Sunday, November 11, 2012
(Dis)Like: Facebook, Censorship, and the First Amendment
The First Amendment to the Constitution protects, among other things, the right of individuals to express themselves. In the hierarchy of protected speech, none is considered more deserving of protection than political speech. Say what you will about the election and the candidates because it is all fair game and it is all protected. Well, protected from governmental interference or censorship, anyway. Once outside of the public arena the protection afforded speech is controlled less by “the marketplace of ideas” and more by the private entity providing the forum.
One week before the 2012 presidential election, Facebook found itself awkwardly at the center of a censorship controversy concerning election memes. According to Slate, Facebook removed a meme posted by a group of anti-Obama Special Ops members on their group page, Special Operations Speaks (SOS). The meme accused Obama of calling on S.E.A.L.s when he needed Osama bin Laden, but claimed that when the S.E.A.L.s called him for backup he denied their request. After posting the meme, Facebook removed it and informed SOS that it was removed for violating terms of service, specifically the statement of rights and responsibilities. SOS re-posted the meme anyway. Facebook responded by not only removing the meme for a second time, but also freezing the SOS account for 24-hours, preventing the group from posting anything further. After conservative website Breitbart.com picked up the story, Facebook released a statement saying that the removal of the meme was not an act of censorship but rather an error on their part. Removing a meme once for violations of terms of service may be an error, but removing it a second time and freezing the poster’s account for 24-hours seems less so. SOS’s page is now up and running again and the meme, along with the story about its removal, has gone viral.
This isn’t the first time that Facebook has been accused of censorship though. Back in May a journalist posted a story on TechCrunch about a blogger’s inability to comment on a Facebook post because his comments were deemed to be “irrelevant or inappropriate.” At that time the inability to post was chalked up to an error in the code that searches for inappropriate comments and prevents them from being posted to Facebook. But while it appears that Facebook is merely trying to prevent violations of their terms of service, many users look upon such preemptive action as censorship by the social networking behemoth. In August 2012, Forbes.com reported an accusation of Facebook censorship, stating that an artist’s work was removed for being too graphic to post on the site (it depicted a “misted” image of a nude woman). Like with the S.E.A.L. meme, Facebook eventually relented and allowed the image to be posted. One Facebook user has gone so far as to document, via a website called FacebookCensorship.com, the instances where Facebook has either inquired about posts or outright prevented him/her from posting content, which includes posts as recent as the end of October 2012.
Though some may be up in arms about how Facebook’s potential censorship of material on their site violates their First Amendment right to free speech, it is wise to remember that the First Amendment only protects individuals from government interference. The Supreme Court has yet to find that private entities, like Facebook or Yahoo!, act like the government when they open their space to individuals to use as public forums for discussion. Until such time as the government sees fit to regulate websites that are the Internet equivalent of the Boston Common or your local town square, the private owners of such sites are free to censor your conduct and speech so long as it may violate their terms of service (which all users agree to abide by in order to access the site).
While it is sad that Facebook seemingly inserted itself into the election less than a week from Election Day by censoring an anti-Obama meme, the company was within their rights as a private entity to do so. Remember, private websites are a bit like the Eagles’ song, Hotel California: you can post your speech anytime you like, but they don’t have to leave it up.
© Copyright 2010 The Journal of High Technology Law, Suffolk University Law School
Suite 450B | 120 Tremont Street | Boston | MA | 02108-4977 | Legal and Copyright Information