The Federal Trade Commission and 46 states sued Facebook, Inc., this past week alleging that the huge social media platform has engaged in buying and freezing out small start-up businesses in order to eliminate competition. Specifically, the broad antitrust case is being brought to force Facebook to sell and/or unload its acquisitions of WhatsApp and Instagram. The lawsuits allege that the lack of competition, in and of itself, has damaged customers, including with weakened privacy protections.
(I note that a few weeks ago the DOJ also brought a case alleging that Google had, through unfair trade practices and monopolistic activities, illegally created a monopoly in its search engine business).
I find these developments to be positive and encouraging both for the reasons alleged in the respective lawsuits, and for others.
In addition to unfair trade practices and antitrust conduct, the censorship we have witnessed from Facebook (and Twitter, for that matter) is stunning. Recall that only a few days before the presidential election, Facebook (and Twitter) blocked access to damaging news regarding Hunter Biden, the son of presidential candidate, Joe Biden, simply because Facebook principals favored Biden for president. The news story involved the discovery of credible evidence in the form of emails revealing that Hunter Biden clearly leveraged his dad’s then-position as VP by gaining favors from his dad that benefited the Ukrainian energy company, Burisma.
Regardless, Facebook immediately stated that it “was reducing [the New York Post article’s] distribution on our platform.” What this really means is Facebook would tweak and alter its algorithms to limit the ability of users to view, discuss or share the Biden article.
(Note, this past week YouTube, the video streaming giant, stated it will remove from its platform all new content that alleges that widespread fraud changed the outcome of the 2020 presidential election. More censorship).
These are perfect examples of why millions of Americans trust neither the national media nor social media. This is the behavior of totalitarian regimes and dictatorships. Not America.
It’s simply insufficient to say that no duty of fairness and evenhandedness is owed by Facebook (as well as Twitter and Google) because the First Amendment only applies to government, not private, actors. Government censorship of speech is not the only kind. Private sector suppression of speech is equally threatening, chilling, and damaging. Democracy can only function with a free exchange of information. These tech giants may not be government actors, but they are quasi-public entities, and they are behemoths. They are essentially monopolies and possess enormous leverage as a result.
Facebook owes a duty of fairness for many reasons, not least because Facebook (and Twitter) directly benefit from a valuable legal advantage contained in Section 230 of the Communications Decency Act. This law protects it from any legal liability for content published on its site, much of which may be defamatory. Facebook should not be allowed to receive valuable federal benefits on the one hand then also take the position that “we are a private company so we can suppress speech whenever we like.”
Facebook is no longer, if it ever was, a neutral arbiter simply operating an information exchange platform. It has become the equivalent of a media company that regularly makes editorial decisions in the composition of its news feed and in so doing, reflects a distinctly Leftist bent. It remains legally unaccountable for damage done by the content on its platform and has broad discretion to censor 3rd party speech. This is too much. I am hopeful changes to Section 230 will be made to limit the legal protections of Facebook and other social media companies.
Given its special status, Facebook has an obligation to act in the public interest and it is not doing so. I support the Feds either breaking it up on grounds of antitrust and monopoly or Congress removing its Section 230 advantage and regulating it as a public utility. It’s the best way to ensure that free market competition and innovation succeed.
Royal Alexander is a Shreveport attorney.