You don’t have a first amendment right not to be censored on Facebook, but maybe you should.

One of the funniest things on the internet is when people claim that Facebook deleting their posts is forbidden by the first amendment of the United States. As a matter of contemporary legal theory, they haven’t got a leg to stand on.

Yet I want to argue that maybe, in a better world, they’d be right. Facebook should be legally forbidden from censoring you on political grounds (ideology neutral censorship- like censorship of harassment, stalking and even defamation etc., is a different matter). This probably sounds far fetched, but let me lay out my argument.

Entities like Facebook have inherent monopoly power.

As economists have long recognised, certain industries are natural monopolies. This can happen for several reasons, one of them applies in particular in Facebook’s case- returns to scale.

Suppose someone tried to create a new Facebook- Bookface. Let’s say a consumer Bob feels he has enough time to invest in creating a Facebook or a Bookface account. Bob is, I would submit, more likely to create a Facebook account than a Bookface account because all his friends are already on Facebook. Now it is possible that something so much more compelling than Facebook would be created that Facebook was surpassed. This happened to Myspace after all. But it wasn’t like Myspace hung around after that. The return to scale effects meant that the marketplace could only support one Facebook like entity in the long-run or at the very least there is a strong tendency towards that.

In summary- Facebook has a great deal of monopoly power at present, and displacing it would be exceptionally difficult. If it were displaced from its monopoly position, like Facebook displaced Myspace, it is likely that its displacer would become the new monopoly, rather than a “marketplace” of Facebook like companies being established. Maybe it is possible, but I think there is a reason why there is only one Facebook with any substantial share in the American marketplace.

Check this out: https://trends.google.com/trends/explore?date=all&geo=US&q=Myspace,Facebook

Of course there are other online media companies, but it remains the case that Facebook has a big, fat chunk of the public discourse -a huge slice of the time real estate of people’s lives- wrapped up in a natural monopoly. The existence of Twitter, Reddit etc. doesn’t change the fact that Facebook owns a slice of most people’s time in a way which is only distantly affected by the forces of competition.

Traditionally, if a company is a natural monopoly, or close to, the solution is either to make it a public utility, or to regulate it within an inch of its life.

Facebook currently controls and regulates a great deal of public discussion

Notably even much of the impact of other media, like Newspapers, is now mediated through Facebook.

Facebook was recently caught out manipulating traffic away from left-wing sites and towards right-wing sites, in an attempt to appease the right who, “played the ref” by complaining of bias: https://www.motherjones.com/media/2020/10/facebook-mother-jones/

Of course the right has its own concerns about Facebook. C.f. the Hunter Biden brouhaha.

A monopoly that controls what can and can’t be said in a very important part of life is corrosive to democracy, and to the possession of a right to free speech in a meaningful sense.

Effectively monopolies have power that is, in all but a formal sense, regulatory power akin to that of the state. Obviously they can’t wield this power entirely without restraint- push things too far and they lose business. Nonetheless, Facebook has a degree of market power. The centrality of what they offer limits the degree to which people can vote with their feet.

It is unacceptable for a corporation to have an unsupervised power to regulate speech in a wide domain, in a sphere over which it has a natural monopoly.

Suppose there were some resource, contingium. Contingium is not essential for life, but it is very important, and arguably becoming more so. Now there is only one contingium seller because it can only be mined in one very specific location. One of the things contingium does is power electronic devices. The Contingium company introduces a policy- if you use a device powered by contingium to say something they disagree with, they will ban you from buying further contingium powered devices. It’s pretty clear that this would be A) A risk to democracy B) Unconscionable and C) Reduce the real value of the first amendment, since it gives a private actor the power you feared the government having.

Therefore, Facebook’s power’s of censorship over this sphere must be curtailed.

If the US government were to restrict when Facebook could and could not censor things, the best way to do so would be via a first amendment framework

Any other basis for the framework- making decisions on the substantive merits of different opinions- would be very constitutionally problematic. Also, would you trust the US government to make these decisions on substantive grounds?

So yes, I think you should have a first amendment right not to be censored on political grounds on Facebook.

You’ve got to admit that making Facebook bans justiceable would be very funny.

If you are worried this will make it “anything goes” there are well established exceptions to the first amendment:

“Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising.”

Some complications

At present the US government imposing a first amendment style framework on Facebook might ironically itself be a violation of the first amendment. A legal argument would have to be made that speech by monopolies is not like speech by other entities, and therefore the government has a special responsibility and right to ensure they do not suppress the free speech of others, in order to ensure greater freedom of communication overall. I don’t know how plausible that argument is, legally speaking. This article is solely a normative argument about what I think the law should be.

Some readers may not agree with freedom of speech. I know plenty of people from traditions as diverse as the social justice, actually existing state socialism, and catholic theocratic movements that reject the idea on principle, or try to pretend to themselves that they accept it while torturing it beyond all recognition (“hate speech isn’t free speech”). I myself am not 100% sold on the idea of free speech as an absolute principle. Germany forbids pro-Nazi speech, and honestly it seems to work fine, and nothing of value is lost.

However, my reply to these people is that wouldn’t you prefer a first amendment framework to Zuckerberg? Your options aren’t “I get to be speech czar, or free speech reigns” your options are “First amendment style free speech or Zuckerberg and his fellow weirdos get to be speech czar”. If there were a third option if would be “US government gets to designate what kinds of speech it likes” and that’s even worse from almost everyone’s point of view.

Obviously direct censorship isn’t the only thing at stake. Facebook also tweaks with its algorithm that decides what comes up in your news-feed. There is no technical problem, in principle, with insisting that the algorithm must be content neutral- based only on factors like when the post was made, how many likes it has, how many people have already seen it etc.

If you enjoyed this article please consider joining our mailing list: https://forms.gle/TaQA3BN5w3rgpyqeA also, a collection of my best writing between 2018 and early 2020 is available as a free e-book “Something to read in quarantine: Essays 2018-2020”. You can grab it here.

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