A Step Toward Facebook.gov?
Get ready for the government to determine what bullying online is (and therefore, what free speech isn't)
Earlier this month Facebook launched a pilot program to give Maryland school officials their own complaint channel to flag content for takedown, with the stated aim of protecting teens from "cyber-bullying" whether in or out of school, a topic on which Maryland recently passed a new law. As Maryland Attorney General Doug Gansler seems to envision things (listen here), the channel will empower Maryland officials to seek takedown of speech that they deem to constitute bullying even if it violates no law: "We're not going to go after you, but we are going to take down the language off of Facebook, because there's no redeeming societal value and it's clearly hurting somebody."
Libertarians and First Amendment advocates, myself included, have reacted with alarm. Criminal defense lawyer Scott Greenfield:
While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write "Suzy is a poo poo head" on the wall, it's not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn't comport with their vision of redeeming societal value, whatever that means.
Likewise Tim Cushing at TechDirt: "The foot's in the door… Maryland's anti-bullying law sets its own dangerous precedents, as does Facebook's willingness to (at least publicly) ingratiate itself to censorious state bodies. It won't just be one state or one social network before it's all said and done."
Reacting to critics, Facebook insists (queried by Wall Street Journal Law Blog reporter Jacob Gershman) that "it's not changing its content policy one iota" and that "issues raised through this channel will be reviewed according to the same, existing community standards" as are used for complaints coming in through other channels:
The pilot program allows schools to fast-track complaints and provide Facebook with more context to help the company evaluate whether the flagged content meets its standards, the company says.
"The state is not actors in the actual decision-making process of what stays on and what's taken down," Alan Brody, a spokesman for the Maryland attorney general, told Law Blog.
Do you find this reassuring? I don't. Yes, Mr. Brody may ask us to believe that the state's implicit lifted eyebrow as a repeat player with its own back channel will have absolutely no influence on Facebook's willingness to do takedowns, but members of the public (and those whose speech gets taken down) will have no particular way to peer into the process to see whether that's the case. What we do know is that the National Association of Attorneys General (NAAG), a group of state officials Facebook has reason to keep happy at almost any cost, was instrumental in its agreement to create the new Educator Escalation Channel.
On the face of it, the whole point of the new channel is to make sure complaints that come in from officials are not handled the same way as complaints from private users. A Baltimore Sun account fills in some background about how the process works at present:
Dale Rauenzahn, Baltimore County's executive director of school safety and security, said [that even as a top school official in his county] he has been stymied in contacting social media companies.
"We have tried to contact the vendors directly, and it is very difficult to get the right person," he said, adding that school officials are often passed around or he has been told something must be reviewed by lawyers first.
Note the premise that there's something irregular about wanting to consult a lawyer before granting a government actor's takedown request. Has Rauenzahn been given to believe that lawyers' review of such requests will now become more cursory?
Already, Facebook has been known to take down material on the basis of complaints that arise from misreadings, overreactions and unusual sensitivities (and even occasionally political vindictiveness). Lest it be thought to move too slowly, the service is also known for taking down content and even disabling users on the basis of critics' side of the story, before giving an ear to the defense. Maybe there's logic to this, but one may doubt that results will always necessarily improve if accusers using the school channel acquire more leeway to add extra "context to help [Facebook] evaluate" the complaint, which might amount simply to extra one-sided input with which to make the case for takedown.
As I told Robby Soave at the Daily Caller, I
[don't] trust the government to make a fair judgment about what kind of speech has value.
"The First Amendment protects very upsetting speech," said Olson.
Add the fact that this program will police students at times when they aren't even in school, and there is real potential for unconstitutional abuse, said Olson, who jokingly referred to the partnership between Maryland and Facebook as "Facebook.gov."
"I don't like Facebook.gov," he said. "I'd much rather have Facebook.com."