Washington, DC – Today, Kristen Clarke, President and Executive Director of the Lawyers’ Committee for Civil Rights Under Law’s, wrote a letter to the CEO of Facebook, Inc. Mark Zuckerberg, condemning the social media platform for failing to protect the civil and voting rights of its users. The letter was written in light of Zuckerberg’s recent decision to exempt politicians from Facebook’s rules and allow them to lie with impunity. The letter outlines how Facebook may face legal liability if it does not change course.
In the letter, Clarke raised several key issues that demonstrate Zuckerberg’s disregard of the current need for civil rights protections, a failure to commit to a meaningful civil rights audit, and that Facebook—despite proof of concerted efforts to undermine our democracy on its platform—can not be trusted to prevent election interference.
“We continue to see election disinformation and racially motivated content affecting African Americans, Latinos, and other marginalized communities on Facebook’s platform due to a failure to effectively moderate its content and failure to fully enforce its ban on white nationalism and white supremacist content,” said Kristen Clarke. “I am encouraged by Mark Zuckerberg’s willingness to engage on these issues. That said, we will use every tool in our arsenal to hold Facebook accountable when taking action that runs contrary to our organization’s efforts to protect voters and their constitutional rights as well as the values Mr. Zuckerberg claims to extol.”
The letter concludes with an overview of the various consumer protection and civil rights laws Facebook may be infringing under its policies and practices, including anti-discrimination and equal opportunity laws, voting rights laws, antitrust laws, and more.
Read Kristen Clarke’s full letter below:
Chief Executive Officer
1 Hacker Way
Menlo Park, CA 94025
Dear Mr. Zuckerberg,
For years, the Lawyers’ Committee for Civil Rights Under Law has earnestly engaged with Facebook to help address the many policies and practices, and resulting disparities, that harm African Americans and other marginalized communities using your products. I am writing in regards to recent Facebook policy changes and events, including your testimony before the U.S. House Committee on Financial Services and your speech at Georgetown University, which demonstrate 1) a lack of regard and understanding of the history and current need for civil rights protections, 2) a failure to commit to a meaningful civil rights audit, and 3) that Facebook—despite proof of concerted efforts to undermine our democracy on its platform—cannot be trusted to prevent election interference. You are not just making poor governance decisions; continuing this course of action may expose Facebook to additional legal liability from individuals, civil rights organizations, state attorneys general, and the federal government.
We monitor elections and hear from voters every day. We know that your decision to allow unchecked false statements by politicians will increase voter and census disinformation campaigns and increase activity exposing Africans Americans and other people of color to harm. Historically, in the United States and around the world, demagogues in positions of power pose the greatest danger to the voting rights and physical security of people of color. These harms will be further exacerbated by a presumptive “newsworthiness” exception—without disclaimer, demotion, or quarantine—for rules violations by politicians and by your decision not do any fact checking of “opinion” content. This latter policy change still has not been formally detailed—let alone vetted by experts—so we have no way to know how broadly you will define “opinion” content and whether this change could effectively undermine Facebook’s fledgling fact-checking apparatus. Your own employees are calling for revocation and reform of these policies.
Meanwhile, discrimination on the Facebook platform persists. At the House Financial Services Committee hearing, there were more questions than answers as Members of Congress raised a host of civil rights issues that deserve responses from Facebook. While advertisers can no longer easily target housing, employment, or credit ads in a discriminatory manner, Facebook’s algorithms still discriminate in their delivery of such ads. Responsibility for discrimination in ad delivery lies with Facebook, not its advertisers. And Facebook still permits advertisers to use its discriminatory ad targeting tools for education, healthcare, insurance, and public accommodations.
Facebook also has not clarified how its ban on white nationalism will be applied beyond a basic prohibition on the most overt forms of praise, support, or representation; hate group activity is still prevalent on your services. As we witness the increase in hate crimes across the country, a fact confirmed by FBI data, we hold Facebook accountable for the ways in which white nationalists and separatists continue to exploit the platform in ways that cause harm to African Americans, Latinos and other marginalized communities.
As another example of your failure to understand your responsibilities or equally enforce your own standards, you recently decided to give Breitbart a bigger megaphone by including it on your Facebook News platform. The decision to amplify Breitbart in the current era is truly astounding. While it is laudable to have a diversity of views in your News product, Breitbart is a purveyor of white nationalism whose former editor-in-chief, Steve Bannon, described it as, “the platform for the alt-right.” Being included in Facebook News conveys legitimacy. You are choosing to act in a manner that normalizes white supremacy and other forms of bigotry.
In your Georgetown speech, you extoled the virtues of free speech and free expression, of which there are many. They are vital to the protection of civil rights and minority voices. But your selective recitation only provides part of the equation. You are using First Amendment values as a smokescreen to mask harmful policy decisions that Facebook is making to advance its corporate self-interest. First, Facebook is not a government actor to which the First Amendment applies. Second, Facebook constantly regulates speech on its platform with curation algorithms that decide which content gets amplified and which gets buried. You have decided it is acceptable to regulate speech to increase user engagement (and profits) even though research shows excessive social media use is harmful. Finally, even though your company acts like a quasi-government entity on the Internet, your articulation of our constitutional values selectively ignores important democratic components.
The First Amendment is not the only amendment. Democracy works by balancing an interrelated set of rights, each of which are essential and equal. If Facebook wants to model itself on our constitutional values, then it must also prioritize the right to vote, due process, and equal protection. You cannot cherry-pick civil rights. At Georgetown, you referenced Frederick Douglass. But he understood that hat-tipping to one constitutional value, without the others, does not establish moral solvency—particularly when that value is exercised to the detriment of marginalized people. “The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me…. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony.” For African Americans and other marginalized communities who use Facebook, unchecked speech coupled with algorithmic amplification of sensationalism leads to targeted hate, harassment, and voter suppression efforts.
If Facebook continues down its current path, it is exposing itself to potential legal liability from individuals, civil rights organizations, state attorneys general, and the federal government for violations of civil rights laws. The Communications Decency Act will not save you.
It is important to recognize two key characteristics about Facebook. First, while it is presented to users as such, Facebook is not a free service. It is a barter service. Users give Facebook their personal data and the opportunity for Facebook to serve them ads. Facebook gives users social media services and uses their data to serve targeted ads that should be more valuable to the user than untargeted ads. That commercial relationship creates a duty for Facebook to provide nondiscriminatory service to all its users and a right for its users to be able to equally enjoy the benefits of Facebook regardless of their protected characteristics.
Second, Facebook profits from all content on its platform, innocuous and pernicious. Facebook cannot absolve itself by distinguishing between paid and unpaid content because both are revenue generators. When a hate group uses events pages to target religious minorities, a conspiracy theory goes viral, or a hostile actor engages in voter suppression, Facebook profits from the ads running alongside such content. Harmful conduct on Facebook is profitable to Facebook, so long as it drives users to become more engaged and therefore consume more ads.
We have grave concerns about whether Facebook’s policies and practices comply with a range of civil rights and consumer protection laws, state and federal, including:
Anti-Discrimination and Equal Opportunity Laws – As you know from recent litigation, your company can be liable if Facebook participates in the discriminatory distribution of advertisements for economic opportunities such as housing, employment, financial services, education, healthcare, or insurance. While the recent settlement may have resolved a few forms of discriminatory ad targeting, it did not stop discriminatory ad delivery by Facebook.
Federal statutes that Facebook may be violating include the Fair Housing Act, Equal Credit Opportunity Act, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act, 42 U.S.C. § 1981 (discrimination in contracting), and 42 U.S.C. § 1982 (discrimination in housing). In addition, many states have similar anti-discrimination and equal opportunity laws and these laws may be broader and more inclusive than federal statutes, such as the California Fair Employment and Housing Act.
Section 1981 is particularly noteworthy; it prohibits race discrimination in both the formation and enjoyment of contracts. Facebook has a contractual relationship with its users. If Facebook provides inferior service to a subset of users based on their race, for example by giving high quality employment ads to white users but not black users, that may constitute unlawful discrimination in contracting.
Voting Rights Laws – Facebook may be liable, possibly criminally, if it helps bad actors engage in voter suppression on the platform. Facebook often embeds its employees with large political campaigns to help them optimize their advertising. Facebook could be liable if it helps these campaigns distribute suppressive ads.
First, under Section 1981, Facebook could be liable if it delivers ads to people of color that are harmful or valueless, such as false statements designed to deceptively suppress voting or census participation. Second, some states provide criminal penalties for deceptive voter suppression. For example, it is a crime in California to deceptively distribute false information about the location of a polling place, qualifications to vote, or timing of an election.
Finally, Facebook could be liable if it knows of a conspiracy to interfere with voting rights, has the ability to prevent it, and neglects to act. 42 U.S.C. § 1985 establishes liability for conspiracies to deprive civil rights—including interference with voting rights. 42 U.S.C. § 1986 creates an affirmative duty for “every person” to prevent Section 1985 violations if they have actual knowledge and the ability to do so. If Facebook has actual knowledge that its platform is being used to engage in a Section 1985 violation, such as by using disinformation campaigns to intimidate African Americans from going to the polls, Facebook can be liable under Section 1986 if it neglects to fulfill its affirmative duty to do something about it.
Laws Prohibiting Hate Crimes, Threats, and Harassment – If white supremacists use Facebook to conspire to conduct illegal activities targeting people of color or religious minorities—such as using a Facebook Events page to organize an armed rally to intimidate worshippers at a church, mosque, or synagogue—this may qualify as a conspiracy to deprive civil rights under 42 U.S.C. § 1985. If Facebook knew about this activity but neglected to try to prevent it, it could be liable for failing to satisfy its affirmative duty under 42 U.S.C. § 1986.
State Public Accommodations Laws – Public accommodations laws prohibit discrimination by businesses that serve the general public. Under many state laws, including California’s Unruh Act, Facebook qualifies as a place of public accommodation. This means Facebook cannot refuse service or deprive equal enjoyment of its services on the basis of protected characteristics such as race, religion, sex, sexual orientation, gender identity or expression, national origin, immigration status, or disability. If Facebook provides lower quality service to certain subsets of users on the basis of their protected characteristics, such as through advertising discrimination, this may violate state public accommodations laws.
State and Federal Consumer Protection Law – The Federal Trade Commission, as you know, takes enforcement action against unfair and deceptive practices. Discrimination is an unfair trade practice against which the FTC can enforce. In addition to the FTC, many states have their own unfair and deceptive practices statutes, such as the California Unfair Competition Law. California’s statute, in particular, creates liability for “unfair, deceptive, untrue or misleading advertising.” These statutes typically can be enforced by state attorneys general, private individuals, or organizations acting on behalf of the public interest.
Antitrust Law – Discrimination in economic opportunities is a consumer harm. Voter suppression is a consumer harm. Hateful threats and harassment are consumer harms. As regulators at the state and federal level conduct antitrust investigations of Facebook, your company’s civil rights practices could become relevant factors in those inquiries.
As we enter the 2020 election season and with the 2020 Census on the horizon, time is short for Facebook to rectify the gross deficiencies in its protection of civil rights. Your recent statements to Congress, policy changes, and disregard for your own civil rights audit demonstrate that you still do not grasp—or do not care about—the gravity of the harm you are causing. Our democracy, the safety of communities of color, and our national commitment to creating a more perfect union are at stake. The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure equal justice for all through the rule of law. We hope that Facebook will work with us and not against us in this endeavor, and soon.
President and Executive Director
Lawyers’ Committee for Civil Rights Under Law