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.

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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 Davis. 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.

“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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