Alexander Glossman is a J.D. Candidate, 2021 at NYU School of Law.

Help Us Understand What’s Happening.

What’s going on?

            -It’s annoying or not interesting

            -I think it shouldn’t be on Facebook

            -It’s a false news story

            -It’s spam

If you’ve ever tried to report a post on Facebook, you should recognize this prompt. Whether you’re trying to hide the seventeenth Yahoo News article to appear on your newsfeed that day, get rid of the lululemon advertisements that keep popping up ever since you bought one pair of yoga pants two years ago, or just trying to stem the flow of baby pictures from that one girl you went to high school with, you have the chance to ask Facebook not to show it to you anymore. And of all the choices on that list, you would think that option #3, “It’s a false news story”, would be the least controversial. Most of us don’t appreciate having false content delivered to us with the same weight as accurate news.

However, Facebook and its CEO, Mark Zuckerberg, have found themselves in an unpleasant limelight lately for their fierce defense of the right to post fake news on their platform, especially if that fake news constitutes “political speech.” Since 2016, Facebook has dealt with a number of challengers and detractors due to the ease with which Russians and others are able to manipulate the platform in order to interfere with American elections. But this month, the controversy has swelled again to a new clamor, driven by two developments.

First, the European Union’s highest court, the European Court of Justice, ruled that “individual countries can order Facebook to take down posts, photographs and videos not only in their own countries but elsewhere,” so long as “the content was determined to be defamatory or otherwise illegal.” Emerging from a case in which Eva Glawischnig-Piesczek, an Austrian politician, sued Facebook to delete posts which called her a “lousy traitor,” “corrupt oaf,” and member of a “fascist party,” the ruling is a massive setback to the social network’s attempt to cast itself as a neutral platform merely promoting its users’ rights to free speech. Mr. Zuckerberg seems to follow the logic of Vienna University’s Dr. Ben Wagner, the Director of the Privacy and Sustainable Computing Lab, who commented to the New York Times that “we’re talking about a politician who is being insulted in a political context. That’s very different than a normal citizen,” and so “[t]here needs to be a greater scope for freedom of opinion and expression.” However you may feel personally about that statement, it certainly also applies to Facebook’s second front in this war…

In response to a controversial ad which the Trump campaign plastered across television and social media, spreading and promoting claims about Joe Biden “that have been proven demonstrably false by various news outlets,” many called for the false and defamatory ad to be removed from Facebook. Several news outlets, notably CNN and NBC, refused to show the ad on their air. But Facebook, as it did in the European Union litigation, has taken the stance that neither the company nor the FCC wants broadcast companies censoring speech: “We agree it’s better to let voters – not companies – decide.” In response, presidential candidate Elizabeth Warren decided to release an ad of their own in order to test this theory. This ad claims that Mark Zuckerberg and Facebook are backing the reelection of Trump.[1]

Rather than bending under the pressure, Zuckerberg doubled down on his free-speech-themed defense of Facebook’s policies in an address at Georgetown University. “I don’t think it’s right for a private company to censor politicians or the news in a democracy,” he repeated. “I’m here today because I believe we must continue to stand for free expression.”

It is an undeniably powerful defense. Though everyone knows you shouldn’t falsely shout fire in a crowded theater, constitutionally protected free speech is vitally important to the American way of life. And Zuckerberg’s added wrinkle, that political speech is worthy of extra leeway as even outright lies by a politician can help a voter decide, is not entirely devoid of logic.

For now the defense is working, in that Facebook has refused to take down the ad, and American courts have not taken to internet defamation regulation with as much gusto as the European Court of Justice. But it is a question that society will have to wrestle with over the next decade as we continue to live more of our lives and absorb more of our news through social media like Facebook. In that setting, where every advertisement and post seems to carry equivalent weight, does Facebook and its CEO Mark Zuckerberg have a responsibility to remove false and defamatory content?

The European Union, for now, says Facebook does have that responsibility.

America, for now, despite the concerns of Biden and Warren, is still wrestling with the question.

But we have to decide soon, because 2020 is right around the corner. And if voters are the crowd, and the advertisements are shouting “fire,” we just have to hope we’re smart enough to spot the real flames.

[1] Though, true to Warren’s usual form, the ad does go on to explain the real facts undergirding the situation, and that the initial attention-grabbing claim is not strictly true.

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