Updated: Aug 4, 2021
Until recently, despite the claims that Facebook was censoring speech, I was a fervent supporter of the right of Facebook to censor speech on it's platform as a private company. Then Jen Psaki announced that the federal government was also involved in the censoring of speech on Facebook. More on that shortly but first its important to point out why Facebook shouldn't have the protections of a platform under 47 U.S. Code § 230 regardless of the government's involvement in their suppression of speech. Rather, Facebook should be held liable for the content on its platform as a publisher. It's only the immunity protections which embolden Facebook to continue its repression of speech. Below are finding and policy explanations from congress taken directly from the code:
(3)The Internet and other interactive computer services offer a forum for a true diversity of political discourse (emphasis added), unique opportunities for cultural development, and myriad avenues for intellectual activity.
(3) to encourage the development of technologies which maximize user control over what information is received by individuals (emphasis added), families, and schools who use the Internet and other interactive computer services;
It's clear that Facebook no longer offers "true diversity of political discourse", (a)(3), as per the findings under § 230 . This is apparent because there has been an open admission that Facebook will be censoring "disinformation" on its platform. We can also see this when political figures are banned from the platform as Donald Trump or Alex Jones were. Additionally, it's clear Facebook does not fall within the policy goals stated by congress of "maximiz[ing] user control over what information is received by individuals . . .", (b)(3) under § 230, as the company is not shy about placing covers, fact check banners, removing or otherwise impeding users' control over the information they see.
From the congressional findings, the intent of § 230 is clear. Congress wanted companies like Facebook to offer a place where diverse information can freely flow between users with the policy goal of encouraging user control over what they see. In furtherance of these findings and policy goals, congress saw fit to offer to companies that adhere to those goals the protections of § 230. Namely, that Facebook or similar companies will not "[b]e treated as the publisher or speaker of any information provided by another information content provider". An information content provider under § 230 is anyone posting content on Facebook or similar websites. This means that so long as Facebook adheres to the stated intent of § 230 they should be left alone and not be liable for the content its users post.
It makes exception for "obscene, lewd, lascivious, filthy, excessively violent, harassing" material. The unfortunate mistake by congress was the catch-all phrase "or otherwise objectionable". This is included in the list of items for which Facebook should not be held civilly liable in the event they do edit the content on their platform. Even with that caveat in place, the intent of congress is being usurped by Facebook using this overly-broad language. We can see time and time again our courts look to the intent of congress in situations where the plain language of the statute is ambiguous and that intent couldn't be more clear here. Indeed, it is part of the statute itself, diversity of discourse and user control of information.
Even though Facebook is offered the protections under § 230 despite their unwillingness to comply with it's policy goals and findings, there's now another bigger reason Facebook must stop its speech suppression campaign. Jen Psaki said during a White House press briefing (you can read the transcript here) that "We’ve increased disinformation research and tracking within the Surgeon General’s office. We’re flagging problematic posts for Facebook that spread disinformation". What we see here is a clear admission that not only is Facebook admittedly benefitting unfairly from the protections of § 230, now the executive branch is assisting them in their usurpation.
Worse still, when the federal government begins assisting a private company in their censoring of speech, it's no longer a question of whether Facebook is able to use the protections of federal statutes outside the intent of congress, it's now a direct attack by the federal government on an individual's right to free speech. It's no longer Facebook limiting speech, it's now the federal government limiting speech through Facebook, a "private company", which apparently now does the bidding of the executive branch of the U.S. government. While most of us understood this has been the case for some time, this is a brazen admission by the White House.
Facebook is not entitled to the protections under § 230. They are so clearly in violation of the intent of congress it would be laughable to hear an argument to the contrary. One side of the political spectrum is OK with this. So long as it is benefitting them, they're not going to do anything about it, of course. That doesn't make it any less wrong. If it wasn't bad enough that Facebook is allowed to enjoy the protections of § 230 against the will of congress, now the executive branch is assisting them in that activity. By virtue of the executive branch assisting in the suppression of speech, and Facebook accepting this help, Americans are now having their speech censored by the executive branch itself.
These things may seem like trivial issues to some, but these are the stepping stones taken by dictators throughout history to ensure their agenda is pushed without push-back. We can see what's happening now in Cuba. Human Rights Watch shows us how dictatorships stay in power and the main tool is suppression of speech. "Detention or the threat of detention is often used to prevent people from participating in peaceful marches or meetings to discuss politics". People often joke about "Facebook Jail", a place where people are banished so that they are unable to comment or have their voice heard on the platform most frequently used today to stay connected with society. Now, our executive branch is deciding what posts should cause your voice to be smothered by Facebook. So long as the executive branch is unilaterally dictating what can or can't, what should or shouldn't be seen on Facebook, it is no longer a private company.
I said at the beginning of the article I used to be a fervent supporter of Facebook being allowed to do what they choose with their own private company. That doesn't change that they shouldn't be afforded the protections of § 230. But now all that has changed and they deserve neither the protections of § 230 but also require the same level of scrutiny of any government agency. They are, admittedly, a proxy for the Biden White House. Even if you're willing to sit by as Facebook supplants congress' intent under § 230 with their own, surely you understand the danger of standing by as the executive branch supplants Amendment I of the U.S. constitution with their own agenda of speech suppression.....Right? If you don't, I'll understand for you and keep pushing to have my (and your) voice heard over the objection of our executive branch, whether or not we agree with each other.
A.G. Miller is a father, husband and community member who resides in Tulsa, OK. He is an Army combat veteran, former police officer, and business owner who graduated summa cum laude with B.S. in business management and currently attends University of Tulsa College of Law where he will graduate with a J.D. in 2022.
"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." -Thomas Jefferson