Facebook proves that its terms are not First Amendment friendly

by Jason Fischer

Facebook has confirmed that they have removed two group pages belonging to holocaust deniers after receiving pressure from members of the public, including attorney Brian Cuban (brother of entrepreneur Mark Cuban).

A Facebook spokesperson explained that “if the discussion among [a group’s] members degrades to the point of promoting hate or violence, despite whatever disclaimer the group description provides, we will take them down. This has happened in the past, especially when controversial groups are publicized.”

As a private organization, Facebook is certainly entitled to take these actions. It is unfortunate, however, that they find it necessary to do so. The “marketplace of ideas” is capable of labeling the members of these groups as asshats and rejecting their hate speech. Freedom means ignoring viewpoints you don’t agree with, not censoring them.

28 Responses to Facebook proves that its terms are not First Amendment friendly

  1. Clint says:

    You should see Michael Arrington’s ridiculous article on the topic at TechCrunch. He’s claiming this will lead to a second holocaust, and contrasting the situation to Facebook’s fan on breastfeeding photos.

    Of course, facebook never banned *talking* about breastfeeding!

  2. jf-) Freedom means ignoring viewpoints you don’t
    jf-) agree with, not censoring them
    My definition of freedom includes the ability to control which viewpoints I propagate.

    Many years ago, I did computer work in an office out on the east side of town, right along a major highway. I’d always have a few signs for the candidates I liked.

    Inevitably, other candidates would add their signs to my office yard. Just as inevitably, I’d pull them up. It was not that I felt that their message needed to be suppressed, but that I was not willing to host their message.

    There were plenty of lawns in front of offices whose folks were less enlightened than I was. Let the bad candidates put their signs there instead.

    • Tanner,

      I don’t think your analogy carries the day. Fischer is acknowledging that Facebook may have every legal right, as you did, to decline to host messages with which they don’t agree. However, I don’t think you ever put your office yard up as an open space for public gatherings.

      I think that Fischer is saying that if Facebook wants to seem to be an “open society,” then it should respect First Amendment values — whether the law compels them to or not. If they want to create a community online, they should be prepared to tolerate all points of view.

      I’d go a little further than Fischer. There are cases in which private shopping malls were deemed to be the equivalent of a public square, regardless of who actually owned the property, and thus the First Amendment mandated that they allow people on the premises to picket and protest. I am hard pressed to find a rationale for why FaceBook isn’t the same.

      • Christopher Harbin says:

        The metaphysical public forum? Blech. As a threshold matter the shopping malls as public fora doctrine is murky at best and largely dependent on state constitutional law.

        There also seems to be a large disconnect between a shopping mall that is taking up finite space in a town rather than a webpage on the internet. The internet is global in scope and virtually unlimited in space.

        The solution is the marketplace, not the law. While I champion first amendment ideals as zealously as anyone, I’m hard pressed to mandate them on private actors. The best way is to demand a change from facebook and if such lobbying has no effect, someone in the marketplace is sure to come and snag Facebook’s fat cash for themselves. I’d be happy to oblige the newcomer with my business.

  3. Ari says:

    While I generally agree that the marketplace of ideas is invaluable even in the face of the most heinous opinions, if I hear one more person scream “FIRST AMENDMENT” I am going to hurt someone. It’s one thing when a kid who doesn’t know any better claims a general right to “freedom of speech,” but an adult who makes that kind of argument without knowing what they are talking about is such a pet peeve.

  4. Mike says:

    I’m not so sure on this one. While I do recognize the free speech point. If this were on my servers I think I’d have a generally open policy so I wouldn’t have to bother with mail pressuring me to take down offensive content. However I also would find it pretty entertaining to screw with certain groups that were using my hosting for thier club. I don’t think I’d take the sites down so much as have fun editing thier content to tease them.

    So facebook censorship doesn’t bother me much. On the other hand ICANN censorship if it existed would be extremely troubling. Anybody should be free to create their own website and pay for thier own hosting. I do see a difference if your not using your own hosting and wouldn’t feel particularly bad about that until such time that there is a monopoly situation.

  5. Ken says:

    I’d go a little further than Fischer. There are cases in which private shopping malls were deemed to be the equivalent of a public square, regardless of who actually owned the property, and thus the First Amendment mandated that they allow people on the premises to picket and protest. I am hard pressed to find a rationale for why FaceBook isn’t the same.

    That would be the abysmal Pruneyard case, decided based upon the California constitution. Fundamentally it said that one private actor must give up its own free speech rights in favor of another public actor. Blech.

    I’m fine with the notion that if Facebook tries to portray itself as a free marketplace of ideas, we should call it out when it falls short. But I am not even a little bothered by a private company exercising its own speech rights.

    I mean, if I came in here extolling how smart Florida politicians are and quoting Andrea Dworkin for the proposition that pornography should be banned, you’d show me the door eventually, right?

    • Christopher Harbin says:

      Actually, I think you might be subject to the fine in the TOS. LOLOLOL!

    • I mean, if I came in here extolling how smart Florida politicians are and quoting Andrea Dworkin for the proposition that pornography should be banned, you’d show me the door eventually, right?

      Well, no… but I do agree that you and Harbin have the better argument on this issue, and I withdraw from the high water mark of my position. I still agree with Pruneyard, but I think Harbin made a good point above — that given the infinite spaces on the web, there should always be someplace where debate will remain wide open and robust.

      But, just for the mental masturbation, could you conceive of Facebook (or another site) getting so ubiquitous and encompassing that it would start to slide into the public forum definition? What if Facebook became so huge that it was social and/or professional suicide to not have a FB profile?

      • Mike says:

        I’d venture to say that Yahoo/Google has already crossed that line. And there have been outcries when they censored their output in China.

        Google certainly runs a private database and give anybody with internet access capability of searching that database but when it comes down to it, it is a private database.

        Good luck finding your favorite Nazi afficionado’s website without google.

  6. jesschristensen says:

    Isn’t this the marketplace of ideas actually at work? I mean, the idea is that viewpoints can be expressed, accepted, tolerated or rejected by private individuals or private entities, and that acceptance or exclusion is itself a form of expression. I don’t see why Facebook shouldn’t do what it did. If it draws the line of acceptance too narrowly, the consequence will be that people will stop participating. But, that Facebook elects to exclude certain viewpoints on the basis that it believes them to be harmful or counterproductive to its mission is Facebook’s expression of its own ideas. I don’t think the First Amendment does (or should) stand for the principle (leaving aside the legal doctrine) that people shouldn’t be free to exclude from their own sphere of communication certain ideas.

    • Naturally, and I think that everyone agrees with that (I briefly went a little beyond it, but I’ve been beaten down by superior logic). But, FB still deserves to be criticized for it – but not sued.

      • jesschristensen says:

        I don’t think I agree re the criticism, FWIW… according to the press release that’s linked to in the story above, FB disabled two of the Holocaust denial groups, but there are still three other groups that are still active on FB. The two groups that were disabled, according to FB, were promoting not only the idea of hatred, but also violence. FB seems to have made it clear that simply denying the holocaust is not a violation of its terms of service, and said that they discussed the issue internally, and consulted lawyers and other free speech experts before making a decision to disable the two groups. Seems to me that that’s a far more thoughtful, responsible approach than many would take — one which appears to be aimed at protecting the openness of the site while not tolerating a call to anti-semetic violence.

  7. Mark Alan Miller says:

    This is similar to when a racist asshat came onto a music forum I participate in, and was shown the door eventually (and, apparently has returned, but I’ve stopped participating in said forum because it effectively is just a bunch of kids saying bullshit at this point anyhow.) Some people cried “censorship” and all that when he was banned, but frankly, it’s a privately run forum, and the owners have every right to edit content to clarify their existence as they see fit.

    I agree that FB is walking a fine line with this, but so far, that really doesn’t raise my dander. The risk they take, as was mentioned above, is that if they get too controlling about too many potential topics of discussion, people will go elsewhere. On the internet, that’s the beauty of it…

  8. tara says:

    Two Words: Viewpoint Discrimination.

    • jesschristensen says:

      Ya…but, are you suggesting that as a private person, I don’t have the right to discriminate against viewpoints? All views must be accepted by everyone, all the time? THAT is political correctness gone to absurd extremes.

  9. martin says:

    If you kindly allow me to butt in …
    Some of you guys give FB way too much credit, I believe. Can there be any doubt that if Holocaust denial were a majority view, or even one tolerated with a shrug, that FB would take relevant pages down?
    They act the way they do because they fear the public relations consequences of not doing so, no matter what their high-minded pronouncements say. Global scope is precisely their problem. There is a country (Germany) with freedom of speech in their constitution that has seen fit to make Holocaust denial a felony offense exception to the rule. Some enterprising German prosecutor would be sure to sue. They don’t need that and I can’t blame them.

    On a slightly different angle, if someone cares to entertain this: In the US, if a customer with a patently offensive (anti-semitic, racist) t-shirt enters my business, can I legally take offense and ask him to leave without service? What about a message violently and vilely denoncing the US?

    Thanks for listening.
    Thanks for listening.

    • Yes, if you own a business and someone walks in with a T-shirt you find offensive, you are free to tell him that he is not welcome in your establishment.

  10. jfischer1975 says:

    The more I think about this issue, the more I think Facebook did the correct thing here. If allowing certain group pages creates a risk that a significant number of their customers will walk away then it would be irrational to fight that pressure. As Jessica pointed out, this is the marketplace of ideas working properly.

    What rubs me the wrong way is that self-important blowhards can strong-arm companies like this. The danger being that social tides can change quickly, and the taboo topic of tomorrow may be something a little less objectionable than holocaust denial. See Loew’s, Inc. v. Cole, 185 F.2d 641 (9th Cir. 1950) (discussing a film studio’s right to fire writers who refuse to answer questions about membership in the Communist party).

    • jfischer1975 says:

      …oh, and to appease all of you who got bent out of shape, ranting “NO STATE ACTION = NO FIRST AMENDMENT VIOLATION!!!” I concede that a better title for this piece might have been “Facebook proves that its terms are not Free Speech friendly”


    • David Schwartz says:

      Sure, it’s rational in the short term, but it’s cowardly and ultimately self-defeating. Where do you draw the line? If a guy who spends $10 a day at your store asks you to stop doing business with a guy who spends $5 a day, do you do it for the extra $5?

      It’s cowardly because it avoids any necessity to stand up for your own beliefs. It’s ultimately self-defeating because you can lose the majority a minority at a time.

      If you were a book publisher and had a large contract to publish Bibles, would you cave into their pressure not to publish holy books for other faiths?

  11. jesschristensen says:

    See, that’s the intended beauty of the First Amendment though…we lived through McCarthyism precisely because at the end of the day, we saw the danger in letting a particular view ride rough-shot to exclude all other views. Which isn’t to say that it’s never a painful, sometimes very painful, process. I would venture to guess that as a result of this, and other, discussions, FB is going to be even more deliberate and cautious in the future before it decides to disable a group. And, as such, full and passionate debate once again produces a healthy, but not unqualified, respect for the diversity of ideas. Yay First Amendment!

  12. jesschristensen says:

    Or, to turn your McCarthyism concern upside down… let’s say, for the sake of argument, that a public figure espousing ideas similar to Hitler’s did rise again to a place of national prominence and gained real, practical power? What would the optimal response be? I’d hope that this Hitler-esque figure would be shouted down, and literally drown out, by the vast, loud and persistent voices of opposition. That’s what didn’t happen in Germany, after all.

    • David Schwartz says:

      And that’s precisely what can’t happen when actions like FaceBook’s take place. We all lose the opportunity to shout them down and expose them in public for the idiots they are. If you make the debate disappear, then the idiots don’t lose the debate like they should.

      • jesschristensen says:

        I think your point’s well taken, generally, that you don’t want to stuff topics you don’t like so far out of public view that you don’t have the debate. But, as others have pointed out, the internet’s a big place, and there’s plenty of opportunity for the holocaust deniers to have their say. Plus, there are still 3 denier groups on FB.

        But, I still disagree that FB’s decision is necessarily cowardice – it may be that in reality, they were being pussies about it – but I’m not sure the decision itself is a pussy decision. I think your question, where do you draw the line?, is really the point. For our government, we’ve agreed (via the First Amendment) that the line must be drawn rarely and narrowly. But, if someone comes into my business and wants to spew hateful, violent crap why do I have to endure it? Let’s say that person is likely to outspend all my other customers, and even might represent a significant share of the market, why can’t I decide that I nonetheless don’t want their shit in my house (whether my house is a website or a storefront), and I’m willing to trade off the income for the… privilege of not having to listen to assholes?

  13. […] The right to free speech embodied in the First Amendment is not a right to speak without consequence. If you tell your girlfriend, yes, your ass does look fat in those jeans, the consequence is likely to be no nookie for at least a month. If in a job interview, you say that your goal is to spend as little time working as possible and intend to surf the internets at every opportunity, you consequently aren’t going to get the job. If you set up an anti-semetic Facebook page that spews hateful racism and encourages violence, you run the risk that the Facebook people are going to tell you to piss off. […]

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