Document Type
Article
Publication Date
2020
Publication Title
American University Law Review
Abstract
With nearly two and a half billion users-a third of the world's population- Facebook far and away hosts the largest speech platform in the history of humanity. In the United States, seven out of ten adults use it, and nearly half get news from it. It is therefore no exaggeration to observe that Facebook's self-promulgated rules for "what is and is not allowed on Facebook," its content-based Community Standards, rival if not exceed the First Amendment's importance in shaping discourse in the United States. Yet, unlike the First Amendment, which only protects against government censorship, no scholarship has scrutinized the Community Standards' private regulation of speech on Facebook's far-reaching social media platform. As a result, basic questions about Facebook's sprawling speech code remain unexamined. For instance, at a minimum, do they offer enough clarity to ordinary users and prevent arbitrary or discriminatory moderation? Are they coherent and consistent as a whole? Furthermore, what do they reveal about the nature of Facebook's professed "commitment to expression "?And how do the Community Standards compare for better or for worse-with modern First Amendment principles? This Article inaugurates scholarly consideration of these basic questions about the Community Standards in the critical context of the spread of deliberate falsehoods and other disinformation on the platform to influence the electorate. Spoiler alert: Facebook's speech code suffers from a basic lack of clarity and do not embody a coherent or consistent commitment to expression. Indeed, in many respects, the Community Standards suppress significantly more speech including a wide range of political speech-than the First Amendment would permit of government censors. In addition, Facebook categorically exempts "politicians" from its Community Standards as well as its fact-checking policy out of "respect for the democratic process." But this selective hands-off approach perversely skews public debate by amplifying the expressive power of already dominant speakers in our society. Politicians enjoy an unrestricted license to exploit Facebook's vast reach and highly effective ad targeting tools to spread expedient falsehoods among the most receptive users. Making matters worse, Facebook by design does not broaden or balance public discussion but maximizes user engagement through algorithmically feeding users content tailored to their interests and likes. Many users thereby end up in politically imbalanced, self-reinforcing content bubbles where sensational falsehoods can gain credibility and velocity. While Facebook's special solicitude for politicians and polarizing personalized feed might advance the company's political and business interests, they also promote a race to the bottom among willing politicians and further divide the electorate into balkanized realities based on "alternative facts." Ultimately, Facebook's speech code and policies for its social media platform present serious shortcomings, particularly in the electoral context. There is much room-and need-for further scrutiny.
Volume
69
First Page
1641
Recommended Citation
Joseph Thai, Facebook's Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, 69 Am. U. L. Rev. 1641 (2020).
