The Law of Facebook

Twenty-five years ago, Eugene Volokh published his seminal article Cheap Speech and What It will Do, predicting many of the consequences of the then-brand-new Internet. On the whole, Volokh’s tone was optimistic. While many of his predictions have indeed come true, many would argue that his optimism was overstated. To the contrary, in recent years Internet giants generally, social media firms specifically, and Facebook and its CEO Mark Zuckerberg more specifically, have come under sharp and extensive criticism. Among other things, Facebook has been accused of violating its users’ privacy, of failing to remove content that constitutes stalking or personal harassment, of permitting domestic and foreign actors (notably Russia) to use fake accounts to manipulate American voters by disseminating false and misleading political speech, of failing to remove content that incites violence, and of excessive censorship of harmless content. Inevitably, critics of Facebook have proposed a number of regulatory solutions to Facebook’s alleged problems, ranging from regulating the firm’s use of personal data, imposing liability on Facebook for harm caused by content on its platform, treating Facebook as a utility, to even breaking up the company. Given the importance of Facebook, with over 2 billion users worldwide and a valuation of well over half a trillion dollars, these proposals raise serious questions. This essay will argue that while Facebook is certainly not free of fault, many of the criticisms directed at it are overstated or confused. Furthermore, the criticisms contradict one another, because some of the solutions proposed to solve one set of problems—notably privacy—would undermine our ability to respond to other problems such as harassment, incitement and falsehood. And vice versa. More fundamentally, critics fail to confront the simple fact that Facebook and other Internet firms (notably Google) provide, without financial charge, services such as social media, searches, email, and mapping, which people want and value but whose provision entails costs. To propose regulatory “solutions” which would completely undermine the business model that permits these free services without proposing alternatives and without taking into account the preferences and interests of Facebook users, especially in poor and autocratic countries where, for all of its conceded problems, Facebook provides important and even essential services, is problematic at best. Finally, the failure of critics to seriously consider whether the First Amendment would even permit many of the regulatory approaches they propose, all in the name of preserving democracy and civil dialogue, raises questions about the seriousness of some of these critics. Ultimately, this essay argues is that aside from some limited regulatory initiatives, we should probably embrace humility. This means, first, that unthinkingly importing old approaches such as a utility or publisher model to social media is wrong-headed, and will surely do harm without accomplishing their goals. Other proposals, on the other hand, might “solve” some problems, but at the cost of killing the goose that lays the golden egg. For now, the best path might well be the one we are on: supporting sensible, narrow reforms, but otherwise muddling along with a light regulatory touch, while encouraging/pressuring companies to adopt voluntary policies such as Twitter’s recent ban on political advertising, Google’s restrictions on micro-targeted political ads, and Facebook’s prohibitions on electoral manipulation. Before we take potentially dangerous and unconstitutional legislative action, perhaps we should first see how these experiments evolve and work out. After all, social media is less than two decades old and there is still much we need to learn before thoughtful and effective regulation is plausible.