Why Government Regulation of Tech Censorship is Undesirable
2020-07-10 · Guest: John Samples (VP Cato Institute and Facebook Oversight Board member) · 52:16
Facebook Oversight Board and social media content moderation
Bob Zadek interviews John Samples, Vice President of the Cato Institute and a member of the Facebook Oversight Board, to discuss the complexities of content moderation on social media. They explore the history and legal protections of Section 230, the distinction between platforms and publishers, and the creation of the Oversight Board as a private alternative to government regulation of online speech.
Topics: Facebook Oversight Board, Section 230, content moderation, free speech, First Amendment, platform v. publisher, Cato Institute, social media regulation, Arnold Kling, Michael McConnell
Speakers: Bob Zadek, John Samples
Introduction to the Facebook Oversight Board [00:18]
Bob Zadek: Hello, everyone. Welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. This Sunday, and always, the show of ideas, never once the show of attitude.
President Trump rules over—if I can use that expression—has as his constituency, and his alone, approximately 330 million people. Governor Newsom is a distant third—back to that in a second—he rules over about 40 million people, which is the population of California. This morning’s guest looks after the rights of and protects the rights of 60 million people. A bit less than President Trump, a bit more than Governor Newsom.
So, it’s fair to say that this morning’s guest looks after the rights of and has as his constituency 60 million people, right between President Trump and Gavin Newsom, governor of the most populous state of California. Who is this powerful, non-public, unelected figure? What rights of his 60 million constituents does he protect? I frankly thought you’d never ask.
This morning’s guest is John Samples. John is a Vice President of Cato Institute. That itself makes John a significant public figure, important in my life and in yours. But wait, as they say, there’s more. Relevant to this morning’s show, John is a member of a very exclusive group: the Oversight Board. Sounds almost sinister, but it is not. Well, we hope it’s not. The Oversight Board is, in its longer title, the Oversight Board of Facebook.
John has been asked to serve on the Oversight Board, an independent organization—it doesn’t sound independent since it’s connected with Facebook, but it is—and John’s responsibility is to protect our rights. Now, not rights in the Bill of Rights sense, not rights in the legal sense, but our rights, if you will, to have our views heard by others in the public platform of Facebook.
John, it’s a very important role. The Oversight Board was created probably for political as well as for somewhat profit-making reasons. We’ll expand all of that. But his position is somewhat unique. It is important to all of us. And in discussing John’s responsibilities on the Oversight Board, John will help us understand the somewhat complex relationship between Facebook, its customers, the government, foreign affairs, and the American electoral process. Whew. John, welcome to the show this morning.
John Samples: Thanks for having me, Bob. I didn’t know I had all these responsibilities. I have to say, you know, I think if I’m representing 60 million people, I certainly was appointed and not elected. And by January or February, I suspect if I have to stand for election, I’ll be going home.
But you know, it’s actually—that’s slightly misleading. I think that’s something that is in the public mind. In other words, that the board that was selected—there’s three billion Facebook people, you really can’t be representative. But you did have to have a feeling that this was a group of people that came from different backgrounds and in some way related. Nobody’s left out. We’ve got another 20 members coming. They’re going to be looking for people that might have felt left out the first time around. So it’s not, strictly speaking, representative, but it has to have some relationship. And ultimately, I do think if this thing’s going to work, everybody’s going to have to be, ultimately as a group, the board’s going to have to represent all Facebook users as well as possible.
Facebook’s Business Model and Content Moderation [05:19]
Bob Zadek: So John, let’s start with the basics. First of all, the obvious, just to mention without drilling down: Facebook is a corporation. It’s a for-profit corporation. It is owned by its shareholders. It is managed by a board of directors, like every for-profit company. The board of directors is elected by the shareholders. The board of directors hires officers, and officers hire employees. It is straightforward stuff.
However, Facebook—and when we say Facebook, we are talking about Facebook specifically because that is the subject of this morning’s show, but Facebook is representative of a business activity which is social media in the broadest sense—they are a platform. An important word, which we will discuss. So we start with Facebook being a company, just like Amazon, just like General Motors. It’s a company. But in many, many ways, its business model makes it different. So first we start with Facebook, and it is a platform. Now, the word platform, John, as I said, has a technical, very important meaning. Help us understand the category of business activity called platform.
John Samples: Well, you know, the economists talk about multi-sided platforms, two-sided platforms. A lot of the new Silicon Valley businesses, the high-tech businesses, fit this model. So on the business side, which you mentioned, what that means is Facebook is not like General Motors. It doesn’t produce a product and sell it to its customers. What it does is provide a service, really—and one time Mark Zuckerberg was talking about it as a utility—but provides a service that attracts people to it to use the service.
And then when people use it, the data and their behavior, their actions online are known and are used to better direct advertising to them. So that’s the things you see in your Facebook newsfeed is actually the heart of the business. That’s how—every business has to generate revenue somehow, and this is the business model that Facebook has, and many of these other platforms do also. They connect people: users on one side, advertisers on the other.
And that means ultimately, without the users being there, there’s not going to be any revenue. And if you don’t have as many users as you can get, then you’re also not meeting your obligation to maximize the value for your shareholders. So that’s the basic idea. Now, there’s another thing that follows from this that I think, in my opinion, follows from the business that people don’t often note, which is: if you think about—people wonder, I guess, why some kinds of speech is excluded, or they have rules against some kinds of speech, some kinds of expression online at Facebook, say. But this is true of YouTube and other kinds of—most kinds of sites that have discussion and freedom of expression on it.
And I think the answer is: if you don’t moderate the content—moderate things, and more harshly put, you don’t exclude some things from the platform—you’re going to have a problem attracting users. You’re going to have a situation where some users are repelled by it. Now, we know, for example, that there are sites on the internet that don’t moderate the content, or that have low moderation. And you look—one of the things was over at Reddit. You saw some of the subreddits, some of the discussion forums over there were not moderated very heavily. And that attracted both political issues, but also Reddit’s never been a big money maker. So you wonder about the effects on users. The problem being, if you let everything online, let everything on Facebook, the idea is you’re going to alienate users, you’re going to have fewer users than you could have, you may not have many at all. And the result will be that you definitely don’t turn a profit. You definitely—8chan, places like that, are places with low moderation. And that’s certainly one model of what might happen without some moderation.
Bob Zadek: Well, John, I’d like to interrupt just for a minute. A good analogy in terms of business model is if we think of something which is on the wane: network television. Network television offers a product, which is entertainment, which is free—forgetting about the cost of hooking up the cable and stuff—but the network is free. You turn on your television set or whatever device you’re using, and there is the content. It’s not pay TV, a kind of failed model. It is free.
So how does a business, NBC, get to offer free content? Well, because once they have the content and they have what the trade calls “eyeballs,” now they can say to advertisers, “Hey, we have lots of eyeballs who watch this content. And in between episodes of the content, here is a chance—we are delivering eyeballs to you. So you can advertise your product, and you are assured of getting eyeballs.” Not only that, but based upon our studies, we can tell you which are the—what is the demographic, more or less, of the eyeballs. This is married women, this is single women, this is male football and the like, it’s male, it’s young kids. So we can to some degree deliver specialized eyeballs to make your advertising dollars more expensive.
That’s sort of a very rough but accurate example of what Facebook has mastered, where they can be very granular. So they offer the service free, like television, to the users, because the users now voluntarily, totally free, disclose everything about their life or a lot about their life, which Facebook then can organize and can deliver not just young kids or married women, but very granular eyeballs and ears to the advertisers. So that’s the model. So now we have Facebook, like media, like television, is providing content to draw eyeballs or other senses to its attention. So is that a pretty fair summary of the Facebook business model? It basically provides potential customers to advertisers. That’s what it does.
John Samples: The crucial thing is the granular part. I mean, it’s—this is the best form of directing advertising in the history of the world. It just—it can give you—and also remember, it can speak to small groups. You don’t have—when you advertise on TV, you waste a lot of the effort because it goes to a lot of people who don’t care. Facebook—in the past, the number was as small as 500. I have to say, the other day I got an advertisement on my Facebook that was—had my name in it. It was directed at me. I suspect it was maybe 500 or 1,000 people that, you know, like you, Bob, other libertarians got a message about something I was supposed to do or not do. And that’s a pretty granular piece of advertising.
The History and Impact of Section 230 [13:42]
Bob Zadek: So that’s the business model. Now, one would think, okay, that’s the business model. Why is it of the interest of government? Why does anybody care? Why do senators get apoplectic? Why do they have hearings? Why are they inviting social media to Washington with, I’m sure, great amount of voter attention?
So now there becomes a bit of a fuss, and Facebook et al. is in the news. If all they are doing is providing customers to advertisers, that’s kind of benign, and why would the country care? But now we have the advent of, or the fear of regulation and of litigation. So the next piece of the story, having now established what social media does, now let’s mention two words that have really become very important in this discussion, and it’s a number: it’s 230. Now, John, to the listeners, 230 is just a number, no different than any other number. But to you, a student of this area and one who has spent much of your life paying attention to what we will learn to be the related topic of money in politics and free speech in politics, 230 has a very special meaning to you, doesn’t it?
John Samples: It does. I mean, I have to admit, it’s very off-putting. It sounds ominous, or just hard to understand. And it’s certainly—that’s part of it. It’s just a section, a part of the federal code, the federal laws that—there’s at least 230 sections of it, and believe me, there’s a lot more.
So what—the best way to think about 230 is to go back when it was passed in 1996. It was written by a bipartisan—remember bipartisanship—Ron Wyden of Oregon was one author, Chris Cox, a former representative from California, was the other, a Republican. And they were responding to a situation. There were two law cases prior to the passage of 230 that explain what was going on.
On the one hand, there was—and still is, amazingly—a company called CompuServe. They were one of the first computer companies in the 1980s, early ’90s. They had bulletin boards up. And at one point, somebody came onto one of those discussion groups and defamed another person. That is, they libeled them, which is, you know, it’s a tort, you can get legal relief from it, you can get some money from the person. So that went to the court, and the person that was defamed filed suit against CompuServe as well as the person doing it.
So the question was, did CompuServe—were they liable for libel, liable for defamation that was done on their site? And the answer was, well, no, because CompuServe just said, “Come and post your thoughts on this discussion forum. We’re not going to edit them. We’re not going to try to make them better.” So that’s one side of it: no liability.
The other side was another company that no longer exists called Prodigy, which people may remember. They too had a site, and they had discussion forums, including one on money matters that was very popular. And someone got on there and defamed an entire company, a serious matter about finances, about libel. And so the question was presented again. This is a different part of the country, but Prodigy had done something different. They filtered the discussion board for decency and one thing or another. They had some standards, and they enforced them to some degree. And so the court said, “Well, look, Prodigy did stuff, and that made them partially liable for what appeared on the platform. Therefore, they too can be sued for defamation.”
So you had these contrary court cases, one of which said that these new companies, what would later become social media, were responsible for what appeared on—everything, legally responsible for what appeared on the site, and the other case said, “No, they’re not.” Now, 230 is a bunch of stuff, but it’s a fairly straightforward law, 26 words, and it decides the issue. It takes it away from the courts and says, “Look, these companies and the social media that come out of them are not responsible, they’re not liable for what people say on the site.”
At the same time, this was in the mid-’90s, you remember, Bob, there’s a great concern about obscenity and pornography online. So the idea was you wanted to empower the companies and give them the right to do content moderation, to remove things that were violent and so on and distasteful on the site. So the Congress made sure that they had that right. That’s part of Section 230. So not—there’s two sides to it. One is the companies are protected from whatever their—apart from some small exceptions, but generally speaking, the companies are protected from being responsible for defamation and other things that the users do. And on the other hand, they have the power to remove anything from the site, including—and it explicitly says this—including speech protected by the First Amendment, if they want to. They have that power, and you cannot hold them liable for doing that. So that’s the whole story. That’s it. That’s 230.
Platform v. Publisher [19:31]
Bob Zadek: Now, just a couple of observations, just a little bit of color commentary for the audience, for our friends out there. First of all, you mentioned free speech. Well, of course, the right of free speech in the First Amendment to the Constitution and the Bill of Rights, of course it doesn’t apply because the Bill of Rights protects citizens from having their speech limited by government. Free speech, as that term is commonly used, has nothing to do with transactions between private non-governmental actors. So I’m just reminding the audience: the Bill of Rights has nothing to say about private communications, just as an aside.
Second of all, the distinction is to point out, John, something you said which is crucial to this conversation, is that Section 230, and therefore the law of the land now, is if you are a publisher—an important word in this context—which means you exercise editorial control over what appears in your newspaper or magazine or online blog, you have a say in content. Now you, if you will, own the content. And if the content is subject to an attack for defamation—and by the way, that’s a death knell. If you are liable for defamation lawsuits, the business model fails. So we’re not talking about incidental; this goes to the heart of the product.
But if you do not exercise editorial control, if you just open it up—think of a telephone line, even though there are no more lines anyway—a telephone line where the common carrier, when there was telephones, could not control what people said on the telephone, therefore they could not be liable for defamation if somebody in a phone call said something that violated the law. So if you are simply a platform and you provide an open forum and you say, “Have at it, say whatever you want, we are just providing the vehicle,” then you’re not liable.
If you have editorial control and some say in the content, now you start to move closer and closer toward the feared label of publisher. Because if you’re publisher, you’re responsible for the content, liable for defamation et al., and therefore the business model will fail. So publisher versus platform is crucial. And we will probably spend almost the rest of this show, or a good part of the rest of this show, with John’s help, trying to understand: is Facebook and other social media, are they in their behavior, are they closer to publisher? That is, do they exercise content moderation, or are they just “have at it,” an open forum? The difference is crucial to the model.
John Samples: Well, the granular part. I mean, it’s—this is the best form of directing advertising in the history of the world. It just—it can give you—and also remember, it can speak to small groups. You don’t have—when you advertise on TV, you waste a lot of the effort because it goes to a lot of people who don’t care. Facebook—in the past, the number was as small as 500. I have to say, the other day I got an advertisement on my Facebook that was—had my name in it. It was directed at me. I suspect it was maybe 500 or 1,000 people that, you know, like you, Bob, other libertarians got a message about something I was supposed to do or not do. And that’s a pretty granular piece of advertising.
Politics and Social Media [23:42]
Bob Zadek: So that’s the business model. Now, one would think, okay, that’s the business model. Why is it of the interest of government? Why does anybody care? Why do senators get apoplectic? Why do they have hearings? Why are they inviting social media to Washington with, I’m sure, great amount of voter attention? So now there becomes a bit of a fuss, and Facebook et al. is in the news. If all they are doing is providing customers to advertisers, that’s kind of benign, and why would the country care? But now we have the advent of, or the fear of regulation and of litigation. So the next piece of the story, having now established what social media does, now let’s mention two words that have really become very important in this discussion, and it’s a number: it’s 230. Now, John, to the listeners, 230 is just a number, no different than any other number. But to you, a student of this area and one who has spent much of your life paying attention to what we will learn to be the related topic of money in politics and free speech in politics, 230 has a very special meaning to you, doesn’t it?
John Samples: Well, I think it’s a lot like campaign finance and money in speech. People didn’t care about—remember there’s no laws prior to ‘68, 1968 really. Then Eugene McCarthy raises a bunch of money and drives the president out of office. He showed how money in politics could affect elections. Fast forward to 2016. Lots of people come to the view, “Holy moly, these platforms have—there’s people on there making all kinds of arguments, and that can affect elections.” And people in Congress look at that and say, “I don’t understand this very well, and it seems like it could be something that would lead to me departing Congress.” So I think that’s the core. There’s other concerns also that we can talk about, but I think you have to look at it and say, “Well, gee, you know, there was a big political change there that sort of came about in 2012, but 2016 is the turning year.”
Bob Zadek: And I think Obama was the first president to really effectively understand, or his team understood and, from what I understand, mastered or acquired some pretty specialized and effective knowledge about how to use social media. So now politicians, not only people selling products to customers, but now politicians who are selling something a bit more sinister, but they are selling their brand of politics, they now discover that, “Wow, I have all of these millions and millions of potential not customers, but voters, which I can try to persuade to vote for me.” So now politics discovers this highly efficient delivery system to deliver not customers but voters, and now politics gets involved. And to quote Pericles in 431 BC, “Just because you do not have an interest in politics doesn’t mean politics doesn’t have any interest in you.” So now we have politics discovers the internet.
The “Fear of Others’ Liberty” and Allegations of Bias [26:15]
John Samples: Well, the other thing, my friend Arnold Kling has this idea of—he calls it FOOL, F-O-O-L, Fear of Others’ Liberty. So there’s a fear on the left that the right is on Facebook with all this kind of dangerous speech, so you fear their liberty. And on the other hand, the right fears that all the people on Facebook are left-wingers who want to suppress their speech. And so that’s—and then you tie it up at the congressional level with politicians worrying about elections. And so it’s, in a way, it’s not surprising that we have all this stuff going on when you think about all of that.
Bob Zadek: So now the accusations—now both sides, the left and the right, are—have appreciated the enormous power of social media, these private corporations have in having the attention of enormous numbers of voters. And what is the suspicion—and I have no comment on how true it is—but what is the strong suspicion, if not fear, that the political class has and therefore voters perhaps have about how the—how Facebook—and I’ll use Facebook as a surrogate for all of the others—how Facebook is now, if you will, to use a highly technical term, a bad thing in politics? What is the suspicion or the fear that now will drive our conversation?
John Samples: I think there’s a widely held belief, particularly on the right, that they are taking down, suppressing conservative speech in a biased way, disproportionately or whatever that means, so left speech stays up, right speech is taken down. On the left, the belief is that to serve the business model or because Zuckerberg’s a secret Trumpy or for some reason, dangerous stuff is staying up, speech is staying up that should be taken down, and it should be taken down because it’s a threat to democracy. So that’s basically—that’s it. And there’s no belief on either—in other words, what those two views share is that Facebook, in pursuing its business model, cannot provide an independent and fair judgment by itself of what should stay up and what should go down, assuming, as we must, that some things can’t stay on the platform or the share price drops like a stone.
Bob Zadek: So therefore, while even if Facebook is suppressing speech—that is, denying access to its customers, denying it as against conservative spokespeople who want to reach those voters—even if Facebook is doing it, what’s important to understand is, per se, there’s nothing wrong with Facebook doing it. It may jeopardize the business model, but that’s Facebook’s issue, not the government’s issue. So while even if Facebook is suppressing and censoring speech, even if it’s doing all of that, if we stop right here in the conversation, there’s nothing wrong with it. Facebook may find its business model start to fail as users who want to be exposed to that content find they’re not, they will become unhappy and they will leave. But that’s Facebook’s economic problem; it’s not a political problem. So even if Facebook is doing that, it is a private actor, and it can’t possibly, I would think, threaten democracy. Private actors are allowed to do whatever they darn well please consistent with law, and there is no law speaking to that issue. Isn’t that correct?
John Samples: Yeah, and for the libertarian, you’re right. We stop right now. For the libertarian, when you sign on to Facebook, there’s an agreement made, a bargain: you get access to Facebook and its services, but you agree to abide by the rules. And among those rules are certain kinds of things you can’t say, and the judgment about whether you’ve done it and need to get thrown off is reserved to Facebook. And so that’s—there is a consent element right there, and that’s the end of the story. And certainly Facebook has a right under Section 230 to make those rules as it sees fit.
The real question is: is Facebook so ubiquitous that it’s actually a public—the public square, as some people say, or is it, as it looks to be legally and otherwise, a private business? I mean, at the Cato Institute, we’re not a profit-making business, but we can’t be required to bring people—people can’t go to the Hayek Auditorium and start declaiming in front of an audience. We have the right to exclude, to select who fits our mission. Facebook’s mission goes to profit-making and also there’s an element of, you know, speech is inherent in it, I think, of an expression is inherent. Why else would anyone come to Facebook?
Structure and Independence of the Oversight Board [32:17]
Bob Zadek: And Facebook, under Section 230, which we discussed a bit earlier, Facebook has the right and is expected—or is permitted without losing its very valuable label as platform—it is allowed to exercise some editorial discretion, some content moderation for comment that is harassing, that is too sexually explicit, there are all those community standards type rules that Facebook is allowed to exercise without crossing the line to becoming a publisher. And then there are these catch-all phrases: “or otherwise objectionable.” Some language that was tossed into Section 230, which of course gives Facebook great latitude: “or otherwise objectionable.” And even if Facebook is doing content moderation, they can do so under the protective umbrella of “or otherwise objectionable.”
But Facebook now draws attention, and there is suspicion that Facebook, in doing something which it is permitted to do right now, but they are suspected of editing content so that if I as a user of Facebook, if I am interested in getting conservative points of view, I might be denied it in a way that I will not even be aware of. So there is that suspicion. So now there is the fearful threat of, dare I say, government regulation, which gets social media’s attention. So now there are hearings, and Josh Hawley and others are getting a lot of attention. So now that leads us to the somewhat, I think, defensive, but you can help us understand, formation of the Oversight Board. Probably as a way for Facebook to say to government, “Don’t worry, I got you covered. I don’t need to be regulated. We are self-regulating with John Samples and other high-minded colleagues who got you covered.” So no need to regulate with government; we have our own Oversight Board. So tell us, first, do you agree that to some degree, in your opinion perhaps, the Oversight Board is done to preempt the need, hopefully, for government regulation? It is to keep government away. And then tell us what the Oversight Board, of which you are a member, whether my summary is correct and what the Oversight Board’s mission is and how it is organized.
John Samples: So let me just start back some of the things we discussed. It’s important, I think, to understand: a social media site like Facebook cannot be a publisher. It just can’t be. It’s true it does edit things that look like editorial things, but when you think about what a publisher does at Cato, for example, a book manuscript comes in, we just don’t throw it up on the Cato website. We go through it, we edit it, and we make sure that it’s not defamatory or that it abides by law, and then we publish it, right? Facebook is not like that. Facebook is: all comers come, you consent to the rules, and then you come on board and you start doing things. You don’t have to have permission, you don’t have to have oversight or editorial control about what you’re going to publish, right?
So social media would lose its character of coming on board and just starting and say what you want if it had the—before you said anything, it had to—before it was published, as it were, and appeared in public, it had to somehow decide if that’s defamatory or right or wrong. If you think about the Prodigy example, they would have had to control everything that was on every post on that site. And that’s just not something at this point that’s possible.
So you have content moderation. It’s after the fact, after people have come there. How do you make it legitimate? Because everyone’s going to—there’s going to be people upset about what’s taken down, even though they’ve agreed to it when they came on the site. That’s the problem. And people—then you get a lot of politics gets involved, and the company becomes distrusted for various reasons, which I think have to do with politics in a lot of ways.
So there’s a—to make this work apart from government, you’ve got to have some kind of institution that people can believe in is making fair judgments about what’s up and what’s down online and that is separate in some important way from Facebook. And so Facebook goes through this really expensive and fairly complex legal structure, setting up a trust and so on, and then has to bring the money for the Oversight Board. It has to—it’s laid down $130 million for the first six years. That can’t be taken back. The people on the board cannot have their salary reduced or be removed for the judgments they make. So they go through this process to be independent.
An independent space for the board. But that’s all done, in my view—there’s several reasons—because the company wants people to believe in the product, that yes, there has to be content moderation, but no, it doesn’t have to be unfair or against the values that Facebook professes. So that’s the point. But it is ultimately so that people can feel like this is a good product that I want to use. There’s ultimately a reconciliation between the business mission of Facebook in the long run and setting up this Oversight Board. Now, that doesn’t mean, Bob, that the Oversight Board is going to be worrying about the quarterly returns for Facebook or is going to be involved in business decisions. It’s just that the Oversight Board is to try to give the users trust, try to gain legitimacy in the inevitable task of taking down expression, which in the United States is a big deal. I mean, this country is culturally—I’ve become more convinced of that—culturally very committed to free speech.
Bob Zadek: And what’s really interesting is it is, as I said—and I’m not saying it out of cynicism, just it’s true—that Facebook wants to have the public believe that there is a system in place that even if the line employees of Facebook carry to their job a bias—and the suspicion is that most of Silicon Valley is left-wing, and I don’t want to get into that, of course not—but there is the suspicion of that, and that’s bad for business. It’s just bad for business.
So Facebook has set up a cleverly designed, if you will, process by which somebody who feels their content has been denied access to the customers, to the eyeballs, because of a bias at the operating level of Facebook, there is an appeal process outside of Facebook. It’s extra-Facebook. The employees have no say. And as John pointed out, I must emphasize, John, that you are structurally independent. When you were talking, it almost sounded like CFPB to me. Totally independent of Congress, of the President, of everybody on earth. It’s just a world unto itself. You’re like—and CFPB, of course, is despised by libertarians. You are not despised, at least not yet, John, of anything very much. So—but more to follow.
So there you are. You are independent structurally until the Supreme Court, like they did with CFPB, questions it. But you are independent. So customers of Facebook, if you are angry and feel you are deprived of content, Facebook says, “We got you covered.” And they are doing that because in the background is the fear that if it’s not this Oversight Board of fair-minded individuals such as John and his colleagues, it will be less fair-minded individuals appointed by government. So this is, for Americans and for Facebook users, the question: who would you feel more protected by? John and his colleagues, or Josh Hawley and his colleagues? And the answer is pretty clear to me.
Global Standards and the Future of Social Media [42:36]
Bob Zadek: So that is the Oversight Board. And John, of course, the Oversight Board is—Facebook is a worldwide enterprise. And as you pointed out, about 10% of the users are Americans. So your task is to apply standards of—I hate this word—fairness, but fairness to somebody in Kenya as well as fairness in somebody in China, if they have Facebook in China, don’t even know that, or Indonesia, and fairness to somebody living in some red state in America. Pretty challenging task. So tell us in a few words, without getting too much into it, how is the Oversight Board comprised?
John Samples: So it’s—right now there’s 20 people have been selected by Facebook. Another 20 are coming probably in the next year or so. They will be selected by the board members now. So it’s a self-replicating board. And then there’s also a staff for the board that is—was as began to be hired earlier in the year, and that staff is hired in consultation with board members.
I should say there are four first among equals on the board, the so-called co-chairs, which includes two Americans: Michael McConnell here at Stanford Law, and then Jamal Greene at Columbia. So we got a couple of law professors from the United States that are the heads of it. And then you’ve got a former Danish Prime Minister who is the another co-chair, and finally a law professor from Colombia who has been very active in international organizations protecting free speech.
So and then you’ve got another 16 people from various parts of the world. I mean, these meetings, when everyone meets online, it’s a very difficult undertaking because, you know, it—people live everywhere, and what’s 6:00 in the morning here in Menlo Park is 11:00 at night in Australia. So it’s—they’ve tried to run the gamut because there’s three billion people on Facebook and you can’t just exclude people. People need to feel that there’s some voice, someone thinking and seeing the world the way they do.
Now, the other interesting thing is, yes, this is an attempt for a universal single set of rules. And that’s a—it’s a lift. And we’ll see how it works. It’s a pretty extraordinary experiment, though. In the outset, in the introduction of this morning’s show, I mentioned—and I’d like to now explain why I said you have the largest constituency in America behind Donald Trump and above Governor Newsom. You were appointed, I dare say, your background is clear, you’re a member of—you work for Cato, that was your day job, and you are a free speech advocate, you are highly informed in matters of political speech. So you were appointed, and Facebook tries to have a balanced Oversight Board representing all points of view. So you represent, if I may, John, us—the listeners of this podcast and of this broadcast. So on the assumption that there might very well be 60 million people who are like-minded, thus I said at the outset that you are my representative. So you have a very august responsibility, John. You better be on top of your game every day and don’t let anything slip by because 60 million of my buds out there are counting on you.
Bob Zadek: Now, John, we’re going to—you are an expert in political speech, and I would—while you’re on this show, I really would appreciate and our friends out there would benefit from your insights into a related, a very related proposition relating to Facebook and political speech. It has been claimed that Facebook and others—and I use Facebook a lot in this show as a surrogate for all players in the social media world, but I use Facebook as a matter of convenience and because you’re on the Facebook Oversight Board—but your comments, if you will, and we’re kind of running out of time, but I would appreciate your comments on: in your opinion, John, just opinion, speaking as John Samples, private citizen, to what extent should Americans be concerned that the decisions, even if the worst case is true, to what extent do you feel that Americans could be harmed by Facebook and others in fact exercising content moderation and denying Americans access to certain, if you will, conservative—I just picked that, it could be the other way, progressive—but I’ll say conservative free speech? Is it a meaningful fear, or is it all overblown? I am quite suspicious that whatever happens on social media, even though—even though the left blames social media for Trump’s election, but that’s—that’s a bit of hysteria. Since you’re such an expert on this stuff, in the few minutes we have left, your opinion on how influential biased social media could be in influencing election results.
John Samples: Well, election results. I—I am very skeptical that it has a great effect. If you look at what people on center-left, center-right political scientists said about the Russian intervention, the political scientists have found time and again how very difficult, particularly at our time, how very difficult it is to change public opinion, to move people. It’s—you know, very difficult task. Certainly the Russian effort was small and had little effect. And it would be very hard to do that. Actually, advertising in the general election, if there were no Facebook, it’s not clear that it has any effect on elections. So that’s advertising, speech in general.
As far as the bias issue, I think the first—I am the libertarian voice there. The first move there is if you don’t like it, set up your own. And there’s people that don’t like what Twitter’s been doing, and they’ve gone out there and set up another alternative, which by the way is going to have content moderation, but it’s still open to voices tossed off Twitter. At some point, these companies, if they want to pursue a very strong content moderation in one direction, are going to find they’re losing people, I think.
And also, I will be impressed by that argument when there’s no alternatives, when you really—the public sphere is controlled by some of these companies. A lot of people believe that’s already true. I don’t think it is. And even, you know, to the extent you’re unhappy with it, instead of turning to government, where you’re just—you’re going to see just what we see already is these organized efforts to take down one or the other or to keep up stuff. You’re just going to have constant politics, and members of Congress and the President are going to be making these decisions. Instead of that, let’s have people go out and try new—let’s—you know, if you don’t like Facebook, and there’s venture capital out here, there’s money for—that can be made for doing alternatives. So I—my concern there is not great. I think actually the changes we’ve seen here with social media, the emergence of social media—we’re only 12 years into this. It’s not even clear that Facebook will be dominant in a few years, right? I mean, there’s alternatives.
Bob Zadek: John, I—running out of time, but just parting words. I think you’re 100% right, and I hope that Facebook succeeds, actually, in their experiment with the Oversight Board because it keeps government away. And I firmly believe that Facebook will be subject to lots of competition as soon as the suspicion exists that they are managing the information that people receive. I believe the free market will overcome any Silicon—alleged Silicon Valley bias. So I am totally confident the free market will protect us. John, I wish you the best of luck and success, you and your colleagues with the Oversight Board. I hope you keep government out of the process. Bob Zadek, thanking John Samples for his wisdom this morning and for his insights into Facebook’s Oversight Board and saying so long to all my friends out there. I’ll be back again next Sunday. Have a nice rest of the week.
John Samples: Thanks for having me, Bob.