The First Amendment has a Facebook problem
Facebook CEO Mark Zuckerberg testifies at a joint hearing of the Senate Judiciary and Commerce committees on Capitol Hill on April 10, 2018. | Xinhua/Ting Shen/Getty ImagesBig Tech poses an enormous challenge to free speech — but we aren’t having the right debate about it. Editor’s note, May 5, 2021: On Wednesday, a Facebook oversight board ruled that the social media service could retain its ban on former President Donald Trump following the insurrection at the US Capitol on January 6. The board also stated, however, that Facebook would need to either justify a permanent ban or eventually restore Trump’s account. The following conversation, which took place on April 20, addresses some of the deeper issues raised by Facebook’s ban.
America’s commitment to free speech is uniquely radical.
The US Constitution treats freedom of expression as the master freedom that makes every other possible. And our legal system reflects this view, which is why it has always been incredibly difficult to suppress or punish speech in this country.
But there has never been a consensus on how to implement the First Amendment. Free speech law has evolved a ton over the years, especially in the aftermath of revolutions in media technology. The birth of radio and television, for example, altered the information landscape, creating new platforms for speech and new regulatory hurdles.
Today, the big challenge is the internet and the many ways it has transformed the public square. In fact, if a public square exists at all anymore, it’s virtual. And that’s problematic because our communication platforms are controlled by a handful of tech companies — Twitter, Facebook, Google, and Amazon.
So what happens when companies like Facebook and Twitter decide, as they did in the aftermath of the insurrection on January 6, to ban the president of the United States for “glorifying violence” and spreading dangerous misinformation about the election? Is that a violation of the First Amendment?
The conventional response is no: Facebook and Twitter are private companies, free to do whatever they want with their platforms. That’s not wrong, but it is oversimplified. If the public square is controlled by a few private companies and they have the power to collectively ban citizens whenever they want, then doesn’t that give them the ability to effectively deny constitutionally protected liberties?
There are no simple answers to these questions, so I reached out to Genevieve Lakier, a law professor at the University of Chicago and an expert on the history of the First Amendment, to explore some of the tensions. Lakier believes our current debate about deplatforming — and free speech more generally — is too hollow.
We talk about why contemporary First Amendment law is poorly equipped to handle threats to speech in the internet era, why we don’t want tech CEOs arbitrarily policing speech, what it means to have private control of the mass public sphere, and what, if anything, we can do on the policy front to deal with all of these challenges.
A lightly edited transcript of our conversation follows.
What does the law actually say about the right of private companies like Twitter or Facebook to censor or ban users at will? Is it legal?
It is definitely legal. The First Amendment imposes very strict non-discrimination duties on government actors. So the government isn’t allowed to ban speech just because it wants to ban speech. There’s only going to be a limited set of cases in which it’s allowed to do that.
But the First Amendment only limits government actors, and no matter how powerful they are under current rules, Facebook, Amazon, and Twitter are not going to be considered government actors. So constitutionally they have total freedom to do whatever they want with the speech on their platforms.
The only caveat here is that they can’t permit unlawful speech on their platforms, like child pornography or speech that violates copyright protections or speech that’s intended to communicate a serious threat or incite violence. Bun in those cases, it’s not the tech companies making the decision, it’s the courts.
So why do you believe that our current legal framework is inadequate for dealing with free speech and tech platforms?
It’s inadequate because it rests on a false understanding of the speech marketplace. The best explanation for why we have a strict state action restriction on the scope of the First Amendment is the government is a regulator of the speech marketplace, so we want to limit its ability to kick anyone out of the marketplace of ideas.
Ideally, we want to give people who participate in the marketplace of ideas a lot of freedom to discriminate when it comes to speech because that’s how the marketplace of ideas separates good ideas from bad ideas. You couldn’t have an effective marketplace of ideas if people couldn’t decide which ideas they want to associate with and which ideas they
May 6, 2021 - VOX
Facebook CEO Mark Zuckerberg testifies at a joint hearing of the Senate Judiciary and Commerce committees on Capitol Hill on April 10, 2018. | Xinhua/Ting Shen/Getty ImagesBig Tech poses an enormous challenge to free speech — but we aren’t having the right debate about it. Editor’s note, May 5, 2021: On Wednesday, a Facebook oversight board ruled that the social media service could retain its ban on former President Donald Trump following the insurrection at the US Capitol on January 6. The board..