Politics & Policy

Facebook Forgets the First Amendment

Facebook CEO Mark Zuckerberg testifies on Capitol Hill in April 2018. (Leah Millis/Reuters)
Its founder wants the government to regulate and police online speech.

Facebook is under mounting scrutiny for its approach to moderating online speech. Lawmakers and the public alike have serious questions about the decisions Facebook chooses to make about the things you can say and the posts you can see on its platform. Some of those questions will likely be asked this week by the Senate Judiciary Committee when it holds a hearing on technology companies and free speech.

So with this increased focus on Facebook’s decisions, the social-media giant is taking a new approach. Last week, Facebook CEO Mark Zuckerberg called for the government to police your speech instead of having Facebook do it. He wants governments around the world to adopt rules that would determine what types of speech are and are not allowed online. Unfortunately for his plan, government censorship isn’t just a bad idea; in America, at least, it would violate the First Amendment.

Now, Facebook may see this as a convenient way of passing the buck. Or perhaps it wants to divert attention from calls to break up Big Tech. But none of that justifies Facebook’s decision to surrender our First Amendment rights as tribute.

In my experience as a commissioner at the Federal Communications Commission, large corporations do not call for greater government control as an act of charity. They do it to solidify their positions in the market and insulate themselves from competition. Facebook already employs 30,000 people to perform “content and security review,” and they have an army of lawyers and lobbyists ready to navigate costly new regulations. Startups and would-be competitors do not have those resources. So the rules Facebook wants would operate as an economic moat, insulating it from upstart players. It’s no surprise, then, that Facebook waited until after it established a leading position and a market capitalization of half a trillion dollars before finding religion in regulation.

This marriage of Big Tech and Big Brother would represent a sweeping new intrusion on our First Amendment rights. The online speech czar that Facebook proposes wouldn’t just target illegal content. Instead, Facebook would have the government police what it calls “harmful content”—a broad category of speech that is fully protected by the First Amendment. What is harmful content? Would a robust defense of Second Amendment rights cross the line? Facebook wants politicians to decide. And there’s certainly no shortage of regimes around the world that would welcome the chance to shut down political speech or free expression on the grounds that it represents “harmful content.” Quite simply, Facebook’s plan is an invitation for governments worldwide to silence unpopular ideas.

After the op-ed ran, one Facebook official tried to walk back the proposal, saying that Zuckerberg only meant for foreign governments to regulate online speech. In the U.S., the official said, Facebook would set up an internal oversight board that would have binding authority to make decisions about speech that is and is not allowed. This is cold comfort when it comes to online freedom. It shows that Facebook is perfectly willing to join arm and arm with foreign governments to censor online speech, since that pesky First Amendment applies only in the U.S. But we should not geo-fence our commitment to free expression, and we should not bargain it away as a cost of doing business overseas.

In any event, Zuckerberg largely rejected the walk-back in an interview later in the week with ABC’s George Stephanopoulos. In it, Zuckerberg issued a new and expanded call for the U.S. government itself to police online speech. It is time for our government to step in, Zuckerberg said, and regulate speech on “divisive political issues.” He cited as an example such hot-button issues as immigration. But that’s not the government’s role. In fact, there’s little more deeply rooted in the fabric of our country than the robust and free exchange of views on controversial issues. We should all want it to remain free from government regulation.

For his part, Zuckerberg euphemistically described his position as a call for “a more democratic process” for regulating speech. But the entire purpose of the First Amendment is to insulate speech — particularly unpopular speech — from the democratic process. We do not want a majority of Americans or the government to decide what we may and may not say online.

In the end, Facebook just doesn’t get the First Amendment. And when a powerful corporation proposes censorship regimes that would violate our fundamental rights, it’s important that we call it out.


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