Facebook’s free-speech dilemma is financial, not constitutional

After telling Republican lawmakers repeatedly that the company he founded in college strives to be a platform for all voices and that he works to prevent any liberal Silicon Valley bias from influencing the decisions on which content is appropriate, Zuckerberg retained former Republican Sen. Jon Kyl this month to evaluate concerns that conservative voices are being slighted.

“It’s an ethical issue, it’s a customer relations issue, it’s a business issue,” said Eugene Volokh, a free speech scholar at the University of California Los Angeles School of Law. “It’s not a legal issue.”

Censoring opinions with which owners and employees disagreed could easily subject Facebook to moral criticism, he noted. That’s particularly true in light of its base of 1 billion users a day and the limited alternatives to reach an audience of the same size. The company would also risk alienating a sizable portion of those users with such behavior, hurting revenue.

“Arguments over whether Facebook is doing the right thing are perfectly legitimate arguments to have,” Volokh said.

Supporters, he suggested, might argue that Facebook cutting off some opinions is justified while opponents might claim that such censorship should be limited to criminal activity, not “mainstream political debate that has to be protected in order to make sure that Americans can talk about politics in a medium that’s very important to them.”

While neither the Constitution nor existing law empower the government to require Facebook to treat posts “without regard to ideology,” Congress has broad authority to hold hearings on social issues since members are elected to determine what laws the U.S. should have and even whether its founding document should be amended, Volokh said. A former computer programmer, Volokh has written a white paper for Google asserting that the search engine has a First Amendment right to determine what to include in its results.

That’s a point that many members of the House Judiciary Committee readily conceded, even as Republicans argued with Democrats over whether Facebook was censoring conservative opinions. The debate gained national attention with Facebook’s revision of algorithms that regulate posts, following claims that its platform was used to manipulate voters before President Trump’s election in 2016.

Social media personalities Diamond and Silk, conservative black activists who gained prominence with their support of the New York real estate mogul, subsequently complained that the changes resulted in a temporary block on their posts. While it was later removed, their traffic was still curbed, the two sisters — whose real names are Lynette Hardaway and Rochelle Richardson — told committee members.

“If social media is supposed to be a place for all ideas and to express ideas, then algorithms and tactics shouldn’t be in place to suppress some ideas,” Hardaway said. “If I have a belief, that’s my belief. Nobody has a right to censor my free speech. Nobody has a right to do it, and to maliciously and deliberately do it is what really irritates me.”

While Republican members largely sympathized with her concerns, there was less consensus about how and whether Congress should respond. Several of the hearing’s witnesses, including New York Law School professor Ari Waldman and Tech Freedom President Berin Szoka, said any attempt to impose a so-called Fairness Doctrine requiring equal access for all views would be ill-advised and, quite likely, unconstitutional.

Indeed, as long ago as 1974, the U.S. Supreme Court rejected a Florida law mandating that politicians attacked by a newspaper be given equal space to respond. In a unanimous decision, justices cited concerns including the law’s imposition of extra costs on print publications that might have used the space more profitably.

“Even if a newspaper would face no additional costs to comply with the statute and would not be forced to forego publication of news or opinion by the inclusion of a reply, the statute still fails to clear the First Amendment’s barriers because of its intrusion into the function of editors in choosing what material goes into a newspaper and in deciding on the size and content of the paper and the treatment of public issues and officials,” Chief Justice Warren Burger wrote.

Just 13 years later, the Federal Communications Commission dismantled a longstanding Fairness Doctrine that had imposed a similar standard on broadcast media, requiring television networks and stations to cover contrasting viewpoints on controversial issues. The policy was doing more to chill free speech than promote it, commissioners determined.

“Our action today should be cause for celebration because by it, we introduce the First Amendment into the 20th century,” Republican FCC Chairman Dennis Patrick said at the time. “Freedom of speech, unfettered by government oversight, is that single freedom which most clearly distinguishes our system of government from other systems of government around the world.”

But while all Americans have a First Amendment right so say what they want without government interference, they don’t have a right to amplification of their voices by Facebook or any other private firm, New York Law School’s Waldman told Congress, reflecting the Supreme Court’s logic four decades earlier.

Committee Chairman Bob Goodlatte, the Virginia Republican who called the Judiciary hearing, agreed that the Constitution offers no clear protection for Facebook, Google or Twitter users whose content is restricted by the companies.

“We must nevertheless weigh as a nation whether the standards they apply endanger our free and open society and its culture of freedom of expression,” he said. “Especially when it is through these channels that our youth are learning to interact with each other and the world.”

Facebook’s hiring of a conservative to evaluate potential bias shows how keen it is to address such concerns on its own.

“Getting outside feedback will help us improve over time — ensuring that we can more effectively serve the people on Facebook,” said Joel Kaplan, the company’s vice president of global policy.

The move also displays the general effectiveness of wielding public pressure on corporate ethics issues rather than attempting to go through legislatures or the courts, said Volokh, the UCLA law professor. A business’s concern “about maintaining its relationship with customers,” will often spur changes, he noted.

If Congress were to try to address censorship concerns by social media platforms, however, a law requiring them to simply display posts and pages regardless of opinion might have a better chance of surviving a constitutional challenge than one requiring them to apply the same philosophy to their own promotion of content, Volokh said.

“That’s not the law today,” he emphasized. “I’m not sure that it would be a good law; in fact, I suspect it would be a bad law, but it might be constitutional. It might be permissible for the government to say, ‘You have to host pages without regard to their ideology, even if we can’t require you to recommend pages without regard to their ideology.'”