Jurisprudence

Facebook’s Trending Topics Are None of the Senate’s Business

What is Sen. John Thune doing trying to conduct oversight over the First Amendment?

Facebook's creator Mark Zuckerberg speaks on the opening day of the 2015 Mobile World Congress in Barcelona on March 2, 2015.
Facebook CEO Mark Zuckerberg speaking on opening day of the 2015 Mobile World Congress in Barcelona, Spain.

Lluis Gene/Getty Images

When the story broke earlier this month that Facebook might be manipulating its  “trending” news section to suppress conservative news, the reaction was quick and predictable. There was an outcry from the right and some users. The site then issued a flurry of posts explaining its editorial position and released its internal guidelines. Finally, a meeting was held between Facebook leaders and 17 leading conservatives to quell the controversy.

In short, it was democracy (political fairness) and business (damage control) in action.

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But action is also taking place on another stage, one that should be much more worrisome to Facebook, its users, the public, and even the right. The day after the story broke, Republican Sen. John Thune of South Dakota—chairman of the U.S. Senate Committee on Commerce, Science, and Transportation—sent a pointed letter to Facebook CEO Mark Zuckerberg. In it, he demanded answers to a series of questions, including: the identification of individuals responsible for the trending section; how Facebook will hold those individuals accountable; whether any stories with conservative views were targeted for exclusion; and a list of all stories ever removed from or put into the trending section.

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The letter demanded answers by Tuesday and also directs Facebook to meet with and brief committee staff. Facebook’s response? “We have received Sen. Thune’s request for more information about how Trending Topics works, and look forward to addressing his questions.”  

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Stop right there. Thune’s letter demanding details about Facebook’s editorial process claims to be based on the Senate Commerce Committee’s “oversight authority.” But oversight of what, exactly? The First Amendment states, “Congress shall make no law … abridging the freedom of speech, or of the press.” If Congress can make no law abridging these freedoms, how exactly can it claim to have oversight over them?

As much as we may care about Facebook’s alleged manipulation of news feeds, we should be concerned about this federal intrusion into an independent organization’s editorial process even more.

Congress doesn’t have to explain itself, but three possible explanations might justify its demands: Facebook doesn’t qualify for First Amendment protection; the inquiry doesn’t involve First Amendment–protected activity; or Facebook’s editorial process is an appropriate subject for Congress to probe. None of these remotely hold water.

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As to the first, Facebook is a publisher like any other. And it’s not just any publisher, but the world’s biggest and most-dominant publishing platform by a mile, with 1.65 billion users who share billions of pieces of content daily, including political, entertainment, and social news. As Zuckerberg explained in 2013 and has reiterated since, “We want to give everyone in the world the best personalized newspaper in the world.” Even the Senate letter recognizes the role that Facebook plays: “Social networks are an increasingly important source of news for many Americans and around the world.”

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Facebook’s Securities and Exchange Commission filings similarly highlight its goal  to “prioritize information to ensure users are presented with content that is interesting, useful and relevant to them”—and its competitors include traditional media and entertainment companies. Trending topics and the main Facebook news feed operate the same way all editors do: by curating stories, via algorithm or otherwise, to prioritize those it thinks are the most relevant to users. Getting that wrong is not the business of Congress; it’s just bad business.

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Second, there is no reasonable argument that the Senate is investigating activity outside of that protected by the First Amendment. The closest its letter comes is this sentence: “If Facebook presents its Trending Topics as the result of a neutral, objective algorithm”—as if such a thing exists!—“but it is in fact subjective and filtered to support or suppress particular political viewpoints, Facebook’s assertion that it maintains a ‘platform for people and perspectives from across the political spectrum’ misleads the public.” If true, that’s an important issue but one solely between Facebook and its users, not the government. It is no more proper for the Senate to investigate Facebook on this ground than it would be to investigate the New York Times’ claim to publish “All the News That’s Fit to Print” or Fox News’ claim to be “Fair and Balanced.” These marketing statements are fully protected by the First Amendment, no matter what anyone may think about their accuracy.

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Third, our courts have long held that editorial decisions on what stories to publish, or not, are protected by the First Amendment. In 1974, a candidate in Florida sued the Miami Herald arguing that a Florida “right to reply” law required the paper to give him space to reply to a negative editorial. The U.S. Supreme Court unanimously rejected that argument, citing a long line of cases and holding that the Florida law violated the First Amendment because it intruded into “the functions of editors.” As the court explained: “The choice of material to go into a newspaper … and the treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment.” That is precisely the issue here: The curation of news merits the same constitutional protection as the creation of news.

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The Senate letter did not arrive in a vacuum. Facebook is a giant that stands on the shoulders of giants. It only exists as the world’s most-powerful publishing platform because of the battles others in the media fought before Facebook even existed or Zuckerberg was born. Reporters, editors, and publishers have been threatened, jailed, beaten, tortured, and murdered fighting for the right to publish free of outside intervention—an unbreachable line that is essential to maintain.

So when it responds to the letter, Facebook would do well to remind Thune of his own words when he argued against the proposed revival of the Fairness Doctrine nearly a decade ago: “I know the hair stands up on the back of my neck when I hear government officials offering to regulate the news media and talk radio to ensure fairness.” By declining to participate in this improper inquiry, Facebook will be honoring its heritage and protecting its destiny.

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