Mark Zuckerberg, the founder, chairman, and CEO of MetaPlatforms, which includes Facebook, Instagram, and WhatsApp, recently sent a letter to Jim Jordan, Republican chairman of the House Judiciary Committee. Zuckerberg is a busy man, and this was no bread-and-butter socializing note, but more along the lines of a confession.
In the note, Zuckerberg admitted that in 2021, Facebook had caved in to government pressure, specifically from the Biden White House, concerning certain posts relating to COVID-19, "including humor and satire." The company was also guilty of "demoting" stories about Hunter Biden's laptop when it chose to believe the FBI's claim that it was Russian disinformation in 2020. In both cases, Zuckerberg says basically we were wrong and we won't do it again.
The most generous interpretation of this letter is that here is an upstanding citizen, who also happens to be the fourth richest person in the world, admitting that he and his people did some things that in retrospect might not have been the best choice, given what he knows now. But hey, he's learned from his mistakes, and we should all feel better that Zuckerberg and his companies have admitted they messed up in what were understandably hard circumstances.
Ranged against this rather anodyne letter are some cherished U. S. traditions such as freedom of speech and the rule of law. Let's talk about the rule of law first.
In a recent issue of Touchstone magazine, professor of law Adam J. MacLeod outlines how the idea of rule by law rather than men arose during the reign of the Emperor Justinian (485-565). Justinian caused twelve ivory tablets to be placed on public display, tablets that contained a concise summary of the laws of the land. All disputes were to be decided on the basis of reasoning from what the tablets said, not from what somebody in power said.
In placing reason above power, the rule of law placed everyone on a much more equitable footing. The peasant who could reason out law was now able to defend himself against a powerful lord who wanted to take his land, if the peasant could show what the lord was trying to do was against the law. MacLeod admits that since the late 1800s, jurisprudence has largely abandoned the fundamentals that supported the rule of law, but in practice, vestiges of it remain. No thanks to Zuckerberg, however, for those vestiges.
Although Facebook is not a branch of government, in bowing to White House pressure it acted as a government agent. And its near-monopoly on social media channels makes it a powerful player in its ability to censor unfavored speech, such as people making fun of Anthony Fauci or other prominent players in the COVID-19 follies. So where was the ivory tablet to which a satirical outfit such as the Babylon Bee could appeal when its posts disappeared? Their only option was to mount a lawsuit that might take years, would certainly cost tons of money, and might in the end amount to nothing. So much for the rule of law.
Some counter the claim that the principle of freedom of speech does not apply to private companies such as Facebook, because a private entity can allow or disallow anything it likes and be as capricious about it as they want. If Facebook had the reach of my town paper, the San Marcos Daily Record, this argument would carry weight. One little outlet being arbitrary about what it publishes is no big deal. But Facebook, although not the only social-media show in town, is by far one of the largest, and its censorship, or lack thereof, hugely influences public discourse in the republic that is the United States, as it does in many other countries of the world with less of a tradition of free speech.
Once again, while Facebook is not a government entity, when it takes actions that the government pressures it to do (either through legal means or simply jawboning), it becomes an agent of that government. And while it is perhaps true that Facebook did not violate the letter of the First Amendment which prohibits only Congress from making a law that abridges the freedom of speech, the spirit of the law is that the Federal government as a whole—executive, judicial, or legislative—should refrain from suppressing the freedom of the people to express themselves in any way that is not comparable to yelling "Fire!" falsely in a crowded theater.
There are two extremes to which we might go in this situation, at opposite ends from the muddled middle in which we presently find ourselves. One extreme would be to treat near-monopolies such as Facebook as "common carriers" like the old Ma Bell used to be. With very few exceptions, nobody regulated what you could say over the telephone, and in the common-carrier model, Facebook would fire all its moderators and only retain the engineers who would keep hackers from crashing the entire system. Other than that, anybody could say anything about anything. Zuckerberg wouldn't censor anything, and I bet he'd be relieved to be rid of that little chore.
The other extreme would be to regulate the gazoo out of all social media and set up explicit "twelve-tablet"-like rules as to what can and can't be said on it. We have something like this model in the way the Federal Communications Commission regulates what can be said or shown over the (public) airwaves (not cable). The FCC is mostly concerned with obscene or indecent content, but that's just a historical fluke. In a republic you can vote to regulate anything you want. This would be a return to the pre-deregulation days of inefficient but reliable airline and phone service. It would be duller and more predictable, but there are worse things than dull.
Neither of these extremes will come to pass, but the present near-total governmental inaction in either direction leaves a political vacuum in which Mark Zuckerberg, emperor of social media, will continue to do what he thinks best, and the rest of us simply have to deal with it. And the rule of law and freedom of speech will continue to suffer.
Sources: I referred to an Associated Press article "Zuckerberg says the White House pressured Facebook over some COVID-19 content during the pandemic," at https://apnews.com/article/meta-platforms-mark-zuckerberg-biden-facebook-covid19-463ac6e125b0d004b16c7943633673fc. Zuckerberg's letter to Congress is at
https://x.com/JudiciaryGOP/status/1828201780544504064/photo/1, and I also referred to https://en.wikipedia.org/wiki/The_World%27s_Billionaires. Adam J. MacLeod's "How Law Lost Its Way" appeared on pp. 22-28 of the Sept/Oct 2024 issue of Touchstone.
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