Facebook v. Sullivan

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Publication Title

Knight First Amendment Institute - Emerging Threats Series

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In August 2017, shortly after the Unite the Right rally in Charlottesville, Virginia, a post began circulating on Facebook about Heather Heyer, the woman who was killed while protesting the rally. “Heather Heyer, Woman Killed in Road Rage Incident was a Fat, Childless 32-Year-Old Slut” was shared over 65,000 times. To some Facebook users, the post seemed like obvious hate speech that violated the company’s “Community Standards” and therefore ought to be deleted. To other users, it might have seemed like controversial but permissible commentary on a person whose tragic death had turned her into a public figure. Ultimately, Facebook hedged. The company announced that the post would generally be removed because it originated from the neo-Nazi website Daily Stormer but that the post could still be shared if accompanied by a condemnatory caption.

As this episode reflects, the United States now has two systems to adjudicate disputes arising from harmful speech about other people. The first is older and more familiar: the tort system in which judges resolve claims brought under state defamation and privacy law. The second is newer and less well understood: the content moderation policies and practices of private platforms such as Facebook. These platforms are not, as a general rule, bound by the First Amendment. Yet as this episode also reflects, they have come to rely on some of the same concepts used by courts to resolve tensions between regulating harmful speech and preserving free expression, including the concepts of “public figures” and “newsworthiness.”

This paper analyzes Facebook’s use of these concepts and the implications for online speech. It begins with a brief summary of the Supreme Court cases that introduced the concepts, with an eye toward the underlying First Amendment theory. It then looks to Facebook’s moderation of user speech, discussing how and why exceptions for public figures and newsworthiness were carved out. In developing and applying these exceptions, Facebook has adopted much of the Court’s reasoning for creating First Amendment limits to tort liability in cases involving public figures and matters of public concern.