It’s difficult to count the number of ways Facebook made headlines last week. On Monday, the company’s services went down, highlighting the infrastructural role it plays in modern communications and prompting an apology to “the huge community of people and businesses around the world who depend on us.” Earlier that same day, the company had filed a motion to dismiss the Federal Trade Commission’s landmark antitrust lawsuit in the U.S. District Court for the District of Columbia, strenuously objecting to the suggestion that Facebook exercises monopoly power in the market for social networking services. And just last Sunday, the whistleblower whose disclosures underpinned The Wall Street Journal’s “Facebook Files” revealed her identity in an interview with 60 Minutes that prompted fresh debate over the company’s role in American life.
Even with this scrutiny, there remains an enormous diversity of opinion about the legality and prudence of proposals to address the objections its critics have raised. Whistleblower Frances Haugen, for instance, opposes the FTC’s bid to break up the company; instead, she favors greater transparency into the platform’s workings, along with limits on the amplification of content based on the engagement it receives. (As Stanford’s Daphne Keller has written, it’s far from clear that many proposals to regulate amplification would survive First Amendment scrutiny.) Other organizations, like the nonprofit group Free Press, are pushing greater federal privacy regulation or a digital advertising tax, whose returns could be reinvested in the kind of local journalism that has declined alongside the rise of the social media platforms.
Meanwhile, the constitutional rules that will shape any legislative efforts are being laid down in challenges to state laws that, to put the point delicately, may not reflect the most nuanced thinking about the challenges of regulating in this domain. Florida is currently defending its effort to regulate “deplatforming” in the U.S. Court of Appeals for the Eleventh Circuit, after a district court found the state’s oddly drawn statute unconstitutional several times over. (The Reporters Committee filed a friend-of-the-court brief in that proceeding, arguing that Florida’s law violated the First Amendment protections for editorial discretion the Supreme Court recognized in Miami Herald Publishing Co. v. Tornillo.) Texas took the next bite at the apple with a law that prohibits social media firms from moderating any content based on the viewpoint it expresses, and the state now faces a similar First Amendment challenge. On Thursday, the Reporters Committee likewise filed a friend-of-the-court brief in support of that suit.
While many legal experts expect these particular state statutes will be struck down, it’s safe to say it’s a time of intellectual ferment when it comes to the question of what can or should be done to regulate the place of the large social media platforms in the digital public sphere. (For a range of perspectives on the constitutionality of various approaches, check out the first issue of the Journal of Free Speech Law.) We plan to remain engaged with these cases as they develop.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.