At an April 26 House Judiciary Committee hearing on Filtering Practices of Social Media Platforms, the topic at hand was Facebook’s alleged censoring of conservative discussion and viewpoint, such as “dangerous to the community” videos by Donald Trump supporters and YouTube stars Diamond and Silk, who appeared as witnesses.
Back during Facebook CEO Mark Zuckerberg's testimony in both the House and Senate earlier this month, Rep. Marsha Blackburn (R-Tennessee) tweeted, "I asked Mark Zuckerberg if Facebook subjectively manipulates algorithms to push their own agenda, and censor conservatives."
As a witness today she decried “gatekeepers" and "new governors” of the "public square," and people being "thrown out.” Rep. Cathy McMorris Rodgers (R-Washington) and others also earlier referenced “censorship.” Members are suspicious of things like Facebook’s prioritization of news feeds, and worry over plans for expanding AI/artificial intellignnce in flagging content.
Concerns are bipartisan. Sen. Dianne Feinstein (D-California) asked Zuckerberg what he is doing to stop “disinformation.”
The escalating incursion on social media signals government intervention.
The problem with such intervention is the very premise. Private entities cannot censor. Professor Ari Waldman, a witness at the Filtering Practices hearing, was correct that "we don’t have a First Amendment right to Facebook’s amplification of our words."
Governments can censor. And in a convoluted way, that's what social media regulation would do.
This is a media- and communications-saturated world. Facebook, a private entity, cannot prevent your talking outside its platform, and, given all the scrutiny, is making assurances that it will not do so even within the walls.
Facebook wasn’t even here 15 years ago. If it suddenly shut down, communications and discourse fundamentally would not suffer one iota given the ready threat of new online platforms.MySpace is no more, yet we all communicate.
As for penetration of ideas in the marketplace, it isn’t the fault of Facebook if liberals happen to do social media better, as TechFreedom president Berin Szoka pointed out during the hearing. Szoka rightly stressed that a Fairness Doctrine for the Internet is a worse idea than it was for broadcast media.
Earlier this month, Mark Zuckerberg told Members that “It’s not enough to just connect people, we have to make sure those connections are positive,” and that “We have a responsibility to not just build tools, but to make sure those tools are used for good.”
Careful, there. Sen. Ted Cruz (R-Texas), who voiced concern over suppression of conservative stories from trending news, implied that if Facebook is engaging in political speech, it is not a neutral forum and therefore not exempt from certain limited immunities (in section 230 of the Communications Decency Act).
This is a complicated issue, but Facebook (and other similarly stationed intermediaries) should not be treated as a “publisher” for purposes of the CDA. The exemption from intermediary liability and related provisions regarding removal of certain content without penalty is what allowed the Internet to flourish, for all.
Congress appears to be contemplating monkeying with that foundation, which would be a game changer.
Sure, take-downs of content can be controversial; and they can be mistaken or stupid. And yes, it's unfortunate and suspicious if most is speech the political left disagrees with. As Sen. Ben Sasse (R-Nebraska) stressed, “Adults need to engage in vigorous debates” over controversial issues like abortion without being flagged as haters on Facebook.
Related to all this and additionally worrisome is that Members and Zuckerberg himself tend to ascribe to social media a power of "interference' with democracy that it does not possess in a society based on free exchange of ideas and an absence of government censorship.
That is, in exaggerating “weaponization” of social media, I fear politicians threaten the right to anonymous speech. There is a continuum between appropriate levels of anonymity versus authentication that will differ in various online contexts. With respect to advertising, for example, Louisiana Republican Sen. John Kennedy wondered “Does [Zuckerberg] really know who is running ads on his platform?”
OK, politicians and election law want to see who is behind every ad. But Zuckerberg seems ready to identity not just those running a political ad, but also potentially the names behind Facebook issue Pages.
In principle, people possess a right to anonymous speech. That doesn't mean Facebook has to provide that for you, of course; we've covered that. But the wrong legislation, implementing universal rules of the social media experience that impute liability or make alternative services assuring anonymous speech less available, would benefit Facebook. Cumbersome rules will make emergence of the next social or related startup less likely.
Facebook has a worldwide audience and reach. But it has never been appropriate to think of Facebook as an "essential facility." Social media regulation, however, will turn Facebook into that relative to prospective competition, and potentially undermine anonymous speech. In such an environment, policymakers really would undermine the free exchange of ideas, and, yes, censor. But government policies would be the culprit, not those sitting in witness chairs these days.
While social media vendors have moral responsibilities to allow open debate, we also ought not deteriorate into government stamps of approval on what counts as hate speech, misinformation, or "fake," and so on. And we must guard against policies with unintended consequences like denying the inherent right of the individual to post on social media anonymously -- if vendor chooses to allow that.