No, this isn’t Facebook’s ‘Big Tobacco’ moment | Bruce Ledewitz

When dealing with constitutionally protected speech, the government needs to tread carefully

November 9, 2021 6:30 am

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Last month, U.S. Sen. Richard Blumenthal, D-Conn., called revelations of Facebook’s complicity in luring young women to its Instagram site, harming some of them in myriad ways, its “Big Tobacco Moment.”

Bruce Ledewitz (Capital-Star file)

But it’s not. Tobacco companies were held liable in court for knowingly selling an addictive and dangerous product and then lying about it. The government forced tobacco products to carry warnings, banned the product’s use by young people and limited where tobacco use could take place. The government could do all this because there is no constitutional right to smoke.

In contrast, Facebook’s product is constitutionally protected speech. None of these government actions can be taken if your customers flock to a website to talk about themselves and share photos of themselves. There is a constitutional right to congregate with others and speak.

The reader should know that one of my children works at Facebook, whose parent company has been renamed Meta. But I am not defending Facebook. I’m not on it. And I assume that like all for-profit corporations, Facebook’s interest is in profits, not the welfare of its customers.

But Blumenthal thinks this is China, where the government restricts the time young people can play computer games to three hours a week.

America isn’t China.

There is already a dedicated group of people who have the responsibility and authority to see that young people do not abuse social media. They’re called parents.

As a private entity, Facebook can choose to redesign Instagram to minimize its harms. Public pressure may force it to do so. Congressional hearings may aid in that process. Congress can remove the protection from defamation lawsuits that social media enjoy. But it is not within the government’s power to actually regulate speech.

With the Death of God, we believe anything. The cure for that is to solve the crisis of authority in a secular society.

America is slowly losing the habits necessary for a free society. The pressure on Facebook to change Instagram is the latest example of the public insisting that social media save us from ourselves rather than facing up to our own behavior and changing it.

I wasn’t happy to read about former President Donald Trump’s tweets every day, but it was appalling that Twitter closed his account, fearing that people might believe his lies. If Americans cannot figure out that the 2020 election was not stolen, the American experiment in self-government is over.

I’m as frustrated as everybody else that a lunatic fringe of unvaccinated people is allowing COVID-19 variants to spread. But the answer is not for YouTube to ban anti-vaccine misinformation. The answer is to continue the slog of confronting false misinformation with the facts and using vaccine mandates to enforce sane public policy.

Censorship seems so much easier, but it does not work. Do you think Trump’s influence has lessened just because you don’t read his tweets?

The actual effect of the Twitter ban has been a boon to Republican leaders who can appeal to Trump’s base without having to answer for his lies. If Trump were still tweeting every day, Glenn Youngkin would not be Governor-elect of Virginia.

The anti-vaccine movement has now been martyred by YouTube. You think these people are not spreading the word that “this is what they don’t want you to know?”

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Plus, censorship requires that we know the truth. And we don’t know everything about the virus and vaccines. How is it misinformation if I say vaccines are not effective when the government now recommends booster shots? How can it be misinformation to assert that people who have recovered from the virus don’t need to be vaccinated, when that is public policy in Germany?

If you want to see censorship versus free speech in action, consider holocaust denial. In Europe and much of the world, holocaust denial is a crime. In America, such denials are constitutionally protected. But America does not experience more holocaust denial. Probably less.

Of course, since Facebook, Twitter and YouTube are private businesses, they are free to censor whatever they like. But they are censoring speech only because the public has demanded it. Americans should know better. Free speech is more effective in the long run.

But it’s different now, we hear. Social media is so powerful that the old approaches no longer apply. Social media is so ubiquitous that it must be broken up or treated like a public utility.

What is so powerful about social media? It’s not a product that is physically addictive, like cigarettes. If people are unhappy with Facebook, they are free to stop using it. People can migrate to other sites or just get off their phones.

Nor is social media any kind of monopoly. The market is essentially people talking with each other and letting their friends know what they are doing. Social media does not dominate that market. It is only a small part of it.

It is the case that misinformation is spreading in America as never before. People believe all sorts of crazy things: there are chips in vaccines to track you; voting machines are programmed to count the votes of only one candidate.

And these crazy beliefs transcend politics. Forty percent of Americans now think that alien spacecraft have been visiting Earth from outer space. This is up from 33 percent saying so two years ago.

And it is true that these crazy beliefs spread on social media, just like they spread in many other ways. It is also true that social media profit from fanning these flames.

But that doesn’t mean that social media is the cause of our growing irrationality. The reason for the spread of crazy ideas is the decline of public trust in institutions and authority.

The explanation for that goes way beyond anything Facebook has done.

An apocryphal quotation often attributed to G.K. Chesterton explains America today very well: When a man stops believing in God, he doesn’t then believe in nothing, he believes anything. The traditional sources of Truth are in decline in America and nothing has emerged to take their place.

With the Death of God, we believe anything. The cure for that is to solve the crisis of authority in a secular society.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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