Like it or Not, Facebook Has the Right to Choose Your News

May 10, 2016, 2:25 PM UTC

There’s an old saying that you shouldn’t pick a fight with someone who buys ink by the barrel. It refers to newspaper owners who used their monopoly of the printing press to browbeat their enemies.

Today, printing presses are being replaced by Internet platforms, but the power of a media monopoly remains the same. This week’s fuss over Facebook (FB) is a case in point.

If you missed it, the controversy involves allegations by former Facebook staff that the site tampered with its “trending stories” algorithm to smother conservative viewpoints, and to pump up liberal causes. It also reportedly buries stories (like this one about Facebook’s face scanning) about the company itself.

The implications are huge. Millions of people rely on Facebook for some or all of their news. This gives the site and its owner, Mark Zuckerberg, the potential power to shape public opinion or even sway elections.

The question is what can be done to prevent this. The answer, from a legal perspective, is nothing.

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“Facebook has a First Amendment right to publish content in any way it wants, just as a newspaper or magazine publisher has a free hand in deciding what to print. There’s no role for government—and that’s a very good thing,” said Ken Paulson, a former USA Today editor who now directs the First Amendment Center in Tennessee.

The point is that Zuckerberg is no different from media baron Rupert Murdoch, who uses the Wall Street Journal and his tabloid papers to berate liberals, or the Sulzberger clan who control the New York Times (NYT) and staunchly support Democrats. Freedom of the press is the same if it’s paper or digital.

Facebook, however, is unlike a newspaper in that it largely relies on algorithms to choose the news. But as my colleague Mathew Ingram pointed out, an algorithm is still a form of editing, even if Facebook doesn’t want to acknowledge this.

Law professor Eugene Volokh, who blogs about free speech issues at the Washington Post, has made the same point in the past to argue that Google’s (GOOG) choice of search results are a form of free speech. In the case of Facebook, he said the legal case is the same.

“Facebook has the First Amendment right to include or exclude things in its newsfeed, just as Fortune does on its site or in its magazine,” Volokh said in an email. “But it may well be very bad for Facebook’s business if it turns out that it was indeed making these selections based on the politics of the stories.”

That last point may provide some comfort to those who are afraid Facebook will abuse the power of its platform. Just as some people cancel their subscriptions if a publication tilts too far to the left or the right, Facebook users may turn to another social network like Twitter (TWTR) or Snapchat as a source of information.

For more about Gizmodo’s report about the Facebook bias, watch:

To forestall this, Facebook could cease the secrecy around its media aspirations.

One recent example of this secrecy I witnessed firsthand: At an April career fair for students at Columbia University’s Graduate School of Journalism, Facebook sent two recruiters who collected a huge stack of resumes. When I asked what sort of media projects the company was creating, one of the recruiters told me in an unfriendly fashion, “I can’t tell you anything.”

Such behavior won’t reassure anyone who is uneasy about Facebook’s role as a massive media power. While the government can’t tell the company what to publish, the rest of us can keep asking it to come clean about its politics and ambitions. If Zuckerberg is going to be a media baron, he might as well start acting like one.

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