facebook censorship
Public Policy

Is Facebook Censorship Legal?

As a result of the Russian hacking of the 2016 election, there has been an outcry for large social media and news sites to reduce the amount of “fake news” pushed out through these platforms. Facebook censorship has become a particular focus due to the significant influence that it has had on a large swath of the public. Facebook is the largest social media network in the world with hundreds of millions of users, which gives it a lot of influence. As discussed in Rolling Stone earlier this year, 70 percent of Americans get their news from just two sources, Facebook and Google. To reduce the public’s disclosure to potentially false information, Facebook has begun to remove accounts and news stories that it deems problematic. Unfortunately, that also means that the few individuals in charge of the cleanup effort are given an inordinate amount of power over what information the public receives. Facebook has always engaged in a certain amount of censorship, such as limitations on nudity, but now Facebook is pushing into realms of free speech that make some people uncomfortable as the decisions being made are seemingly arbitrary and have included a number of “false positives, where accounts were removed that many see as totally legitimate. Today, Facebook may be focused on the political news but that also makes one wonder where it may end. 

Should an organization with so much influence be allowed to decide what content we can view?  On the one hand, as a private organization, Facebook should have the freedom to control content on its platform. On the other hand, Facebook has also become the modern version of the “public square” where we usually have the freedom to express our thought and ideas freely.

When does free speech apply to a site like Facebook?

Censorship and Free Speech

Censorship is defined as the suppression of words, images, or ideas that are deemed offensive. Usually, censorship involves imposing personal, political, or moral values onto others. The first amendment was drafted to protect free speech from governmental interference. It does not apply to private organizations or individuals.

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Founding father’s idea was to ensure that minority opinions have a voice, otherwise, the majority could stifle their speech and we would never be able to change public opinion. The majority opinion would always win. However, that freedom is not absolute. You may have heard the iconic expression, “shouting fire in a crowded theater.” 

Categories of speech that fall outside protection are:

  • hate speech
  • child pornography
  • defamation / slander
  • incitement to violence
  • true threats of violence.

However, whether speech falls into one of these categories is not arbitrary and must pass specific tests in order to be deemed illegal. 

Private citizens or organizations, like Facebook, can generally be much more restrictive. Artists, writers, filmmakers, and photographers are often the subjects of censorship, particularly those with impassioned, countercultural messages that some people feel is a threat to their way of life. One of the most famous is Alan Ginsberg’s censorship and obscenity trial over his infamous poem, Howl, as well as the overturning of the ban of Vonnegut’s Slaughterhouse Five in Michigan schools.

It’s every individual citizen’s right to refuse to disseminate content that is considered, by them, to be inappropriate. So, Facebook, as a private entity, should also have the right to create a policy that censors content that its members post online along with the traditional censored speech such as cyberbullying and harassment, direct threats, and threats of sexual violence or exploitation. Facebook does not have to give a voice to the minority.

However, Facebook does have to follow the rules it sets out in its terms of service. A website’s policies and Terms of Service are generally considered a contract between the user and the website owners. So, while a company may be able to institute whatever policies they want, they generally have to adhere to what they have written in the Terms of Service. 

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Facebook Censorship is Usually Decided by Public Opinion

History has shown us that Facebook doesn’t remove content because of its frail sensibilities.  In fact, the company doesn’t seem to have a desire to censor its users at all. Facebook censorship policies are usually the result of a public relations nightmare rather than a true desire to limit its content.

Take, for example, the now-infamous photos of a 1972 Napalm bombing during the Vietnam War. Terror of War won a Pulitzer Prize that year, and has become a symbol of the impact indiscriminate warfare has on innocent civilians. The iconic image changed modern warfare strategy. However, since the image contains graphic content – namely, a young nude girl running away from the attack – Facebook had continuously removed this image whenever it was posted by users. The removal was likely an automated process but despite the complaints, Facebook continued the practice. Eventually, the social media giant received so much backlash that they decided to change its removal algorithm and update its Terms of Service around historical imagery.

Facebook Censorship
Terror of War. Explore this photograph.

Can Facebook Censorship Be Limited by the Right to Free Speech?

As discussed, as a private company, Facebook has the right to decide what it can censor but can the application of free speech ever be applied to Facebook, even though they are not a government entity?  

Facebook Censorship
Pruneyard Shopping Center Sign

Possibly. After all, Facebook has become a public space where people now get their news and information about the world. Even private spaces can become public for purposes of free speech. The argument is based around a case called Pruneyard Shopping Center v. Robins. Several local high school students were removed from the shopping center for soliciting petition signatures. The Supreme Court ruled that the shopping center was a quasi-public space and that the shopping center could not use trespass laws to keep the students from exercising their peaceful free speech rights. 

In another case, Marsh v. Alabama, (1946) the town of Chickasaw, Alabama had removed a Jehovah’s Witness named Grace Marsh for distributing religious literature. Chickasaw happened to be owned by Gulf Shipbuilding Corporation and argued that Marsh was trespassing on private property, so free speech didn’t apply.  The Supreme Court disagreed saying that the company had taken over the role as the government for the town and so free speech applied. It was not private property.  

Facebook in many ways is also a public space (although a virtual one) where people congregate to gain information and converse with friends and acquaintances. Some would argue that just like a shopping mall, people should be allowed to express themselves, as long as it is peaceful.

Whether the public space argument will prevail probably won’t be known for a while. An aggrieved person must first bring a lawsuit over being censored and then run it through the various court levels until it reaches the Supreme Court (if the case is accepted by the Court.).

One recent case did discuss this argument and it did not do very well. Chuck Johnson, a right-leaning activist, was removed from Twitter over a Tweet that apparently urged followers to support “taking out” a civil rights activist, the court opined on the potential that Twitter is a state actor for First Amendment purposes. Johnson used the “public space” argument saying “Twitter is the new company town, shifting the public sidewalks of cyberspace to its monopolized public square of the Twitter feed.” As such, he has the right to free speech and should have his account reinstated. The state court disagreed saying that Twitter is private sector company that it only needs to abide by the rules it laid out in its Terms of Service. 

The court also noted that the Twitter has the “right to exercise independent editorial control over the content on its platform,” and terminating Johnson’s account for allegedly bad behavior “is an editorial decision regarding how to present content.” It further stated that Twitter’s “rules were adopted to ensure that [Twitter] is able to maintain control over its site and to protect the experience and safety of its users.” So this court was not willing to apply the Public Square argument to private sector companies, such as Twitter and Facebook.

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On the other hand, last year in Packingham v. North Carolinaa case in which North Carolina sought to ban child predators from using social platforms, the Supreme Court struck down the North Carolina law, and referred to social platforms as the “modern public square.”

You can be sure that individuals on both sides of the political spectrum are sure to continue pursuing the idea that social media companies are the new public space and that free speech should apply. For now, though, Facebook censorship is alive and well. In fact, Facebook just this week, exercised its censorship rights by “purging 559 pages and 251 accounts that have demonstrated spammy behavior and violated its rules. Many of the accounts removed are from hyper-partisan political pages and accounts,” according to Axios. So, for now, Facebook has the right to decide what news 70% of the population receives. How long that will last remains to be seen.

Do you have an opinion on Facebook censorship and free speech?  Please let us know in the comments below.

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About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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