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How Facebook Gets the First Amendment Backward

Wired 07 Nov 2019 10:29

“There’s no basis for treating speech by people running for office differently, and more favorably, than speech by other people” under the First Amendment, Bhagwat said. “To the contrary, if anything.”

At its most basic level, the First Amendment is designed to protect the free speech rights of Americans against the powers of the state. But, if we continue to analogize Facebook to the government, the campaign speech policy tacks in the opposite direction, granting extra rights for political candidates—who are disproportionately likely to already be political officeholders—that the rest of us don’t get.

“I know many people disagree, but, in general, I don’t think it’s right for a private company to censor politicians or the news in a democracy,” Zuckerberg said at Georgetown. But if fact-checking amounts to censorship, the unavoidable implication is that Zuckerberg thinks it is right to censor the rest of Facebook’s users—the ones who aren’t politicians. (Meanwhile, as Julia Carrie Wong recently pointed out in The Guardian, Facebook has been silent on how the policy applies to Facebook’s billions of users around the world, most of whom don’t live in Western-style democracies in the first place.)

Yet if Zuckerberg treats ordinary Facebook users as second-class speakers, he seems to be simultaneously giving us too much credit as listeners, insisting that it’s up to us to figure out whether politicians are lying or not. This idea, too, has some support in the First Amendment tradition—at least on the surface. In 1919, Supreme Court Justice Oliver Wendell Holmes famously argued that “the theory of our Constitution” is that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” While this metaphor has its limitations—we probably don’t want the government to decide whether our tap water is safe to drink by taking an opinion poll—it stands for the principle that the government must let public debates play out freely, without picking sides.

But the “marketplace of ideas” theory depends on us all participating in the same discussion. “Until recently, we assumed that public debate was public,” said Bhagwat. “And so when people said things that weren’t true, we knew that they were saying things that weren’t true, and we could respond to them.”

Facebook has set up a very different kind of marketplace, one where advertisers can direct completely different messages to different audiences. As Ellen L. Weintraub, chair of the Federal Election Commission, argued in The Washington Post last week, targeted advertising makes it “easy to single out susceptible groups and direct political misinformation to them with little accountability, because the public at large never sees the ad.” Weintraub and others have therefore proposed eliminating microtargeting for political ads. One reason that approach to combating misinformation may be more promising than banning political ads altogether, as Twitter plans to do, or by relying on ever more fact-checking, is that it aligns more neatly with First Amendment ideas about how political debate is supposed to play out in a democracy.

For now, though, Facebook’s policy and free speech principles will remain an awkward fit. Zuckerberg has repeatedly invoked the importance of giving everyone a “voice”—a word he used 31 times during the Georgetown speech. But the two-tiered ad policy implies that some voices are more important than others. Sometimes, those important voices will be political outsiders running insurgent campaigns. But much more often, they will be members of the existing ruling class. The unstated assumption of Facebook’s policy is that what politicians have to say is more worth hearing than what the rest of us have to say. That’s one way of looking at democracy. You just won’t find it in the First Amendment.

Updated 11-12-19, 2 pm EST: Ashutosh Bhagwat is on the faculty of UC Davis, not UC Hastings, where he used to teach.

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