Free Speech In the Age of Government-Influenced Facebook

 

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.

 

Big Tech Tries to Have its First Amendment Cake and Eat It Too

 

While my headline lacks something in concision, the topic for today is anything but simple:  whether internet-based enterprises such as Amazon, Google, Tiktok, and X are free to do basically anything they want with the input their users provide, or whether the states of Texas and Florida can impose certain restrictions on content moderation.  Last week the U. S. Supreme Court heard opening oral arguments in two related cases on this topic that the Court has decided to hear together.

 

NetChoice v. Paxton pits the trade association NetChoice, which includes such heavy hitters as Amazon, Google, and X, against the Texas state gadfly and attorney general Ken Paxton, who attempted to enforce a bill that would prohibit social media companies from censoring posts except in extreme cases such as obscenity and libel.  Moody v. NetChoice concerns a law that was passed in Florida at the urging of Gov. Ron DeSantis to prevent social media firms from "de-platforming" a political candidate actively running for office.  The lawsuits arising from NetChoice's objections to what it sees as restrictions on its members' First Amendments freedom of speech have percolated through the federal courts and ended up at the Supreme Court last Monday.

 

There are two extreme positions that mark the boundaries of this debate.  One extreme is taken by the state legislatures, which is that large internet-based firms, including but not limited to social-media outfits such as X and TikTok, are used so universally that they should be considered as "common carriers."  A common carrier, in legal parlance, is a service that is so essential to modern life that it must accept customers and their activities on a basis limited only by common-sense rules.  The classic common carrier was the old Ma Bell system back when all you could do with a phone was call Aunt Maude.  As long as you paid your monthly bill, you could say absolutely anything you wanted to say, and Ma Bell wouldn't stop you.  And anybody who can muster up the cash for a bus ticket can ride the bus.  Similarly, the state bills object to censorship, de-platforming, and other ways that social media companies either emphasize or obscure certain users depending on what they are saying, because the state laws tend to view them as common carriers.

 

The other extreme is taken by NetChoice, which views its members as valiant warriors protecting their own freedom of speech as well as that of their users.  Their classic analogy is the old-fashioned hot-type newspaper, back when all you could do with the paper was line the bottom of the birdcage—after reading it, of course.  Nobody presumed to tell the editorial-page editor what letters he could or could not include in the paper, and so no state law should tell X which tweets to suppress or encourage, or leave alone.  They are private firms and it's their business what they do with their content, not the states' business. 

 

A report on the first day's arguments by the Electronic Privacy Informatiion Center (EPIC) indicates that the Supreme Court justices are not enthusiastic about either end of this spectrum.  In particular, they seem to think that NetChoice is being more than a little hypocritical because of how it has used a law called Section 230.

 

Section 230 of the federal Communications Decency Act gives NetChoice members immunity from prosecution for libel for what any of their users say, in this sentence:  "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  The word "publisher" echoes our exemplary newspaper editor, and Section 230 lets X say, in effect, "Man, we didn't write or publish or say that.  Our crazy user said that, and you can't blame us for what he said."  Section 230 protection is one of the carefully guarded legal jewels of the NetChoice empire, and flocks of lawyers appear whenever anyone threatens it.

 

At least two Supreme Court justices perceived that NetChoice is trying to have its free-speech cake by defeating the state laws limiting their content-moderation actions, and eat it too by claiming innocence when someone posts something objectionable and a NetChoice member claims immunity under Section 230.  At one point, Justice Gorsuch asked, "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech?"  And at another point, Justice Alito said, "It's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law." 

 

It's anybody's guess what the Court will decide in these cases, but indications are that neither NetChoice nor the states will get everything they want.  My own view is that social-media firms, by catering to the lower instincts of the human mind and heart, have wrought incalculable damage to the political and social structures of not only the U. S. but many other countries as well.  And especially when the government begins to "assist" social-media firms in deciding what is free speech and should be left alone or promoted, and what is "disinformation" and should be de-emphasized or suppressed, we have traveled a good part of the way down a slippery slope to something akin to the old Soviet Union, or the present Peoples' Republic of China, where everything you say and do is monitored and assessed and has consequences that can be quite dire if you go against what the government wants you to do. 

 

The Texas and Florida laws are a first step toward opposing this trend, and NetChoice's actions opposing them is exactly what you would expect a bully to do if someone challenges his dominance.  Fortunately, the federal structure of our government is still functioning, although seriously damaged, and I hope that the justices' decisions in these cases will clip the wings of an industry which, Icarus-like, is flying way too close to the sun.

 

Sources:  I referred to an editorial by Jennifer Huddleston in the Mar. 1, 2024 edition of the Austin American-Statesman, a blog post on the EPIC website at https://epic.org/four-key-takeaways-from-the-netchoice-v-moody-and-paxton-oral-arguments/, and the Wikipedia articles on NetChoice and Section 230.

Facebook Is Watching Your Friends

 

Suppose you went to a party with a group of friends, one of whom is a rather outspoken person we'll call Ms. A.  After an hour or so, someone you never met before comes up to you and says, "I couldn't help noticing that you came here with Ms. A.  Aren't you concerned that her views are a little extreme?  I can give you the number of somebody who can help her." 

 

How would you react?

 

I don't know about you, but my first thought would be, "Who the — are you to be judging my friend?"  The whole thing smacks of authoritarian control and monitoring on the part of the snoop who expressed concern about Ms. A.  Yet in early July, Facebook announced that it was going to do a trial of a system that essentially does that very thing.  And I know someone it's already happened to.

 

Here is the way Facebook explains what it's doing, as reported by Reuters on July 1:  "This test is part of our larger work to assess ways to provide resources and support to people on Facebook who may have engaged with or were exposed to extremist content, or may know someone who is at risk."  That sounds reasonable—after all, groups such as Al Qaeda used platforms like Facebook to recruit U. S. citizens to their cause, and if there's something Facebook can do to keep that from happening again, it sounds like it's worth doing.

 

I'm involved in a group that meets monthly to discuss an article from the journal of religion and public life called First Things.  Most of us are over 50, and a more harmless group of non-radicals is hard to imagine.  For a time, a woman attended who later joined the Roman Catholic Church.  From my limited interactions with her, I would say she was conservative, but not radically so, and unusually articulate about various social problems, including abortion. She no longer attends our discussion group, but some of us still follow her on Facebook.

 

Her Facebook followers were surprised the other day when Facebook asked them if they thought the Catholic woman was becoming an extremist.  I don't use Facebook and so I can't say what material she might have posted which inspired Facebook to ask this question.  But based on what I know about the woman, at the very least Facebook is wasting its time.  And more seriously, this anonymous action on the part of a powerful corporation exerts a chilling effect on the tattered, bedraggled thing we once called free speech.

 

The fly in this otherwise admirable-sounding ointment of extremism prevention is the question of just what counts as "extremist."  One person's extremist is another's enthusiast.  Also on July 1, Fox News reported the comments of several people who had received such warnings, which typically read  "Are you concerned that someone you know is becoming an extremist?" followed by an option to "Get Help" which leads to an organization called "Life After Hate."  One user who received this type of notice neatly summed up the dilemma that Facebook faces: "'Confidential help is available?' Who do they think they are? Either they’re a publisher and a political platform legally liable for every bit of content they host, or they need to STAY OUT OF THE WAY."

 

The reason Facebook isn't liable for every bit of content they host, as a conventional newspaper publisher would be, is Section 230 of the Communications Decency Act, which exempts platform hosts from being liable for what third parties place on their platforms.  Perhaps in the early days of the Internet, this protection was needed in order to encourage investment in the young, struggling things that were Google and Facebook.  But now that social media constitute a major, if not the primary, source of political and cultural news in the U. S., the pretense that they are insignificant people-connectors who just barely make enough money from ads to stay in business and need special protection from the government is looking more ridiculous every day. 

 

Not only is Facebook deciding who is an extremist, it's getting help deciding what truth is from the White House.  Biden Administration press secretary Jen Psaki said on July 15 that they are "identifying 'problematic' posts for Facebook to censor because they contain 'misinformation' about COVID-19."

 

Again, this sounds reasonable at first glance.  Some things that people are saying on Facebook about COVID-19 and vaccinations for it are ludicrous and harmful.  But what happened to the old saying "I disapprove of what you say, but I will defend to the death your right to say it"?  According to Wikipedia, this quotation comes from a biography of Voltaire by one Evelyn Beatrice Hall, writing as S. G. Tallentyre. 

 

Hall was trying to illustrate one of Voltaire's principles, which was a radical (there's that word again) belief in free speech, which is one of the pillars of what should now be called classical liberalism, along with democratic governance and freedom of religion.  The American Civil Liberties Union adhered to radical free-speech principles until a few decades ago, even defending such scurrilous extremists as a neo-Nazi group that wanted to stage a march in a Chicago suburb where many Holocaust survivors lived.   This was in 1978, and although the ACLU itself has a page on its website describing this episode, I think it's fair to say that the current ACLU is finding other things to do with its time.

 

Facebook wants to have things both ways.  They want to receive plaudits as the platform for the little guy where a thousand free-speech flowers bloom, and they also want to avoid opprobrium (and lawsuits, and fines) for hosting material that is illegal, libelous, or harmful in someone's eyes.  But as the gentleman quoted above implied, you can't have freedom without responsibility.  Editing or censoring one thing on Facebook means the whole thing is now an edited entity.  You can't be just a little bit pregnant, and you can't pretend a platform is free if parts of it aren't—especially when the parts that aren't change from day to day, or from White House instruction to embarrassing news report. 

 

Sources:  The Reuters report describing Facebook's test program advising about extremism was published on July 1, 2021 at https://www.reuters.com/technology/facebook-asks-are-your-friends-becoming-extremists-2021-07-01/.  I also consulted a Fox News report at https://www.foxnews.com/media/facebook-warns-users-have-been-exposed-harmful-extremists.  The New York Post reported on Jen Psaki's comment about the White House advising Facebook on COVID-19 "misinformation" at https://nypost.com/2021/07/15/white-house-flagging-posts-for-facebook-to-censor-due-to-covid-19-misinformation/.  I also referred to Wikipedia articles on Evelyn Beatrice Hall and Voltaire.