This post is authored by Mitch Nemeth
It was not long ago that we heard about how nefarious actors and foreign adversaries used social media platforms to allegedly sway elections and voters. For nearly four years, critics have derided Russian influence by associating an uptick in the number of “bots” or “trolls” with efforts to promote misinformation. Now, those same critics are pushing for political interference from the exact same social media platforms, especially Facebook which according to Harvard Law School’s Yochai Benkler, “has become so central to how people communicate…that it’s essentially immune to market signals.”
Joe Biden recently called on Facebook to:
- Promote “authoritative and trustworthy sources of election information, rather than the rants of bad actors and conspiracy theorists.”
- “Promptly remove false, viral information”
- “Prevent political candidates and PACs from using paid advertising to spread lies and misinformation.”
- Create clear rules “applied universally, with no exceptions for the President – that prohibit threats and lies about how to participate in the election.”
These requests are not unusual from progressive politicians. On the surface, we all agree that voters should be well-informed prior to participating in democratic elections. After all, a good education and being well-rounded are key to playing your part. The problem with Biden’s request is that it places a burden on Facebook and other social media platforms that does not exist under the law while violating a core tenet of private property rights, namely the ability to operate as one chooses.
Facebook has already taken precautionary measures since the 2016 Presidential Election. It has a dedicated section of its website that spells out its commitment to securing its platform and providing transparency. Facebook’s precautions include: 1) removing content that violates their Community Standards 2) partnering with independent third-party fact checkers 3) reducing the distribution of content that is labeled as false by third-party fact checkers 4) removing content that mentions incorrect voting information or dissuades individuals from voting 5) sending users voter registration and election reminders ahead of election day.
What does the Law Require?
Social media platforms are regulated under Section 230 of the Communications Decency Act, other digital content regulations, and under the Federal Trade Commission’s Unfair or Deceptive Acts or Practices authority. However, they are not regulated by the Federal Election Committee (FEC). Legislators could enact rules that require these platforms to abide by specific guidelines given their far-reaching political implications. However, the constitutionality of those regulations would be in question.
The First Amendment provides that government shall not infringe on the freedom of speech or freedom of the press. The Bill of Rights bars government intrusions, not private intrusions. If the government were to cede some of its election integrity regulation to these private entities that may in fact make these platforms liable under the “state action” doctrine. Under the Supreme Court’s 2019 ruling in Manhattan Community Access Corp. v. Halleck, the court held “that a private entity may be a state actor if it functions in a capacity ‘traditionally exclusively reserved to the State.’”
Social media platform regulation of political speech under FEC rules could be viewed by a court as qualifying the platform as a “state actor” thus ensuring that these platforms must abide by the Bill of Rights. Interestingly enough, Biden is not calling for government rules to regulate political speech on content. Why is that?
Biden’s staff understands that this type of regulation is likely unconstitutional. Instead, he calls on Facebook to act “to improve American democracy rather than as a tool to spread disinformation.” These moral calls to be advocates of democracy fail to confront the reality: Facebook and other social media platforms are not “arbiters of truth.” The platforms can point users to authoritative sources and fact-checkers, but who decides what sources of truth are more trust-worthy than others?
Platforms like Google’s search engine also place an emphasis on providing users results based on authoritative sources and other factors. Strangely enough, Biden is not calling for similar election integrity regulations for Internet search engines like Google, even though evidence exists that Google’s search engine manipulation could sway elections more significantly than Facebook’s tools. At the end of the day, much of the progressive scorn for promoting misinformation is political.
Politicians View Social Media Platforms as an Electoral Boon
The fact of the matter is that social media platforms do have enormous influence over public discussion and dialogue. According to a 2014 article at The Atlantic, “the 2000 presidential election…could have been altered by a Facebook election button.” The author cites a Facebook study, which found that a Facebook “I’m a Voter” button could shape “who actually voted to a significant degree.”
As Harvard Law Professor Jonathan Zittrain writes, “none of these businesses actually promises neutrality in its proprietary algorithms, whatever that would mean in practical terms.” Combine this capability with the successful usage of social media tools and you encounter scenarios where the President of the United States credits social media for his successful Presidential election. He also conceded that his Twitter allows him to bypass what he describes as the “fake media out there.”
Social media platforms are tools that can be manipulated for political ends but they are not, in fact, political actors nor should they become political actors or nontraditional election regulators. Progressive calls for aggressive content filtering are best left to the legislative process, although they violate our tradition of free speech, whereas conservative calls for limiting censorship are best addressed by ensuring that market competition promotes the values of free speech. The weaponization of social media platforms, which have been characterized by the Supreme Court as “perhaps the most powerful mechanisms available to a private citizen,” for political ends is the byproduct of an overly politicized environment.
