Can The First Amendment Harness Facebook?

Let me put my cards out on the table: I represent Alex Jones and Infowars. I despise efforts to silence him because his speech discomfits the self-righteous. And I regard Facebook and Mark Zuckerberg as clear and present dangers to the right to speak freely.

            If any of this offends you, move on.

            If you’re interested in helping to conceptualize litigation against Facebook, read on.

            Last week, Facebook “de-platformed” Jones and Infowars, and several others. The social media behemoth promised to do likewise to anyone who republished Jones and others on their site.

            Why?

            Jones and others engage in “hate speech” that violates Facebook’s “community standards” policy. Just what that standard consists of is a secret. Just how it is administered is confidential. Even the identity of the censors is something we can’t know. Is it hate speech to decry Facebook?

            Facebook is not the government, you see. It is a proprietary entity; Zuckerberg has a controlling interest in the firm. His word is law; his preferences define the universe on display on Facebook.

            If the government did what Facebook has done, the actions would be defeated easily in any court in the land. The first amendment prohibits almost all content-based restrictions on speech. You can’t be silenced by the government if someone in the government hates what you say.

            But what if Facebook is more powerful than the government? The courts have already held Facebook and social media are the “quintessential public forum.” Sure folks are free to start their own social media company, but let’s face it – Facebook has something of a monopoly on this ubiquitous and insidious means of communication. Just ask the 2.2 billion users who spend hours each day on the page, pathetically hoping someone will “like” their posts.

            Facebook is not an innocent bystander. It harvests data from each user it invites to its electronic playpen -- what you look at, who your "friends" are, how long you look at each item, where else you travel on the Internet. It employs teams of social psychologists to figure out how to get you hooked – and keep you hooked. Observers talk of “hijacked brains.” 

            You can sign on to Facebook any time you like, and participate for free, but your data never leaves Facebook’s computers. It is aggregated, analyzed, bundled and sold to others so that you can be manipulated to do things and to buy things. Facebook is a parasite, growing wealthy off of your need to connect, a need it obsessively studies, the better to predict your every move.

            Do I sound fanciful? Don’t believe me. Read Shoshanna Zuboff’s The Age of Surveillance Capitalism. She lays out the evidence persuasively. She refers to Facebook, Google and Amazon as Big Other, the new digital overlords that are seeking to make B.F. Skinner’s dream come true: we can connect all the random dots that make us who we are. Artificial intelligence can find the hidden patterns, the causes, that we mistake for freedom.

            There’s a reason social media executives try to keep their kids from consuming too much of the product.

            Who holds Facebook accountable?

            No one. That’s who.

            I’m encouraged by the United States Supreme Court’s decision today to permit an antitrust suit to proceed against Apple for its monopolization of Apps. Are the courts waking up to the fact that the digital Goliath in our midst is trampling on the law and settled expectations?

            What about a suit against Facebook seeking to make new law, new First Amendment law? The entity controls a quintessential public forum. It bans speakers from participating for secret proprietary reasons administered in clandestine ways. Its superior capital yields a monopoly of this forum. It does all this while profiting from the folks who use the forum. What started as a college bulletin board has become big brother.

            I’m looking at the case law and seeing nothing but obstacles in the law’s settled doctrine. But it may well be that the time has come to extend existing law. Facebook has become something akin to a government. It decides whom to cooperate with and how much cooperation to give: Did you know that Facebook will provide information to the government if subpoenaed but will not do likewise when a defense lawyer requests it? Facebook and the government’s surveillance machinery seem intertwined.

            At the very least, a lawsuit against Facebook will shed light on what is rapidly becoming a virulent tumor. Today it’s Alex Jones. Who’s next?

            Alex Jones doesn’t worry me. I’ve spent enough time with him to understand it is not hate that drives him, but fear of what is becoming of this country.  Alex Jones is a scapegoat for the weak at heart.

            Mark Zuckerberg, on the other hand, terrifies me. There’s a reason Facebook spends in excess of $20 million a year on Zuckerberg’s security. He is the most dangerous man in America. The challenge just now is to see whether the law can stop him. I’m aching to give it a try.

Comments (3)
Posted on July 6, 2019 at 4:44 pm by Dawn A.
Privacy vs First Amendment Rights
Was at your presentation at Sheraton-Phx yesterday. I have great disdain for Alex Jones,Trump and Zuckerberg. But I agree, wholeheartedly, with where you are coming from and applaud your efforts. Google and Facebook have become the eyes and ears of government. They do it for profit; the government does it for control. There is no longer privacy because Americans have bowed down to the Facebook and Google Gods to display their stupidity and ignorance to the world. And the feds compile that info, without having to illegally take it themselves (although in many cases they still do it illegally). Google has contracts with the government, as does AT&T (as it always has). So we have a dilemma; these companies collect and share info, while Facebook posts info from ignorant, hateful, and dangerous people. But how do we keep these people from influencing other ignorant people who spin lies and hate? That is the problem that continues to irk me. We give up our freedom to privacy when we socialize free speech, and the government can collect the info freely simply because it is out there. Thus, we need to find an equitable solution and, as of yet, I am still struggling with that one.

Posted on June 24, 2019 at 1:14 am by Kris
Facebook is not the Gov
As much as I would like to argue that they're violating free speech, I don't think the argument will go anywhere. They may be entangled with the gov. but it's a stretch to argue that they require free speech as a non gov entity.. It's a voluntary platform that folks have opted into. I hate it's power, but think this argument won't get anywhere. I think we'd have better luck arguing that free speech is a vital part for the freedom of religion and our right to free speech is therefore a religious requirement that is being discriminated against. Either that or somehow we get political affiliation as a protected class in the future.

Posted on June 11, 2019 at 11:28 am by Delete Facebook
Facebook
Have you looked at the lawsuit Six4Three v. Facebook?

It is obvious to me that Judge Raymond Swope is allowing Facebook to out lawyer Six4Three. They have no chance.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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