Curbing hate speech.

Photographer: Robert Michael/AFP/Getty Images

Free Speech Isn't Facebook's Job

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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My instinct as a First Amendment teacher is to be outraged at Facebook, Twitter, YouTube, and Microsoft for knuckling under to European Commission pressure to ban hate speech on their platforms. But after sleeping on it, I think it's fine.

Here's why: These social media giants are private actors, not the state. They can’t be trusted to protect free speech, nor is it their obligation, whether in Europe or the U.S. Those of us who care about preserving free speech need to keep that in mind, while maintaining other venues for free speech that aren’t controlled by private companies.

Start with the European context, which couldn't be more different from the American. It’s not only that European countries criminalize much hate speech that would be protected under the U.S. Constitution. The European Commission also operates differently than the U.S. government.

The Code of Conduct on Countering Illegal Hate Speech Online, posted yesterday on the European Commission's website, embodies the agreement between the media platforms and the Commission. It makes the differences in approach eminently clear.

First there is the unfamiliar (to Americans) process that produced the code. The document refers to a statement issued by a branch of the commission in the wake of the March 2016 Brussels attacks that said "the Commission will intensify work with IT companies … to counter terrorist propaganda and to develop by June 2016 a code of conduct against hate speech online.”

To an American, this quasi-legislative process looks strangely opaque. The commission “intensifies work” to produce a voluntary code of conduct.  And on May 31, the day before the deadline, the agreement appears as if by magic. There's no fight in front of a legislative body, and no notice and comment as Americans would expect before an administrative body. Political negotiation takes place behind closed doors.

Then there's the fact that the code isn’t actually a law binding the companies. It's a voluntary agreement by the companies formed in the shadow of commission pressure.

The document refers (in a footnote!) to a European Parliament and European Council directive on electronic commerce from the year 2000. It says the commission “shall encourage the drawing up of codes of conduct at Union level, by trade, professional and consumer associations or organizations designed to contribute to the implementation of” the directive itself. A glance at the 2000 directive indicates that it says nothing about hate speech -- although it does mention illegal activity and that service providers aren't obligated to monitor it.

As a legal basis for far-reaching regulation in the U.S., this would be sadly inadequate. Delving into the details, you can begin to see why some Britons worry that the European Commission is taking over their sovereign ability to legislate for themselves.

But here’s the catch: because yesterday's code of conduct isn’t precisely a governmental act, it should be less worrying to advocates of free speech than it would be if the commission had actually legislated it.

Under the code, unspecified “civil society organizations” are going to be recruited into the process of identifying illegal hate speech on the companies’ platforms. The exact implementation is a little unclear, but the fine print seems to suggest that these supposedly independent nongovernmental organizations will work in partnership with the companies to determine what counts as hate speech and should be removed.

The censors, in other words, don't come from the government, but from the private sector. The fact that they aren’t employees of media companies matters less than the fact that they will be nongovernmental -- and apparently won’t have final say.

Ultimate decision-making rests with the companies themselves.

That means the media companies will be acting as de facto editors of the content on their platforms. You know, the same way Facebook tweaks its feed. From a First Amendment perspective, there's nothing fundamentally troubling about self-editing by private companies. Newspapers choose what appears in their papers every day without that impinging on freedom of the press.

The mistake is to think that media platforms are a true public square, where (in the U.S.) the government can't regulate based on conduct unless it has a very, very strong reason to do so. They aren’t, no matter how cleverly they may initially have presented themselves as neutral platforms for everybody’s speech. These companies agreed to adopt self-censorship because they judge that it’s in their interest to do so -- that is, in the interests of their shareholders.

Make no mistake, these publicly traded companies have a fiduciary duty to their shareholders -- not to their users.

The upshot is that we need to keep an eye on free speech by assuring that there are vehicles for self-expression that aren't completely controlled by private actors. This is a long-term project, one that won't go away in our lifetimes.

In its early years, the internet seemed like the answer to a free-speech advocate’s dream: no centralized control, and service providers that mostly acted like they were truly neutral with respect to content.

An internet accessed primarily through privately controlled social media platforms looks totally different -- as the code of conduct shows. It's more like a free-speech advocate’s nightmare.

The civil society organizations sorting through speech to see what’s kosher will have more than a passing resemblance to the government censors employed by the Chinese government.

The big difference is that it will be possible to go around them, via the rest of the web. Google didn’t knuckle under to the European Commission, and with a little luck, other search companies would emerge if it did. That's enough to let us search for content that hasn’t been vetted by private companies, by civil society -- or by Brussels bureaucrats.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net