Ever since Facebook entered the sights of conservative politicians and pundits, there has been no shortage of proposed solutions, and, now that there have been congressional hearings I doubt there will be any shortage of additional proposals. What is a bit surprising is the number of supposedly small government conservatives who are proposing state intervention as the first resort.
Considering the conservative opposition to the Fairness Doctrine and other efforts to force balance on broadcast media, it is surprising to hear those same conservatives calling for something similar with even less legal justification, all because of an ideological disagreement with Facebook. Still more surprising, many of these conservatives have — seemingly intentionally — conflated two unrelated issues — immunity from liability for content and antitrust — to muddy the waters and make pretty heavy handed intervention seem “common sense”.
Which is why I would argue we may want to take a step back and look at the two issues independently, free of the emotional appeals we have been hearing.
The arguments surrounding Facebook tend to fall into two categories, though they often seem to be conflated, or even intentionally confused. First, there is the legal question whether or not Facebook is responsible for the content published on the site. Second, there is the — much more recently raised — question of whether or not Facebook is legally a monopoly vulnerable to prosecution under antitrust laws. Despite the fact that many seem to confuse the two, they are almost entirely separate questions, and I will approach them as such.
The first question has been a contentious one not just for Facebook, but for many internet outlets, and tends to rest upon the question of whether the outlet impartially provides user space for opinion or actively edits such content, with the former enjoying protection from liability for libelous statements, while the latter — in general — do not. It is not quite that simple, but in broad outline, that is the question.
The problem with the Facebook question is that it does not actually edit the content posted in a traditional sense, selecting what will or will not be posted, altering content of individual publications and so on, and so largely corresponds to the description of the open forum, not the edited one. However, because many argue Facebook exercises an ideological approach in which groups it allows — or some allege in which posts it deletes — the argument is this degree of selectivity makes it more akin to the edited forum, rather than a forum for user content which enjoys immunity.
The problem with this approach, despite its appeal to supposed “fairness”, is that it bodes ill for almost any sort of internet site short of a fully unmoderated bulletin board. After all, what constitutes a partisan or ideological editorial policy? If pedophiles or necrophiliacs want to promote themselves on a given site, must it be allowed to avoid an explicit ideological bias? The same is also true of any sites exercising selectivity in membership. If a site denies membership, does that open it to liability? The position many adopted on Facebook seem to suggest so.
Nor does it really make much sense that nominal conservatives are making these arguments. Conservatives once fought against the FCC’s “fairness doctrine” — quite rightly in my opinion — and that had far more justification than the attacks on Facebook. Facebook is a private venture, it presents unedited content. Though it may exercise some degree of selection in membership, or in deleting content, using that low level of oversight to make them liable for whatever is posted on the site will have dire consequences for the internet as a whole.
Worse still are the attacks using antitrust laws. I suppose I should say that I am no fan of these laws at the best of times, but in this case just cannot see any justification. Many seem to argue as if editorial actions somehow make Facebook a monopoly, which makes little sense. However, even if we try to make the best case possible, it is tricky to call Facebook a monopoly. The social media field is wide, and there are many competitors. It is difficult to argue what precisely constitutes a direct competitor, since every medium for social interaction seems have unique factors, but even the claim Facebook is “one of a kind” is a very US-centric position, since quite similar sites exist in other nations at present, accessible to US users should they choose. Likewise, if we move a bit farther afield, media for communicating news and opinion exist in tremendous numbers, the existence of Twitter alone should point to how little Facebook truly resembles a monopoly in a meaningful sense. It simply is not possible to see Facebook as controlling any sort of market, unless we make up a “market for Facebook users”, by which standard every internet site is a monopoly.
Of course, I doubt these arguments are going away. Facebook’s political bias has joined with “the MSM”, academia and others in the growing list of persecutors cited by those on the right. And since some on the right have now joined the left in claiming virtue through victimhood, this list is of growing importance. Still, I would argue that, whatever the vices of Facebook, attacking it using these governmental tools is likely to backfire on the right, since so much of conservative media is internet dependent.
Those pushing attacks on Facebook should remember the GOP will not control government forever, nor do the Democrats need to control anything to file suits, so whatever is today used against Facebook can be used tomorrow against your site of choice.
