The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to "create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

He notes that the First Amendment does not protect all speech. Child porn and stock fraud are not protected by the First Amendment. True threats as harassment are also illegal. Incitement to violence as understood by the courts can also be criminalized. All true, though more complex than he admits.

The fact that the courts have exempted some speech from First Amendment protection does not mean judges should create new categories of unprotected speech. Hughes needs to make a case for new exemptions from the First Amendment. He does not do so. Instead he calls for an agency to regulate online speech. But, barring drastic changes to First Amendment jurisprudence, his imagined agency would not have the authority to broadly regulate Americans’ speech online.

However, Hughes’ old firm, Facebook, can and does regulate speech that is protected from government restrictions. In particular, Facebook suppresses or marginalizes extreme speech (sometimes called “hate speech”), “fake news” about political questions, and the speech of foreign nationals.

Facebook is not covered by the First Amendment.  You can support or decry their decisions about such speech, but it would be “un-American” to say Facebook and other private companies do not have the power to regulate such speech on their platforms. And I might add that you can exit Facebook and speak in other forums, online and off. A federal speech agency would not be so easily avoided.

Hughes may think that Facebook is doing a poor job of regulation and that its efforts require the help of a new government agency (which would be subject to the First Amendment). But if we ended up with government speech codes imposed by private companies, the courts might well swing into action on the side of free speech. In that sense, the new agency would actually vitiate private efforts at content moderation. We might well end up with more of the online speech Hughes and other critics want to restrict.

In sum, Hughes’ agency is a bad idea in itself. It is unlikely to accomplish his goals. The agency might even weaken private efforts to limit some extreme speech. Of course, if judicial doctrines changed to accommodate new speech restrictions imposed by this new agency, America really would change for the worse. It is encouraging, however, how little support and how much criticism Hughes’ proposal has received from his fellow Progressives. (See the critiques by Ari Roberts and Daphne Keller linked here).   Conservatives should feel free to chime in.