Why Facebook’s Hate-Speech Policy Makes So Little Sense

A recent New York Times article disclosed details of Facebook’s global effort to block hate speech and other ostensibly offensive content. As the article explains, Facebook has good reason to worry that some people use its platform not just to offend but to undermine democracies and even to incite deadly violence. Yet Facebook’s response seems curious, even perverse. Presumably well-meaning young engineers and lawyers gather every other week to update thousands of PowerPoint presentations, rules, and guidelines for its roughly 15,000 relatively low-skilled “moderators” to apply formulaically to sort permissible from verboten posts—sometimes using Google Translate for material in languages they do not know.It is easy to condemn Facebook’s approach to hate speech as ham-fisted. It is considerably harder to fashion a perfect alternative. Below I consider the causes and effects of Facebook’s policy. As I shall explain, the issues it raises implicate tough questions regarding free speech more broadly, both in the US and elsewhere.Private Versus Public CensorshipMost countries—including most constitutional democracies—forbid hate speech. The US does not.As construed by the Supreme Court in cases like R.A.V. v. St. Paul and Virginia v. Black, the First Amendment protects very offensive speech against censorship, unless the speech in question constitutes incitement—strictly defined in the leading case of Brandenburg v. Ohio to cover only those words and symbols that are intended and likely to inspire “imminent lawless action.” The Constitution even protects hate speech that has an historical association with violence. The defendants in each of the cases just cited were charged with cross-burning, and yet they all won.Accordingly, in the US, the government may neither directly censor hate speech nor require private companies like Facebook to do so. However, the Constitution does not apply to private actors, and Facebook has adopted its policy voluntarily. Thus, the policy does not raise a constitutional question here.Yet given Facebook’s reach, one might worry that it exercises the kind of power that governments typically do and thus should be subject to the same sorts of restrictions that apply to governments—including constitutional limits. In the early twentieth century, some progressive thinkers, including Louis Brandeis, who would go on to become a leading free-speech champion on the Supreme Court, made just that sort of argument. Highly concentrated private power, these progressives said, can pose at least as great a threat to liberty as government power does. If Facebook is effectively the only game in town, then it does not much matter from the user’s perspective whether Facebook censors in response to a government mandate or of its own volition.Moreover, it is not fully accurate to say that Facebook censors speech “voluntarily.” Fewer than fifteen percent of Facebook’s users live in the US. Hundreds of millions live in countries that forbid hate speech. As a recent European Union report underscores, much of the world understands human rights treaties not only to permit censorship of hate speech but to affirmatively require it.It thus seems likely that Faceb