The recent flare-up between Facebook and conservatives will likely soon be forgotten. Facebook handled it brilliantly, comforting its critics through an open dialogue.
Still, I wish Facebook had responded to inquiries from conservatives and government officials like Sen. John Thune, R-S.D., with the words Donald Trump used about the disclosure of his tax forms: “none of your damn business.”
I concede that answer would have created a short-term PR nightmare. But in three ways it would have improved the groundwork for our country’s inevitable debate on the government’s role in regulating the political implications of large databases.
First, a simple no thanks would have stated the correct constitutional principle. If Sen. Chuck Schumer, D-N.Y., summoned Roger Ailes to explain Fox News’ process choosing stories, the response likely would have been a middle finger, not finger food with the CEO. From a First Amendment perspective, how is Facebook different?
Sadly, Thune’s inquiry is not the only example of Republicans having developed a new appreciation for enhanced government oversight of media. Consider how Trump, without any Republican backlash, has proposed revising libel laws and using antitrust authority to mute critics, or how his adviser has recommended that a Trump FCC should cancel CNN’s “FCC license” (which doesn’t exist.) In this context, it would be useful for someone to clarify a First Amendment bright line.
Second, it is always helpful to have a debate in the context of tension between the philosophies and a desired outcome of political actors. Generally, Republicans rebel at any hint of new regulation. In other contexts, Republicans have argued that merely bringing a company in to answer questions can depress innovation. Their actions here raise the question of what are conservative critics of Facebook thinking is the remedy if Thune discovers a deliberate effort to push a point of view. Do they believe the government should act?
We are safe in assuming that whatever algorithm Facebook is using is optimized for profits, not politics. Much like Ohio Sen. Rob Portman’s gay son sensitized him to the harms of certain forms of discrimination, Facebook’s actions could have had the impact of sensitizing Republicans to the limitations of the simple free-market narrative while also sensitizing Democrats to the dangers of government overreach.
All real learning begins with the destruction of confirmation basis. The Facebook fact pattern could cause all sides to rethink their simple patterns and recognize a need to think anew. A principled debate with this fact pattern is more likely to lead to a nuanced, thoughtful outcome than one in which the traditional thought patterns are not challenged.
It might seem odd to want both a clear First Amendment line and an accelerated debate. The reason is because in more than 20 years of watching and participating in similar debates, I think it useful to have the debate without a crisis.
While I’d likely oppose regulation, I also believe some regulation is inevitable. Whenever a medium reaches a certain critical mass of centrality in our national debates, government acts to restrict its ability to throw its weight in one direction or the other.
Whether it be with rules like the Fairness Doctrine or broadcast rules on candidates’ appearances and advertising, governments want to assure that every age’s equivalent of the town square is akin to a commons and not a country club. In terms of the influencing the public narrative, control is moving from the publishers to platforms. Government will respond accordingly.
While Facebook and Google increasingly play a large role in how people access information and advertising, they are still far from dominant. Within a few election cycles, however, they are likely to be so. It would be far better to start the debate now than to start in the immediate aftermath of discovering that one of them effectively decided an election.
In many different contexts, we already are having a lively debate about how the government should act to assure the security and privacy of information. Unfortunately, there is likely to be a digital Pearl Harbor, causing the debate to end, the questions to be called and decisions firmly made. But those decisions are likely to be better because of the thoughtful contemplation by many of the various ramifications of different paths. A panicked response is understandable but rarely wise.
Facebook’s response, from the perspective of its shareholders, was wise. It’s not Facebook’s job to provide a teachable public policy moment. Still, sweeping the constitutional and regulatory issues under the rug for now is unfortunate. I say, let the battle begin.
