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Facebook ran head-on into the First Amendment last week, and the result wasn’t pretty.
It started with the company sending Sen. John Thune a lengthy explanation of its editorial process in the trending news section of the service, in response to a demand following allegations of political bias. It ended with the revelation that tech legend Peter Thiel has been secretly funding Hulk Hogan’s lawsuit against Gawker. The Facebook angle there: Thiel was an early investor and sits on its board.
There’s no precedent for a media company to account to Congress, instead of to its customers, about its editorial process.
Some have written off these developments as being of little consequence. Facebook may have kowtowed to a Congressional investigation, but the response was politically necessary in light of the conservative uproar. Thiel may be executing a vendetta on a media outlet, possibly driving it into bankruptcy, but he has every reason to hold an eight-year grudge against Gawker for outing him.
But the stories are more significant than that — much more significant. There’s no precedent for a media company to account to Congress, instead of to its customers, about its editorial process. And it’s a safe bet that no media company has allowed the surreptitious funder of a libel suit against a corporate partner to serve on its board, given the conflict with its mission and duty.
The First Amendment is at risk of becoming a casualty of the digital revolution — if not from Thune and Thiel, then from others similarly motivated. Facebook’s acquiescence in the face of these twin assaults made the First Amendment lose both ends of a doubleheader.
Acquiescence is an odd stance for Facebook to take. Free expression is its birthright, starting as the crude but perfectly legal Facemash in a Harvard dorm. It grew to become an international beacon of hope in a repressive world, from Tunisia to Tahrir Square.
Commitment to freedom of expression, however, starts right here at home, and its bedrock is the First Amendment. The guarantees of freedom of speech and of the press are uniquely ours. They set us apart not only from regimes propped up by censorship, but from our closest European allies. Everywhere but here, governments mandate to varying degrees the suppression of speech and restrictions on the press.
Back in 2007, Thiel noted that we are undergoing a "relentless shift" in media from the old guard to the new. In a few short years, Facebook has become the biggest and most important media outlet in the nation.
The news may not be Facebook’s business, but make no mistake: It is in the news business.
As CEO Mark Zuckerberg explained in 2013: "We want to give everyone in the world the best personalized newspaper in the world." According to a new Pew Research Center study, two-thirds of Facebook’s adult users — that’s 44 percent of the adult population in the U.S. — get news on the site. It curates the news, promotes it, sells ads around it and profits handsomely from it. Dismissing the connection between Facebook and news would like saying that Apple’s business doesn’t relate to apps or Google’s doesn’t relate to websites.
Unstinting devotion to the First Amendment is a longstanding litmus test for media organizations. They’ve endured long and costly battles to protect its principles and perpetuate the Constitutional compact between the press and the public. Until last week, it has never gone down without a fight.
History has shown that some of the biggest challenges to the First Amendment occur during times of technological change. Some supporters of Thune and Thiel have questioned whether old rules should apply to the internet. Presidential candidates have questioned, in a different context, the extent to which First Amendment protections should extend online. Facebook itself knows this well: It took protracted litigation to affirm that blog posts, and even the use of Facebook’s "Like" button, do qualify for First Amendment protection.
As the New York Times, the Washington Post, CBS and countless others did before it, this technological transition calls for Facebook to demonstrate leadership. Take CBS’s battle with Congress in 1971. The network was subpoenaed by a House committee for information about its editing process for the documentary "The Selling of the Pentagon." The committee chair claimed that broadcast news organizations were not entitled to First Amendment protection because they were licensed by the government and use "public property — the Nation’s airwaves." CBS President Frank Stanton stood up to Congress and refused to comply, even under threat of jail for contempt. Congress ultimately backed down.
Where’s that backbone today?
Defending free expression requires standing up for the First Amendment — whenever, wherever and however threats arise. If Facebook won’t, maybe it's in the wrong line of business.
The profits of most traditional news organizations have been decimated by shifting technology and consumption trends. As much as these trends have hurt some news organizations, they risk damage to the First Amendment even more. A recent poll of news industry leaders found that 65 percent of editors say the industry is "less able" to defend issues involving the First Amendment than they were a decade ago, mainly due to the lack of financial resources. Over half believe that "News organizations are no longer prepared to go to court to preserve First Amendment freedoms."
Facebook has no such excuses or limitations; enormous profits have migrated from news companies to online platforms, as Facebook and its shareholders know well. Generous collaborations, like the important new Knight Foundation-Columbia University project, will help, but they won’t replace the fundamental obligation of industry leaders to act on their own behalf and on behalf of the public in support of the First Amendment.
On some level, Facebook’s reticence is understandable. No company wants to take on a battle with Congress, or with a brilliant and loyal early investor and board member. But the chips are down, and there’s no ducking these issues.
Facebook could take a page from others in the tech industry on what it means to be a leader in support of individual rights and free expression. Apple took on the FBI over a court order forcing access to a locked iPhone. Google has stared down China on search censorship and opposed the EU on implementation of the right to be forgotten. Microsoft has sued the Justice Department over gag orders attached to search warrants.
Internet platforms must defend the freedoms of their users. It’s the cost of doing business. Defending free expression requires standing up for the First Amendment — whenever, wherever and however threats arise. If Facebook won’t, maybe it's in the wrong line of business.
Thomas C. Rubin is a lecturer on law at Harvard Law School and special counsel at the law firm Quinn Emanuel Urquhart & Sullivan. He is on the steering committee of the Reporters Committee for Freedom of the Press, and a fellow at the Stanford Law School’s Center for Internet and Society. Until 2014, he was chief intellectual property strategy counsel at Microsoft. Reach him @tomrubin.
This article originally appeared on Recode.net.
