Facebook Has The Power To Repeal The First Amendment

It’s simple: When private companies are the gatekeepers to the public square, guaranteed civil liberties essentially cease to exist.

A friend of mine, economics writer Doug Henwood, was recently banned from Facebook. They didn’t tell him why. Nor did they say whether they’d review the ban. In fact, they said explicitly that they might not, blaming Covid-19 for reducing the number of available reviewers. (Covid has proven a highly useful all-purpose excuse for things lately, hasn’t it? Facebook can clearly afford to keep paying reviewers, but now they have an excuse for not doing it.) Eventually they put him back, as he clearly hadn’t violated the Community Standards. But they never told him why he’d been removed or why he was being put back. All of that is up to them. 

I think a lot of us see the suspension and banning of social media accounts as a minor issue. After all, usually it’s people on the right grumbling that their bigoted or inflammatory content has been taken down. But it can happen to anyone: Another of my friends was temporarily banned from Twitter after posting a joke about Hunter Biden. She got her account back eventually. Usually these things aren’t permanent. And because “not being able to post” seems like such a small injustice compared to so many others, the “Free Doug” movement is always going to seem like a bit of a low priority.

But there is something deeply dangerous here, and I don’t think Facebook and Twitter bans should be treated as a small issue at all. Especially in the age of coronavirus, where the physical ability to “publicly assemble” has been restricted, social media is the public square. Crucial political organizing takes place there, public figures are held to account there, news is spread there. Dramas that affect the fate of giant companies or even nations can even happen on Twitter (I mean that: Donald Trump can create a diplomatic crisis with a single tweet and Elon Musk can wipe out billions in value for his shareholders.)

    This means, as many have noted before, that the public square is now quite literally privatized. It is not a commons. It is owned by shareholders and controlled by billionaires. And decisions about who gets to speak and whether they will be heard are no longer governed by the rule of law. They are governed by the opaque “community standards” of a private corporation whose mandate is to maximize shareholder value. 

    Can we take a moment to appreciate the radicalism of what has happened? Private companies now have a powerful gatekeeping capacity over public speech. They are, effectively, governments. But they are not democratic governments. You do not get to vote on Facebook’s community standards. You did not elect anybody to the lawmaking body. Decisions about how speech will be policed take place in dictatorial institutions ruled over by creepy billionaires. When public speech took place mostly outside, decisions about what could be heard were made by courts, and subject to the First Amendment. Now, because the United States gives almost limitless power to corporations to set their “terms of service,” the power to abridge the First Amendment has been handed over to private companies.

    I have written before about how much this scares me as someone who publishes content online for a living. Current Affairs articles are distributed mostly through Facebook, Twitter, and Google. If those companies should deem us “fake news,” or suspend our accounts, I do not know whether our magazine could survive. You might not even notice our disappearance, because we could not be heard. (Maybe after a few months you would say “Hey, I haven’t noticed many articles from Current Affairs showing up lately.”) I do not think I am being paranoid here.

    Decisions about speech in the public square have to be made by a public body in accordance with transparent rules, democratically promulgated. This should be elementary. It follows from the very basics of political philosophy. The only possible argument against it is the libertarian idea that when you enter into a “free contract” with a company, it gets to do whatever it likes, and your remedy is your “free choice” to withdraw at any time. You don’t like Twitter’s rules, don’t have an account. But this is built on a kind of legal fiction. It ignores the reality of what these platforms are. The choice not to use them is the choice not to enter the public square. To say that I can leave is like saying “Yes, the city has banned protesting downtown, but nobody is being forced to enter downtown.” If I don’t like the laws of the United States, I can leave. Nobody is forcing me to stay here. But that doesn’t justify the United States eliminating the democratic process and scrapping its enumerated rights. 

    This shouldn’t be terribly complicated. Facebook should not be governed by “community standards” handed down from on high. It should be governed by its users, who can elect those who make the rules. Those rules should be transparent. When there is a controversy about their application, there should be a clear adjudication process. Decisions should have to be justified. You should be able to read the “rulings,” just as with a court of law, and there should be an appeals process. If the rules are bad and users dislike them, rulers should be able to organize to vote for new rule-makers, who will change them, rather than begging the Noble Overlord to please show mercy. 

    Ah, but democracy would be chaos, you say. It would never work. You cannot trust The People. The Nazis would win and make all the rules. We must leave things in the hands of the benevolent dictators. Notice, of course, that you can make all of the same arguments against political democracy. But we do not accept justifications for dictatorship when it comes to the state, and there is no reason why we should switch to accepting these same bad arguments when it comes to the regulation of speech in the public square. Besides, until everything moved online, public speech was governed by the First Amendment, and it worked okay. Democracy is a mess and a lot of bad things happen, but it is still “the worst system except for all the others.” 

Besides, there’s reason for hope. The Wikipedia model has shown that participatory governance works. There are serious flaws; inevitably “self-rule” sort of becomes “the rule of busybodies with too much free time.” But it is fairly successful: Wikipedia has hummed along for nearly 20-years as an almost entirely user-governed community.

Let’s be clear: The current system should frighten you, because under the current system, if Facebook’s bigwigs decide that there’s a political movement they don’t like (say, BDS), they can simply disappear it. They can hobble its organizing. They can block off important avenues to reaching people. They can, effectively, repeal the First Amendment at their whim. Nobody should be comfortable with this kind of concentrated power. But it’s more than merely unsettling: It should be understood as a literal erosion of basic civil liberties, equivalent to putting a king in charge of who gets to protest.

Is there a plausible version of Facebook or Twitter that is compatible with a democratic society? I think so, but it would require them to be nationalized and their governance structure radically overhauled. In the absence of that, the only hope is in finally developing an alternative, not-for-profit, democratic social media platform. Several attempts have been made, but all run into the basic problem of “network effects”: What makes Twitter successful is that so many people are on it, so no competitor can possibly hope to do anything but peel away a small number of people, because the content and ability to connect will be so inferior. Wikipedia was successful in part because being participatory was not just a matter of principle; it was also the thing that fueled the success. It was actually able to become better than other encyclopedias because it was user-made. How will any alternative to the big platforms ever beat them? It is hard to envision, and it is also unnecessary, because we have the institutions already, they just need to be made subject to popular oversight. 

You may not shed a tear for the banned. It seems a minor injustice. But when it happens to you, you may then realize how strange it is to be muzzled and incapable of participating in public conversations. If it occurred in “meatspace,” it would be more obviously disturbing, and the role of corporations as quasi-governments would be more obvious. But as our communications shift ever more rapidly to Zoom meetings and Slack channels and Twitter posts, it’s critical that we fight for governing bodies that are democratic. Right now, we are on the path to ditching our constitutional protections, because we operate on the mad belief that a private company can’t actually violate your rights. They can, and they do, and we need a concept of freedom that requires restraints on private companies’ gatekeeping power. 

For an excellent look at the machinations of the major tech companies, see my friend Rob Larson’s new book Bit Tyrants: The Political Economy of Silicon Valley, and listen to this conversation I recorded with him about it.

More In: Tech

Cover of latest issue of print magazine

Announcing Our Newest Issue


A superb summer issue containing our "defense of graffiti," a dive into British imperialism, a look at the politics of privacy, the life of Lula, and a review of "the Capitalist Manifesto." Plus: see the Police Cruiser of the Future, read our list of the summer's top songs, and find out what to fill your water balloons with. It's packed with delights!

The Latest From Current Affairs