How Facebook Gets the First Amendment Backward
What does the First Amendment have to do with Facebook? It depends on whom you ask.
Mark Zuckerberg would probably say: a lot. Over the past few weeks, he has repeatedly invoked the First Amendment to justify Facebook’s controversial decision to exempt posts and paid advertisements by political candidates from its fact-checking system. In a speech to Georgetown students last month, he claimed that the company’s policies are “inspired by the First Amendment.” And last week, after the Social Network director Aaron Sorkin attacked him personally in a New York Times op-ed, Zuckerberg not-so-subtly posted a quote from another Sorkin movie, The American President, to his own Facebook page: “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”
To many of Zuckerberg’s critics, however, the First Amendment—which prohibits the government from abridging free speech—has nothing at all to do with a corporation like Facebook. Zuckerberg’s invocation of it looks, from this perspective, like a cynical ploy to dress up business decisions in a civil rights costume. As the New Yorker tech reporter Andrew Marantz recently put it, “the First Amendment would not suffer” if Zuckerberg reversed course on fact checking political ads, because the power of the state would not be involved: “No dissembling politicians would be arrested for their lies.”
It’s true that the First Amendment doesn’t bind Facebook. And yet the people making that point today probably wouldn’t find it a terribly persuasive defense if the company began banning, say, posts in support of green energy or trans rights. The First Amendment is law, but it isn’t only law—it’s a set of values and a way of thinking about the role speech plays in a democratic society. Most Americans have an instinct that at least some of the anti-censorship ideas animating the First Amendment should determine how a giant communication platform like Facebook operates.
So, for argument’s sake, let’s take Zuckerberg at his word when he says Facebook is taking inspiration from the First Amendment, and instead ask a different question: Does the decision to not fact-check politicians actually embody First Amendment values?
In one narrow sense, the answer is yes. “If you imagined that Facebook were the government, the Supreme Court has long held that the government should intrude as little as possible with political speech relative to other forms of speech,” said Geoffrey Stone, a prominent First Amendment scholar at the University of Chicago Law School. In that spirit, refusing to police the accuracy of political ads is clearly in line with current First Amendment doctrine. “The distinction that Facebook is drawing between falsity in the commercial sphere, which we regularly regulate, and falsity in the political sphere, which we don’t regulate, is a completely valid one,” said Ashutosh Bhagwat, a law professor at UC Hastings. Congress and states can forbid false claims in a commercial for a dating app or an herbal supplement, but campaign messages are another story. In a 2014 case, for example, a federal court struck down a Minnesota law that made it illegal to spread false information to influence votes on a ballot question, and the Supreme Court declined to hear the appeal. “Once you get into the business of regulating truth, that’s a really complicated thicket to enter into,” Bhagwat said.
The problem for Facebook is that the company already has entered the thicket of regulating truth and falsehood. It’s one thing to carve out a special policy for political speech in general; it’s another to make distinctions within that category between politicians and everyone else. In effect, Facebook has set up a two-tiered system in which the likes of Donald Trump, Elizabeth Warren, and Tom Steyer are allowed to lie, but you and I are not. And that’s where the First Amendment analogy breaks down.