First Amendment Rights and Facebook “Takedown Hotline”
Walter Olson writes about a new initiative from Maryland that would ask Facebook to offer a “takedown hotline” for school officials to request deleting bullying-related material.
On Tuesday, the new law took effect, and this morning Maryland attorney general Douglas Gansler unveiled a joint initiative with Facebook and the National Association of Attorneys General (NAAG) in which Facebook will create a new program for school officials, the Educator Escalation Channel — initially limited to use in the state of Maryland, presumably pending similar enactments elsewhere — allowing the officials to object to Facebook users’ content. Per local radio station WTOP, Maryland school officials will be offered the chance to flag “questionable or prohibited” language. That is to say, they will flag speech that isn’t prohibited by the new law but which they deem “questionable.”
The targets of the new program, according to Gansler as quoted by WTOP, include persons who are “not committing a crime… We’re not going to go after you, but we are going to take down the language off of Facebook, because there’s no redeeming societal value and it’s clearly hurting somebody.” That is to say, Gansler believes he has negotiated power for school officials to go after speech that is not unlawful even under the decidedly speech-unfriendly definitions of the new Maryland law, but which they consider hurtful and lacking in “redeeming societal value.”
As Walter notes, Facebook is a private entity, and not subject to the First Amendment. But, as I argue in my article, What Happens if Data is Speech?, gateways like Facebook and Google are, for all intents and purposes, the main conduits of speech today. Being so glib about allow the indirect censorship of speech on Facebook is dangerous. Sure, who wants bullying online? But allowing people to deem speech “questionable,” and Facebook for then to censor that information, without any process, can set dangerous precedents for the future of communication.
Consider also Google burying the mug-shot sales web sites and a California law that would allow minors to delete stuff about them online. These cases represent slightly different angles of the same issue–giving the government the power to indirectly censor speech in the forums of the 21st century. Keep an eye on these types of issues.