Facebook is unwisely banning a “mainstream political argument” as “hate speech,” notes law professor Eugene Volokh. The social media giant blocked a Congresswoman’s Facebook post saying “Biological men have no place in women’s sports. SHARE and SIGN if you agree.” Facebook said, “Your post didn’t follow our Community Standards on hate speech.”
Volokh explains that Facebook’s action is unwise, but not illegal:
such blocking doesn’t violate the First Amendment (which governs only governmental speech restrictions) or any federal law; and, to my knowledge, it wouldn’t violate any state social media nondiscrimination rules, even apart from the question whether those rules are constitutional or preempted by 47 U.S.C. § 230: The Florida and Texas laws, for instance, seem to me to cover only material posted by residents of those states.
Nonetheless, I don’t think it’s good for democracy that platforms with the reach and importance of Facebook (which the Supreme Court has characterized as “the modern public square”) would purport to thus restrict the expression of opinions.
And that’s especially so given how mainstream the opinion is: A Gallup poll from May 2021, for instance, reports that 62% of U.S. adult respondents took the view that “transgender athletes should only be allowed to play on sports teams that match their birth gender” (34% took the view that they “should be able to play on sports teams that match their current gender identity”). I realize that these measurements are always imprecise, and sensitive to the details of the question. But it seems pretty clear that this isn’t some marginal, “extremist” view….if Facebook blocks the Nazis or the Communists, the immediate practical effect will be limited, because those views aren’t major players in American public debate in any event. (Thankfully, “should we bring back the Holocaust?” or “should we have a violent Communist revolution?” aren’t major topics in current American debate.)
Here, though, no-one can claim that somehow the judgment of history has been rendered and that nothing would be practically lost to public debate if a few extremists can’t express their views. Nor can one argue that this is just a matter of medical consensus or of factual disinformation (though again I’d be skeptical of even those bases for restriction).
Rather, Facebook appears to be trying to suppress an important normative position on a live political issue—a view expressed by major elected politicians about what policies our democratic process should adopt. Again, not good for Facebook to try control public debate this way…
Democrats in Congress have been pressuring social media companies like Facebook, Twitter, and Google to crack down on hate speech. This may sound harmless, but it isn’t. “Hate speech” is a misleading phrase, and it’s no longer just about hate. Even things like expert medical opinions about transsexualism and gender identity have been labeled as “hateful” speech.
Some organizations now define hate speech broadly, and counterintuitively, to include “offensive words, about or directed towards historically victimized groups,” even if the words were not uttered out of hate. The concept of hate speech has expanded to include commonplace views about racial or sexual subjects. That includes criticizing feminism, affirmative action, homosexuality, or gay marriage, or opinions about how to address sexual harassment or allegations of racism in the criminal justice system.
These broad definitions of hate speech aren’t based on the First Amendment. In the past, the Supreme Court has ruled that there is no “hate speech” exception to the First Amendment, which protects speech that offends minority groups. But foreign countries are banning hate speech on social media, and many legal scholars and civil-rights activists are now calling for America to follow their example and ban hate speech by limiting the First Amendment.
That’s a bad idea, because both normal people, and even experts, run the risk of running afoul of broad bans on “hate speech.” For example, in 2019, Twitter applied its “rules against hateful conduct” to briefly ban an expert on sexuality for stating in passing that transsexualism is a mental disorder. Twitter did that even though the “bible of psychiatry,” the DSM-5, indicated at the time that transsexualism is a disorder, and the expert chaired the group that worked on that section of the DSM-5. Sharing his expertise was deemed hate speech.