Social Media Companies (copy)

This combination of images shows logos for companies from left, Twitter, YouTube and Facebook. A poll conducted Feb. 9-17, 2021, by Louisville-based Republican firm Magellan Strategies found that 70% of of Colorado voters want more government regulation of social media companies, though the reasons given by Democrats and Republicans varied greatly.

Social media giants censor consumer-generated content millions of times each day, billions each quarter.

Conservatives complain about Facebook, Twitter, YouTube, and other corporations removing posts, covering them with warnings, blocking their accounts, demonetizing them, or throttling back distribution.

Liberals complain of censors allowing too much conservative content they consider insensitive, dangerous, or inaccurate. The left complains when censors remove posts about or by Black Lives Matter and Antifa.

Colorado Attorney Gen. Phil Weiser leads a multi-state lawsuit that claims Facebook "illegally acquired rapidly growing firms to avoid competition and engaged in anticompetitive conduct to undermine the effectiveness of upstart rivals."

Though not a prima facie free speech complaint, the state's lawsuit advocates more competition — an outcome that would enhance free speech by giving censored consumers more platforms on which to share their words.

In a phone conversation Thursday, Weiser concurred with our concern.

"We're aligned on that," Weiser said. "It's not healthy for democracy and free speech for certain firms to have a chokehold on the market. Google has a chokehold on search and Facebook has this control on personal social networking. The interest of speech is served by more competition."

To better understand Facebook's side, the editorial board sat down April 14 with two of the company's lawyers and two executives who asked for the meeting. Below is our conversation, edited and annotated only to reduce length and repetition.

Facebook associates include Kate Patchen, director and associate general counsel of litigation; Christen Dubois, director and associate general counsel for litigation; Will Castleberry vice President for US State Policy and Community Engagement; and Jim Cullinan, director of policy communications.

The Gazette: Tell us your thoughts on the multi-state lawsuit.

Kate Patchen: Antitrust law is designed to promote a fair and open marketplace and to allow greater innovation. Facebook faces significant competition in every aspect of our business... The states have to show not only injury to citizens but an overall injury to the state, and that injury is generally financial. There is no financial injury alleged in their complaint. And Why now? Those mergers weren’t challenged at the time, and now, at a very late. The WhatsApp deal was in 2014 and Instagram in 2012 and now, very late, the states are bringing a challenge in federal court to those acquisitions. We say they are time-barred in our motion and that it’s really too late for them to bring a challenge.

Christen Dubois: A key element in our motion is the lack of consumer harm... When you think about someone having a few spare minutes waiting in line at a grocery or somewhere else these days, you open your phone and you’re going to have a lot of choices in front of you. Tik Tok, Snapchat, Linked In, Pinterest, Twitter, just to name a few. So, we really need to constantly innovate to make our products valuable and relevant and the apps you actually want to open... You know, all tech companies are making decisions about building or acquiring, and there are a lot of startups that were created to be acquired and acquisitions are frankly quite common...

Will Castleberry: We’re not arguing there isn’t room for regulation, there absolutely is. This is a young industry. Congress hasn’t acted in many cases in 25 years, so there are issues like privacy, access of government to personal information, political disclosures, and we feel absolutely the states should address those and the federal government as well. For more than a decade now we have been supporting bills like that in the states... Obviously, there’s a need to address these fundamental issues and we know the right channel to do that is through the legislature, not to try to do it at the courts in a way that isn’t going to solve the underlying problems.

The Gazette: Our concern involves free speech. We know a young Colorado wife and mother who spent years building a career on Facebook as "Conservative Momma." Facebook has ratcheted down her exposure. No one sees her posts, and many have been deleted by your company. General Weiser says you interfere with competitors, which means "Conservative Momma" has fewer alternatives when you censor her.

Castleberry: There are a ton of places for people to express and hear political speech. But I completely agree this is something we need to be better at in terms of explaining our terms of service, kind of why things come down, and providing recourse for consumers who think information has been taken down the wrong way... Every quarter we take down about 2.4 billion pieces of content. A lot of nudity. We field about 2 million reports a day that we have to sift through. We’re going to make mistakes in automation and we’re going to make human errors. All of those are unacceptable. We just need to make sure that when we do that again that we’re clear to consumers as to the rules of being on Facebook. You can’t bully people, no hate speech, no pictures of minors if the parents don’t want them, no nudity...

Patchen: You need to separate some of the problems involving free speech content moderation from what is an antitrust problem. And, when Facebook acquires any company above a certain size it has to go through a really stringent regulatory review process under the Hart Rodino Act (Hart–Scott–Rodino Antitrust Improvements Act of 1976), which allows the federal government’s antitrust agencies the ability to subpoena documents, they can take depositions, they can talk to third parties, the can look at corporate documents to understand what the intentions are. The two mergers that come up in the state complaint are the WhatsApp acquisition and Instagram, and both were reviewed at the time by federal authorities. So this idea that Facebook is just capturing companies and is able to grow in a way that is anti-competitive and harm the market I don’t think is going to bear out in the facts...

The Gazette: OK, sure, the federal government approved these acquisitions. That doesn't justify any actions a company might take subsequent to the acquisition and approval process, right?

Patchen: States could have challenged at the time… There are hundreds of ways we can communicate with each other. My son doesn’t use Facebook at all, he uses Snapchat... So, if you look at what’s happening in the market there are very low barriers to entry.

Castleberry: If this worry from half the country that we are somehow censoring their speech prevails then we’re going to lose customers. This is a super key issue. It’s not a competition issue, it’s about our ability to compete in a very robust market. If we don’t do this right we’re in trouble.

The Gazette: A lot of concern came about when it appeared there was a gentleman's agreement among social media CEOs to shut down certain people — Former President Donald Trump being the classic example. Whether you like him or not, he is de-platformed.

Castleberry: Right, and that question is going to our Content Review Board... We received tremendous criticism from the left, as you’ll recall, for leaving him up for statements that clearly violated those terms. The view we had then, and our CEO (Mark Zuckerberg) made it public, this is the president of the United States. There are lots of people correcting his speech... It’s not like people aren’t hearing the other side of the story, so we’re really not comfortable in taking him off despite the fact he has violated the letter of our rules. That changed after the sixth (Jan. 6) when, you know, his statements, you know, I think appeared to most to be kind of celebrating the events at the capitol.

It takes effort to take down content that’s harmful, but you still need to take down porn. You need to take down child predation, and you need to take down content that seems to incite riots.

The Gazette: Our concern isn't censorship of porn. Again, you won't let 'Conservative Momma' do conservative commentary. That gets taken down but you will let members of the Chinese Communist party say things. The inconsistent de-platforming raises questions. How does this relate to anti-trust? The only solution to that — if you are going to start being publishers by deciding what’s dangerous or false — is competition. So, it really goes to the heart of these acquisitions and a small number of people who control a huge amount of content.

Cullinan: We’re not a publisher. You bring up the former president. The former president is on live TV whenever he would like to be... Plus, then you talked about different platforms. YouTube had a different decision than Twitter and a different decision than Facebook. We all had to decide based on what was on our platforms and based on the community standards we have... You guys (The Gazette, Clarity Media) are a publisher, so you can go judge the comment. We can’t basically go see everything that is said. We have AI tools and we have reviewers. I think it’s a balance in which a platform is trying to keep it safe and keep it protected but also keep open and free expression as much as possible.

The Gazette: Why be in the business of 'this is good this is not good'? Consider the public sidewalk. You can go out and say almost anything you want. In a way, you’re a bit of a public utility. I know that’s controversial, but…

Castleberry: I would say that is wrong. You ask, 'wouldn’t it be easier for you if you just left up all speech unless it's something like 'fire' in a crowded movie house? We need to compete in a very competitive environment and part of that is being a place people want to go... If it’s filled with pornography, they’re not going to want to go. If it’s filled with hate speech they’re not going to want to go.

The Gazette: You’re not just taking down child porn and other dangerous stuff. No one would complain except perverts, and who cares what they think? You're taking down a lot of benign content. We visualize your employees saying 'I don’t like this, I have the power and control to take this down so I’m going to do it.'

Castleberry: We don’t. We shouldn’t. We're clear in our terms of service what merits that, and it is 'harm.' And this has evolved. There are lots of false things left on Facebook. There are Big Foot admiration societies and flat earth societies. We're relatively certain no one is going to fall off the face of the earth or get attacked by Big Foot. There are other movement groups — Boogaloo, Q-anon — which initially we did not act on. But, if you think there’s a cabal of cannibals that are running the government, well, OK, until someone shows up at a pizza parlor in D.C. and starts shooting it up. Then, at the direction of the US government and others expressing concern, we decided this was something dangerous and we made the decision there was real-world harm.

The Gazette: Let's consider the Family Research Council. The Southern Poverty Law Center, which you work with directly in making content decisions, said this was a hate group and that inspired a gunman to shoot it up. Should the SPLC not have a hate list? At some point, you have to decide social media can't stop all evil that involves communication.

Castleberry: That’s not our job and you’re absolutely right. The line we’ve drawn is the potential for real-world harm and it’s a remarkably hard line to draw... We don’t enjoy being in the space of deciding that. If the government would come up with a way, the rules for what happens and what does not, that would make our lives a lot easier because then we would have to just comply with it. I don’t know if that’s possible or if that’s practical or if most people would be comfortable with the government taking that position, but until we find a better solution we think it’s incumbent on us to protect the people who use our site.

The Gazette: We're dancing around the issue of political bias.. Isn't it true Facebook has a bias against conservatives?

Castleberry: We absolutely try to make sure these decisions are made by folks with diverse viewpoints... No company can afford to lose 50% of its customer base... The free market works. The invisible hand is there. It is super easy to get into this space. It’s really easy to become a competitive app really quickly. We saw it with Parler. We saw it with TikTok going from zero to over a billion users in absolutely no time... We can’t afford to be the right-of-center or left-of-center platform. At the same time we have to take down stuff that's dangerous and that's where we are.

Cullinan: We understand, especially on the conservative side, there are concerns. What I think our point is? That isn’t antitrust.

SIDEBAR: 'Conservative Momma' begs to disagree

Two Facebook lawyers and executives told The Gazette they try to avoid political bias and censor only that content that might cause "harm." Front Range resident Rachel Keane, a formally trained actor and prominent conservative video blogger known as "Conservative Momma," challenges that claim.

Keane said a massive and growing Facebook following led to so many views she was able to monetize her work with ads and generate a full-time income. About two years ago, she said, Facebook, YouTube and other social media networks began censoring her content and dramatically reducing her exposure. The revenue slowed to a trickle and she became a voice in the wilderness.

"I am now demonetized," Keane told The Gazette. "I cannot run ads. I cannot gain new supporters. I cannot have sponsors. I cannot promote brands. I have gone from millions of views to hundreds. When I started speaking out against China, it went completely nuts.

Keane produced a PowerPoint presentation highlighting examples of posts censored by Facebook. Among them is one labeled "partly false information" by Facebook. It questioned Keane's link to a Danish government study, published in the Annals of Internal Medicine, that raised questions about the capacity of masks to stop the COVID-19 virus.

"Your page has reduced distribution and other restrictions because of repeated sharing of false news," Facebook told Keane in writing. Another Facebook note tells Keane she was demonetized.

Other warnings and take-downs involved simple political observations, such as a post questioning whether the "Office of the President-elect" provided then-President-elect Joe Biden a legitimate platform of authority before taking office.

Asked about Keane and others with similar complaints, a Facebook executive said the company reviews billions of posts each quarter and inevitably makes mistakes. Two Facebook executives said the company has no interest in censoring to favor or disfavor users on a basis of political views.

Sidebar: AG Weiser answers Facebook

Facebook lawyers want a judge to dismiss Colorado Attorney Gen. Phil Weiser's multi-state antitrust lawsuit against their company, saying the complaint fails to define a market or establish financial harm. They say no one is harmed financially because using Facebook is free.

Weiser said courts have ruled against broadcasting companies for anti-competitive business practices despite the fact audiences did not pay for access to the content. Facebook's damaged market segment, he said, is simple to define: It is people trying to network socially and share ideas on Facebook, which he charges with absorbing and/or harming competitors to limit consumer options.

"Consider radio," Weiser said. "The case has been argued that all radio stations could move into one because they don't charge the audience. That is not the state of the law."

Weiser believes the financial harm is obvious.

"Facebook has the power to exclude rivals from the marketplace and has done so. It is in the position to be able to raise advertising prices because it has monopoly power. That financially hurts small businesses that depend on Facebook for advertising."

We ran that by Jim Cullinan, director of policy communications for Facebook.

“Facrbook has large teams working with small businesses in Denver and around the U.S. – especially during the pandemic when many were able to use digital platforms to reach people in quarantine at home. When nobody is walking down 16th St, it is hard to sell anything to existing customers or find new customers. We just did a training for Denver area small businesses as part of our commitment to small business owners who need our support.”

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