Constitutional Law Intellectual Property

Q:Can Facebook Be Legally Forced to Police Political Ads? A: No.

Facebook CEO Mark Zuckerberg testified before Congress last week and was grilled by various members of that body about FB’s policies towards political ads. In one round of such questioning, Congresswoman Alexandra Ocasio Cortez (D-NY) asked him whether a candidate could target ads to African-American voters that contained a false election date. He answered “No” and explained that this type of false political ad is prohibited by Facebook’s terms of service which do not allow any content that could intentionally disrupt the election or Census process. She then asked whether FB’s terms of service would allow her to falsely advertise that certain GOP congresspersons had voted in favor of her Green New Deal. Zuckerberg answered “Probably.”

And that is the right answer as wrong or sad as that may seem. But how come TV ads can get fined by the FCC if they intentionally espouse false facts about an opponent or an issue? Because they use the public airwaves and are therefore subject to FCC regulation. Cable channels and online content providers are not regulated in that fashion. In fact, cable TV polices itself with respect to profanity and nudity; every cable channel could show nudity and pornography if they so chose but they tend to leave that to premium networks like HBO and Showtime in order to better compete with free TV. That’s their choice.

FB is a private entity; as big as it is, it is not a public utility . Neither is Google. So there is only so much a government can do to regulate its content. That has to be left to the marketplace and public pressure.

Other congresspersons asked him about FB’s Board members’ experience with civil rights and who was in charge of making sure FB had a proper approach to diversity and civil rights. Congresswoman Joyce Beatty (D-OH) in particular grilled him about it and his knowledge of what his team was doing in that arena. But there’s a difference there. The congresswoman appeared to be referring to charges filed by the U.S. Department of Housing and Urban Development earlier this year alleging that Facebook’s advertising tools violated the Fair Housing Act and enabled housing discrimination by preventing certain information about house listings to be sent to African-American FB subscribers. So if your company is enabling the violation of Federal law, you are fair game.

 It would be impossible for FB to have to vet every single political ad for truthfulness. Then the other issue would be what is considered “untruthful?” If I say that my opponent raised taxes by “almost 5%” but he only raised them 3.5% is that truthful? How about if I say my opponent “hardly ever shows up for a vote” if he misses 40% of sessions? What if in my honest opinion I think those are true? How is FB even supposed to create guidelines as to what amounts to truth and what amounts to exaggeration? Or are we also outlawing exaggeration? Does anyone even care about Free Speech anymore?

This does not mean that there aren’t ways to address the problem with lies in political ads. You could run an ad showing the lie or you could alert the media to the lie and have them report it as well. If I were general counsel to FB I would suggest creating a system resembling the Digital Millennium Copyright Act’s system to put a check on copyright infringement. Under the DMCA, websites that allow third parties to post content like videos or pictures are immune from copyright claims if they comply with the DMCA. The DMCA allows a site to register someone as the site’s DMCA agent. If I see my video put up on a site without permission, I can contact that site’s DMCA agent and let them know the person posting it had no right to do so. The content comes down and the poster gets notification. The person posting it has to respond with proof of right or the content stays down. The same could happen with political ads. If an opponent sees a false ad, they notify FB who notifies the person putting up the ad to verify its content. FB makes the determination of whether its a justifiable claim and their decision is final. This will curtail falsity in ads as politicians will be less likely to risk having their content come down; will provide a system for a response; but will not require FB to fact-check the thousands and thousands of political messages going out daily. (Pretty good right? Let me know Mark, I can be available).

Users of social media have become pretty savvy on what is BS and what has legitimacy. It would place too heavy a burden on social media sites to screen every message for veracity. Government regulation of the content on the internet is a slippery slope no one should be excited about going down.

Follow me on Twitter @oscarmichelen

4 replies on “Q:Can Facebook Be Legally Forced to Police Political Ads? A: No.”

It’s hard to pick the most ridiculous part of this post. It’s a complete fail. However, if push comes to shove this is a decent pick out of many candidates: “ Users of social media have become pretty savvy on what is BS and what has legitimacy.”

You ignored my illustrated example. You wrote:

“Users of social media have become pretty savvy on what is BS and what has legitimacy.”

This assertion is ludicrous. By coincidence Thomas Friedman in his editorial today counters it and unlike you appreciates what is going on:

“And, finally, there’s the internet barons who for too long ignored the weaponization of social media, which is turning our free press into a house of mirrors, where citizens can no longer cognitively discern fact from fiction and make informed judgments essential for democracy.”

As far as Facebook “policing political ads” being a legal no go. There is no need to get bogged down in legal mumbo jumbo. We can change the law or barring that break Facebook (and others) into pieces where they can not do as much damage. Or maybe we run with your implicit idea: perhaps Facebook (and others) need to be reclassified as public utilities and regulated accordingly. I have not given enough thought to the issues nor do I have the expertise to provide specific proposals but I do know it starts with recognizing the problem which includes a full on rejection of your assertion above which is completely at odds with reality.

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