Mark Zuckerberg Doesn’t Know What the First Amendment Is For

What is the First Amendment for? I ask my students this every year. Every year, several people quickly respond that the First Amendment guarantees Americans the right to speak without restriction. True, I say, but what is it for? It’s so that Congress doesn’t pass a law that would limit the right to free speech, someone often says. Another might add that, in fact, the government does place some limits on free speech—you can’t shout “fire” in a crowded theatre, or say certain words on broadcast television and radio. I ask the question a third time: What is the First Amendment for? There is a pause as students realize that I am asking them to shift their frame of reference. Then someone says that the First Amendment is for democracy, for the plurality of opinions in the national conversation.

My students are undergraduates, some of whom will become journalists. Before they leave the confines of their small liberal-arts college, they will develop a more complicated view of politics and the media than the one they started with. The adult world they are entering, however, generally sticks to an elemental level of discourse. Last week, for example, the head of the country’s largest media company, Mark Zuckerberg, of Facebook, gave a nearly forty-minute lecture in which he reiterated that the right to free speech was invented so that it wouldn’t be restricted. In Zuckerberg’s narrative, as my colleague Andrew Marantz has written, freedom of speech, guaranteed by technological progress, is the beginning and the end of the conversation; this narrative willfully leaves out the damage that technological progress—and unchallenged freedom of all speech—can inflict. But the problem isn’t just Zuckerberg; more precisely, Zuckerberg is symptomatic of our collective refusal to think about speech and the media in complicated ways.

“People having the power to express themselves at scale is a new kind of force in the world,” Zuckerberg said in his address. “It’s a fifth estate, alongside the other power structures in our society.” Zuckerberg was appropriating a countercultural term: beginning in the nineteen-sixties, “the fifth estate” referred to alternative media in the United States. Now the head of a new-media monopoly was using the term to differentiate Facebook from the news media, presumably to bolster his argument that Facebook should not be held to the same standards of civic responsibility to which we hold the fourth estate.

This strategy of claiming not to be the media has worked well for Facebook. On Monday, when Bloomberg broke the news that Zuckerberg has advised the Presidential candidate Pete Buttigieg on campaign hires, the story called Zuckerberg “one of tech’s most powerful executives.” CNN referred to him and his wife, Priscilla Chan, as “two of America’s most influential businesspeople and philanthropists.” Vox’s Recode vertical called him “the world’s third-richest person” and observed that he had become so toxic that “accepting a political donation from Mark Zuckerberg in 2020 is nowhere close to worth the money.” (The Times appears not to have covered the story for now.) Any one of these frames makes for an important and troubling story: a Presidential campaign in bed with a major tech corporation, influenced by and possibly intertwined with one of the country’s richest men—that is bad. It’s worse when one recalls Buttigieg’s attempts to go after Elizabeth Warren during last week’s Democratic debate. Warren has called for breaking up Facebook’s social-media monopoly, and Zuckerberg has referred to Warren as an “existential” threat to the company. Now imagine if it were the head of ABC or CNN or the New York Times Company who had served as an informal hiring consultant to a Presidential candidate. It would almost certainly be a bigger story and more broadly perceived as troublesome. Most of us still believe that the media are an essential component of democracy, and that a media outlet that is partisan or committed to a single candidate, but not in a transparent way, is a bad democratic actor.

The news media have traditionally borne the responsibility for insuring that the actual purpose of the First Amendment is fulfilled. Yet Americans are content to leave this essential component of democracy to profit-driven corporations with next to no regulatory oversight. We accept it as the natural order of things that the flow and volume of news is largely determined by the needs of advertisers, and that, when advertising dollars dry up, so does the news. We are so afraid of censorship—or, perhaps more accurately, we have such lazy ways of thinking about accountability—that we would rather let newspapers die and media corporations form monopolies than consider government regulation and public funding. In the past three decades, most of the public conversation about news media—as facilitated by the news media—has devolved to the level of my students’ initial, knee-jerk response to the First Amendment question. Much like Zuckerberg in his free-speech speech, or in his stubborn refusal to remove misleading political ads, we talk about rights without talking about responsibilities. This is what has allowed Facebook to evade responsibility, and to avoid even being identified as a media company.

With Facebook and other new media, technology has accelerated and amplified existing processes and problems. Facebook is not an anomaly in the American media system—it is precisely the result of rampant profit-seeking, lazy thinking, and a lack of civic responsibility. Of course Zuckerberg tells Buttigieg whom to hire. Of course he sees Warren, and not Trump, as an existential threat. Of course Facebook allows Trump to run false ads. The company doesn’t know what the First Amendment is for—and we are not making it learn.