By Karina Trujillo
In most respects, I subscribe to the traditional view of the First Amendment. But I also take seriously the reality that free expression does not impose the same costs on all groups or people. And I recognize that we traditionalists have often been callous in our disregard of that fact and precipitous in our flight to the comfortable shelter of “settled doctrine.” Nothing should be settled that we are not prepared to defend, and strong and sensible voices are challenging us to explain why protecting hateful, racist, misogynistic, anti-Semitic, and countless other forms of individually and socially corrosive speech has anything to recommend it. In my view, we smugly dismiss those challenges at our peril, consigning our present First Amendment doctrine to irrelevancy and finally abandonment.
—Personal Afterword by Len Niehoff in Race and the First Amendment: A Compendium of Resources[1]
On January 7, 2025, Mark Zuckerberg announced via a video on Meta’s website that the company will discontinue it’s third party fact-checking program.[2] In the accompanying article, frequent references are made to Zuckerberg’s 2019 Georgetown University speech, where he argued that free expression drives societal progress and limiting speech empowers institutions rather than individuals.[3] Zuckerberg asserts, “Some people believe giving more people a voice is driving division rather than bringing us together. More people across the spectrum believe that achieving the political outcomes they think matter is more important than every person having a voice. I think that’s dangerous.”[4] Overall, Zuckerberg’s rationale for ending Facebook’s fact-checking program is rooted in Meta’s commitment to free expression.[5] However, this approach risks inundating platforms with harmful, unregulated content, potentially endangering marginalized communities.
Meta’s fact checking system emerged during a critical time within our society, particularly during the 2016 presidential election when the platformed faced backlash regarding the spread of misinformation.[6] The platform was criticized by prominent Republicans, including Donal Trump, for allegedly exhibiting anti-conservative bias in its evaluation of user posts.[7] Meta has since conceded that the system, intended to inform users, often resulted in “intrusive labels” and reduced distribution.[8] “A program intended to inform too often became a tool to censor.”[9] Now, Meta plans to pivot towards an approach that looks similar to X—formally Twitter—Community Notes program. [10]
While Meta frames this change as a step toward fostering free speech and limiting censoring trivial content, the consequences of removing fact-checking systems are profound. Trends on social media have repeatedly revealed the importance of fact-checking systems, and why its removal is a drastic measure. For instance, during the COVID-19 pandemic, the anti-Asian rhetoric surged, fueled by President Trump’s rhetoric around the coronavirus.[11] According to Dr. Yulin Hswen, an assistant professor of epidemiology at UC. San Francisco, “Anti-Asian Sentiment depicted in (President Trump’s) tweets containing the term ‘Chinese-Virus’ likely perpetuated racist attitudes and parallels the anti-Asian hate crimes that have occurred since.”[12] This results came in the wake of multiple attacks on Asian communities in the U.S., including a shooting in Georgia that left six Asian women dead.[13]
Similarly, a series of Trump’s tweets on December 19, 2020: “Statistically impossible to have lost the 2020 Election,” “Big protest in D.C. on January 6th,” “Be there, will be wild!,” directly contributed to the January 6th Capital riot. [14] Stephen Ayres, a man who pleaded guilty to breaching the Capitol building, testified that Trump’s social media post encouraged him to attend the January 6 rally, “He basically put out, you know, come to the ‘Stop the Steal’ rally, you know, and I felt like I needed to be down here.”[15] More recently, Trumps false claim during his presidential debate that Haitian immigrants in Springfield, Ohio, were “eating the dogs, the people that came in, they’re eating the cats.”[16] These false claims spread quickly throughout social media, which resulted in received bomb threats that led to the closure of Springfield’s city hall and schools. [17]
The “Race and The First Amendment : A Compendium of Resources,” highlights law review articles and books that discuss the relationship between free speech and racial justice.[18] Leonard M. Niehoff’s essay argues against hate speech regulation, warning that such measures risk becoming tools of oppression.[19] While acknowledging that “tolerance of hate speech and extremist association comes at a real and substantial cost,” Niehoff warns that such regulation is “another form of extremism, another tool of oppression, and another whipcord driving human hearts and minds toward orthodoxy and, finally, ‘the unanimity of the graveyard.’”[20] However, Steven H. Shiffrin’s book, What’s Wrong with the First Amendment?, critiques the First Amendment’s doctrine, in which the government cannot punish speech simply because it reflects a racist or hateful point of view.[21] He asserts that it is possible for a legal system to understand the values served by free speech and also acknowledge that hate speech does nothing to further those values.[22] Shiffrin challenges us to evaluate “whether our free speech exceptionalism has gone beyond the formalistic to the fetishistic, putting us out of sync with the arc of reason jurisprudence.”[23]
Meta claims that its new goal will add a “personalized approach” towards people who want to see more political content in their feeds.[24] While prioritizing action against high-severity violations—such as terrorism, child sexual exploitation, drugs, fraud and scams—less severe policy violations will rely on someone reporting an issue before the company takes any action.[25] However, the above real-life examples prove unchecked civic content can lead to dangerous outcomes. In fact, after banning Trump in the wake of the January 6 insurrection, Zuckerberg acknowledged that Trump’s presence on the platform posed risks that were “simply too great.”[26] Despite this awareness, Meta stands firm to their traditional view of the First Amendment.
Meta’s content moderation strategy neglects the impact on those who are most at risk. The company claims that their fact-checking system was in response to societal and political pressure to moderate content.[27] While their statement may hold some truth, it does not tell the whole story. Meta and similar tech companies will persist in shifting their stances to appease the most powerful voices, often at the expense of the very communities they claim to serve. This calculated neglect, cloaked in an outdated and unquestionable interpretation of the First Amendment, enables misinformation and marginalization.
[1] Solomon Furious Worlds & Len Niehoff, Race and The First Amendment: A Compendium of Resources, 36 FALL Comm. Law. 35, 46 (2020)
[2] Joel Kaplan, More Speech and Fewer Mistakes, Meta (Jan. 7, 2025), https://about.fb.com/news/2025/01/meta-more-speech-fewer-mistakes/
[3] Id.
[4] Id.
[5] Id.
[6] Max Zahn, Here’s why Meta ended fact-checking, according to experts, abc News (Jan. 7, 2025, 6: 31 PM) https://abcnews.go.com/US/why-did-meta-remove-fact-checkers-experts-explain/story?id=117417445
[7] Id.
[8] Kaplan, supra note 2.
[9] Id.
[10] Id.
[11] D. Mishal Reja, Trump’s ‘Chinese Virus’ tweet helped lead to rise in racist anti-Asian Twitter content: Study, abc NEWS (Mar. 18, 2021, 5:58 PM), https://abcnews.go.com/Health/trumps-chinese-virus-tweet-helped-lead-rise-racist/story?id=76530148
[12] Id.
[13] Id.
[14] Tom Dreisbach, How Trump’s ‘will be wild!’ tweet drew rioters to the Capitol on Jan. 6, npr (Jul. 13, 2022, 3:42 PM), https://www.npr.org/2022/07/13/1111341161/how-trumps-will-be-wild-tweet-drew-rioters-to-the-capitol-on-jan-6
[15] Id.
[16] Claire Wang, ‘A very old political trope’: the racist US history behind Trump’s Haitian pet eater claim, The Guardian (Sep. 14, 2024), https://www.theguardian.com/us-news/2024/sep/14/racist-history-trump-pet-eating-immigrant
[17] Id.
[18] Solomon Furious Worlds & Len Niehoff, supra note 1, at 35.
[19] Id. at 37.
[20] Id.
[21] Id. at 43.
[22] Id. at 43.
[23] Id. at 43-44.
[24] Kaplan, supra note 2.
[25] Id.
[26] Zahn, supra note 6.
[27] Kaplan, supra note 2.
