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.
Read the full piece in the Washington Examiner.