An Evaluation of Facebook’s Free Speech Policies

After Facebook Chief Executive Mark Zuckerberg recently spoke at Georgetown University and testified on Capitol Hill in front of the House Financial Services Committee, Facebook and its free speech policies have once again come under harsh scrutiny.

For years, Facebook has faced a wide range of criticisms regarding its free speech policies, many of which are back under public debate, after recent appearances by Mark Zuckerberg. A widely cited example of Facebook’s problems with free speech can be observed in the 2016 U.S. Presidential Election when Facebook allowed misleading and factually inaccurate ads to run on its platform. Created by Russian “trolls,” these ads were disseminated from fake accounts that were not connected to actual people. Also, Facebook’s guidelines for removing hate speech have been accused of being insufficiently restrictive. One horrific example of this came last year when Facebook was used as a mechanism to help spark a genocide in Myanmar.

In the wake of these failings, Facebook has altered many of its policies, doubled down against dangerous content, and worked to maintain free speech standards. Facebook’s commitment to allowing expression and speech, even if controversial, is laudable and representative of our nation’s democratic principles. Facebook’s policies effectively uphold its users’ freedom to express themselves, while providing entirely sensible limits on the worst aspects of speech and expression. 

 

Facebook’s Policies:

Since these incidents and widespread criticism that followed, Facebook has altered many of its policies and invested heavily in security measures to regulate dangerous free speech. In his speech at Georgetown University on Oct. 17, 2019, Zuckerberg acknowledged that the guarantee of free speech in The First Amendment of the United States Constitution does not apply to private companies, but he responded that freedom of expression is central to Facebook’s mission, which seeks to “give people a voice and bring people together.” Zuckerberg argued that since Facebook is involved in public discourse and freedom of speech is closely tied to the company’s mission, Facebook tries to ensure freedom of speech on its platform. However, there are important limits. Facebook does not allow any dangerous speech or expression on its platform, citing examples like terrorist propaganda, bullying, child exploitation, or anything else that could incite violence. In his Georgetown speech, Zuckerberg also reiterated that Facebook stands fundamentally against misinformation. Facebook requires any new accounts to provide a form of government identification and location if it “wants to run political ads.” He contends that this is the most effective way to combat misinformation because the vast majority of intentional misinformation comes from fake accounts. Facebook has also expanded its policies to combat voter suppression and targeted misinformation regarding voting. For example, the platform now prohibits actions such as providing “misrepresentations about the dates, locations, times and qualifications for casting a ballot.”

 

The Effectiveness of Facebook’s Policies:

Facebook’s defenses against these negative types of speech have come a long way. Facebook now maintains a security budget that, according to Zuckerberg, “is greater than the entire revenue of our company at the time of our IPO earlier this decade.” Within their security budget, Facebook has over 35,000 security employees protecting its users from negative content and preventing potentially dangerous activity. In addition to its employees, Facebook possesses numerous software programs and Artificial Intelligence (AI) systems that detect and remove harmful content. In fact, the technology has greatly improved, with Zuckerberg even positing that Facebook’s AI systems “identify 99 percent of the terrorist content before anyone even sees it.” Zuckerberg went on to declare that, in its attempt to decrease misinformation spread by fake, or robot, accounts, Facebook’s systems “remove billions of fake accounts per year.”

To summarize his company’s position of free speech, Zuckerberg stated that Facebook has two key commitments: “to remove content when it could cause real danger as effectively as we can, and to fight to uphold as wide a definition of freedom of expression as possible.”

 

Harsh Criticism from Capitol Hill:

Not only do many everyday Facebook users find issues with Facebook’s positions, but many members of Congress are pushing for more restrictions. In a particularly poignant exchange, Congresswoman Alexandria Ocasio-Cortez pushed Zuckerberg to explain why he will not regulate political speech by politicians, asking him a series of questions about voting misinformation and incorrect information coming from politicians. To answer the first question, Zuckerberg told the Congresswoman that voting misinformation would not be allowed, but on the second question, he answered that he did not know, before saying that Facebook would not regulate the political speech of politicians, even if their statements were incorrect or misleading. Zuckerberg addressed a similar point in his Georgetown University speech, proclaiming that he doesn’t “think it’s right for a private company to censor politicians … in a democracy.” Later in the hearing, Zuckerberg was pressed by several other members of Congress about the independent, fact-checking agency that Facebook employs and the civil rights task force. The common criticism from lawmakers was that Facebook does not do enough to restrict free speech or combat misinformation.

 

Analysis Of Facebook’s Policies:

         Despite many objections, Facebook’s policies toward freedom of speech are not only effective at removing truly dangerous content, but they actually are a great tribute to the democratic principles of the United States. Facebook’s positions on speech and expression are quite similar to that of the U.S. Constitution and Supreme Court. The First Amendment to the Constitution famously asserts that “Congress shall make no law … abridging the freedom of speech” [US Constitution, amend. 1, Dec. 15, 1791]. However, it is widely recognized that there should be some limits to free speech. For instance, in the famous Supreme Court Case Brandenburg versus Ohio, the court ruled that controversial or inflammatory speech was protected so long as it did not incite actual violence [Brandenburg v. Ohio,  395 U.S. 444, US Supreme Court 1969]. Facebook’s policies prohibit any speech fitting this description, and it goes even further by prohibiting any hate speech, even if it is clearly not inciting violence. 

Facebook users do not have universal freedom of speech on the platform, nor anything close to it. The platform correctly bans fake accounts for spreading misinformation and censors all “dangerous” content, which is defined quite broadly. But Facebook’s decision to allow free speech and, more specifically, free political speech is admirable. 

In contrast to Facebook, social media giant Twitter announced on Oct. 30 that it would ban political ads from its platform beginning on Nov. 22. Given the societal importance and widespread use of Facebook and Twitter, politicians utilize them to communicate directly with citizens, including some who might not otherwise hear their messages. To ban all political ads is to limit voter knowledge. To limit voter knowledge is to doom our democracy.

A fundamental aspect, perhaps the most fundamental aspect, of the United States is the ability to freely express one’s opinions, beliefs, approval, disapproval, or other judgements, no matter how controversial or unpopular. Facebook’s decision to uphold this ideal ought to be praised.

James McIntyre is a sophomore from Knoxville, Tennessee studying Economics and Political Science.

 

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Are America’s Antitrust Laws Prepared for the 21st Century?

Summary: In the twenty-first century, amidst significant changes to the American and global economy, our century-old antitrust laws may be lacking the key protections needed to regulate the giants of today’s economy, despite their past successes in breaking up monopolies.

In response to the increasing power of the Standard Oil Company, who controlled the refining of more than 90 percent of oil in the United States by 1880, Ohio Senator John Sherman proposed the Sherman Antitrust Act to preserve “free and unfettered competition as the rule of trade” by breaking up monopolies. 128 years later, a new challenge is faced as courts must decide whether or not the technology magnates of the twenty-first century are in violation of existing antitrust protection.

In addition to the 1914 Sherman Antitrust Act, the Clayton and Federal Trade Commission Acts expanded protections against “conspiracy…in the restraint of trade” and “unfair methods of competition,” respectively.

Although the Sherman Act states that “every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony,” the definition of what defines a monopoly (or an attempt to create one) is left to the courts to decide. What percentage of a market must be controlled by a company before it is considered to be a monopoly? If a monopoly reduces inefficiencies, which benefit consumers by lowering prices, is this monopoly actually harming consumers? And the question that may be more relevant than ever: what counts as an industry? Is online shopping a distinct industry from brick-and-mortar retail?

In the 1962 Supreme Court Case Brown Shoe Co. v. U.S., the third-largest and eighth-largest shoe retailers attempted to merge, however, the Court argued that doing so would violate the Clayton Act. The Supreme Court defined the shoe companies as partaking in not just one industry, but three: men’s, women’s, and children’s shoes. The District Court found that in the vast majority of cities, competition would decrease in the shoe industry. Interestingly, the precedent of past mergers influenced the court’s decision to side against the companies.

Despite the apparent loss that Brown Shoe seemed to offer to businesses, there remained a silver lining within the court’s analysis. Such mergers could benefit consumers as long as doing so would reduce inefficiencies in an economy of scale, making the industry more competitive and beneficial to consumers.

Twelve years later, Brown Shoe was essentially reversed in the 1974 case United States v. General Dynamics Corp. The attempted acquisition of United Electric Coal Companies by the eponymous General Dynamics Corporation had much in common with that attempted by Brown Shoe Co. Both were in industries that faced an increasingly small number of companies controlling an increasingly large share of the industry, and while this acquisition would enlarge the market share of General Dynamics, the court no longer assumed that this caused a decrease in competition. In fact, the court suggested, it may actually increase competition in the industry as United Electric, who focused on strip-mining, was facing dwindling reserves and a decline in their ability to rival the other coal companies in the surrounding areas.

However, as the economy underwent significant changes with the dawn of the internet and the growth of the technology sector, which often act in ways which traditional brick-and-mortar businesses do not, there is doubt in the ability of the nation’s antitrust laws to act when needed.  Perhaps the best example of the disconnect between the tech boom and politics is the appearance of Facebook CEO Mark Zuckerberg before three Senate committees, where Utah Senator Orrin Hatch failed to understand the company’s ad-based revenue model.  If the Legislative branch cannot grasp the fundamentals of the twenty-first-century economy, what chance does the more isolated Judiciary stand in analyzing the finer details of a merger between two multifaceted tech firms?

Two recent developments make antitrust cases more difficult to fully analyze in the modern age. The first is globalization and the multiple jurisdictions in which multinational corporations operate under.  Because the different jurisdictions may be affected differently by mergers—two companies that may be relatively small in most jurisdictions may have a very large share of a certain industry in a relatively small nation—there is room for some countries to engage in protectionism under the name of antitrust laws.  The second is the “better, faster, high-tech” development of the “New Economy,” where efficiency and competition can be difficult to measure.

Although there have been calls for a legal challenge to the increasingly monopolistic control of Amazon, existing laws do not provide significant legal standing for any large-scale challenge to the e-commerce giant.  Rather than using monopolistic practices to beat its competition, Amazon simply beats them with its size, selling massive quantities on razor-thin margins to outsell its competitors. Although this is obviously terrible for plurality in the industries in which Amazon operates, it has not harmed the consumer, at least not yet. However, Amazon’s actions have shown a methodical plan to achieve such a large market share that it can monopolistically manipulate its suppliers and that gives it an unfair advantage in a seemingly fair competition with other companies.  

But for now, Amazon still stands. And it is hard to see Amazon being seriously challenged by American Antitrust Legislation without a significant reinterpretation of the Clayton Act by the Supreme Court. Although, in the past, economies of scale allowed for increasing competition, it is possible for companies to get so large that this advantage while benefiting the consumer by price, hurts them by restricting choice. And in the age in which data collection by companies such as Amazon, Facebook, and Google is more scrutinized—and more prevalent—than ever, the lack of choice over who collects our data, and what is collected, may prove to damage the consumer more than the extra money paid to keep the brick-and-mortar bookstore afloat amidst the low prices of Amazon and the rest.