Facebook said on Monday that it was banning users from organizing “events that defy government’s guidance on social distancing”. The company’s decision to selectively enforce state public health orders came amid a spate of rallies protesting against statewide stay-at-home orders in cities cross the US, and it drew condemnation from rightwing supporters of the protest movement, Donald Trump Jr, and the American Civil Liberties Union (ACLU).
The controversy highlighted the challenges that arise when a private company controls so much of the digital “public square” – especially at a time when access to physical public squares is limited by public health orders.
“Mass public gatherings that ignore social-distancing recommendations may well be creating a public health danger to those protesting and their communities,” said Vera Eidelman, staff attorney with the ACLU’s speech, privacy and technology project. “But speech about government responses to the pandemic – from relief packages like the Cares Act to stay-home orders – is core political speech.”
The relatively small anti-shutdown protests have received substantial media attention, as well as an implicit endorsement from Donald Trump. Much of the organizing for the rallies has occurred on Facebook, in a network of groups controlled by a family of pro-gun activists, the Washington Post and NBC News reported.
But the gatherings have been criticized by public health experts and health care workers. In Harrisburg, Pennsylvania, a group of nurses on Monday met a protest against stay-at-home orders with signs urging people to go home.
On Monday, Facebook said that it was requiring event pages for protests to make clear that participants must follow state social distancing rules – and that it would remove certain calls for protest.
“Unless government prohibits the event during this time, we allow it to be organized on Facebook,” a Facebook spokesperson said in a statement. “For this same reason, events that defy government’s guidance on social distancing aren’t allowed on Facebook.”
The aggressive move is in line with Facebook’s overall approach to the pandemic, which has seen the company adopt a much more active editorial role than it has previously been willing to take on. But questions about its approach remain.
CNN reported that Facebook had removed events pages for anti-quarantine protests in California, New Jersey and Nebraska “on the instruction of governments in those three states”. But a company spokesman later said that it had spoken to government officials “to understand the scope of their stay-at-home orders, not about removing any specific protest events from Facebook”.
The question of whether Facebook took action against the protest pages on its own initiative or had acted at the behest of government officials is an important one.
“Informal requests from governments are extremely problematic,” said Jennifer Brody of Access Now, a digital rights organization. “There should be transparency around takedown requests … State governments covertly nudging Facebook does not align with human rights norms.”
David Kaye, the UN special rapporteur on freedom of expression, also questioned whether it was appropriate for Facebook to take action against specific protest pages, rather than leaving it to government bodies to make official takedown requests.
“Whether a protest is lawful or unlawful is a decision for government authorities to make on the ground,” Kaye said. “If people show up to protest – and I think the vast majority of public health officials think that’s really dangerous – it’s up to the government to clamp down on them. For Facebook to do it just seems suspect.”
Indeed, if a state government were to make such a request of Facebook or any other platform, it would be subject to a challenge in court. But when Facebook makes decisions to take down content on its own, it is protected from legal liability by Section 230 of the Communications Decency Act, a federal law that allows internet platforms to set their own content rules.
“The normal democratically accountable way to go about this is that the government issues an order to Facebook to take down particular content through a legal mechanism,” Kaye said. “This is the difference between accountable governance and unaccountable companies. A government that makes this decision is subject to law; they’re subject to real legal constraint and remedy. Facebook is not.”
Eidelman, of the ACLU, said: “Facebook, which controls a platform for the speech of billions, should not be censoring political speech online,” adding: “This is especially true now, when questions of when and how to reopen the country are among the central political questions, and online platforms are the main vehicle for expression.”
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