Corporations may have more control over online speech today than the courts. Executives determine which videos, pictures and comments are permitted and what art is allowed. Their rules govern billions of posts across the globe each day.
And those policies differ dramatically across Silicon Valley's big social platforms. Twitter calls itself the free speech wing of the free speech party and models its approach on the U.S. Constitution.
Facebook's rules, however, more closely resemble workplace policies: the kinds of rules that govern what you can say to colleagues at lunch. But unlike an employer's rules, Facebook's are applied on a global scale.
Jud Hoffman, Facebook's global policy manager, is a trim 40-something. Well-spoken, thoughtful and a trained lawyer, he doesn't give off the vibe of a global power broker — but in a very real sense, he is one.
"Our job is to manage the rules that determine what content is unacceptable on Facebook and also, obviously, what is acceptable," Hoffman says. His team determines what more than 1 billion people and businesses can and can't say and do on Facebook.
To give you a sense of the scale of this job, consider this: There are more than 300 million photos, millions of video links and 2.5 billion messages of one kind or another uploaded to Facebook every day. Hoffman's team has to police it all.
And Facebook bans copyright infringement and all sorts of speech that, in public, is protected by the First Amendment — things like nudity, hate speech, bullying and pornography.
And the company doesn't use algorithms to seek out bare flesh or other violations, Hoffman says. Instead, Facebook relies on its billion-plus members to flag content that violates its community standards. It then uses algorithms to sort the different kinds of possible violations into digital piles.
Then, hundreds of real people — employees around the globe — sift through these piles of status updates, photos and videos to decide which speech and images to allow and which to block.
More Power 'Than Any King Or President'
Jeffrey Rosen, a law professor at George Washington University, says social media companies have a tremendous role in dictating online speech.
Facebook, Google and Twitter "have more power over who can speak and what can be said all across the globe than any king or president or Supreme Court justice," he says.
"But unlike presidents, Facebook is not constrained by the Constitution," Rosen adds. "The First Amendment only binds the government — not private corporations."
Generally, anonymous speech is forbidden on Facebook. When you post a comment or picture, upload a video or click a "like" button, there's social accountability; your friends know what you are up to.
But there is one place where it is possible to speak on Facebook without attaching your name to what you say: community pages. Corporations have these pages, as do community groups.
If you are a fan of cats or off-color jokes, it's possible to create a Facebook community page dedicated to your passion — and you can do it without revealing who you are.
This created a problem for Hoffman, Facebook's global policy manager. Lots of pages started cropping up.
"You know, fat jokes and Polish jokes, or all those things," Hoffman says. "Because they are humor, they don't necessarily violate our terms — but can be hurtful in a lot of contexts."
Facebook's ban on hate speech has a broad exception for humor, and on these community pages, which are more or less anonymous, some people took advantage.
"There was a very distasteful meme in the form of an illustrated joke about Anne Frank," says Christopher Wolf, chairman of the National Civil Rights committee for the Anti-Defamation League. "To any Holocaust survivor or anyone concerned with anti-Semitism, it was quite offensive."
There were also pages dedicated to mocking the disabled, gay jokes, racial slurs and content that tiptoed up to the line when it came to promoting violence.
At Facebook, Hoffman realized community pages were becoming a haven for Internet trolls, so his team decided to shine a bright light under a bridge. When a page was flagged as problematic, Facebook began requiring that the administrators of these pages identify themselves publicly.
"In the vast majority — vast, vast majority of cases where people are asked to do that — they chose not to, because it requires them to take responsibility for that kind of content," Hoffman says.
When administrators choose not to comply, the pages come down.
Wolf applauds that move. "I think today, Facebook takes a very sophisticated and sensitive approach to handling the issue of hate speech," he says.
A Chilling Effect?
But law professor Rosen has reservations. He says Facebook isn't merely banning hate speech. What it's really doing, he says, is judging what is and isn't offensive — and all of this is based on community norms.
If Facebook had existed in the 1970s, Rosen says, rules like these could have easily made organizing around, say, gay rights difficult or impossible. He says by definition, transgressive movements, at their founding, are going to offend people.
"Those sort of protests often express themselves with jokes, with bad taste, and they depend on anonymity," Rosen says. "It's impossible to imagine the gay-rights movement without anonymity."
So while Rosen acknowledges that Facebook has every right to determine for itself what speech to allow and what to ban, he hopes that the company will preserve at least the possibility for anonymous actors to say politically controversial — even occasionally offensive — things online.