Facebook's Reckless Disregard for Misinformation
Mark Zuckerberg’s recent defense of Facebook’s content moderation practices has led to an outpouring of criticism, from Bernice King’s dismay at his invoking the civil rights movement, to others who have addressed the simplistic way he approached freedom of speech.
Knight First Amendment Institute Executive Director Jameel Jaffer, for example, recently wrote that “[i]f Zuckerberg wants us to believe that Facebook is giving free speech the consideration it deserves, he needs to move beyond the simplistic notion that free speech just means more and louder voices. He also needs to show an awareness, at least, of the ways in which Facebook is shaping and distorting our system of free expression and undermining the values that free speech is meant to serve.” In that vein, Mr. Zuckerberg was off the mark claiming the Supreme Court’s landmark libel decision in New York Times v. Sullivan supports Facebook’s “see no evil” approach.
Sullivan involved an ad in The New York Times raising money for Martin Luther King, Jr. An Alabama public official had sued, claiming the ad had factual mistakes that defamed him. The Supreme Court ruled that the First Amendment protects even a false statement about a public official unless “made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Mr. Zuckerberg was thus correct when he cited Sullivan for the proposition that “you can criticize public figures as long as you’re not doing so with actual malice, even if what you are saying is false.”
But Sullivan’s “actual malice” standard does not support Facebook’s current practices. Rather, it highlights their inadequacies.
Sullivan did not confer complete immunity for false defamatory statements: it allows liability when someone knowingly publishes a defamatory falsehood about a public official or is reckless about whether the statement is true or false. Which is what Facebook is accused of doing today, as highlighted by its continued refusal to take down false ads by politicians, such as in the controversy over the Biden Ukraine ads. And cases regarding statements about private individuals and issues that are not of social importance require an even greater duty of care than the Sullivan standard.
So while Sullivan was a watershed moment for the First Amendment, it has never stood for the proposition that publishers and distributors should be immune from liability for defamation. Both are held to at least some duty of care.
And that’s why it was disingenuous for Mr. Zuckerberg to reference Sullivan. Because unlike a bookstore, a newspaper, or other traditional media, Facebook — along with other online platforms — is immune from defamation claims for the statements it publishes or distributes, regardless whether Facebook knows the statements are false or acts in reckless disregard of the statements’ truth or falsity.
The reason is that Section 230 of the Communications Act provides near complete immunity for online platforms like Facebook, regardless of whether they meet the Sullivan actual malice standard or not.
Congress’ goal in passing Section 230 was to encourage online platforms to moderate the content flowing over their services, recognizing that much of that content could be socially harmful. Congress was reacting to early online libel cases such as Stratton Oakmont v. Prodigy, which held that websites that exercised editorial discretion to moderate their content had greater exposure to lawsuits than websites that did nothing and allowed anyone to post anything they wanted.
Congress rightly believed that websites should be encouraged to police themselves and take down illegal or harmful material. So Congress passed Section 230 to make clear websites could not have good faith moderating efforts held against them.
Unfortunately, the way courts have interpreted Section 230, online platforms are not required to exert any duty of care whatsoever. The law has been expanded to provide almost blanket immunity for virtually any harmful or illegal conduct users engage in over the platforms’ services, such as sex trafficking, online harassment, and illegal gun sales resulting in murder. And while Congress recently passed legislation to pare back the immunity in cases of sex trafficking, online services like Cloudflare allegedly continue to serve entities engaged in child exploitation.
Thus, in practice, Section 230 doesn’t just remove the disincentive presented by cases like Stratton Oakmont for online platforms to moderate content. It fails to create incentives for Congress’ very goal of encouraging content moderation.
The Facebooks of the world have found that they can’t be held liable even when they do virtually nothing to clean up their platforms — all while building business models that cash in on users drawn to shocking, salacious, or illegal materials they can’t find anywhere else. We’re left with a broken ecosystem in which online opioid sellers have a way to reach new customers, companies like Facebook and Google earn massive ad revenue off despicable and illegal conduct, and Section 230 shuts down efforts by victims to fight back.
The failure of Facebook and other platforms to exercise due care in the absence of a requirement is precisely why they are under fire. The near total immunity Section 230 provides is also likely one reason Facebook was emboldened in the first place to adopt its policy not to take down ads by politicians that contain false statements, even when Facebook is alerted to their falsity.
For these reasons and more, it is imperative that Congress carefully explore thoughtful existing proposals for reforming CDA 230, such as imposing a “duty of care,” as proposed by Danielle Keats Citron and Benjamin Wittes. And at the very least, Facebook and other platforms should have and enforce policies to root out misinformation and the clearly illegal conduct to which they all too often turn a blind eye—thereby honoring Sullivan and the congressional intent behind Section 230.
Neil Turkewitz is an artist advocate and member of the Artist Rights Alliance Music Council.
