Judgment Is Coming for Facebook’s Free Speech Fog Machine
Imagine if Chris Wallace, during Tuesday’s chaotic presidential debate, had announced he wasn’t going to be a moderator who tries, however unsuccessfully, to promote productive discussion.
Instead, in this alternate reality, Wallace declares he’s merely seeking to create a “neutral platform” for public debate, and to protect this neutrality he wants to avoid becoming a “censor.” To him, this means allowing lies, incitements, and democracy-degrading manipulations to flood the debate stage, even if they end up profoundly damaging the ability of millions of Americans to sort fact from fiction and make reality-based decisions ahead of an important election.
That’s not what happened on Tuesday in Cleveland. Wallace did try to control the debate. He pushed back against Trump’s fusillade of falsehoods and non-stop heckling. The result was nevertheless dispiriting and ugly. Still, viewers knew, because the moderator said so, that one side was operating well outside of acceptable bounds.
But that imaginary world in which an important moderator decides they’d rather be a neutral platform is, in fact, a real part of our present. It’s Mark Zuckerberg’s Facebook, and it may be a more potent force in determining Election Day outcomes than any events put on by the Commission on Presidential Debates.
Zuckerberg, the company’s 36-year-old, irremovable CEO, not only wants Facebook to be a neutral platform that refrains from acting like a “censor” when it comes to politics, he’s also been suggesting, for at least a year now, that he’s taking this position in order to protect the right to free speech.
That, in turn, has led to an ongoing mystery: Does Zuckerberg understand the First Amendment?
The tech journalist Kara Swisher has written that Zuckerberg “naïvely wraps himself in the First Amendment as he cloddishly mixes up complex concepts of free speech.” Over at The New Yorker, Masha Gessen has gone further, writing that “Mark Zuckerberg doesn’t know what the First Amendment is for.” Still others have decided it’s a vexing, essential, but as-yet-unresolved question.
I’ve always assumed Zuckerberg, who has billions to spend on expensive lawyers and subject matter experts of all stripes, must be pretty well informed about the First Amendment. He should know, and be able to clearly communicate, that Americans’ constitutional right to free speech does not extend to their speech on Facebook. (Unfortunately, those casually listening to Zuckerberg’s much-hyped October 2019 speech at Georgetown University could easily have absorbed the exact opposite message.)
He should also be clear that the First Amendment doesn’t prohibit Facebook from actively policing speech on its massive, privately controlled platform. As the company providing the forum, Facebook has the right to both set the speech rules and enforce them. If you’re being high-minded about it, Facebook, with its outsized role in shaping our understanding of the world, not only has the right but also a profound responsibility to set and enforce such restrictions.
In that sort of moderating effort, the First Amendment wouldn’t come into the equation. It prevents the government from making laws that limit freedom of speech. Again: the government. Not companies like Facebook, which, as ubiquitous as they may be, are vast walled gardens rather than true public squares.
Because of the highly orchestrated way Zuckerberg’s “free expression” speech was rolled out at Georgetown last year—and then used to support his reluctance to “censor” the false, dangerous, and inflammatory content that President Trump and others pour onto his platform—I’ve also come to assume that Zuckerberg’s rhetorical posture was cooked up mainly for public relations and corporate strategy purposes.
It’s useful for people to believe, incorrectly, that they have a right to free speech on Facebook. It’s useful for them to think Zuckerberg is the prime defender of that right. Not only does this cast Zuckerberg as a white knight, it also validates the false “free speech” claims of some Republicans who have been threatening the company with regulation. At the same time, it produces a vast perceptual fog that obscures the true situation.
Far from being the neutral platform it claims to be, Facebook is constantly making judgments about what’s allowed and what’s not, with Zuckerberg, as the company’s immovable chief, having the final say. Call him the ultimate censor or the ultimate moderator, but as CEO of the largest social media platform in the world, that’s his power and his role.
As Election Day approaches, with pressure building from outside activists and his own employees, Zuckerberg has recently been flexing his moderator muscles in an attempt to limit political disinformation and election interference. His moves have been skeptically welcomed, given Facebook’s track-record of destabilizing democracy.
But do these new moves signal any sort of revised understanding in Zuckerberg’s mind about how the First Amendment works?
A Facebook spokesperson didn’t respond when asked this week. However, the filings in Washington State vs. Facebook, the case I introduced you to in the last newsletter, cast Zuckerberg’s First Amendment statements in a new light.
They show that Facebook’s lawyers understand the First Amendment perfectly well.
In their attempt to get a Washington state judge to say that state requirements for transparency in online political ads are unconstitutional, the Facebook lawyers begin with a clear-eyed reading of what the constitution actually says.
They write: “The First Amendment to the U.S. Constitution forbids laws ‘abridging the freedom of speech.’” Laws. Made by the government. Not rules enacted by private companies.
This newsletter will go deep into the First Amendment arguments Facebook is making as it tries to strike down Washington state’s unusually strong election regulations. It will examine other arguments Facebook is making as well. And it will look at what’s being argued in response by Washington State Attorney General Bob Ferguson, who brought the suit against Facebook because, he says, the company “repeatedly” refused to comply with state election law.
But for now, a brief summary of the situation is this: Facebook believes Washington state’s transparency requirements are an example of government making laws that violate the First Amendment.
Why?
Among other things, Facebook believes Washington’s political ad disclosure regime improperly “compels speech”—in particular speech by Facebook—in that it “forces private parties to convey state-mandated messages to the public on demand, on pain of severe fines for failure to do so.”
Those “messages,” under state code, are supposed to reveal specific details on who’s funding political ads targeting Washington’s statewide and local elections, what those ads look like, and, for digital ads, how they’re targeted. In its argument that the law is an unconstitutional violation of First Amendment rights, Facebook complains that “the information digital advertisers must provide includes certain information they would not otherwise choose to disclose.”
Ferguson, in response, says Washington state has a legitimate interest in “informing the electorate about who is expending money to influence an election and how that money is being spent.” Alluding to the role Facebook ads played in Russian election interference efforts in 2016, Ferguson adds that “courts have also recognized combatting foreign interference in elections to be an important state interest.”
How these arguments shake out before Seattle Judge Douglass A. North, pictured above, remains to be seen. I’ll be watching closely.
But already, the pre-trial arguments in Washington State vs. Facebook have made clear that whatever confused or confusing statements Facebook’s CEO may make about “free expression,” the company understands the true text of the First Amendment quite well.
As always, a few of the technology and democracy stories I’ve been following this week:
"Some ideas are simple” — Charlie Warzel on what digital platforms can proactively do to protect the upcoming election.
“What if Trump refuses to concede?” — A must-read from The Atlantic.
“Deterrence” — Britain’s Channel 4 News on the Trump campaign’s 2016 effort to suppress black turnout using targeted Facebook ads.
“Infantilizing” — Some valuable skepticism about what the above Channel 4 News report really proves.
“Mark in the Middle” — A fantastic exploration of leaked audio recordings from Facebook staff meetings, by Casey Newton.
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