Facebook recently announced the first 20 members of its independent Oversight Board on content moderation. Many criticized the political bent of the majority of the members. Fair enough — with 2.45 billion monthly users, some are bound to be displeased. But it’s the challenges to Facebook’s right to make and enforce its content standards in the first place that’s the real threat to liberty online.
Critics from the Left argue that Facebook should take down more posts. They want less user content they claim promotes racism, discrimination, and bullying. Critics from the Right contend that Facebook takes down too much content. They fret that conservative voices are being disproportionately targeted. They argue that Facebook, and other platforms (such as Google’s YouTube), are violating users’ First Amendment rights when they remove content.
Free speech assertions have little merit here. These large tech platforms are private property. The First Amendment protects citizens against the suppression of speech by the government. Just as one does not have the right to hold a political rally in their neighbor’s front yard without their permission, neither does an online poster have the right to insist that Facebook host all content. The Ninth Circuit Court of Appeals recently said as much in its February 2020 decision in Prager University v. Google: “Despite YouTube’s ubiquity and its role as a public facing platform, it remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.” The decision also quoted a recent Supreme Court case that held, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”
Advocates for weakening Section 230 of the Communications Decency Act (the law that allows social networks to moderate their content without being held to the standards of publishers or speakers) also come from both sides of the aisle.
Section 230 protects platforms from lawsuits about third-party posts by recognizing that these hosts don’t proactively supply this content like a newspaper or the generator of the content does. This enables the mostly permission-less, user-driven internet experience we enjoy online today. Section 230 applies even if a platform has content standards and acts to remove materials in violation of those rules, a point that needed clarifying when the law was passed in 1996. Without this tenet, platforms would have to vet the enormous amount of user-driven content before displaying it because of the increased liability they would assume. This would be time-consuming and expensive to a prohibitive extent. Alternatively, and ironically for the conservative critics of Section 230, platforms could take a completely hands-off approach to curating content, but the results would likely be too violent, pornographic, and offensive to attract many eyeballs.
Joe Biden has called for the revoking of Section 230. President Trump drafted an executive order that never materialized into official policy, requiring the Federal Communications Commission to develop rules to limit Section 230. Sen. Josh Hawley, a Republican from Missouri, introduced the Ending Support for Internet Censorship Act that would require platforms’ content moderation to be government-certified as “politically neutral” — whatever that means. This shifts the moderation from the private and limited hands of platforms to the much more dangerous practice of government-controlled speech. In the House, Rep. Paul Gosar, a Republican from Arizona, introduced the Stop the Censorship Act that would prevent platforms from removing all content except that which is illegal.
All of these efforts fundamentally misunderstand the nature of censorship. By ignoring that the term can only be applied to government suppression of speech, politicians muddy the waters between free speech and private property rights. This hubris makes the internet less useful, productive, and free.
Public debate about who should and should not be included on Facebook’s content moderation board is a productive exercise of free speech. It’s valuable feedback for the company and the board as they fill the remaining 20 vacancies. Facebook has every incentive to make users feel satisfied and respected in an effort to keep as many as possible on the platform and driving advertising revenue. But weakening or abolishing Section 230 is very nearly the opposite of promoting liberty online.
Jessica Melugin is associate director of the Center for Technology and Innovation at the Competitive Enterprise Institute.
