Perspective: Facebook’s Trump moment might define social media’s future under the First Amendment

Facebook’s “supreme court” on Wednesday approved the ban that blocked former President Donald J. Trump from using Facebook and Instagram after the Jan. 6 attack on the Capitol – but said the social media giant should define how long the penalty will last.

Readmitting Trump would have provided the former president with expanded social media connections to his supporters. Denying Trump will not silence him online – he already has a new website – but it does make it harder for him to have an extensive Web presence since he also is banned from using a Twitter account, a situation not involved in today’s announcement.

Lest we forget, none of this is an actual First Amendment issue – for now. Facebook and Twitter are private companies, not the government, so they are not currently bound by First Amendment provisions.

But the decision by the Facebook Oversight Board may well be a turning point in how the First Amendment is applied to private websites. It is certain to spark even more debate over whether government should have more control over social media and other online ventures.

Some moves to control the decisions by big social media operations are underway: An as yet-untested Florida law forbids social media companies from permanently banning politicians. Similar laws are pending in other states.

Americans are split on what they want to see from social media companies, largely along partisan lines. A recent national poll by the Pew Research Center, done April 12-18, showed 50% of adults approved of the Trump ban and 49% disapproved. But by party, 81% of Democrats approved of it, while 88% of Republicans disapproved. (The margin of error in the poll was plus or minus 2.2%). Within minutes of the Facebook announcement, Republican members of the U.S. House Judiciary Committee issued a one-word response: “Pathetic.”

Facebook created the oversight board in 2019 to deal with controversial issues regarding content decisions. It is also seen as an effort at defusing regulation efforts in Congress and state legislatures.

The idea of government intervention – often cloaked by advocates as moves to protect free speech – ought to give us all pause, considering the failures of previous attempts to use law to force “fairness.”

One of the most notable failures was the so-called “Fairness Doctrine.” Rooted in 1930s concerns about the technical scarcity of public airwaves, the rule requiring broadcasters to give time to opposing views on controversial subjects was upheld by a 1969 U.S. Supreme Court decision. At the time, the court ruled that even though they were private businesses, broadcasters could be required to “preserve an uninhibited marketplace of ideas.”

Those words would seem to support moves to control social media content. But just five years later, in a decision involving the Miami Herald newspaper, the justices backed away from government intervening in the editorial decisions of a private company. Then-Chief Justice Warren Burger wrote that a government-mandated “right of reply” requirement at issue in that case “inescapably dampens the vigor and limits the variety of public debate” and that it improperly interfered with the First Amendment right of editors to choose – “whether fair or unfair” – what they presented to the public.

Some twenty years and several more challenges later, the Federal Communications Commission largely voided the Fairness Doctrine. Ultimately, a Republican majority feared conservative talk radio hosts such as Rush Limbaugh would have to provide airtime for liberal speakers. Now, ironically, it is a largely conservative call to rein in the decision-making power of Twitter, Facebook and their other social platforms.

Consider in today’s world: Would such a doctrine or law require every social media outlet to post both Rachel Maddow and Tucker Carlson – or require them to post material from extremists of all kinds?

Trump didn’t wait for the Facebook board’s ruling: Days earlier, he announced a new blog-style website.

That move is in line with the traditional concept of free speech under the First Amendment: The best response to speech you don’t like is more speech, not less – leaving open a “marketplace of ideas” to all.

Today’s Facebook decision may well be seen as endorsing an argument that is gaining increased traction, even among First Amendment scholars: That the pervasive, instant and global reach of social media makes a “marketplace” concept outmoded and even dangerous because speech on social media can be so harmful, so quickly.

The free speech battle lines over the First Amendment in the 21st century are being drawn, and the Trump decision may well be the first real “shot heard ’round the world” – at least online.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum. He can be reached at [email protected], or follow him on Twitter at @genefac.

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