In response to allegations that Facebook suppresses conservative news items in its “Trending” section, Senator John Thune has launched an inquiry into Facebook’s policies for determining which items Facebook links to as most newsworthy.  Senator Thune, Chairman of the Committee on Commerce, Science, and Transportation, is requiring Facebook CEO Mark Zuckerburg to answer questions such as “how many stories have curators excluded that represented conservative viewpoints or topics of interest to conservatives?”  Thune’s legitimate concern that Facebook is misleading the public into thinking that a neutral algorithm selects the “Trending Topics” is now outweighed by the graver First Amendment concern that the government is attempting to manipulate or suppress Facebook’s speech.

With over one billion users worldwide, Facebook may be the new “public square,” but Facebook will never have the monopoly of force afforded the United States government.  For this reason, Facebook, an expressive platform with its own mission and ethos, has its own First Amendment rights.  My posts on Facebook are protected speech as against the government, but Facebook is not violating the First Amendment when it takes down a user’s posts.  If users dislike Facebook’s nudity policy, or its policy restricting “hate speech” (a category of speech that is protected by the Constitution against government censorship but can be suppressed by Facebook), users can switch to another social media platform.  The ability of different platforms to experiment with different speech policies enhances our ability to foster dialog in different ways, according to different rules.  For this reason, Facebook is permitted to be more speech restrictive than the government, and Facebook has speech rights to police its own content.  So long as the government cannot outright ban nudity or hate speech, there will be channels for those who wish to express themselves in ways Facebook rejects.

Thus, to the extent that Senator Thune wishes to hold Facebook responsible for “political bias in the dissemination of trending news,” he cannot do so without violating the Constitution.  I agree with Senator Thune that, given Facebook’s outsized influence on social and political discourse, Facebook should ethically use a nonpartisan algorithm to select its “Trending Topics.”  Facebook contends that its editors inject newsworthy items and blacklist other items, after an algorithm has run, in a politically neutral way.  This may or may not be true, especially given that “political neutrality” is itself a subjective concept.   Even an algorithm might not be politically nonpartisan, although it could be crafted in a results-neutral way.  The difficulty of achieving pure political neutrality is simply another reason why Senator Thune should not determine whether Facebook is politically biased.  Even if Facebook has selected its content with a political bias (which I hope it has not), Facebook cannot legally be required to be politically neutral.

However, if Senator Thune is simply investigating Facebook’s false representations of political neutrality, there may be some lawful basis to force Facebook to account for its organizational structure, or the injection of stories into Trending Topics despite not meeting Facebook’s guidelines for how many media sources need to mention the news item.  (Facebook began using human intervention to alter its Trending Topics section after receiving criticism that the ALS Ice Bucket challenge was trending yet the protests in Ferguson, Missouri were not.)  Facebook claims that its Trending Topics section reflects “topics that have recently become popular of Facebook,” and “a number of factors including engagement, timeliness, Pages you’ve liked and your location.”  Senator Thune appears to have believed that minimal human involvement dictated the Trending section content, and this belief is somewhat reasonable given Facebook’s vaguely stated policy.  But Facebook’s actual claims about its Trending section were so vague, and the truth is becoming clear in the media anyway, such that Senator Thune’s drastic investigatory steps seem designed to coerce Facebook into changing its Trending Topics policies.

If Senator Thune were truly committed to producing the best public discourse, he would stop this investigation, allow the public to debate Facebook’s Trending Topics policy, and respect Facebook’s right to have ultimate editorial control over its website.