July 12, 2019 10:35AM

We Need More Speech about the Census

Facebook has pledged to remove misinformation about the Census from its platform. Inevitably this removal involves suppressing speech that would be protected by the First Amendment if uttered in a public forum. After all, there is no misinformation exception to the First Amendment.  However, Facebook may remove the speech because as a private firm, it is not obligated to enforce the First Amendment. Nonetheless, we might ask: why speech about the Census? What’s different about misinformation about that project? I see four possibilities as to why speech about the Census might merit closer attention by content moderators.

Facebook might feel obligated to protect basic political institutions. For example, Facebook tries hard to combat misinformation around elections including the 2018 American midterms. The Census and elections are mentioned in the U.S. Constitution, with authority over the latter largely given to the states. But so are Congress, the presidency, the courts, and the Post Office. I doubt anyone expects Facebook to remove misinformation about all these institutions.

And the slope might be slippery. Facebook faces pressure to adopt an expansive, militant understanding of “democracy” in Europe. It has largely resisted doing so, relying on account authenticity, advertising transparency, and fact-checking to support election integrity. Facebook’s restraint makes sense. An expansive agenda of protecting institutions might lead to suppression of speech that should be seen.

The distinction between facts and opinion offers a second general justification for treating “Census speech” differently. “Misinformation” would contravene clear, not controversial, facts. This justification appeals to many. Consider an election example. Polls in a district are open for a set period that is public and easily confirmed. Spreading the wrong hours for voting is incorrect beyond doubt. In contrast, opinions about who should win and hold office cannot be confirmed by some external authority. Disagreements about that question are why we have elections.

Some questions about the Census are clearly not facts. One might believe that ours is a Constitution of No Authority, that the more efficient exercise of state power is deleterious of freedom, and that, as James C. Scott writes, to be made legible is to be governable. From this perspective, the census is a dangerous tool of control. Whatever you may think of this position, it is coherent, internally consistent and plausible even if ultimately wrong. Articulations of this belief ought not be thrown out with the bathwater of misinformation.

Some propositions look like facts but are really contestable claims (i.e. opinions). Consider the apparently factual claim that “the census will help the government deport illegal immigrants.” The government denies this. Some say that this is misinformation intended to depress census completion rates. Notice this is a “fact” about the future. Perhaps the past might inform our assessment of this “fact.” While census data may not be legally shared with law enforcement, this prohibition was lifted during the Second World War to allow the FBI to more efficiently apprehend Americans of Japanese ancestry. In other words, the past suggests a reasonable person might have doubts about future uses of census data. The government’s future use of census data is more a matter of trust than of hard facts. Facebook cannot use the “clear facts” criterion to side with the government here.  

Political science suggests one important difference between “census speech” and other social media talk. Organized groups and the Census Bureau are concerned about misinformation on Facebook about the Census. Misinformation that matters little to organized groups or the government may be overlooked by social media content moderators. But Facebook should avoid at all costs acting in response to specific demands of organized groups. The more Facebook is seen to cater to specific demands, the more demands will be made of it. And being responsive to interest group campaigns may delegitimate Facebook’s content moderation in general.

The Census Bureau seems to be different. Facebook generally enforces local laws criminalizing speech. The law requires responding to the Census which itself, as mentioned, is constitutionally required. But speech misinforming the public about the census is not illegal in the United States. The Bureau is asking Facebook to help facilitate law enforcement regarding the census. And the law requiring answers to the census is, in fact, a constitutional exercise of legislative power under the necessary and proper clause (John Marshall edition). The same can be said of laws criminalizing sodomy prior to Lawrence v. Texas. Would Facebook have facilitated enforcing Texas’s law prior to Lawrence? Something that might seem as simple as helping the Census Bureau turns out to require Facebook to take sides on controversial political questions.

Facebook might do better by distinguishing between misinformation about the Census that can be dealt with by “more speech” and misinformation that cannot. Most errors about the Census may be corrected by “more speech.” After all, unlike elections, the census does not take place on one day at determinate places. The government and its allies can make their case against misinformation, disinformation, and controversial claims. There is time for “more speech” to bring about the best outcome for the society.

Elections may be different. Let’s say it’s widely and wrongly reported that a candidate has dropped out of a race. That’s a hard fact though perhaps temporarily unclear. It matters a lot whether the report circulates two days or two weeks prior to election day. “More speech” can handle the latter; avoiding harm to the candidate might be much harder two days before the voting. Speech inciting violence may be criminalized because in limited situations there is no time for “more speech” to rebut the appeals to force.

But there’s an important difference between the two harms, violence and false beliefs about elections. I cannot avoid being punched in the nose as a result of incitement. I can avoid false beliefs by modest research regarding facts. Here’s a (hardly obscure) place to start. Our freedom of speech does require that citizens take some responsibility for their beliefs and the reasons for them. Facebook should not protect us from our sloth.