This past week, with some fanfare, Facebook announced its own version of the Supreme Court: a 40-member board that will make final decisions about user posts that Facebook has taken down. The announcement came after extended deliberations that have been described as Facebook’s “constitutional convention.”
We don’t usually use sweeping terms such as Supreme Court and constitution to describe the operation of private companies, but here they seem appropriate. Internet platforms such as YouTube and Facebook have been called the modern public square. That description understates the platforms’ importance for the many people who use them in place of newspapers, TV stations, the postal service, and even money. People whose posts are removed from major platforms say they are being excluded from the most important communication channels of our age. We should care deeply about the rules these companies apply to our speech and behavior—whether PayPal should process donations to WikiLeaks, for example, or whether the security provider Cloudflare should protect neo-Nazi sites or 8chan, or whether Facebook should have taken down the famous Vietnam War photo of a naked girl fleeing her village.
But private platforms aren’t really the public square, and internet companies aren’t governments. That’s exactly why they are free to do what so many people seem to want: set aside the First Amendment’s speech rules in favor of new, more restrictive ones. Messages we might once have heard from a soapbox in the park—including very troubling ones about dangers of vaccines, conspiracy theories, or racist agendas—can be banished from social-media platforms.
The prevailing framework for free expression is getting a do-over. The existence of private Supreme Courts and constitutional conventions makes it possible, even easy, to imagine that this do-over will be governed by the same constraints as real-world governments: constitutional rules to protect individual rights, and democratic processes to set the laws we live under. Other rules that are being retrofitted for private internet platforms also sound like the mechanisms that keep real-world governments accountable to the public. Advocacy groups have demanded appeals or other due-process-like rights for people accused of violating those rules. Some advocates—concerned that “behind-the-scenes lobbying,” to borrow The Wall Street Journal’s phrase, is shaping platforms’ speech rules—are calling for the same kind of transparency we would expect from real legislators about their interactions with lobbyists.
Those are all good developments—up to a point. But we should not fool ourselves that mimicking a few government systems familiar from grade-school civics class will make internet platforms adequate substitutes for real governments, subject to real laws and real rights-based constraints on their power. Compared with democratic governments, platforms are far more capable of restricting our speech. And they are far less accountable than elected officials for their choices. We should pay close attention to those differences before urging platforms to take on greater roles as arbiters of speech and information.
Read the full piece at The Atlantic.