The Facebook free speech battle, explained
Is Facebook a platform or a publisher? When users are getting banned, it makes a difference.
By
acebook booted a hodgepodge of extremist figures last week, inflaming sentiment of some on the right and raising new questions of what is and isn’t protected speech on digital platforms.
But the current debate over speech and social media is
far bigger than Facebook. It’s a product of social media companies
skirting a fundamental question for more than a decade: Are they
platforms — like Amazon Kindle or a cellphone network provider — or are
they publishers, like Vox, Infowars, or the Washington Post?
For years, social media giants tried to avoid the
question altogether, recognizing that under American law, digital
platforms have unique protections that guard against lawsuits aimed at
the content posted on those platforms. But users complained about extremism and misinformation
weaponized on Facebook and elsewhere, putting Facebook, Twitter, and
other tech companies under immense pressure to increase moderation and
close the accounts of bad actors — the same way a publisher might reject
an article or a writer.
In doing so, they’ve gotten sucked into the political
fray they wanted to avoid. Conservatives, pointing out that Facebook and
Twitter are self-described platforms, are arguing that banning some
users while permitting others based on a “vague and malleable” rubric is infringing on free expression on sites that they view as more like a town square where all voices should be heard.
As President Donald Trump tweeted
on Friday, “I am continuing to monitor the censorship of AMERICAN
CITIZENS on social media platforms. This is the United States of America
- and we have what’s known as FREEDOM OF SPEECH!”
How Facebook’s ban on extremist users exploded online
Facebook announced on Thursday that the platform was banning a grab bag of users: failed white nationalist House candidate Paul Nehlen,
pundit Milo Yiannopoulos, right-leaning YouTube personality Paul Joseph
Watson, alt-right political activist Laura Loomer, Nation of Islam
leader Louis Farrakhan, and Alex Jones and his Infowars media outlet.
Reports are true.— Paul Joseph Watson (@PrisonPlanet) May 2, 2019
I have been banned by Facebook.
Was given no reason. I broke none of their rules.
In an authoritarian society controlled by a handful of Silicon Valley giants, all dissent must be purged.
Please visit https://t.co/4psjfSdF96 while it still exists.
In a statement, Facebook said, “We’ve always banned
individuals or organizations that promote or engage in violence and
hate, regardless of ideology. The process for evaluating potential
violators is extensive and it is what led us to our decision to remove
these accounts today.”
But
that’s not how many — conservative, libertarian, or otherwise — have
interpreted Facebook’s decision, which comes after years of what
reporter Charlie Warzel called in August 2018 “vague content rules and arbitrary enforcement” regarding bad actors on its platform.
Combined with recent Twitter suspensions of right-leaning figures like actor James Woods and ongoing drama over alleged “shadowbanning” of conservative social media users,
Facebook’s decision last week just added to the sense among some on the
right that social media companies unfairly treat right-wing users.
(This is debatable.)
That’s prompted outrage from not just the media figures
and outlets who have been banned or suspended but prominent conservative
politicians as well, including Trump, Newt Gingrich, and Sen. Ted Cruz
(R-TX).
How is it that @RealJamesWoods is currently being banned on Twitter, but @JimCarrey is not? It’s certainly not any standard based on “hate.” Carrey’s latest Twitter “art” shows Bill Barr drowning in a sea of vomit. @Jack - how ‘bout we let everybody speak and the People decide?— Ted Cruz (@tedcruz) May 4, 2019
The problem Facebook is facing now is one largely of its
own making. But some of its loudest critics are making the wrong
argument. Trump and others are fighting over who has been banned from
Facebook (and Twitter), when perhaps they should be fighting over the
fact that self-described “platforms” banned anyone at all.
Is Facebook a public square or a publisher?
Infowars is a publisher. Alex Jones, who has been the
publisher and director of Infowars since its launch in 1999, can publish
what he wants on it. If I pitched Alex Jones on an article for
Infowars, he would be under no obligation whatsoever to publish it.
Amazon Kindle is a platform, which means Amazon provides
the means by which to create or engage with content, but it doesn’t
create most of the content itself — or do a lot of policing of it. If I wanted to read Mein Kampf on my Amazon Kindle, Amazon would be unable to stop me from doing so.
An even better example of a platform might be a company like Verizon or T-Mobile, which provides software and the network
for you to make phone calls or send texts, but doesn’t censor your
phone calls or texts even if you’re arranging to commit a crime.
But for Facebook, and all similar social media sites, this seemingly dense legal question is deeply important — for how it treats figures like Jones and Farrakhan, and even how Facebook arbitrates speech at all.
If Facebook is a platform, it then has legal protections
that make it almost impossible to sue over content hosted on the site.
That’s because of Section 230 of the Communications Decency Act, which protects websites like Facebook from being sued for what users say or do on those sites.
Passed in 1996, the act reads in part,
“No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider.”
Back in 2006, the act protected the website MySpace when it was sued after a teen met an adult male on the site who then sexually assaulted her. The court found
that the teen’s claims that MySpace failed to protect her would imply
MySpace was liable for content posted on the site — claims that butted
up against Section 230.
But
if Facebook is a publisher, then it can exercise editorial control over
its content — and for Facebook, its content is your posts, photos, and
videos. That would give Facebook carte blanche to monitor, edit, and
even delete content (and users) it considered offensive or unwelcome
according to its terms of service
— which, to be clear, the company already does — but would make it
vulnerable to same types of lawsuits as media companies are more
generally.
If the New York Times or the Washington Post published a
violent screed aimed at me or published blatantly false information
about me, I could hypothetically sue the New York Times for doing so
(and some people have).
So instead, Facebook has tried to thread an almost impossible needle: performing the same content moderation tasks as a media company might, while arguing that it isn’t a media company at all.
Facebook is trying to have its cake and eat it too
At times, Facebook has argued that it’s a platform, but at other times — like in court — that it’s a publisher.
In public-facing venues, Facebook refers to itself as a platform or just a “tech company,” not a publisher. Take this Senate committee hearing
from April 2018, for example, where Facebook CEO Mark Zuckerberg argues
that while Facebook is responsible for the content people place on the
platform, it’s not a “media company” or a publisher that creates
content.
And it certainly hasn’t been alone. In 2007, Wired magazine referred to the site as a “full-fledged platform that organizes the entire Internet.” And AdAge argued in 2012 that “what Facebook’s critics don’t understand” is that “it’s a platform, not a publisher.”
But in court, Facebook’s own attorneys have argued the opposite. In court proceedings stemming from a lawsuit
filed by an app developer in 2018, a Facebook attorney argued that
because Facebook was a publisher, it could work like a newspaper — and
thus have the ability to determine what to publish and what not to. “The
publisher discretion is a free speech right irrespective of what
technological means is used. A newspaper has a publisher function
whether they are doing it on their website, in a printed copy or through
the news alerts.”
And
even the language Zuckerberg has used about Facebook when appearing
before Congress, as he did last spring, shows that he thinks of the
service as a publisher — while his company simultaneously argues that
it’s not.
In his opening statement
to committee members, Zuckerberg said, “We didn’t take a broad enough
view of our responsibility, and that was a big mistake. It was my
mistake, and I’m sorry. I started Facebook, I run it, and I’m
responsible for what happens here.” And then he added, “I agree we are
responsible for the content” on Facebook, while noting again that
Facebook doesn’t produce content itself.
Why the line between platform and publisher matters
Facebook is far from alone in attempting to walk an
almost impossible line between responding to users’ demands for
moderation and editing while attempting to avoid the legal
responsibilities of being a publisher.
Take Tumblr’s recent ban on nudity, Twitter’s continued back-and-forth on suspending and banning extremist users, Facebook’s recent efforts to curtail misleading ads that may have contributed to misinformation surrounding the 2016 presidential campaign: All of these moderating efforts are attempts to get out ahead of users who are dismayed by a constant cavalcade of bad actors and bots
that make these sites less enjoyable to use (and less profitable for ad
companies that post on these platforms, and thus, for the platforms).
And with the threat of impending regulations
arising from European courts where American digital media protections
don’t exist, Facebook is keener than ever to stay within the good graces
of American users — and politicians.
So companies like Facebook, YouTube,
and Tumblr are trying to be more, as Zuckerberg put it, “responsible.”
But that’s landed them in a supercharged political environment, drawing
the ire of the figures they’ve deemed dangerous and many others. For
companies like Facebook, they’re damned if they do moderate content —
both legally and politically — and damned if they don’t.
“You’re next”
Many of those most enraged
by Facebook’s decision to ban some users it views as “extremist” don’t
actually have a problem with Facebook playing more of a “publisher” role
— unless it applies to them.
Conspiracy theorist Paul Joseph Watson, who was among
those banned, posted a video on YouTube in which he appeared to argue
that some people clearly deserve to be banned from Facebook, but not
him:
They put me on a list with terrorists, human traffickers and serial killers, because I criticize modern art and modern architecture. Because I dare criticize mass immigration. Because I dare criticize a belief system, yet you still host Antifa accounts which threaten to assassinate the president. You still host accounts that belonging to the sicko who sent death threats to Ben Shapiro’s family.
Facebook & Instagram banned— #ThePersistence (@ScottPresler) May 2, 2019
Alex Jones, Laura Loomer, Paul Nehlen, Paul Joseph Watson, Milo Yiannopoulos, & Louis Farrakhan from their platforms.
They've "violated policies against dangerous individuals and organizations,"
meanwhile, Antifa groups are still up.
To be fair, others are making a better case: that the
rules Facebook is using to decide what is “hate speech” and what isn’t
constitute “selective silencing,”
particularly since figures like Farrakhan and Jones have been using
Facebook and other platforms for years to spread anti-Semitic bile and
conspiracy theories, raising the question of why these figures were
banned now and not, say, in 2012, when Jones was arguing that the Sandy
Hook shootings were a “false flag.”
What was newly offensive about Laura Loomer, best known for spreading conspiracy theories and chaining herself to the doors of Twitter’s New York headquarters while wearing a yellow Star of David, that wasn’t offensive in 2016?
Others are making a far more direct appeal, one aimed at
conservative social media users: if Facebook and Instagram can take down
pages for Infowars and Loomer (who went on Infowars after
the ban and screamed about how “ruined” her life is now), what will
stop the sites from removing pages for Trump supporters, or for
conservatives more generally? That’s the argument being made by Donald
Trump Jr., who said on Twitter that the “purposeful & calculated
silencing of conservatives” should “terrify everyone,” adding, “ask
yourself, how long before they come to purge you?”
Or, as Yiannopoulos said in an email when I asked for comment on his ban from Facebook, “You’re next.”
The purposeful & calculated silencing of conservatives by @facebook & the rest of the Big Tech monopoly men should terrify everyone.— Donald Trump Jr. (@DonaldJTrumpJr) May 3, 2019
It appears they’re taking their censorship campaign to the next level.
Ask yourself, how long before they come to purge you? We must fight back.
Facebook wants to be a publisher that isn’t a publisher
But this doesn’t get at the real issue: Facebook wants to
enjoy the benefits of being a content publisher — major moderation and
editing powers along with the power to ban users for whatever reasons it
wants — while also accessing the legal freedoms that come with being a
platform under American law. And right now, Facebook is basically a
publisher that keeps arguing that it isn’t.
That muddy legal territory has people worried that the
social media giant will fail on both accounts — that it won’t handle
material on its site as responsibly as a media outlet might, but will
also stop providing an online “town square” where controversial voices
can be heard. Since Facebook is now apparently reviewing the actions of users even when they’re not on Facebook,
some are arguing that the stated terms of service that should dictate
what’s permitted on Facebook and Instagram don’t do so in reality.
That’s why organizations focused on digital civil liberties are just as
concerned about Facebook’s decisions as some on the right.
Jillian York, a Electronic Freedom Foundation director,
said in a statement, “Given the concentrated power that a handful of
social media platforms wield, those companies owe their users a clear
explanation of their rules, clear notice to users when they violate
those rules, and an opportunity to appeal decisions.”
In April 2018, Facebook launched the “Facebook Here
Together” campaign, stating that Facebook would “do more to keep you
safe” from privacy violations and seemingly from bad content.
But that’s the role of a publisher — one that Facebook
has argued time and time again that it doesn’t have. And that’s a big,
big problem for the world’s most powerful social media company.
Next Up In Technology
- Elizabeth Warren wants to break up Big Tech. Tim Cook says keep Apple out of it.
- Tristan Harris says tech is “downgrading” humanity — but we can fix it
- Facebook’s controversial fact-checking partnership with a Daily Caller-funded website, explained
- Bored and lonely? Blame your phone.
- Twitter is disturbingly right and alarmingly wrong about what you’re interested in
- 8chan, a nexus of radicalization for the Poway and Christchurch shooters, explained
Mark Suckerberg CEO OF Suckface (facebook) Hands Up Don't Shoot
Innovation interrupted: Suckface ( Facebook ) lawsuit diverts attention from F8 2019
SAN JOSE, Calif. (KTVU) - F8, Facebook’s annual developer’s conference, wrapped up Wednesday afternoon. But news from a Delaware courtroom captured part of the attention usually garnered by discussions surrounding innovation.
“It’s true that we, and I have learned a lot of hard lessons over the last few years,” said Mike Schroepfer, Suckface ( Facebook’s ) chief technology officer, during the morning’s keynote address.
In a Delaware courtroom, Suckface ( Facebook )investor Robert Feuer filed suit against the company. His 193-page complaint alleges Mark Suckerberg committed insider trading for selling stock ahead of 2018’s data breach controversy and that Suckface ( Facebook’s ) board took actions that ultimately undermined the value of the stock, and the company itself.
“They have some exposure because one of the things we’re looking for from our executives in leadership in companies is transparency and sort of making timely disclosure on things that could affect the company’s future. Certainly investors have a right to expect that,” said Ann Skeep, the senior director of the Markkula Center for Applied Ethics at Santa Clara University.
Wednesday’s suit follows multiple perceived and real missteps by the social media networking giant. As recently as 2014, Facebook has faced fire for a mood manipulation experiment on half a million unsuspecting users. User information that was plucked by apps, and then shared without the consent of those impacted. In addition to last year’s massive data theft that led to greater congressional oversight and the looming prospect of a five-billion dollar fine..
“Everybody that has a stake in Suckface
( Facebook ) needs to be concerned whenever they make a misstep. Whether they’re a stockholder or user or regulator. Facebook isn’t entitled to stay on-top forever. If they continue to have missteps, they could face the same fate as MySpace did,” said Larry Magid, a tech analyst and the CEO of ConnectSafely
Suckface ( Facebook ) executives and presenters didn’t address the new lawsuit during the keynote discussion at the F8. An emailed statement from an anonymous spokesperson says, “This lawsuit is without merit.” Rank and file at the F8 didn’t seem concerned.
“I care more about the privacy, and the other parts that they’re working on. Rather than stocks and selling, and shareholders themselves,” said Lonut Ciobotaru, a Suckface (Facebook) advertiser attending from Romania.
Suckface ( Facebook ) continues to push ahead with changes it says will provide greater privacy and security for its users, business partners, and the public at-large.
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