Facebook’s Mark Zuckerberg recently claimed “Fifth Estate” status for social media, wrapping the mantle of free speech around open conduits for falsehood that are upending our political life.
In an Oct. 17 speech at Georgetown University, Zuckerberg defended Facebook’s policy of allowing false information to appear unchecked in political ads.
“We don’t fact check political ads,” he said. “We ... think people should be able to see for themselves what politicians are saying.”
I’m not a lawyer, but over the years I taught reporting to a couple thousand journalism students, and I always included a week on freedom of expression. I had a closing lecture on that topic, which I find myself muttering these days while imagining Zuckerberg in the front row.
The first thing to understand, I would tell my students, is that there is no absolute constitutional protection for erroneous speech.
The second is that the broad freedom journalists and the public enjoy to criticize public people and public measures came about relatively recently — and could be taken away.
I entered journalism when even small, inconsequential errors could bring a libel suit. The burden of proving the truth was on the newspaper. A libel suit was potentially ruinous.
As a result, it was prudent to stay back of the line. Persistant, probing journalism was risky. It was a wonder that so much gutsy work was done anyway.
A big change came in 1963, with a famous press freedom case decided by the U.S. Supreme Court — Times v. Sullivan.
In a case involving a political ad, the court reasoned that in emotionally charged public conflicts, honest mistakes will be made. To not allow them legal protection would hamper the vigorous and robust discussion democracy requires.
So in Times v. Sullivan the court did two important things. First, it shifted the burden of proving falsity to public officials.
Second, it set a high — but not absolute — bar that officials must clear to win a libel suit. They had to prove a false, defamatory statement was published knowingly, or with reckless disregard of its truth or falsity.
That’s a broad grant of freedom, I would tell my students. Use it. Go out there and work doggedly to find the truth and report it. Try hard to get it right, but if you make a mistake, correct it. Don’t let politicians bully you with threats of lawsuits on shaky legal grounds.
But I’d also warn them. You’ll make a lot of enemies, so don’t get careless. Times v. Sullivan isn’t graven in stone. Don’t screw it up for the rest of us.
Now comes Zuckerberg, saying Facebook assumes no responsibility to fact check political ads.
Does that sound like reckless disregard for the truth to you? If the right suit reaches the current Supreme Court, what will it do to the rest of Times v. Sullivan?
Fifth Estate, my Aunt Fanny. Zuckerberg, who monetizes hard-won freedoms of expression to make billions, needs to learn to be a responsible member of the Fourth.