Feed management, Bad Faith, and the First Amendment

One the most common misconceptions in student papers on feed management is that there is some kind of first amendment reason why feed restriction is illegal. Correcting this misconception is why you have a teacher in the first place. In the last few weeks it has become much harder to make this correction when major public figures like the President or US Senators seem to have no idea what the law is. Here is a Tweet from Ted Cruz:

Am no fan of Jones — among other things he has a habit of repeatedly slandering my Dad by falsely and absurdly accusing him of killing JFK — but who the hell made Facebook the arbiter of political speech? Free speech includes views you disagree with. #1A

Jones in the case is Alex Jones, the head yelling dude for InfoWars. The key is the idea that Facebook would not have a role in controlling the platform, with the hashtag #1A implying that there is a legal problem with this editorial role. For those of you playing along at home, here is the first amendment:

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.

Notice the first word is “Congress.” The first amendment does not say that no one will not censor anyone else or that any publisher is obligated to print anything.

President Trump tweeted:

Twitter “SHADOW BANNING” prominent Republicans. Not good. We will look into this discriminatory and illegal practice at once! Many complaints

This story is untrue. Twitter uses shadow bans for bad faith actors, and in this case there was a bug that restricted access for some political tweets. The truth does not work in this case as Conservatives are continuing, now in bad faith, to claim that Twitter is oppressing them.

Students interpret these statements as a definite legal theory that feed management would itself be illegal.

Pop Constitutionalism

Two years ago, I was parsing another Zuckerberg statement, not the most recent one where he seems to think that people are really confused all the time, but a statement that laid out his theory of the public sphere. Exec summary: Zuckerberg’s theory depends on a very strong dialectical dispute resolution mechanism where speech and counter-speech form something of a constant correction mechanism. There is a certain truth to this theory as there really are basic channel issues to be resolved. At the same time it is a dramatic oversimplification. In my book I have a discussion of A/B testing and social media. This method is particularly popular as it mimics the dimensions of an experiment. If you present a public with A and B they will make a decision about what to click on. Does this decision indicate that they have taken account of all relevant information and made a rational choice? No. Absolutely not.

This is the heart of Zuckerberg’s error: the underlying values that allow the direct comparison of two advertisements for shoes are not well suited for the analysis of two political ideas or two claims about the importance of vaccination. A/B testing works for basic interface considerations because the stakes are low and the values are clear. There is another important story here about Machiavellianism, but for now let’s assume that most people are not malignant narcissists.

Much of the actual work of law is done in the circulation of popular discourse. Organizations like Facebook and Twitter are in many ways interpreting the values and structural theory of communication implied by those legal structures. Increasingly Facebook and Twitter are following Reddit and restricting the worst content. From the perspective of people interested in providing a stable and viable platform this makes sense, if your theory of the Constitution is somehow connected to individual hedonic maximization, the first amendment should fully protect everyone saying everythign they want as loud as possible.

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This is the Constitution?

If your theory of the first amendment depends on valorizing the success of a perfect, speech based resolution mechanism we have real problems.

Beyond the projection of a right for people to be wrong, awful, and loud, there is the question of the editorial role of platform operators. If we accept the idea that Facebook, Twitter, Reddit and others are functionally newspapers, then the choices they make with regards to content are protected speech in themselves. This is among the stranger cases for allowing cable systems considerable latitude.

The Balancing Act of Defamation

One point where Senator Cruz has been clear, and allies of the President have as well, is the role of defamation law. The key provision here comes from the 1996, where ISPs were held harmless against defamation cases for simply serving websites. This is likely a good thing. At the same time, this protection was undergirded by a utility like conception of the Internet. Congress did not provide blanket protection because the Internet should have unlimited false and defamatory speech, but because the service providers were not making editorial decisions. Senator Cruz has called attention to this tension. This is not an unreasonable point.

Cruz’s theory of social media and speech would suppose that there are edited platforms that would enjoy the benefits of consistency and care and neutral carriers that would be protected from litigation. The problem then is that the edited platforms are difficult to scale and the unedited platforms are horribly chaotic. Theories of collective intelligence generally depend on a fairly intense structure that can moderate the transportation of information and information between formal and informal space. By subjecting these intermediate spaces to litigation the social potential of the intermediate space is lost. This is a fascinating problem and one that will likely take further twists and turns. Is this part of the popular constitutional understanding of social media and free speech? No.

The takeaway should be that Trump and Cruz provide an oversimplified view of the first amendment that would serve a chaotic public sphere. Until the United States Supreme Court hears a defamation case against Facebook or Twitter and decides that any editorial work in another area would forfeit section 230 protection for Facebook and Twitter. It is highly unlikely that the Court would make this decision given that it would require finding both that the section would not apply and further that the lack of a statement of and concerning a Plaintiff would render a platform a speaker.

The Takeaway

The first amendment does not require that a publisher publish.

It is likely that platforms enjoy some first amendment protection in their decisions about what content to remove, and that this removal does not dispel their protection against litigation.

It seems likely that an entirely chaotic public sphere would benefit some more than others. Success in public argument is not an index of accuracy or merit. Actors who desire a chaotic public sphere will traffic in theories that would require platforms to publish everything.

A chaotic feed is not desirable for social network operators. Advertisers are increasingly concerned with brand safety. Raw flows of traffic on the roads are best monetized by generic billboards, this metaphor holds online.

Associate Professor of Social Media. Oregon State University. Read my book: Selling Social Media (Bloomsbury Academic), 2018.

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