Political Speech

In Debate Over Political Speech Online, Facebook Has the Constitution on Its Side

As surely as winter follows fall, Republican election victories are followed by unconstitutional attempts to restrict political speech.

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As surely as winter follows fall, Republican election victories are followed by unconstitutional attempts to restrict political speech.

The Nixon presidency brought the Federal Election Campaign Act of 1971, which the Supreme Court partially struck down in Buckley v. Valeo. The George W. Bush presidency brought the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, after the senators who sponsored it. The Supreme Court partially struck down McCain-Feingold in a series of decisions, including McConnnell v. FEC, FEC v. Wisconsin Right to Life, and Citizens United.

And the Trump presidency seems to be on the verge of bringing us some kind of federal government crackdown on political speech on social media.

As usual in Washington, there is plenty of blame to go around.

Some of the blame belongs to the Republicans. They vote for these bills and sign them into law even after swearing or affirming to preserve, protect, and defend a Constitution that includes the First Amendment freedoms of speech, press, and petition.

And some of the blame belongs to the Democrats. They have such a constricted view of the boundaries of reasonable discourse and are so confident in the popularity of their own views that whenever their side loses an election, they immediately conclude that the rules need to be changed to prevent whatever vote-buying or disinformation must have caused the otherwise inexplicable outcome.

This, then, is the context in which to view the attempt by members of Congress, Democratic presidential candidates, and even the screenwriter Aaron Sorkin to portray advertising on Facebook as an unprecedented threat to American democracy, and to saddle the Facebook CEO, Mark Zuckerberg, with the responsibility of making sure that no American is swayed by a false political advertisement.

The hypocrisy is overwhelming. Between May 2018 and November 1, 2019, Senator Elizabeth Warren's presidential campaign has spent $4,862,939 on Facebook ads, according to Facebook. This, while Warren complains publicly that "Facebook's own employees know just how dangerous their policy allowing politicians to lie in political ads will be for our democracy." If Facebook had followed Twitter's example and banned political ads, Warren would have had to find some other way to get her message out.

More broadly, the way to deal with misleading political speech is not with prior restraint but by answering it with more accurate speech. That approach respects voters as smart enough to sort these things out, rather than infantilizing them as easily deceived.

In The New York Times over the weekend, a professor at the University of Virginia, Siva Vaidyanathan, called on Congress to outlaw the delivery of targeted advertising. "If the same political ads were to reach everyone in a state, district or even country, they would not just appeal to marginal constituencies, might not tend toward extremism, and could not get away with lies quite so easily," the professor imagines.

But politicians have been advertising with tailored messages to "marginal constituencies" since long before Facebook. They use robo-calls to reach identified union members. They use direct mail to reach public-school parents, or Democratic women within a certain age range, or senior citizens. The Bill Clinton presidential campaign aired radio ads on Christian radio stations in 1996 touting that Clinton had signed the Defense of Marriage Act, which defined marriage as between a man and a woman. Our two-party system and winner-take-all electoral process already serve to erode, rather than magnify, the power of "marginal constituencies." And anyway, sometimes something that starts as a "marginal constituency" or seems extreme—abolition, women's suffrage, Zionism, fill in your own favorite idea here—becomes a mainstream cause. The First Amendment guarantee of political speech is supposed to apply equally, regardless of whether some professor deems your cause marginal or extreme.

One of the landmark press freedom cases of the 20th century, New York Times Co. v. Sullivan, concerned a paid advertisement by civil rights activists in the 1960s that, as the syllabus of the case puts it, "included statements, some of which were false." Should desegregation activists in the 1960s south have been prevented from targeting advertisements to sympathetic Northern liberals? Or should they have been forced to pay also for ads to segregationists, so that everyone saw the same ads? And should the ad have been rejected because of the false claims?

The justices in Times v. Sullivan found that "erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive.'" The Court cited an earlier ruling, NAACP v. Button, observing "the constitutional protection does not turn upon 'the truth, popularity, or social utility of the ideas and beliefs which are offered.'" It is something that Senator Warren may want to review. It will be useful if she returns to her career as a law professor, but also if she advances to the office sworn to defend the Constitution.

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  1. In Debate Over Political Speech Online, Facebook Has the Constitution on Its Side

    As does Twitter.

    Because the Constitution doesn’t care what those companies choose to do, it just cares that Congress doesn’t choose what they do.

    1. “Because the Constitution doesn’t care what those companies choose to do,”

      Now square that with Donald Trump’s Twitter feed being a public forum, and all the jurispridence that has come from that.

      The courts have shown that they think things aren’t quite as simple as you make them sound.

      1. That lawsuit wasn’t about Twitter’s actions, it was about Trump’s actions. It did not restrict Twitter in any way, it restricted the President of the United States.

        This isn’t as complicated as you’re trying to make it sound.

        1. Incorrect. Twitter gave Trump the capacity to mute. The court said “Nope”

          1. Regardless, as long as Facebook prevents any kind of inappropriate “parody” from appearing on its platform, things should be okay. See the documentation of our nation’s leading criminal “satire” case at:

            https://raphaelgolbtrial.wordpress.com/

            1. OH SHUT UP

        2. The lawsuit declared the 1′ x 1′ square of Twitter’s property: Donald Trump’s Twitter Account to be a public forum. One of the dumbest rulings in recent memory.

          I haven’t read the entirety of the ruling, but I don’t believe it specified what mechanism was to be employed to guarantee and insure that Trump didn’t ‘block’ his ideological opponents.

  2. You have Democrats saying pretty much that social media outlets that do not adhere to the left’s narrative as illegitimate news sources that need to be suppressed. The Daily Caller has “known ties” to white supremacists and should not be in the fact checking organization. Free speech as a concept is passe and unworkable in the current world where the old gatekeepers can be bypassed.

    And Stoll is “both siding” it? Even suggesting that the attacks on free speech and thought come first from the Right? Really?

    1. Stoll is a lying sack of shit. As sure as winter follows fall, Stoll is on reason lying and committing the false equivalency fallacy.

  3. NYT v. Sullivan was decided in the early 1960s. We somehow managed to have a Republic for nearly 200 years, including a great tradition of vicious partisan media without it.

    All Sullivan accomplished was to give the media a license to lie. They can now say anything they like about a public figure just so long as they don’t know it isn’t true. Ironically, Sullivan was really the beginning of the end for the media. Freed from any worries of being held accountable for telling the truth, the media became the pit of fake news and slander that it is today. Why is the news so wrong so much of the time? Because thanks to Sullivan it can be.

    1. Does anyone, including yourself, really know what the truth is anymore!

      1. Aaron Sorkin knows the truth. You can see it in his eyes.

      2. I’m told the truth doesn’t matter if you are morally right.

    2. I could see this making sense about fake news re: specific people, but the media has produced fake news about events as well, long before Sullivan, hasn’t it?

    3. “They can now say anything they like about a public figure just so long as they don’t know it isn’t true. ”
      Is this true? You mean to say that the NYT could say “Sarah Palin screwed the entire University of Alaska ice hockey team last night after the game in Anchorage” as long as they didn’t know her whereabouts and get away with it unless it could be proved the NYT actually knew she was in, say, New York City last night meeting with their editors?

    4. They can now say anything they like about a public figure just so long as they don’t know it isn’t true.

      THAT’S RIGHT. The power to decide whether something is true or not should rest in the hands of the individual, and not in the hands of some gatekeeper.

  4. jfc Ira speech-oppression isn’t a partisan issue it’s a tyranny issue.

  5. “the media became the pit of fake news and slander that it is today.”

    Then throw in social media which makes everyone a journalist and now people that aren’t public figures become one and have their lives ruined. On top of all of this is a business that thrives off of such material and they desperately want to keep that income rolling in.

    Face it. Real news doesn’t sell anymore so we rely on bullshit and they insist on providing bullshit because it’s where the money is at.

    1. It is almost like the common law developed libel and slander as torts for a reason or something.

      1. “It is almost like the common law developed libel and slander as torts for a reason or something.”

        Who do you take to court? The person that maybe used their real name and doesn’t reside in a jurisdiction where the law can reach them? You could try suing facebook, twitter, or reddit and then… Oh wait.
        See how your point doesn’t matter? Especially on an anonymous global scale.
        If your ID had to be verified before using the site then I’d agree with you 100%. As of now, it’s irrelevant.

        1. It sure as hell is not. Just because some people are anonymous doesn’t mean everyone is. You point about it being anonymous makes my point even more. Under Sullivan the fact that someone said it once on the internet allows newspapers to print it as the truth and avoid liability if the subject of the lie is a public figure. And I sure as hell can sue the newspaper and should be able to do so.

          1. No you can’t.
            If the newspapers report that people are tweeting out that a doctor is a pedo then that is factual news. See how it works? They’re just factually reporting the tweets. They can even say that there is no verification. You’re as good as done. That’s only if the news gets involved too. If it is just citizen “journalists” (anyone with an account) you still have search engines that will spread the news.
            It’s gotten to the point where the laws that exist aren’t useful for the most part.

            1. If the newspapers report that people are tweeting out that a doctor is a pedo then that is factual news. See how it works

              No that is not how it works dumb ass. Repeating the lie makes them liable as well. Sullivan involved an advertisement. The Times never said anything. It was still libel. The court just had to change the standards to save the Times.

              1. It happens daily. Just like a cop who chased a robber that had a gun and flashed his dick to children while escaping through the park. All outlets report on the video being shared that only shows the racist cop pulling his gun on the black guy. He’s ruined. Maybe if he goes to court and sues like crazy he won’t go bankrupt before he wins a case. For libel you have to prove malice.
                “Video posted online shows police officer pointing gun at black man behind a Jack-In-The-Box. Officer identified as (insert cop name here) was shown tackling and holding (insert robber name here) at gunpoint. Social media reports this is a racial incident…”
                That’s just against a news organization. Social media isn’t required to give you out the information of those that posted the videos. Even if they do, the cop is going to go into debt just finding out that info.
                You’re fighting an uphill battle right there and even if you win you’re still going to show up in all the search results. You’re done. Back in the day before all of this news was still shitty, but now everything is a story.
                Also, the MAGA hat kid isn’t having the easiest time doing this and that’s with really fucking expensive attorneys.


    2. Face it. Real news doesn’t sell anymore so we rely on bullshit and they insist on providing bullshit because it’s where the money is at.

      The problem is that it sells better than ever, it’s just that literally anyone off the street is able to report it without monolithic gatekeepers being involved.

      Organizations like Facebook try to become the new monolithic gatekeepers, but it turns out policing the ‘news’ posts of a few billion people isn’t so easy on a relatively free and low-barrier to entry medium. Facebook needs to keep it that way too, because if they shut down too hard their core business of advertising fails.

      The short version is that ‘news’ companies are what they’ve always been which is essentially advertising delivery devices. The content is to lure you to the ad’s, pure and simple. Treating them as monuments of free speech is hardly accurate, even while their existence is thanks to free speech. Those major outlets that aren’t just advertising delivery are advertising something else which is shaping opinion. If anything, Facebook is actually more honest than CNN about what they do.

      If you want the ‘news’, read your local paper or watch your local channel. It’s no coincidence that outlets like CNN or FOX are 99% opinion. They aren’t there to give you the news, they’re there to give you talking points that originate with something that was news.

  6. And the Trump presidency seems to be on the verge of bringing us some kind of federal government crackdown on political speech on social media.

    By “Trump Presidency” you mean “The Democrats in Congress”?

  7. “If you want the ‘news’, read your local paper or watch your local channel.”

    They’re bullshit as well. The only things I’ve learned that they’re reliable on is when the water main break happened, how long it took to fix, and none of that is relevant to me because it happened on the other side of town. The one time it didn’t I had more accurate news because I was there. They’re all owned by a larger corporation so their agenda is there as well.

    For the most part I don’t believe much of what I read anymore and reality is what I can physically touch or hold in my house. A breaking news story in my house that gets me worked up is when my partner doesn’t refill the ice cube tray. It’s urgent, but in reality, like all news, it doesn’t matter all that much.

    1. The only things I’ve learned that they’re reliable on is when the water main break happened, how long it took to fix,

      Mmmno, not really even reliable about that.

      1. They only exist to provide us with cheesy local car dealership commercials and local lawyers with bad hair peddling disability/tax relief/injury services.

        1. Binder and Binder approves this message.

    2. and reality is what I can physically touch or hold in my house.

      The problem with this approach is that it enables the substitution of anecdote for truth.

      1. It’s my house. If that banana is a phone then so be it.

  8. “That approach respects voters as smart enough to sort these things out, rather than infantilizing them as easily deceived.”

    But what if people want to be infantilized?

    Seriously, has any other time in human history included so many adults wishing to be children? Childhood, especially the extended version of western countries, has only been around for a century or so. But I do not recall experiencing or reading about the phenomenon of the past few decades where everyone seems to want to be 13, or maybe 16 (or maybe even 5). We have social, commercial, and political institutions losing any semblance of rational purpose since they decided to pander to all these adult children.

  9. Regarding the Republican reference, I would point to the indecency provisions of the Communications Decency Act of 1996, which was passed overwhelmingly (much as FOSTA/SESTA was) with a bipartisan majority in both houses. Democrat Bill Clinton signed it, and his admin defended it. Supreme Court struck down that part of law a year after passage. I’m not so sure Rs are worse than Ds on 1A stuff these days. Generally, the two camps have diff priorities on restricting speech, but both do want to restrict it, that’s for certain. Sometimes, outliers from each camp join forces in the cause of free speech, as Ron Wyden and Chris Cox did on Section 230 of the CDA.

  10. All this will be solved by the Ministry of Truth.

  11. No it doesn’t. Like other Silicon Valley tech companies, Facebook, has made a conscious effort to become an arm of the political Left. The company is using the institutions of private property and free speech to suppress or silence their political opponents. I happen to be one of them.

    I have am presently banned from posting on Facebook for 30 days which expires the middle of this month just for posting a Breitbart article critical of Islam in the room Stop the Islamization of America. I said nothing disparaging and made comments stating my opinion.

    It just so happens that Facebook’s “hate speech” policies are written in a general sense to where they can make up who they can and cannot suppress as they go along. This is what Facebook is about. It is not a matter of free speech but tyranny by means of silencing people using their technology.

    Yeah, I know what you all will say: ‘go start your own tech company” or “go to another social media company”. Why should I have to when Mark Zuckerberg told Congress he wants Facebook to be “a forum for all ideas”? This is what outlets like Reason defend that is not demonstrates laziness but also helps lay the groundwork for totalitarianism. SHAME ON YOU!!!!!

    1. so don’t use Facebook.

      You’re a libertarian pussy.

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