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.
SUBSCRIBESubscribe to WIRED and stay smart with more of your favorite writers.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.
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