Licensing Social-Media Companies Makes No Sense

Senator Lindsey Graham’s proposal is unworkable, unconstitutional, and dangerous.

In a recent Senate Judiciary Committee meeting, a U.S. senator proposed creating a licensing requirement for those who want to run a social-media platform. This means licensing speech, a prospect every American should be frightened of.

When Senator Lindsey Graham (R., S.C.), said that online platforms “should have a license to operate,” the senators were discussing various proposed regulations for social media. Graham gave a lengthy speech in which he stated:

You have to have a license to drive a car. You have to have a license to sell real estate or practice law . . . to sell insurance. To sell stock. But the largest companies in the world are not licensed. There is no regulatory agency with any meaningful power to hold them to account. You can’t sue them in court.

Most of this is flatly false. While these companies do not need a special “social-media license,” there are several regulatory agencies with immense power over them. One example of such oversight occurred in 2019, when the Federal Trade Commission imposed a $5 billion penalty on Facebook. Twitter also paid hefty fines to the FTC recently. People may also sue platforms in court over their own content, though thankfully not over user content. Snapchat, for instance, is currently facing a lawsuit regarding one of its filters. There is also a relevant case brought against a roommate-finder app that was successfully sued because its own speech provided users options for selecting roommates — race, gender, etc. — that violated the law.

Factual errors aside, Senator Graham went on to say: “They should have a license to operate. That license should be granted based on things you have to do to keep your license. There should be some people looking over their shoulders who can take that license away when you don’t do your job. That’s where I’m headed.”

The senator would do well to re-read the First Amendment and surrounding case law. Licensing a social-media platform for speech-related reasons amounts to an unconstitutional prior restraint on speech — stopping speech before the speech happens. Although lawmakers can enact prior restraints in extremely narrow and tailored circumstances, licensing entire platforms in order to allow them to host speech does not meet this standard.

That said, some licenses do functionally license speech — at least until they’re struck down in court. Some states and localities license tour guides, but when brought to court, such schemes have routinely been ruled unconstitutional. A licensing requirement for social-media platforms would almost certainly face the same fate.

Further, anyone skeptical of how the government regards unpopular speech ought to recoil at the idea of giving government officials oversight of social-media platforms and their speech, as Senator Graham proposed. Conservatives were outraged when the Internal Revenue Service went after conservative nonprofits. Would conservatives trust the Biden administration to license Truth Social or Rumble? Government licensers in Graham’s proposed framework might not look favorably upon platforms with a lot of speech critical of the government, let alone the agency itself.

And would the license apply to just the giants? Or smaller platforms? What about comments sections? There are many unanswered questions, but requiring a license in order to host user comments would be a massive burden on all kinds of websites. AllTrails is pretty large, with tens of millions of registered users and at least 100 million visitors — would that need to be licensed too?

The idea may sound inane or like an off-handed remark, but this is not the first time Graham has proposed something like it. And though it seems as though his proposal may not have sufficient support, none of his colleagues challenged it in the Senate Judiciary Committee meeting. So while such a plainly unconstitutional and dangerous proposal would no doubt face opposition, it is not a good sign that a U.S. senator felt comfortable suggesting it in the first place.