The social media site Facebook is criticized by the Speaker of the House for not taking down an altered video of her; she says this is a sign that Facebook was cooperating with the Russians in 2016.¹ A deepfake² video of Mark Zuckerberg appears to show him talking about amassing power.³ YouTube attempts to remove thousands of videos pushing extreme views.⁴ The former President of the United States regularly criticizes Twitter.⁵ In times of crisis, there are claims for fake cures of the Coronavirus, or conflicting reports of who is responsible for the initial spread of the virus.⁶ The controversies surrounding speech on social or digital media arise almost daily, perhaps hourly, perhaps even more often.

Shouldn’t something be done about the media that gets out of line? Shouldn’t something be done to protect people? Shouldn’t something be done to keep other countries from interfering with our elections? Perhaps. But while the law is good at regulating the flow of traffic on roadways, the enforcement of commercial contracts, determining what constitutes a crime, and numerous other more clearly defined subjects, it has largely been failed at adequately regulating speech—especially political speech.

The marketplace for speech is full of diverse actors not subject to government control and located worldwide. When a platform like Twitter bans the account of the President of the United States,⁷ it is taking independent action that is not subject to government control. What it is subject to, however, are the various market forces that affect speech, from the economic marketplace to the reputational marketplace. The impact of these factors, among others, is a sign that individuals and markets are good at adapting to change and that the government is not the appropriate regulator of twenty-first century speech.

But do social media platforms have too much power? When it comes to political speech, Mark Zuckerberg, President of Facebook, once said that Facebook will not police political speech, even when under fire from presidential candidates.⁸ During her presidential campaign, Elizabeth Warren criticized Facebook as being a “disinformation-for-profit machine” and accused Zuckerberg of using the First Amendment to protect his profit.⁹ Facebook eventually changed its mind about political speech, deciding that Trump’s speech should be limited or even banned altogether, as Twitter has now done.¹⁰ Many other platforms followed suit, without government regulation or rule. The former President has been banned on Twitter, Instagram, YouTube, Snapchat, and even Shopify.¹¹ More recently, Facebook chose to ban all news, from both local and international outlets, on the continent of Australia during a feud with the Australian government over legislation that would require platforms like Facebook to pay news publishers for their content.¹²

The pernicious speech is not just political. In 2019, Facebook was fined $2.3 million for under-reporting complaints about hate speech.¹³ Major internet companies have been called upon to avoid the dissemination and promotion of this kind of material, whether direct hate speech,¹⁴ speech about alleged hate crimes, such as the shootings in Christchurch, New Zealand and El Paso, Texas,¹⁵ or other speech that is problematic, graphic, or offensive. On the other hand, digital media, from Twitter to Facebook, has been key to the protests of those seeking civil rights from Iran to Hong Kong.¹⁶ Suppressing digital speech¹⁷ can have unintended collateral damage including stopping the ability of protesters to get messages out of their countries. How do you walk the line between beneficial regulation and the suppression of social dialogue? There is no easy answer. Even Mark Zuckerberg’s stance on regulation eventually changed, and Facebook removed a Trump political advertisement when it used a particularly offensive image.¹⁸

What should be done about internet political speech gone awry? Or speech that is hateful or harmful? This article will argue that while some change might be possible, little can be done. That fact is proven by previous failed attempts to regulate speech across other media, especially because most media is easier to regulate than the wild, wild internet. More importantly, regulation of internet speech should be cautious, because the internet is a crucial communication tool of diverse interests and peoples throughout the world. This article will look back in time and support its arguments on years of tradition and precedent, and more importantly, on years of failed regulation. The position of speech as an inherent right and a protected human activity¹⁹ is a noble and righteous position, but it has been undermined by attempts to regulate individuals time and time again.