INSUBCONTINENT EXCLUSIVE:
Half an hour into their two-hour testimony on Wednesday before the Senate Intelligence Committee, Facebook COO Sheryl Sandberg and Twitter
CEO Jack Dorsey were asked about collaboration between social media companies
&Our collaboration has greatly increased,& Sandberg stated before turning to Dorsey and adding that Facebook has &always shared information
with other companies.& Dorsey nodded in response, and noted for his part that he very open to establishing &a regular cadence with our
industry peers.
Social media companies have established extensive policies on what constitutes &hate speech& on their platforms
But discrepancies between these policies open the possibility for propagators of hate to game the platforms and still get their vitriol out
Collaboration of the kind Sandberg and Dorsey discussed can lead to a more consistent approach to hate speech that will prevent the gaming
of platforms& policies.
But collaboration between competitors as dominant as Facebook and Twitter are in social media poses an important
question: would antitrust or other laws make their coordination illegal
The short answer is no
Facebook and Twitter are private companies that get to decide what user content stays and what gets deleted off of their platforms
When users sign up for these free services, they agree to abide by their terms
Neither company is under a First Amendment obligation to keep speech up
Nor can it be said that collaboration on platform safety policies amounts to collusion.
This could change based on an investigation into
speech policing on social media platformsbeing considered by the Justice Department
But it extremely unlikely that Congress would end up regulating what platforms delete or keep online & not least because it may violate the
First Amendment rights of the platforms themselves.
What is hate speech anyway
Trying to find a universal definition for hate speech would
be a fool errand, but in the context of private companies hosting user generated content, hate speech for social platforms is what they say
is hate speech.
Facebook 26-page Community Standards include a whole section on how Facebook defines hate speech
For Facebook, hate speech is &anything that directly attacks people based on .
their ‘protected characteristics& — race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender
identity, or serious disability or disease.& While that might be vague, Facebook then goes on to give specific examples of what would and
wouldn''t amount to hate speech, all while making clear that there are cases & depending on the context & where speech will still be
tolerated if, for example, it intended to raise awareness.
Twitter uses a &hateful conduct& prohibition which they define as promoting
&violence against or directly attacking or threatening other people on the basis of race, ethnicity, national origin, sexual orientation,
gender, gender identity, religious affiliation, age, disability, or serious disease.& They also prohibit hateful imagery and display names,
meaning it not just what you tweet but what you also display on your profile page that can count against you.
Both companies constantly
reiterate and supplement their definitions, as new test cases arise and as words take on new meaning
For example, the two common slang words to describe Ukrainians by Russians and Russians by Ukrainians was determined to be hate speech after
war erupted in Eastern Ukraine in 2014
An internal review by Facebook found that what used to be common slang had turned into derogatory, hateful language.
Would collaboration on
hate speech amount to anticompetitive collusion
Under United States antitrust laws, companies cannot collude to make anticompetitive
agreements or try to monopolize a market
A company which becomes a monopoly by having a superior product in the marketplace doesn''t violate antitrust laws
What does violate the law is dominant companies making an agreement & usually in secret & to deceive or mislead competitors or consumers
Examples include price fixing, restricting new market entrants, or misrepresenting the independence of the relationship between
competitors.
A Pew survey found that 68% of Americans use Facebook
According to Facebook own records, the platform had a whopping 1.47 billion daily active users on average for the month of June and 2.23
billion monthly active users as of the end of June & with over 200 million in the US alone
While Twitter doesn''t disclose its number of daily users, it does publish the number of monthly active users which stood at 330 million at
last count, 69 million of which are in the United States
There can be no question that Facebook and Twitter are overwhelmingly dominant in
That kind of dominance has led to calls for breaking up these giants under antitrust laws.
Would those calls hold more credence if the two
social giants began coordinating their policies on hate speech
The answer is probably not, but it does depend onexactlyhow they coordinated
Social media companies like Facebook, Twitter, and Snapchat have grown large internal product policy teams that decide the rules for using
their platforms, including on hate speech
If these teams were to get together behind closed doors and coordinate policies and enforcement in a way that would preclude smaller
competitors from being able to enter the market, then antitrust regulators may get involved.
Antitrust would also come into play if, for
example, Facebook and Twitter got together and decided to charge twice as much for advertising that includes hate speech (an obviously
absurd scenario) & in other words, using their market power to affect pricing of certain types of speech that advertisers use.
In fact,
coordination around hate speech may reduceanti-competitive concerns
Given the high user engagement around hate speech, banning it could lead to reduced profits for the two companies and provide an opening to
upstart competitors.
Sandberg and Dorsey testimony Wednesday didn''t point to executives hell-bent on keeping competition out through
Rather, their potential collaboration is probably better seen as an industry deciding on &best practices,& a common occurrence in other
industries including those with dominant market players.
What about the First Amendment
Private companies are not subject to the First
TheConstitution appliesto the government, not tocorporations
A private company, no matter its size, can ignore your right to free speech.
That why Facebook and Twitter already can and do delete posts
that contravene their policies
Calling for the extermination of all immigrants, referring to Africans as coming from shithole countries, and even anti-gay protests at
military funerals may be protected in public spaces, but social media companies get to decide whether they&ll allow any of that on their
As Harvard Law School Noah Feldman has stated, &There no right to free speech on Twitter
The only rule is that Twitter Inc
gets to decide who speaks and listens&which is its right under the First Amendment.
Instead, when it comes to social media and the First
Amendment, courts have been more focused on not allowing the government to keep citizens off of social media
Just last year, the United States Supreme Court struck down a North Carolina law that made it a crime for a registered sex offender to
access social media if children use that platform
During the hearing, judges asked the government probing questions about the rights of citizens to free speech on social media from Facebook,
to Snapchat, to Twitter and even LinkedIn.
Justice Ruth Bader Ginsburg made clear during the hearing that restricting access to social media
would mean &being cut off from a very large part of the marketplace of ideas [a]nd [that] the First Amendment includes not only the right to
speak, but the right to receive information.
The Court ended up deciding that the law violated the fundamental First Amendment principle
that &all persons have access to places where they can speak and listen,& noting that social media has become one of the most important
forums for expression of our day.
Lower courts have also ruled that public officials who block users off their profiles are violating the
First Amendment rights of those users
Judge Naomi Reice Buchwald, of the Southern District of New York, decided in May that Trump Twitter feed is a public forum
As a result, she ruled that when Trump blocks citizens from viewing and replying to his posts, he violates their First Amendment rights.
The
First Amendment doesn''t mean Facebook and Twitter are under any obligation to keep up whatever you post, but it does mean that the
government can''t just ban you from accessing your Facebook or Twitter accounts & and probably can''t block you off of their own public
accounts either.
Collaboration is Coming
Sandberg made clear in her testimony on Wednesday that collaboration is already happening when it
comes to keeping bad actors off of platforms
&We [already] get tips from each other
The faster we collaborate, the faster we share these tips with each other, the stronger our collective defenses will be.
Dorsey for his part
stressed that keeping bad actors off of social media &is not something we want to compete on.& Twitter is here ''to contribute to a healthy
public square, not compete to have the only one, we know that the only way our business thrives and helps us all defend against these new
threats.
He even went further
When it comes to the drafting of their policies, beyond collaborating with Facebook, he said he would be open to a public consultation
&We have real openness to this..We have an opportunity to create more transparency with an eye to more accountability but also a more open
way of working & a way of working for instance that allows for a review period by the public about how we think about our policies.
I&ve
already arguedwhy tech firms should collaborate on hate speech policies, the question that remains is if that would be legal
The First Amendment does not apply to social media companies
Antitrust laws don''t seem to stand in their way either
And based on how Senator Burr, Chairman of the Senate Select Committee on Intelligence, chose to close the hearing, government seems
supportive of social media companies collaborating
Addressing Sandberg and Dorsey, he said, &I would ask both of you
If there are any rules, such as any antitrust, FTC, regulations or guidelines that are obstacles to collaboration between you, I hope you&ll
submit for the record where those obstacles are so we can look at the appropriate steps we can take as a committee to open those avenues
