A little while back Facebook got a lot of slack for refusing to ban some particularly reprehensible hate speech groups. While Facebook’s representative employed the cause of free speech in their defense, many commentators have pointed out that, as a private company, Facebook has complete control of the speech on their site. (I wrote most of this series when this event was still playing out, but chose to take some time before completing it and posting.) I believe, it is important to take a historical perspective when dealing with issues like this. Luckily, the Supreme Court has something to say on this issue. At least they do if you consider Facebook to share legal characteristics with a shopping mall.
Shopping mall owners have a tendency to go overboard in banning speech they personally disagree with. For example, t-shirts with such slogans as “Give Peace a Chance” have often been considered unacceptable by mall owners.
While a mall is used in roughly the same way as main street used to be, the U.S. Supreme Court has ruled that as private property the First Amendment doesn’t apply. Facebook too remains private property, which can be easily forgotten as, like a mall atrium, it is increasingly used as a public space. Given this precedent, it stands to reason that Facebook has no legal obligation to allow hate speech.
However, is it desirable that Facebook take it upon themselves to censor hateful viewpoints such as those in question? As the central online community space for a whole generation at least 2.5 generations, one could argue that it would be more desirable for Facebook to install their own First Amendment.
Why? This makes Facebook less likely to abuse their power to ban whatever they feel like. A lot of legitimate takes part on and through Facebook, including a lot of political activity. If Facebook is to remain a platform for such activity, a freedom of speech policy is critical.
For example, Facebook technically could have banned all speech favorable of the Obama campaign leading up to the recent election. Cries of censorship wouldn’t matter from a legal perspective. However, given Obama’s popularity on Facebook, such an action could have skewed the results in favor of McCain
It could be argued that, like for public spaces, the best safeguard against abuse of power in a public-like space like Facebook is an absolutist policy on freedom of speech.
Specifically because there are no legal First Amendment protections inside Facebook, this question becomes more urgent. This is not a question the courts can answer for us. It is a question we need to answer for ourselves. Whatever paths Facebook and the other big social networks choose now will set the precedents for later.
In this series of posts, I will argue that online communities share more in common with universities, libraries, and newspapers than they do with shopping malls.