Matthew Beckwith
Facebook[1] and YouTube[2] announced last week that they would not take down politicians’ posts that violate their community standards, in anticipation of the upcoming 2020 elections. Facebook stated, and YouTube echoed, it will only remove candidate’s posts when the company determines the content has the potential to incite violence or poses a safety risk outweighing its public interest value. Twitter, however, has announced its intention to flag and de-emphasize tweets from politicians that break its content rules.[3]
What should we make of this self-regulation? Obviously, the 2016 elections were unique for a variety of reasons. But one important distinction from prior elections was that the 2016 elections saw social media become a major factor in the election. From Trump’s tweets, to the explosive spread of “fake news”, to the Facebook-Cambridge Analytica scandal, social media companies defined one of the most chaotic elections in modern American history.
Social media companies are simply without precedent in the American political landscape. As Jack Balkin has brilliantly observed, free speech today is a triangle.[4] Whereas 20th Century political speech was defined by the two-way relationship between government actors and speakers, the 21st Century speech model is a pluralist model, with government actors in one corner, privately owned internet companies in another, and a wide array of speakers in the third corner.
The recent decisions/announcements by Facebook, YouTube, and Twitter show that social media companies are actively engaging, on a company by company basis, in a process of self-regulation. This is not new behavior. In 2015, Facebook determined it would not take down racially charged posts on then-candidate Donald Trump’s Facebook page because the comments were a major part of the national political discourse.[5] The company determined that despite public outcry that the posts constituted “hate speech” toward Muslim refugees, Facebook users were entitled to see such content.
Self-regulation is not inherently problematic per se. Classic journalistic ethics largely developed as the result of self-regulation by practitioners and scholars.[6] This ultimately leads to an impressive professional model in the 20th Century that favored a contextual approach to the application of chosen principles. It may seem only natural that social media companies are still calibrating how best to handle political discourse on their platforms, and could reach a similarly admirable outcome if left to their own machinations. However, recent economic history has shown us the dangers of relying on self-regulation by private actors. When government regulators like Alan Greenspan argued that the government was no better than markets at imposing discipline, it partially led to the 2008 Financial Crisis.[7]
So again, what should we make of this self-regulation? The companies seem to appreciate that political speech is critical to the electoral process. This is correct, and in fact, scholars like Cass Sunstein have argued that contemporary First Amendment doctrine should be more focused on protecting the functioning of a Madisonian deliberative democracy.[8]As such, keeping politicians’ speech on their platforms is important to establishing an informed electorate. The public should know what candidates believe, especially if those beliefs take the form of hateful rhetoric.
But the larger point is that these companies are now co-equal actors in the national circulation of political speech. Self-regulation is inappropriate when the impacts are national, or even global. In the Progressive Era, it was said in regard to the growth of monopolies, that freedom created wealth, which in turn reduced freedom. In the era of triangular free speech and social media behemoths, we may say that online expression built social media companies, and they are now threatening all expression.
The other two corners of the free speech triangle, government actors and speakers (who double as shareholders and users), should act as a democratic counterbalance the potential damage caused by private internet companies on the political process. The public—as social media consumers, voters, and activists—could create a mandate for reform minded candidates that back a regulatory agenda based around transparency and accountability. Multiple scholars have proposed reforms intended to ensure social media companies help shape a system of healthy free expression. Such reforms range from Jack Balkin[9] arguing legislatures adopt technical and regulatory measures to promote democratic values, to Tim Wu’s[10] calls for the adoption of a “fairness doctrine” for social media. But these reforms depend on the election of leaders who support such reforms in 2020. This leaves a nation of speakers, at least temporarily, stuck in a democratic paradox.
[1] Elizabeth Culliford, Facebook Will Not Label or Remove Politicians' Rule-Breaking Posts, Reuters, Sept. 24, 2019, https://www.reuters.com/article/us-usa-election-facebook/facebook-will-not-label-or-remove-politicians-rule-breaking-posts-idUSKBN1W9383
[2] Elizabeth Overly, YouTube CEO: Politicians Can Break Our Content Rules, Politico, Sept. 25, 2019, https://www.politico.com/story/2019/09/25/youtube-ceo-politicians-break-content-rules-1510919
[3] Twitter Safety, Defining Public Interest on Twitter. (Jun. 27, 2019), Twitter, https://blog.twitter.com/en_us/topics/company/2019/publicinterest.html
[4] Jack M. Balkin, Free Speech Is a Triangle, 118 Colum. L. Rev. 2011 (2018).
[5] Doug Bolton, This Is Why Facebook Isn't Removing Donald Trump's 'Hate Speech' From The Site, The Independent, Dec. 15, 2015, https://www.independent.co.uk/life-style/gadgets-and-tech/news/donald-trump-muslim-hate-speech-facebook-a6774676.html.
[6] See Stephen J. A. Ward, Journalism Ethics, The Handbook of Journalism Studies, New York: Routledge, 2009.
[7] See Edmund L. Andrews, Greenspan Concedes Error on Regulation, N.Y. Times, Oct. 23, 2008, https://www.nytimes.com/2008/10/24/business/economy/24panel.html.
[8] Cass Sunstein, Democracy and the Problem of Free Speech. New York: The Free Press , 1993.
[9] Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1, 19 (2004).
[10] Tim Wu, Is the First Amendment Obsolete?, Knight First Amendment Institute, Sept. 1, 2017, https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.