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Articles by John Samples

A First Look at Facebook’s Oversight Board

4 days ago

Today Facebook released a Charter for its Oversight Board. This institution may well face insuperable difficulties and come to nothing. But it is possible, perhaps likely, that the Facebook board will significantly influence the future of speech on the internet. The charter announced today offers a kind of constitution for the Oversight Board. What does the Charter mean for free expression?
First, some context. Facebook maintains Community Standards that users agree to abide by when joining the platform. Facebook censures or removes users who violate those standards. Such “content moderation” goes back almost to the founding of Facebook. Facebook may suppress speech in this way because the First Amendment does not apply to privately-owned forums like social media.
Facebook officials often

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Dennis Prager, Big Government Conservative

August 8, 2019

Dennis Prager recently made a case for government management of social media in the Wall Street Journal. Prager is a conservative so it might seem odd to find him plumping for government control of private businesses. But he is a part of a new conservatism that rejects the older tradition of laissez-faire that informed the right. What could justify Big Government regulation for tech companies?
Prager argues that the companies have a legal obligation to moderate their platforms without political bias. He thinks they are biased and thus fail to meet their obligation. But the companies have no such obligation and to be charitable, it is far from clear that they are biased against conservative content.
Let’s look at the law first. Section 230(c) of the Communications Decency Act of 1996

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Some Proposals to Represent Users on Facebook’s Board

July 31, 2019

Recently I argued that Facebook needed to focus more on representation in creating its oversight board for appeals from its content moderation.  If the Board is to be legitimate, it must be representative as well as law-like and independent. How might it be representative?
First: who should be represented on the Board? Facebook users create much of the content that generates the data used to improve both advertising and the company’s bottom line. They are the community often mentioned by the leaders of Facebook. The Board should, among other values, represent users.
Initially Facebook officials will select Board members in part because they represent users. This means Board members will vary along various familiar dimensions: race, gender, culture and so on. Of course, it will also

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The Limits of Law for Facebook’s Legitimacy

July 24, 2019

Facebook expects to set up its Oversight Board for content moderation by the end of the year. Soon the company will fill in the final details for the Board. One big question: who should serve on the Board? Facebook will initially select specific individuals for the Board; it’s likely that the initial choices will then select their successors. At this point, we might ask a more general question: what kind of individuals should be selected? By that I mean: what should be their background and qualifications for service?
Law professor Noah Feldman has advised Facebook about its Board, and he has some definite ideas about who should serve. Writing in 2018, Feldman outlined a system of appellate review for Facebook that looks a lot like the U.S. courts system. He foresaw a penultimate level

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False Assumptions Behind the Current Drive to Regulate Social Media

July 23, 2019

In the early days of the Internet, citing concerns about pedophiles and hackers, parents would worry about their children’s engagement on unfamiliar platforms. Now, those same parents have Facebook accounts and get their news from Twitter. However, one look at a newspaper shows op-eds aplenty castigating the platforms that host an ever-growing share of our social lives. Even after more than a decade of social media use, prominent politicians and individuals who lack critical awareness of the realities and limitations of social media platforms choose to scapegoat platforms—rather than people—for a litany of social problems. Hate speech on Facebook? Well, it’s obviously Facebook’s fault. Fake news? Obviously created by Twitter.
But, what if these political concerns are misplaced? In a

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We Need More Speech about the Census

July 12, 2019

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

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Knight Institute v. Trump

July 10, 2019

The U.S. Court of Appeals for the Second Circuit has affirmed a district court’s ruling that Donald Trump may not block Americans from viewing or responding to his tweets. In an opinion largely mirroring that of the district court, Judge Barrington D. Parker determined that Trump’s use of his account in his capacity as President of the United States rendered it a limited public forum. As such, Trump’s decision to block the accounts of individual critics amounted to government viewpoint discrimination, rather than a private exercise of associational rights.
The case hinged upon whether or not Trump used his twitter account in an official capacity. Initially, I expressed skepticism, writing;
The question turns upon our understanding of the purpose and character of Trump’s twitter

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Don’t Believe Too Much in Democracy, Mark Zuckerberg

July 3, 2019

Everyone dislikes the social media companies these days. Conservatives (that is, Republicans) decry alleged bias against their views. Liberals (that is, Democrats) complain about hate speech online and market domination. And that’s just the start for both sides. Of course, both sides believe “something must be done,” ranging from federal agencies controlling the platforms to breaking up the companies. Both see government as the solution for what is thought to ail social media. In his own way, Mark Zuckerberg agrees. He could not be more wrong.
Engineers and economists often focus on the tradeoffs inherent in a project. Zuckerberg has emphasized the tradeoff between the values of voice (speech) and safety (or protection from speech). At a recent appearance, he said most people do not

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Hawley Contra Reagan

June 20, 2019

You don’t need a weatherman to know which way the wind blows…
-Bob Dylan, a long time ago
The winds of illiberalism are blowing strongly here and abroad and in both major political parties. What had seemed to be gusts and squalls signifying little prior to 2015 now threatens a major storm. Sen. Josh Hawley’s Ending Support for Internet Censorship Act, introduced yesterday, seems to be the latest potential disaster of this hurricane season.
Sen. Hawley won election to the Senate decrying bias against conservatives by online platforms. He now proposes to act to “correct” this presumed bias. Forty years ago, his job would have been easier. The federal government claimed ownership of the airwaves and the power to license their use by broadcasters. The Federal Communications Commission

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Free Speech and Identity Politics

June 3, 2019

I think Arnold Kling is one of the most insightful bloggers around so I am pleased that he likes my latest Cato policy analysis. He remarks:
My worry is that American culture no longer supports free speech…But hurting someone’s feelings should not count as direct harm. Racist remarks or Holocaust denial may be uncouth, but in a culture of free speech they should be permitted.
I agree with Kling about extreme speech. I am not sure that the culture for free speech has changed all that much. We first learned in the 1950s that while Americans overwhelmingly supported the First Amendment in the abstract, majorities or significant minorities often opposed freedom of speech in concrete cases (like letting unpopular minorities speak). But beyond America’s general culture of free speech,

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Shallow Fakes

May 31, 2019

We live in a Manichean political world where every person and institution is said to be either good or evil. Facebook used to be in the good column; since November 2016, they are listed among the evil ones, oddly by both left and right. The truth: Facebook is a tremendously successful and innovative business that nevertheless makes mistakes. But beyond making its users happy, Facebook also does good. By defending free speech, for example, at a difficult time.
The case may be familiar to you. (The fact that the case is likely familiar to you is important as we shall see). Recently, someone created a distorted video of House leader Nancy Pelosi (D-CA). Many thought the distortions suggested Pelosi was drunk. She was not. The video warped her image for political purposes (or perhaps,

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Why Section 230 Is Unstable

May 20, 2019

Everyone interested in social media should read Jeff Kosseff’s The Twenty-Six Words that Created the Internet. It provides an excellent history of Section 230, the legal foundation of social media. That might sound boring, but Kosseff makes it work by mixing stories and analysis without vitiating either. I agree with Kosseff that, problems notwithstanding, the benefits of Section 230 have outweighed its costs.
Given that, I don’t look forward to future editions of his book since they may document the “fall” of Section 230. In other words, the law is likely to be amended to limit the protections offered internet platforms. We have already seen changes meant to combat sex trafficking. Section 230’s most serious persistent vulnerability, however, comes from a mismatch between its

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A New Tool for Not Thinking

May 16, 2019

Yesterday the White House created a new tool to solicit information from people who believe they are victims of politically biased content moderation by social media companies. How will this work in practice? 
Some people will adopt a Bayesian approach to the new information coming from the tool. That is, they will critically assess the validity of the new information and update their prior belief about say, bias against conservatives at the tech companies. Let’s say you believe the companies are not biased against conservatives in their content moderation. Do the stories garnered by the new White House tool make your prior belief more or less probable?
Others will adopt a more political approach. That is, if the new information confirms their prior view about bias, they will affirm

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The Federal Election Commission Is Bad Enough

May 15, 2019

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

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Armslist and Bias against Conservatives Online

May 14, 2019

Last week, conservatives once again cried “bias” after Facebook banned a spate of popular fringe pundits and conspiracy theorists. Meanwhile, the week’s most important content moderation story went, for the most part, unnoticed. Had conservatives paid more attention to the Wisconsin Supreme Court’s ruling in Daniel v. Armslist, they might feel differently about the utility of platform intermediary liability protections like Section 230 of the Communications Decency Act, a bedrock indemnity that prevents internet platforms from liability for user behavior. While usually understood merely as a shield for social media firms, it guards a wide variety of services that utilize user-generated content, such as classified advertising or individual websites’ comments sections.
Armslist is

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What’s Missing from Facebook’s Oversight Board

February 5, 2019

Facebook has set out a draft charter for an “Oversight Board for Content Decisions.” This document represents the first concrete step yet toward the “Supreme Court” for content moderation suggested by Mark Zuckerberg. The draft charter outlines the board itself and poses several related questions for interested parties. I will offer thoughts on those questions in upcoming blog posts. I begin here not with a question posed by Facebook, but rather by discussing two values I think get too little attention in the charter: legitimacy and deliberation.
The draft charter mentions “legitimacy” once: “The public legitimacy of the board will grow from the transparent, independent decisions that the board makes.” Legitimacy is commonly defined as conforming to law or existing rules (see, for

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Three Problems with Taxpayer Financing of Election Campaigns

January 16, 2019

The new Democratic majority in the House of Representatives has introduced H.R. 1, a bill with two public financing components: one a pilot program for vouchers, and the other a conventional if generous subsidy program for small donations. I focus here on the latter. 

Public financing schemes have often focused on encouraging small donors in part to allegedly counter the influence of “Big Money.” The financing of campaigns by taxpayers fits easily into a number of dichotomies that structure our public discourse: small/large, vulnerable/powerful, poor/rich, left/right, and of course, friend/enemy. The realities are less exciting and persuasive than the rhetoric. 

It is an odd time to be pushing government spending on congressional candidates. Federal deficits are now approaching a

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Can Pluralism Work Online?

January 10, 2019

The Wall Street Journal reports that Facebook has consulted with conservative individuals and groups about its content moderation. Recently I suggested that social media managers would be inclined to give stakeholders a voice (though not a veto) on content moderation policies. Some on the left were well ahead in this game, proposing that the tech companies essentially turn over content moderation of “hate speech” to them. Giving voice to the right represents a kind of rebalancing of the play of political forces. 

I argued earlier that looking to stakeholders had a flaw. These groups would be highly organized representatives of their members but not of most users of a platform. The infamous “special interests” of regular politics would thus come to dominate social media content

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The Politics of Public-Private Censorship

December 21, 2018

A month ago the novelist Jay Seliger asked “Is there an actual Facebook crisis, or media narrative about Facebook crisis?” After two years of criticism of the company, he noted, its users are still on board. Indeed, you might have to pay them a $1,000 to give up Facebook for one year. Seliger remarks that an earlier New York Times story “reads a lot like a media narrative that has very little to do with users’ actual lives.”
Seliger asserts that Facebook is “a Girardian scapegoat for a media ecosystem that is unable or unwilling to consider its own role” in the election of Donald Trump. (On Rene Girard see this). I don’t know about the culpability of the “media ecosystem,” but the ferocity of the campaign against Facebook suggests something more at work than a concern about privacy

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Who Should Moderate Content at Facebook?

December 18, 2018

By the end of 2019, Facebook promises to establish an independent body to handle appeals of its content moderation decisions. That intention follows an earlier suggestion by Mark Zuckerberg that Facebook might establish a “Supreme Court” of content moderation. Like the real Supreme Court, Facebook’s board will presumably review the meaning and application of its Community Standards, which might be considered the basic law of the platform.
There are many questions about this new institution. This post looks at how its members might be selected.
To fix ideas, let’s begin with how members of the U.S. Supreme Court are selected. Appointments to the highest court are procedurally simple and normatively complex. Article II of the Constitution says the president “shall nominate, and by and

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Mark Zuckerberg, Communitarian

November 19, 2018

Like almost every week, Facebook has been in the news. Much has been said about their earlier decisions regarding the speech of Russian agents, much of it negative. Amid that debate, you might overlook Mark Zuckerberg’s latest post about Facebook’s content moderation work. Don’t. Facebook’s moderation decisions impact speech across the globe and Zuckerberg’s post is an intriguing and important statement of the company’s position.
While the post announces changes to Facebook’s appeals process, for now I will focus on the ideas and values informing their policies about online speech.
We make tradeoffs among values all the time, even tradeoffs involving freedom of speech. While free speech is a fundamental value in the United States, it nonetheless may be curtailed to prevent violence,

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Google’s Problem and Ours

September 6, 2018

Content moderation remains in the news following President Trump’s accusation that Google manipulated its searches to harm conservatives. Yesterday Congress held two hearings on content moderation, one mostly about foreign influence and the other mostly about political bias. The Justice Department also announced Attorney General Sessions will meet soon with state attorneys general “to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.” 
None of this is welcome news. The First Amendment sharply limits government power over speech. It does not limit private governance of speech. The Cato Institute is free to select speakers and topics for our “platform.” The tech companies have that right

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Alex Jones and the Bigger Questions of Internet Governance

August 13, 2018

Last week Facebook, Google, and Apple removed videos and podcasts by the prominent conspiracy theorist Alex Jones from their platforms (Twitter did not). Their actions may have prompted increased downloads of Jones’ Infowars app. Many people are debating these actions, and rightly so. But I want to look at the governance issues related to the Alex Jones imbroglio.
The tech companies have the right to govern speech on their platforms; Facebook has practiced such “content moderation” for at least a decade. The question remains: how should they govern the speech of their users?
The question has a simple, plausible answer. Tech companies are businesses. They should maximize value for their shareholders. The managers of the platform are agents of the shareholders; they have the power to

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“Weaponizing the First Amendment”

August 3, 2018

Politicians have long known that how you frame a policy issue can determine its fate.
Consider how the term “weaponizing the First Amendment” frames the issue of speech on social media. Kara Swisher, a reporter and opinion writer at the New York Times, wrote yesterday that “Facebook, as well as Twitter and Google’s YouTube, have become the digital arms dealers of the modern age.” She continues,
They have weaponized social media. They have weaponized the First Amendment. They have weaponized civic discourse. And they have weaponized, most of all, politics.
Supreme Court Justice Elena Kagan also recently accused a majority of colleagues of “weaponizing the First Amendment.”
Let’s trace the implications of the term “weaponize” for free speech. The American Heritage Dictionary offers

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Facebook, Russia and Americans

August 2, 2018

This post follows my post yesterday about Facebook taking down fake accounts that “helped promote more than three dozen events in the last 15 months, most of them protesting the policies of President Donald Trump or promoting left-leaning causes.” The posts, thought to be supported by Russian operatives, “sought to work alongside legitimate groups organizing rallies and protests in the U.S.” 
So this is not just about the Russians. Americans also associated with the pages for political reasons. One page drew 84,000 likes. Other similar groups, supported by Americans, associated with, and spoke with the pages. (Their queries were not answered). 
As I wrote yesterday, Facebook was well within their rights to take down the pages. They did so because the accounts were fake and thus

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The Facebook Takedown

August 1, 2018

Since the 2016 election Facebook has faced several problems, some related to the election, some not. In 2016 Russian agents bought ads on Facebook and posted messages related to the election. Facebook has been blamed for not preventing the Russians from doing this. Many people may believe the Russian efforts led to Donald Trump’s election. That view remains unproven and highly implausible.
Beset by other problems, Facebook seeks to avoid a replay of 2016 after the 2018 elections. Yesterday Facebook tried to take the offensive by removing 32 false pages and profiles from its platform; the pages had 16,000 to 18,000 followers, all connected to an upcoming event “No Unite the Right 2 – DC”.  
Facebook stated the pages engaged in “coordinated inauthentic behavior [which] is not allowed on

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Some Reasons to Trust Mark Zuckerberg with Freedom of Speech

July 24, 2018

Last week Mark Zuckerberg gave an interview to Recode. He talked about many topics including Holocaust denial. His remarks on that topic fostered much commentary and not a little criticism. Zuckerberg appeared to say that some people did not intentionally deny the Holocaust. Later, he clarified his views: “I personally find Holocaust denial deeply offensive, and I absolutely didn’t intend to defend the intent of people who deny that.” This post will not be about that aspect of the interview.
Let’s recall why Mark Zuckerberg’s views about politics and other things matter more than the views of the average highly successful businessman. Zuckerberg is the CEO of Facebook which comprises the largest private forum for speech. Because Facebook is private property, Facebook’s managers and

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A New Podcast on Free Speech: Many Victories, Many Struggles

July 6, 2018

In 1996 John Perry Barlow penned A Declaration of the Independence of Cyberspace, a radical call for complete online freedom. The document begins with an optimistic word of caution for states the world around; “Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us.”
The internet did not develop as Barlow had hoped, as Jacob Mchangama illustrates in the latest episode of his podcast, Clear and Present Danger: A History of Free Speech. He notes that the “digital promised land turned into a dystopia of surveillance, disinformation, trolling and hate, to which governments responded with increasingly draconian measures.” China has

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New Bill Would Ban Internet Bots (and Speech)

June 27, 2018

Sen. Dianne Feinstein has introduced the Bot Disclosure and Accountability Act, a proposal to regulate social media bots in a roundabout fashion. The bill has several shortcomings.
Automation of social media use exists on a continuum, from simple software that allows users to schedule posts throughout the day, to programs that scrape and share information about concert ticket availability, or automatically respond to climate change skeptics. Bots may provide useful services, or flood popular topics with nonsense statements in an effort to derail debate. They often behave differently across different social media platforms; Reddit bots serve different functions than Twitter bots.  
What level of automation renders a social media account a bot? Sen. Feinstein isn’t sure, so she’s

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Fighting Words and Free Speech

June 25, 2018

On a Saturday afternoon in Rochester, New Hampshire, Jehovah’s Witness Walter Chaplinsky addressed the City Marshal as “a God damned racketeer” and “a damned Fascist.” He was convicted of violating a state law that prohibited offensive words in public. The United States Supreme Court upheld the conviction and identified certain categories of speech that could be constitutionally restricted, including a class of speech called “fighting words.”
Writing for the Court, Justice Frank Murphy stated that “fighting words” are “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived by them is clearly outweighed by the social interest in order and morality.” In Hate: Why We Should Resist It with Free Speech, Not

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