Facebook, Trump and the Republic

Dangerous weapons should not be in the hands of the mentally unstable or those with records of usage that causes harm to others. This includes social media platforms where misinformation has led American democracy down a landmine-filled path, endangering its very existence. The decision by Facebook’s oversight board to keep intact the suspension of Donald Trump’s privilege (not right) to use its platform is consistent with current law.

Critics, including the ex-President himself, ironically have used their First Amendment rights to claim that their First Amendment rights are being violated. In part, this criticism rests on the improper notion that constitutional rights are absolute. They are not.

As a professor who specializes in speech and press freedom, I tend to be an advocate for those rights. But it also places me in a position to recognize the legal limitations on them. For example, speech that constitutes “true threats” or the incitement of lawless action are outside the boundaries of First Amendment protection. This long-established legal doctrine is generally accepted. Not so readily accepted, it seems, is the core meaning of the First Amendment: The government may not abridge speech, especially based on its content. Facebook, like all social media platforms, is not “the government.”

Moreover, there are several court rulings that declare the environment established by social media is not a public forum. In spite of the “ubiquity” and role as a “public-facing platform,” one court ruled, the virtual marketplace of ideas created by these companies “remains a private forum, not a public forum subject to judicial scrutiny under the First Amendment.” That is, privately-owned companies like Facebook may establish and enforce user policies, some of which may infringe on speech. Information posted regularly that is deemed dangerous or potentially harmful enables that company to suspend a user’s privilege to use the platform. In the wrong hands, access to these platforms-as-weapons carries with it the potential for extreme harm to others.

Moreover, imagine a situation in which social media companies have no user-abuse policies. The criticism would be thunderous that they are neglecting their responsibilities. Granted, enforcing these policies has been sporadic, particularly when platform executives appeared to prefer a free speech-based profit margins to social responsibility. Now with some level of enforcement, those whose speech is most affected are erroneously claiming a violation of their First Amendment rights.

Suggestions of being canceled are off base. It’s not as if Trump and his acolytes have been silenced, and that’s an important factor in this calculus (as are previous transgressions). As we’ve seen with regularity, public figures like him have an abundance of platforms on which to speak. As one scholar put it, the debate is more appropriately viewed as freedom of reach, not freedom of speech. Reach can be limited legally, particularly when speech opportunities remain available.

It is also important to note that the decision by the Facebook panel included a provision to revisit this issue within six months, adding that an indefinite decision is not appropriate. Nevertheless, the judgment also reflects a belief that this is an ongoing situation. That is, in this moment, the prospect of Donald Trump’s future posts remains a concern. He has done nothing to retract the Big Lie — that his election defeat was rigged — and only perpetuates that fiction, fueling polarization that some regard as a threat to American democracy. Clearly, the tolerance for misinformation is declining.

All this said, the dilemma on our hands is apparent. There is tension between the current legal reality and the spirit of free speech. Existing policy is not static. It should be debated with a goal of platform accountability to help control the current Age of Misinformation. To their credit, some social media companies have taken some appropriate steps. Though not the (government-owned) town square of previous eras, the universe that social media companies have spawned has, in fact, become a de facto marketplace of ideas. But now the marketplaces (plural) are privately owned. The impasse that situation presents must be addressed.

Though it’s unlikely that any resolution would please everyone, that should not preclude efforts to develop one — or several. This is more than a matter of limiting speech that we don’t like. It’s about developing a policy consistent with the First Amendment that is both equitable and that facilitates a functioning democracy by allowing its citizens access to the truth rather than allowing them to be duped with misinformation. While many people may believe that the current Congress — where “impasse” often seems to be as common as the air its members breathe — is incapable of leading the charge, it must. Way back in the 1990s, for example, realizing that the survival of many broadcast television stations was in jeopardy, Congress held extensive hearings with dozens of experts to develop a solution. It worked. This time, it’s not a group of media organizations whose existence is at stake, but the republic itself.