Social Media Platforms as Public Trustees: An Approach to the Disinformation Problem

Abstract

This paper explores relevant precedent for disinformation-related regulation in the U.S. media sector; and then considers whether the underlying rationale that justified such regulation is relevant to the social media context. Specifically, this paper considers whether the public trustee governance model that applies to broadcasting in the U.S. might be applicable in the social media context; and whether the type of disinformation-related regulations that have accompanied this public trustee model might therefore be feasible within the social media context as well. The first section of this paper provides an overview of the current legal and policymaking environment, briefly considering the status of disinformation from a First Amendment standpoint, and current policy initiatives that may directly or indirectly impact the degree of disinformation produced, disseminated, and consumed on social media platforms. The second section reviews some little-known media regulations that directly address disinformation – the Federal Communications Commission’s broadcast hoax and news distortion rules. The third section reviews the regulatory rationales upon which these rules are premised. The fourth section considers whether one of these rationales – the idea of broadcasters as trustees of a public resource – should apply to social media platforms, and the implications of thinking about social media platforms as public trustees, for the viability of some form of disinformation-related government intervention. The fifth section offers some thoughts on the appropriate scope and limitations for this public trustee model. The concluding section considers possible next steps for formalizing this public trustee model and its associated public interest obligations.