Shoptalk: If Social Media Sites Acted Like Publishers, Fake News Would Vanish


What was meant as a legal provision to help the internet grow two decades ago has instead turned cyberspace into a Wild West of fake news, coarse, unrestrained and destructive commentary, and now a platform for our foreign adversaries to spread propaganda that threatens to undermine our very democracy.

Ironically, the provision was slipped into something called the “Communications Decency Act,” which was supposed to effectively ban obscenity and pornography from websites. The main intent of the law obviously failed, as any cursory search for porn on the web can attest.

What did work was the unintended consequences of another provision of the 1992 act, which declared internet web platforms free of the rational restraints that editors and publishers bring to more conventional print platforms, such as magazines and newspapers. Specifically, operators of internet services were not to be construed as publishers, thus not legally responsible for the posts of third parties who used their services.

The result is something economists would call “moral hazard,” a system so designed as to encourage, rather than discourage, irrational, unethical and destructive behavior in doing business. So long as internet website operators refrained from exercising too much control over the dangerous drivel that people posted on their sites, they’d be held harmless for any damage it caused. With no fear of libel or slander or other constraints on the public’s discourse, website operators could collect all the advertising revenue their sites would generate, but without the responsibility of legal and social norms that hitherto balanced First Amendment freedom of speech with professional editing of the content.

In essence, anything goes on the internet, no matter who or what it hurts or harms, even if our enemies can use the loophole to undermine our elections.

At traditional media outlets—such as newspapers that developed their own news websites—the hold-harmless provision produced the paradoxical behavior of editors and publishers maintaining one standard of truth and responsibility in their print versions but a more hands-off policy for their online, reader-generated commentary on their complementing websites. So long as editors didn’t apply too many of their tried-and-true methods, they’d be free of a publisher’s responsibility to check out and confirm public comments on the news.

On internet platforms based entirely on reader interactive postings—think Facebook and Twitter—there is no other content besides the third-party posts their members provide, thus, there’s virtually no editorial judgment applied.

They’ll say they’ll try to police the situation, but the more they police content, the closer they become to being publishers, ultimately responsible for the content. Public content websites are unlikely to do that so long as the protectionist law gives them a free ride if they don’t.

Anything goes in this electronic Wild West, and we’ve by and large eliminated the sheriffs and marshals (editors and publishers) who once upon a time rode herd on the unruly cowboys who ride roughshod through town, shooting out the lights of truth, honesty and responsibility in our alternate online community.

We’ve written our own tombstone epitaph.

Randolph D. Brandt was an editor at newspapers in six states, including serving as editor of the Journal Times in Racine, Wis., before his retirement in 2007. He began his journalism career as a news reporter with his hometown newspaper, the Vineland Times Journal, in New Jersey. This article was originally published in the Dallas Morning News.


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