Jurisprudence

When Fact-Checking Becomes Censorship

Facebook has empowered a conservative magazine to suppress liberal viewpoints.

Supreme Court nominee Judge Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee on Thursday in Washington.
Supreme Court nominee Judge Brett Kavanaugh testifies during the third day of his confirmation hearing before the Senate Judiciary Committee on Thursday in Washington.
Chip Somodevilla/Getty Images

In the wake of the 2016 election, to combat the rampant dissemination of disinformation, Facebook brought on five third-party fact-checkers to referee stories posted to the website. If any one fact-checker contests the accuracy of a story, it is flagged by Facebook as potential “false news,” and this “false rating” has a dire chilling effect on readership. This system thus gives a handful of outlets immense power over the articles that show up in your news feed.

Four of Facebook’s chosen fact-checkers—the Associated Press, Factcheck.org, PolitiFact, and Snopes—are widely trusted and nonpartisan. The fifth, the Weekly Standard, has generally high-quality editorial content with a conservative ideological bent. This week, the Weekly Standard used its gatekeeping role in an incredibly troubling way, declaring that a story written by Ian Millhiser of ThinkProgress was false, essentially preventing Facebook users from accessing the article.

ThinkProgress is as liberal as the Weekly Standard is conservative. I read and admire writers at both websites. (By way of disclosure, I am friends with both Millhiser and Rachael Larimore, a former Slate staffer who is now the Weekly Standard’s online managing editor.) But there’s no sound defense of the Weekly Standard’s effort to suppress Millhiser’s piece, which is titled “Brett Kavanaugh said he would kill Roe v. Wade last week and almost no one noticed.” In that story, Millhiser examined Kavanaugh’s testimony before the Senate Judiciary Committee regarding the Constitution’s protection of unenumerated rights, such as the right to procure an abortion. Millhiser concluded that Kavanaugh had signaled his hostility to Roe, which protects the right to abortion access.

Millhiser’s reasoning is straightforward. During the hearings, Kavanaugh stated that “all roads lead to the Glucksberg test.” Under that test, only those constitutional rights that are “deeply rooted in this Nation’s history and tradition” are deemed to fall under the Constitution’s guarantee of liberty. Yet, as Kavanaugh himself noted in a 2017 speech, “even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with the approach of the abortion cases,” such as Roe. Moreover, the Supreme Court expressly disavowed the Glucksberg test in Obergefell v. Hodges, which invalidated same-sex marriage bans. Thus, it is fair to interpret Kavanaugh’s remarks as an endorsement of a judicial philosophy that requires the reversal of both Roe and Obergefell.

My colleague Dahlia Lithwick and I made this exact point in an article published three days before Millhiser’s. But his piece boasted a more striking headline—that headline again: “Brett Kavanaugh said he would kill Roe v. Wade last week and almost no one noticed”—which is apparently what triggered the Weekly Standard’s ire. The magazine has decided that the framing of the story is false because Kavanaugh did not explicitly state: “I am going to overturn Roe v. Wade.” As Larimore put it to me on Tuesday, “They change the headline, we change the rating.”

Here’s the rather obvious problem with the Weekly Standard’s position: Millhiser is an opinion writer. He is also an attorney who clerked on the 6th U.S. Circuit Court of Appeals. In his Kavanaugh article—as in most of his work—he is making an argument, attempting to persuade readers of his viewpoint. And in this case his views, as expressed in his headline, are perfectly defensible. Jamal Greene, a professor at Columbia Law School, and Jim Oleske, a professor at Lewis and Clark Law School, made nearly identical points. There is, no doubt, room for disagreement here. But this scholarly support does indicate that Millhiser’s assertion is, at a minimum, not “false news.”

It’s easy to flip the tables on the Weekly Standard. Consider a March article with the headline “Actually, Palestinians Are Doing Pretty Well Under Israeli Rule.” Many Palestinians living in the occupied territories seem to disagree. Or this 2009 piece, which states that the “most profound aspect of marriage” is “protecting and controlling the sexuality of the child-bearing sex.” Is that a fact? The answer is surely that it depends on who you ask. And that is the point of the kind of journalism practiced by the Weekly Standard and ThinkProgress (and Slate for that matter): Writers express and defend their opinions, readers draw their own conclusions.

Unfortunately, Facebook has now given the Weekly Standard what appears to be total veto power over ThinkProgress’ articles. According to a source who spoke to Quartz, Facebook selected the magazine as a fact-checker to “appease all sides”—that is, to convince conservatives that the social network isn’t beset by liberal bias. As a result, a Weekly Standard editor may compel a ThinkProgress writer to “change the headline” or risk losing Facebook traffic. Not because ThinkProgress was wrong, but because the Weekly Standard disagreed with its legal analysis. That is not fact-checking. It is censorship. Indeed, it is the kind of censorship that conservatives wrongly accuse Facebook of foisting upon right-wing outlets.

Facebook launched fact-checking to screen out bona fide fake news—stories about the pope endorsing Donald Trump and Hillary Clinton having Parkinson’s disease. Millhiser’s story plainly falls outside this limited scope. The Weekly Standard may disagree with its headline, but it is simply wrong to call it “a verifiable lie” when it rests on a nuanced and subjective legal argument. It’s also galling that Facebook has refused to adjudicate this dispute, instead telling ThinkProgress that “Facebook defers to each independent fact-checker’s process and publishers are responsible for reaching out to the fact-checkers directly to request a correction.” By deferring to the Weekly Standard’s judgment, Facebook is picking sides in an ideological debate. That’s not just appeasement of conservatives, it’s complete surrender.

I’m sure the Weekly Standard genuinely believes Millhiser’s article is misleading. The proper response, however, is to publish an article debunking it, not to quash it on social media. Millhiser’s headline is exaggerated, but captures the essence of Kavanaugh’s words—or at least, the author’s own informed interpretation of them. It’s a far cry from fake news. And Facebook should not let conservative editors police liberal outlets’ analysis under the guise of fact-checking.