For example, Facebook generally allows the sharing of animal abuse, a category of speech the Supreme Court deemed protected in 2010. But diverging from First Amendment law, Facebook will remove that same imagery if a user shows sadism, defined as the enjoyment of suffering.
Similarly, Facebooks manual on credible threats of violence echoes First Amendment law on incitement and true threats by focusing on the imminence of violence, the likelihood that it will actually occur, and an intent to credibly threaten a particular living victim.
But there are also crucial distinctions. Where First Amendment law protects speech about public figures more than speech about private individuals, Facebook does the opposite. If a user calls for violence, however generic, against a head of state, Facebook deems that a credible threat against a vulnerable person. Its fine to say, I hope someone kills you. It is not fine to say, Somebody shoot Trump. While the government cannot arrest you for saying it, Facebook will remove the post.
These differences are to be expected. Courts protect speech about public officials because the Constitution gives them the job of protecting fundamental individual rights in the name of social values like autonomy or democratic self-governance. Facebook probably constrains speech about public officials because as a large corporate actor with meaningful assets, it and other sites can be pressured into cooperation with governments.
Unlike in the American court system, theres no due process on these sites. Facebook users dont have a way to easily appeal if their speech gets taken down. And unlike a government, Facebook doesnt respond to elections or voters. Instead, it acts in response to bad press, powerful users, government requests and civil society organizations.
Thats why the transparency provided by the Guardian leak is important. If theres any hope for individual users to influence Facebooks speech governance, theyll have to know how this system works in the same way citizens understand what the Constitution protects and leverage that knowledge.
For example, before the Guardian leak, a private Facebook group, Marines United, circulated nude photos of female Marines and other women. This prompted a group called Not in My Marine Corps to pressure Facebook to remove related pages, groups and users. Facebook announced in April that it would increase its attempts to remove nonconsensual nude pictures. But the Guardian leaks revealed that the pictures circulated by Marines United were largely not covered by Facebooks substantive revenge porn policy. Advocates using information from the leaks have begun to pressure Facebook to do more to prevent the nonconsensual distribution of private photos.
Civil liberties groups and user rights groups should do just this: Take advantage of the increased transparency to pressure these sites to create policies advocates think are best for the users they represent.
Today, as social media sites are accused of spreading false news, influencing elections and allowing horrific speech, they may respond by increasing their policing of content. Clarity about their internal speech regulation is more important now than ever. The ways in which this newfound transparency is harnessed by the public could be as meaningful for online speech as any case decided in a United States court.
Margot E. Kaminski is an assistant professor at the Ohio State University Moritz College of Law. Kate Klonick is a Ph.D. candidate at Yale Law School.
Margot E. Kaminski and Kate Klonick
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A version of this op-ed appears in print on June 27, 2017, on Page A23 of the New York edition with the headline: Speech in the Social Public Square.
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Facebook, Free Expression and the Power of a Leak - New York Times