Last week, we noted that Facebook was hosting organizing tools for “Operation Gridlock” — an anti-lockdown protest in Lansing, Michigan, while at the same time including a message instructing users to abide by the social distancing guidelines put out by the CDC.
At that time, we reasoned that Facebook’s maintenance of such mixed messages was due to the rolling vehicle nature of this protest, which — if protesters didn’t emerge from their vehicles — would be safe. But they did, and since April 15, dozens have been announced, more than one with Facebook’s help.
Today, CNN reports that Facebook will soon begin removing “some posts on anti-stay-at-home protests currently being organized in California, New Jersey, and Nebraska after consulting with officials in those states.”
Additionally, the Wrap reports that Facebook CEO Mark Zuckerberg, in an interview with ABC’s George Stephanopolis, said that “we do classify that (the protests) as harmful misinformation and we take that down. At the same time, it’s important that people can debate policies so there’s a line on this, you now, more than normal political discourse. I think a lot of the stuff that people are saying that is false around a health emergency like this can be classified as harmful information.”
While to date there have been no documented instances of COVID-19 being transmitted from person to person via any of the protests, Facebook’s lawyers certainly know that they might be held partially responsible for any injuries to the public health if the continues to make itself available to those organizing protests.
Those who accuse Facebook of violating the First Amendment by yanking such pages should know that First Amendment does not apply to a private social network any more than it does to a country club.
Facebook is not “a public square” in the eyes of the law, although it functions as the defacto channel for anyone organizing anything, anywhere. Like the railroad a century ago, Facebook is a necessary, private common carrier — not a public square where the First Amendment directly applies. Someday, this might change (Facebook could be declared a public utility, for example), but Facebook’s ability to legally censor content hosted on its own network cannot be questioned.
Even if the First Amendment did apply, the First Amendment is not absolute. It will neither protect the right of an individual to, in the words of Justice Holmes, “shout ‘fire’ in a public theater,” nor — by extension — the right of an individual to gather during a National Emergency in a way that directly endangers public health.
One foreseeable consequence of Facebook’s decisions will be for organizers of such events as Operation Gridlock to move to other, less public networks.