Today former U.S. Senator Jon Kyl (R-AZ), in fulfillment of an arrangement with Facebook, released an independent Interim Report (and accompanying op-ed) cataloging the primary concerns of conservatives who, as is now well known, regard Facebook as unfairly biased and opposed to conservative viewpoints.
The report states that “[m]any said they believe that conservative content is affected by adverse content enforcement actions more frequently than liberal content,” but it does not attempt to lay out proof that such discrimination actually exists (some left-of-center groups castigated the report as “pandering” and a “smokescreen”). Rather, it details some of the general and specific concerns conservatives have raised, some which might be better interpreted as misunderstandings than bias.
The best parts of the report are altogether separate from the bias issue, such as the valuable assurances of transparency from Facebook, and the furtherance of tools to clarify why users see what they see on the platform, as well as amplified attention to concerns such as improperly labeling content “political” in ways that might threaten a nonprofit organization’s tax-exempt status. In addition, user tools are emphasized: “Facebook noted that it would continue to work towards providing people with additional ways to control News Feed content while also continuing to make existing controls more user-friendly.”
These are good reforms across the board, whether from the standpoint of left or right.
Where the Interim Report falls short is the continuing failure to regard the legitimacy and importance of competing biases in a free society as a good thing, not a threat. The report’s conclusion opens with a fallacy, that “Facebook’s policies and their application have the potential to restrict free expression. Given the platform’s popularity and ubiquity, this is a danger that must be taken very seriously.”
Facebook, as a private entity, cannot censor, nor in principle, threaten “free expression” as that is understood as a civil right under the First Amendment. It is not “a danger.” In fact, the more Facebook disappoints, the better the environment for a rival platform. Only government can censor.
The other area in which the Interim Report falls short is in not appreciating the greater regulatory context in which the bias dispute is taking place. It is here that censorship as a genuine threat raises its head.
Facebook CEO Mark Zuckerberg himself, in an op-ed this year alarmingly titled “The Internet Needs New Rules,” stated that the company is already working with overseas governments on content concerns, and offered that:
One idea is for third-party bodies to set standards governing the distribution of harmful content and measure companies against those standards. Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum.
If brought to fruition, any such alliance with government would ban speech, constituting actual censorship and violating the First Amendment.
Meanwhile, Sen. Josh Hawley (R-MO) has introduced legislation that would compel speech, by requiring that a covered company obtain an “immunity certification” from the Federal Trade Commission assuring a majority of the unelected commissioners every two years that it does not moderate content provided by others in a politically biased way.
The Interim Report, therefore, appears in a context within which both the left and right envision administrative bureaucracies having a say over social media (for starters) content and speech. Alarmingly, both left and right are united in putting government in control of aspects of speech.
In that context, Facebook’s success at appeasing conservatives in the wake of the Kyl report could have unintended negative consequences. On “Ensuring Oversight Board viewpoint diversity,” the Kyl Interim Report said:
A majority of our interviewees were concerned that Facebook employees—many of whom reside in Silicon Valley—hold left-of-center viewpoints that impact the creation and implementation of content policies and algorithms. Recognizing this, Facebook has said that it will ensure that its oversight board represents a diverse range of intellectual viewpoints, as one mechanism for providing an external check on any biases that may be present internally at Facebook.
This could be good, but it could also backfire. It is ironic that Sen. Hawley would irretrievably expand the administrative state in the supposed name of free speech, and do great harm in the process.
But alternatively, should conservatives get seduced by Facebook’s Oversight Board in the relevant broader context—one in which Zuckerberg himself favors regulatory “baselines”—the Kyl report process could devolve into one that unintentionally puts free speech under the watchful eye of the administrative state that conservatives generally otherwise oppose.
Out of the frying pan, into the fire.
Allowing government a prominent voice in what will count as appropriate content and expression is frightening, yet an agenda common to key voices on today’s political left and right.
It is hoped that the next iteration of the Kyl report is more aware of the regulatory aspirations that permeate the surroundings.