Law & the Courts

The Corner

The Senate Should Leave Facebook Alone

The head of the Senate’s Commerce, Science, and Transportation Committee has sent a letter to Facebook asking for an explanation of its “trending news” practices. The request serves as an initial response to the claim that Facebook has been tweaking its feed in order to exclude conservative content.

​This, it should go without saying, is a mistake. The federal government has no authority to oversee Facebook, a private website, and it should not claim it. The FCC’s now-defunct “Fairness Doctrine” was always bad policy, and it is a good thing that it has been abolished. No good can come from bringing it back — or, worse, from expanding the authority under which it was contrived. Senator Thune should rescind his request and get back into his box.

The Supreme Court has ruled that the federal government may only attempt to “oversee” or to “balance” political speech in such cases as that speech is broadcast over a scarce resource (e.g. radio waves). It is for this reason that the “Fairness Doctrine” applied to television and radio shows that were conveyed over the public airwaves, but not to television or radio shows that were conveyed via cable. By claiming the power to oversee a site such as Facebook, Senator Thune is attempting to blow that restriction wide open.

Frankly, this makes no sense. Even if Senator Thune believes that the government has an interest in ensuring that political debate is “balanced” (and I hope he does not; limited resources or not, this isn’t the role of the state), he is applying this conviction to the wrong realm. By its very nature, the Internet does not suffer from the scarcity problem that FM and AM radio do. Not only are barriers to entry extremely low, but the introduction of new sites has virtually no technical effect on the integrity of existing sites. In short, there is no need whatsoever for government arbitration in this area.

By demanding that Facebook account for itself, Senator Thune is ultimately claiming the power to investigate any online service that is even tangentially involved with the dissemination of news. In addition to representing a clear violation of the First Amendment, this sets a dangerous and undesirable precedent — one that conservatives would usually avoid at all costs.

Mistake.

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