Does Facebook Shift on Regulation Also Lead to Change of Free Speech Rights?

For those of you not communications “regulatory geeks,” this headline from Facebook might not seem especially unusual: “Four Ideas to Regulate the Internet,” published under Mark Zuckerberg’s name. 

“I believe we need a more active role for governments and regulators,” Zuckerberg says. “By updating the rules for the internet, we can preserve what’s best about it--the freedom for people to express themselves and for entrepreneurs to build new things--while also protecting society from broader harms.”

For some of us who need to understand the role of regulation in shaping any industry’s profit potential, this position  is important.

For others who watch the development of U.S. regulatory models related to “freedom of speech,” it is perhaps shocking. We can debate the role of content platforms in shaping news and content with enormous political implications. But almost nobody would argue with the notion that Facebook, Google, Twitter and others now have more power or influence than traditional media.

And while most might agree that government censorship is not a good thing, platforms are private firms not traditionally covered by the First Amendment. Yet some might argue the danger of free speech suppression is not a political danger primarily or exclusively from “the federal government” but also “from the platforms.”

It is complicated, to be sure. Democracy is a means, not an end. Tyrannical behavior can be freely exercised by citizens using democratic means. Companies and mobs can restrict freedom of speech just as much as the federal government. 

Still, there is an important possible new shift here. Facebook has the right of free speech, “as a speaker.” But Zuckerberg also now says it is willing to live with regulations of various sorts that somewhat extend the right of free speech to “listeners, viewers and readers.”

Those two ways of looking at “who” has the right of free speech has changed over the centuries. Originally, the right was held only by speakers. In the era of electronic communications, a different attribution has happened.

The “right” was deemed to be possessed by “listeners or viewers.” That is the logic behind “equal time rules” for political speech on TV or radio broadcasts, for example. Over the last couple of decades, such rules have been peeled away, returning to the original sense of rights belonging to speakers.

What Facebook now proposes, at least in principle, is that some amount of rights now shift back to protecting the political speech rights of listeners, viewers and readers. 

It is possibly the sign of an important key philosophical shift. Almost all arguments about “fairness” for political speech on platforms are based on the idea that it is the audience which must be protected, not the platform as “speaker.”

It is possible we could see the beginnings of a long-term shift back to the concept that it is the listener, viewer or reader whose political rights are to be protected, a notion that arose only with the advent of electronic content. 

First, let us be clear, the U.S. constitution bars censorship or fettering of clearly political speech by the federal government. 

What has never been clear is whether regulation can be, or ought to be, applied to private actors in the economy, especially giant platform companies in the content business. In the past, that has been reason enough for the federal government to impose some restrictions on private actor content freedom.

In the past, the justification has been “use of public spectrum.” Something like that was applied to cable TV companies, which were held to have public interest obligations because they used public rights of way.

Irrespective of the logic and soundness of such reasoning, the matter of ”who has the free speech right” was changed. 

“Lawmakers often tell me we have too much power over speech, and frankly I agree,” says Zuckerberg. Right now the issues are privacy, harmful content, election integrity and data portability. Those are, some might argue, relatively peripheral to the matter of protecting free political speech. 

The biggest potential shift, though, is the longer term balancing of the rights of speakers and audiences. In principle, the First Amendment to the U.S. constitution protects citizens from suppression of free speech only by the government. 

When TV and radio broadcasting and cable TV developed, some amount of shift occurred. The rights were partially seen as being held by viewers and listeners. With the advent of huge and dominant content platforms, that might expand to include readers. 

Such changes take time, but have happened before. And that is why Facebook’s position matters. Perhaps it is the first of many changes that could affect and change platform roles in protecting free speech. 

Virtually all moves in the direction of platform regulation would be based on the rights of audiences, not speakers. It has happened before. And it always is quite tricky.