those who are not aware, MySpace empowers users (including government agencies if they choose to set up profiles) to require approval before new comments appear on their profiles (accessed by clicking “My Account” and then “Spam”).  Here are the options:

Moreover, I should also mention that if people want to see the FCC’s MySpace profile but don’t want to see all the comments, they can always change their default view to MySpace’s “Lite View,” which hides all comments, third party applications, and some other sections of a page. To switch to Lite View, click on “My Account” in the upper-right corner of any MySpace page, then click on “Miscellaneous” to access the Default View setting. It’s another nice way that MySpace empowers users to control their site experience.

Regardless, this will be a difficult issue for federal agencies to manage going forward. If agencies are going to take the plunge and boldly enter the social networking world, they’ll need to understand that the vibrant exchange of views will sometimes entail some salty language and occasional insults.  Yet, when they take steps to deal with some of the most offensive comments posted on their pages, accusations of censorship are bound to fly. It’s a tough position for agencies to be in since they want to encourage maximum public interaction and input, and yet some of that input is bound to get heated, even ugly.

So, here are some questions that both agencies and policy wonks will need to consider going forward. Will government agency profiles on social networking sites be considered “public forums” under traditional First Amendment jurisprudence?  While there are important limits on how government can regulate the “time, place, and manner” of speech on government property, the Supreme Court has allowed government-run schools to regulate the use of profanity to some extent. It probably makes sense for government agencies to have the discretion under the First Amendment to impose some basic ground rules on the use of profanity comments on their social networking profiles, as well as on the kinds of crowd-sourcing discussion platforms that the Obama administration has been experimenting with.  Most agencies already have some policies in place for public comments directly to their websites. And yet, with a little effort, one can find the same sort of profanity in comments submitted to the FCC’s own website. But social networking sites are much easier to use than the FCC’s existing Electronic Comment Filing System.  They’re easier to use in two respects: It’s easier for people to submit comments, and it’s easier for others to see those comments. So that’s why government agencies would be well-advised to establish and publish clear ground rules for online comments.

But even with posting guidelines in place, there are other sticky questions here, especially for the FCC. As Broadcasting & Cable’s John Eggerton points out, the agency does have moderation policies for its other sites, but those policies raise still more questions because of positions the FCC has taken in court on other First Amendment matters:

“We have moderation policies for blog and Ideascale comments,” said an FCC spokesman, “and are applying those principles to MySpace while we draft a moderation policy specific to that site.” The Blogband moderation policy excludes “slurs; abusive or obscene language,” so profanity of the S- and F-word varieties could fall under that prohibition. But a check of the moderation policy for Ideascale, a crowd-sourcing site the FCC is employing for comments on policies and proposals, revealed the following: “Comments which include any of the following may be removed from the public site: Threats or incitements to violence; Obscenity; Duplicate posts; Posts revealing your own or others’ sensitive/personal information (e.g., Social Security numbers); Information posted in violation of law, including libel, condoning or encouraging illegal activity, revealing classified information, or comments which might affect the outcome of ongoing legal proceedings; Promotion of commercial services or products; Spam.” Hmmm. That creates another potential problem. The only category a post simply containing the F-word would seem to fit in is “obscenity.” But, as First Amendment attorneys will tell you, obscenity in content control terms is a legal definition for speech that is totally unprotected. If the FCC is suggesting cursing is obscene in the legal sense, then it is wholly unprotected and could be banished entirely from the online waves and from the airwaves, too, safe harbor be doggoned.

In other words, we’re back to the legal fight we’ve been having in court for decades about the meaning of terms like “indecency,” “obscenity,” and so on.  The FCC is going to be walking a bit of legal tightrope here, and other agencies will likely encounter similar problems in the future.

If readers are aware of how other agencies or government officials are dealing with this, I’d appreciate your comments below.  I have not studied this issue that closely in the past, but plan to do so now.