There have been anonymous allegations, published by Gizmodo, that former Facebook “curators” had allegedly ignored Facebook’s algorithms and guidelines for its Trending topics section and suppressed links to conservative news stories. This prompted a letter to Mark Zuckerberg from Senator John Thune (R.-S.D.) seeking information about the algorithm, guidelines, enforcement of the guidelines, auditing of compliance with the guidelines and more. Some have suggested that Facebook should simply ignore the letter from Thune, and, indeed, his legal right to the information seems tenuous. Yet, it appears that Zuckerberg is inviting conservatives to come speak with him, and a company spokesman stated that Facebook is “looking forward” to addressing Sen. Thune’s questions. So what gives?
Procedurally and legally speaking, Facebook can ignore Thune’s request for information – at least in its current form. A letter from a Senator requesting information, even if that Senator is the chairman of the Senate Committee on Commerce, Science and Transportation, is not legally enforceable. To enforce the letter, Sen. Thune would have to obtain a subpoena, which would have to be issued by his committee, in compliance with its procedures. Such a congressional subpoena may be extremely broad. The Supreme Court has held that the scope of Congress’s power “is as penetrating and far-reaching as the potential power to enact and appropriate under the Constitution.” Eastland v. U.S. Serviceman’s Fund, 421 U.S. 491, 504 (1975). Although Congress ought not to delve needlessly into the “private affairs” of the citizenry, it has the power to inquire about and investigate any issue “on which legislation could be had” and “the wisdom of congressional approach or methodology is not open to judicial veto.” Id. An attack on a congressional subpoena through the court system is fraught with difficulty.
On the other hand, if Mr. Zuckerberg were to refuse to comply with all or part of a congressional subpoena, Senator Thune would face his own set of challenges to find Facebook in “contempt of Congress.” Initially, both the Senate Committee on Commerce, Science and Transportation and the full Senate would have to vote to enforce the subpoena. This, of course, would be political theater writ large. Assuming a favorable floor vote on finding Facebook in contempt of Congress, this would still need to be enforced through: 1) the Senate’s inherent contempt power by instructing its sergeant-at-arms to arrest the noncompliant party, apparently in this case Mr. Zuckerberg, and bring him or her before the chamber’s presiding officer; 2) Senator McConnell as presiding officer of the Senate could refer the matter to the U.S. Attorney for the District of Columbia to pursue criminal contempt proceedings, pursuant to 2 U.S.C. §§ 192, 194; or 3) the Senate could initiate a civil action in federal district court, seeking a court ordered injunction to compel compliance with Senate process.
Probably the most famous example of congressional inquiry into the media came out of the controversy surrounding “The Selling of the Pentagon,” a CBS Reports documentary, which exposed the huge expenditure of public funds, partly illegal, to promote militarism. The program came under intense criticism from two men who appeared on the program, from the House of Representatives, other media and some prominent politicians. Daniel Henkins, Undersecretary of Defense for Public Relations, charged that statements from his interview with Roger Mudd about his work had been doctored, as did Col. John MacNeil, who accused CBS of rearranging his comments in a speech he gave about the situation in Southeast Asia. The Investigations Subcommittee of the House Commerce Committee subpoenaed CBS’s outtakes to determine whether or not distortion had taken place. Against threat of jail, CBS president Frank Stanton refused the subpoena from the House Commerce Committee ordering him to provide copies of the outtakes and scripts from the documentary. He claimed that such materials are protected by the freedom of the press guaranteed by the First Amendment. Stanton observed that if such subpoena actions were allowed, there would be a “chilling effect” upon broadcast journalism. The committee ultimately let it drop.
It is this course of action that some commentators and First Amendment lawyers have recommended in response to Thune’s letter. But this is not Facebook’s fight. Facebook vice president Tom Stocky responded to the Gizmodo report allegations even before Thune sent his letter, posting to Facebook on May 9:
Facebook is a platform for people and perspectives from across the political spectrum. There are rigorous guidelines in place for the review team to ensure consistency and neutrality. These guidelines do not permit the suppression of political perspectives. Nor do they permit the prioritization of one viewpoint over another or one news outlet over another. These guidelines do not prohibit any news outlet from appearing in Trending Topics.
To put a fine point on it, Facebook does not particularly want people to think of its curators as journalists. A social network is far more popular than a media company, even if that is what Facebook in fact is. We should not expect Facebook to show “editorial courage” when it is its business model to not have an editorial position.