Althouse: "The notion of Congress looking into or investigating how a medium of communication decides what to say threatens on its face First Amendment rights."

May 11, 2016

"The notion of Congress looking into or investigating how a medium of communication decides what to say threatens on its face First Amendment rights."

Said Floyd Abrams, the big First Amendment lawyer, after John Thune, the chairman of the Senate Commerce Committee, called on Facebook to respond to claims that it discriminates against conservatives as it determines which news articles to feature on the "trending" list that appears on users' Facebook pages.

Thune said: "If there’s any level of subjectivity associated with it, or if, as reports have suggested that there might have been, an attempt to suppress conservative stories or keep them from trending and get other stories out there, I think it’s important for people to know that. That’s just a matter of transparency and honesty, and there shouldn’t be any attempt to mislead the American public.”

Yeah, but it's none of the Senate's business! Thune should be embarrassed.

101 comments:

David Begley said...: Thune is just pushing back at the massive and built-in liberal bias in the media.

Holden Caulfield of SD calling out FB for the liars ("we use algos") and phonies that they are.

FB should stick to gossip.; 5/11/16, 8:06 AM
Paul Mac said...: Facebook is not a "medium of communication" it is a corporation, definitely not a "people" with First Amendment rights based on the political views that those running it appear to hold. I actually agree that this shouldn't be the governments business in general but these are the same folks that want the government forcing corporations behavior when they should "Net neutrality". What they really want is a double standard as usual. Our censorship and speech is just fine but yours is open to question, suppression, regulation.; 5/11/16, 8:07 AM
Anonymous said...: I agree that it's none of the Senate's business except in the context of "false advertising" if Facebook represents that the "trending" topics are the result of some machine algorithm when in fact, three young wizards of Oz behind the curtain are injecting topics with a political agenda.

At some point, that rises to the level of a campaign contribution.; 5/11/16, 8:07 AM
Crimso said...: “The taxpayers who pay Republican senators’ salaries probably want their money back.”

I blame Citizens United.; 5/11/16, 8:09 AM
cubanbob said...: If the Senate has no business in this, then Congress and the executive branch have no business in political speech restrictions that currently exist.

However SGT does have an excellent point regarding false advertising. Those laws should be stiffened along with the penalties and lawyer's fees provisions.; 5/11/16, 8:15 AM
Humperdink said...: The senate should give it a rest. Just ridicule the crap out of Fakebook and Zuckerdork.; 5/11/16, 8:16 AM
zipity said...: I'm shocked. Usually Big L Liberals like Markie Mark Zuckerberg love them some Big Government intervention.

Anywhere, anytime.

I guess it's different when it's you on the receiving end...; 5/11/16, 8:17 AM
Mike (MJB Wolf) said...: State AGs and the DOJ target free speech when they perceive it harms their Climate Jihad, and not a peep from Althouse. But one senator says, "Hey if you're going to advertise that a fancy algorithm shows what stories are most popular then you can't rig the game" and Althouse is all shame on you!

Really? What about that shitty misleading quote from Abrams as a headline? Especially the part about "how a medium of communication decides what to say" conflating the concepts of "social network" and "news medium" and completely eliding the promise by Facebook was that the "trending list" was an organic reflection of FB users' collective tastes. It wasn't. That was another Zuckerberg lie (like his support for low-wage imported coders to replace expensive American code writers that he tries to sell as "immigration reform") meant to mislead FB users into thinking a certain way, the way FB wants it's customers to think.

To me this is right in Congress's wheelhouse. It is akin to the ban on subliminal messaging in TV commercials. Surely the Hostess sees part of the nanny state's legitimate interest in not letting huge corporations manipulate people dishonestly, the way FB does. Or is there some new laissez faire attitude now in Madison in regards to Big Business?; 5/11/16, 8:19 AM
Curious George said...: Let's play a game:

Change "Facebook" to "Baker"

Change "Trending List" to "Wedding Cake"

Change "Conservatives" to "Gays"

Still "none of the Senate's business!"??????; 5/11/16, 8:20 AM
HoodlumDoodlum said...: Is what the Koch brothers do with their money (in terms of their own advocacy & free speech) the Senate's business? I don't remember you calling on Reid to be ashamed.
How about threats and lawsuits against a company like Exxon, lawsuits clearly designed to curtail and restrain speech and advocacy the Left does not like ("climate change denial")? Should anyone be ashamed of that?; 5/11/16, 8:26 AM
Rae said...: If we were still living in a constitutional republic I would agree with you.; 5/11/16, 8:26 AM
Gahrie said...: Don't we have the FCC to handle things like this?; 5/11/16, 8:29 AM
HoodlumDoodlum said...: No, fuck this. This is why the Left wins. They get to use the law and the State to attack their enemies and nice centrist people like Professor Althouse don't say shit. They have to overreach to the point that they send armed investigators and police to raid the houses of minor non-Left officials before nice centrist people like Althouse even notice.
But the Right has to play by the actual rules. The Right has to have a respect for the proper role of government. The Right should be ASHAMED for using any of the government's time or resources to address some problem or issue that "should be" outside the government's scope. And the Right loses.; 5/11/16, 8:30 AM
TrespassersW said...: False advertising is not the Senate's business?

Unreported in-kind campaign contributions is not the Senate's business?

Please explain.; 5/11/16, 8:40 AM
Tank said...: What Rae said.; 5/11/16, 8:40 AM
Curious George said...: "HoodlumDoodlum said...
Is what the Koch brothers do with their money (in terms of their own advocacy & free speech) the Senate's business? I don't remember you calling on Reid to be ashamed."

Yeah, shes batting 0 for 134; 5/11/16, 8:41 AM
zipity said...: Someone ask Hillary if Corporations have a First Amendment right.

And follow up with a question about Citizens United.

Bet that would set her eye to twitching...; 5/11/16, 8:41 AM
Sebastian said...: "The notion of Congress looking into or investigating how a medium of communication decides what to say threatens on its face First Amendment rights." Unlike The Ed Dept "Civil Rights" Division going after speech at colleges. Or as noted upthread, state AGs waging climate jihad. Or the mendacious opposition to Citizens United. Yeah, a senator writing a letter to Facebook challenging their Prog lies is the biggest threat to free speech out there. Thanks, Floyd. Thanks, Althouse.; 5/11/16, 8:42 AM
Abdul Abulbul Amir said...: A corporation committing fraud should be of interest to the Senate.; 5/11/16, 8:44 AM
Hagar said...: I do not agree with the Professor about this.

I think it is a general problem that should be looked into and discussed so that it at least sinks into the public consciousness, though I do not know how you would legislate about it.
That is, a newspaper, TV station, or whatever, is absolutely entitled to have its own opinions and publish them. However, say a "press service" such as the AP, Reuters, etc., are supposed to be bias free and only provide "the bare facts" of the news, which then the editors of the news outlets may expound upon.
But today, the press service bureaus are anything but neutral and dispassionate, and the news outlets generally publish their stuff just the way they receive it.
I think Facebook (I am too old to want to have anything to do with it or other "social media") function somewhat like a press service bulletin board, and people ought to be aware that it is not "Just the facts, maa'am," but is a partisan operation.; 5/11/16, 8:46 AM
gspencer said...: Thune should be rightly criticized for this.

But his leftist/Democrat critics ought to be reaaaaaaaaaaaaaaally self-reflective here, since the years have inculcated the thinking, the 10th Am. notwithstanding and Democrat's Article VI oath to support the Constitution notwithstanding, that there is nothing under the sun upon which Congress cannot legislate.; 5/11/16, 8:46 AM
Nonapod said...: While I wish Facebook would've been more transparent about their story suppression, I'm not thrilled with the idea of using the government to force a private company to do so. I'd like to believe that people will react accordingly and the free market will self correct the issue (meaning people who are upset about this will just stop using Facebook altogether), but I also realize that Facebook has a virtual monopoly on a large subset of our population who rely on it to stay in contact with friends and family and there's just not an obvious alternative (I can't see grandma migrating to Instagram or Twitter).

Personally I very rarely post on Facebook. One post a year is a lot for me. I just use it to keep in contact with certain people. It's a necessary evil I guess.; 5/11/16, 8:48 AM
Wince said...: Yeah, but it's none of the Senate's business! Thune should be embarrassed.

Because Roscoe Filburn was engaged in interstate commerce, but Facebook isn't?; 5/11/16, 8:49 AM
TrespassersW said...: "The notion of Congress looking into or investigating how a medium of communication decides what to say threatens on its face First Amendment rights."

No matter how many times I reread that, it keeps on being nonsensical. A medium of communication is a thing, not a person. It can't decide anything, and it has no rights.

Such sloppy writing bespeaks sloppy reasoning.; 5/11/16, 8:50 AM
Andy said...: I think the "false advertising" issue is a key here. Facebook has made a public claim about how it's trending news works and we now know that is false. I think this is more the job of the BBB then the feds but that is just me.; 5/11/16, 8:51 AM
Bob Ellison said...: They are lying. Lying is legal, but immoral.; 5/11/16, 8:57 AM
mtrobertslaw said...: Drill Sarge raises an interesting question. If a news organization, claiming to be objective, highlights all those stories showing a favored candidate in a positive light, but surreptitiously rejects all stories that show his opponent in a favorable light while at the same time it calls attention to any negative story about her, why shouldn't this be reported as a campaign contribution?; 5/11/16, 8:57 AM
holdfast said...: If Facebook is going to be just a giant Democrat PAC, shouldn't they file the appropriate paperwork?; 5/11/16, 8:58 AM
MathMom said...: It seems to me that Facebook should be REGULATED!!!! Yes! That's the ticket!; 5/11/16, 8:59 AM
I'm Full of Soup said...: Is it wrong for Repubs to have dog and pony shows? Or is that just a Dem thing?; 5/11/16, 9:08 AM
Gusty Winds said...: If Twitter and Facebook both claim that trend topics are based on some bottom up interest driven by users, then any manipulation of that is fraud.; 5/11/16, 9:09 AM
Alexander said...: Trololololo

As others have pointed out: one can't demand the United States government intrude itself over and over again in the daily lives of citizens, far beyond any sort of constitutional direction... and then appeal to the same document.

The days of trying to hamstring the right with their own ideals are over. The constitution was never intended to be a suicide pact, but even that is irrelevant as the original purpose of the document is dead.; 5/11/16, 9:10 AM
Will said...: Let Facebook do what it wants. And let the market work so that conservatives who see they are being disserviced by Facebook's bias leave the platform in droves or at least find another avenue to stay informed with news and keep Facebook just for cat photos.

I remain convinced that there is a huge need for a conservative social media platform. Whether it is Facebook's selective edits and filters or Twitter's new PC/SJW fairness tribunal (run by people with the same bias as Facebook) there needs to be a way for conservatives to communicate without a finger on the scale.

If there was some conservative version of social media I would join it; 5/11/16, 9:10 AM
Big Mike said...: Yeah, but it's none of the Senate's business!

It certainly is if it has an impact on elections. As it certainly does.

Thune should be embarrassed.

No. YOU should be embarrassed for letting your own bigotry get in the way of your analysis of the issues.; 5/11/16, 9:12 AM
David Begley said...: When Crazy Bernie wins and confiscates half of Zuckerberg's net worth Mark will be sorry.; 5/11/16, 9:14 AM
gilbar said...: the word to describe this is:
Payola
If a medium of communication says that it has a listing of popular songs, and really that is a listing of song payments,
That IS the Senate's business; 5/11/16, 9:14 AM
Fabi said...: This is what the right needs to understand: forget about what's correct or proper or legal -- if you want to go after Facebook just do it. Do it with everything you have and don't let the whining lefties distract you. Go after it on fraud, interstate commerce, collusion -- doesn't matter. Kick that son of a bitch until he begs for mercy and then do it five more times.

The sooner the right understands that it's kill or be killed when dealing with the left, the better off we'll all be. Plus, we get to beat the shit out if some lefties!; 5/11/16, 9:21 AM
Paddy O said...: Also free-speech: Facebook Purity, so that I suppress Facebooks "trending news," ads, and a lot of other bother.; 5/11/16, 9:28 AM
Alex said...: I can't wait to see that slime Zuckerberg testify under oath in front of Congress one day.; 5/11/16, 9:30 AM
Mark said...: A+ trolling by Althouse.; 5/11/16, 9:32 AM
Hammond X. Gritzkofe said...: This is absolutely and certainly not a something the Senate should involve itself in.

As much as perhaps 95 percent of what Congress and the Executive Departments involve themselves in have no Constitutional basis. This Facebook thing just happens to be the most recent.; 5/11/16, 9:34 AM
Alex said...: Someone ask Hillary if Corporations have a First Amendment right.

Yeah I do find the hypocrisy from liberals on this striking. 1A when it's convenient for them. But not for political conservative speech or for 'safe spaces' on campus when a conservative speaker is present. Either be for free speech under all circumstances or admit you're an authoritarian bigot.; 5/11/16, 9:34 AM
Alex said...: Hammond - Facebook/Google are huge weapons against conservatives. Either you fight the cultural war or capitulate. Now is not the time for playing 'by the rules'.; 5/11/16, 9:35 AM
Jake said...: None of the Senate's business? On what basis? I bet you think it's the Senate's business regulating interstate commerce. Well, isn't Facebook interstate commerce?; 5/11/16, 9:37 AM
Phil 314 said...: "There aughta be a law!!!"

Does anyone still believe in the limits of government?; 5/11/16, 9:47 AM
Mike (MJB Wolf) said...: Hey!

1. As the lefty senators always say, "We're just asking questions here!"

And.

2. This is the second time this kind of thing has leaked from Fakebook. They have already admitted to manipulating users' emotions in an earlier "experiment" on content "tweaking" for effect.

Is purposely and systematically toying with emotions now considered normal business practice?; 5/11/16, 9:51 AM
walter said...: Anyone on FB should be able to fairly quickly discern that "news feed" is bs. I use FB but had to remember it's there..I just tune their lame sidebar crap out.
But hey..if there's punitive legal ground to be won by calling out the double standard, hell yeah.
Have at it.; 5/11/16, 9:54 AM
walter said...: Yes Mike, the other manipulations were less obvious and more concerning in that sense.; 5/11/16, 9:55 AM
eric said...: This is entertaining. According to Althouse we have lost the cultural war. It's over. We are done.

But, we keep fighting. Guess we don't know we have lost. And we lost because we played by the rules and they didn't. So now, we have decided to play by their rules. And now it's, you ought to be ashamed!

I'm not feeling any shame. Only sadness that it's come to this.

But as Paul Ryan once said, we have to violate our principles in order to uphold our principles.; 5/11/16, 9:56 AM
Fernandinande said...: Roy Jacobsen said...
False advertising is not the Senate's business?

Perhaps - what news policy did Facebook claim to have?

Mike said...
Is purposely and systematically toying with emotions now considered normal business practice?

Sure, it's commonly known as "advertising".

Facebook "terms of service": https://www.facebook.com/terms
Words which don't appear: "news" and "trend".; 5/11/16, 10:03 AM
John said...: Maintaining a 'free and open' democracy governed 'by the people, for the people' is hard work - for the people. Understanding what is true and not true, right or wrong, positive or negative takes effort. Technology, like social media, makes access to information far easier (reduces acquisition effort) but increases filtering effort (critical thinking). FB (and others not yet 'caught or named') have decided to reduce the filtering effort needed for their 'customers'. Companies have been doing this for centuries - it's called advertising. The consumer is responsible for comparing information provided to them and making their own decisions.

As disturbing as it may be that FB is 'rigging' the outcome of their trending stories 'product', it is more troubling that our education and legal systems are doing the same by filtering speech and ideas not in alignment with their agendas. If schools taught true critical thinking skills and allowed open debate with alternative points of view, what FB and others do to limit what their users see would have less impact.; 5/11/16, 10:13 AM
Ann Althouse said...: Thune is making Facebook sympathetic when, before, it wasn't. What an idiot. Fortunately, things aren't so bad here in American that Thune isn't mainly an idiot.; 5/11/16, 10:15 AM
JHapp said...: My son uses it and it is his main source for news.; 5/11/16, 10:18 AM
Big Mike said...: Thune is making Facebook sympathetic when, before, it wasn't.

Really? Who do you know who is sympathetic to Facebook and/or Zuckerberg?; 5/11/16, 10:21 AM
Paddy O said...: I think Facebook should be broken up in to regional books.; 5/11/16, 10:29 AM
boycat said...: Mass fraud shouldn't even be looked at by our elected officials? Who knew!!; 5/11/16, 10:32 AM
eric said...: What does it matter if Thune is making Facebook look sympathetic?

Lots of people have sympathy for the Baker's and they still have to pay hundreds of thousands of dollars.; 5/11/16, 10:33 AM
HoodlumDoodlum said...: Ann Althouse said...Ann Althouse said...
Thune is making Facebook sympathetic when, before, it wasn't. What an idiot. Fortunately, things aren't so bad here in American that Thune isn't mainly an idiot.

Cruel neutrality and clear, direct writing. Firing on all cylinders today, Professor.; 5/11/16, 10:39 AM
furious_a said...: Facebook is expending corporate funds to manipulate trending results within 30 days of a primary or 60 days of a general election, thereby violating the Electioneering provision of the Bipartisan Campaign Reform Act (aka "McCain-Feingold").

Yeah, that's the ticket.; 5/11/16, 10:45 AM
Mike (MJB Wolf) said...: Sympathetic? Ha!; 5/11/16, 10:50 AM
furious_a said...: PLAY BY THEIR RULES: Red State AGs subpoena the sh*t out of Facebook for false advertising the way Blue State AGs subpoena the sh*t ouf of XOM, Heartland Inst., etc. for Climate...what are they calling it these days...Climate-Whatever apostasy.; 5/11/16, 10:51 AM
furious_a said...: Fortunately, things aren't so bad here in Americ...

Easy for someone on the state payroll *with tenure* to say.; 5/11/16, 10:54 AM
gerry said...: Yeah, but it's none of the Senate's business! Thune should be embarrassed.

Absolutely correct! Thune should have ignored Facebook. Sheesh.

The marketplace will correct it eventually, and in this day and age, rapidly.; 5/11/16, 11:10 AM
damikesc said...: Nice of Progressives to finally agree that corporations have first amendment rights. I wonder if their thoughts on Citizens United have changed.; 5/11/16, 11:17 AM
mccullough said...: Facebook loves government regulation just like the NY Times. This is government regulation. Get used to it.; 5/11/16, 11:23 AM
GRW3 said...: He should call in the FCC head, who has threatened to do something about Drudge, and ask if Facebook would be included in their proposed Internet fairness efforts. Everybody knows Drudge picks the things that interest him. That's way different from a system that purports to choose trends based on likes and shares. This is a chance to put the FCC on the spot.; 5/11/16, 11:28 AM
Chuck said...: Professor Althouse I write today in complete agreement and solidarity with you. I do not understand the basis, the reason or any principle behind this Senate Republican fishing expedition. How can anybody complain about the state AGs' RICO witch-hunt involving speech on the subject of global climate change, and take seriously this Facebook inquest?

Who ever said Facebook had to be fair? Who would ever be so stupid as to presume that Facebook could ever be fair? It's Facebook, fer chrissakes. It's not the Nuclear Regulatory Commission.

I'd ask Senator Thune for a whole summer of hearings on the IRS and the 501(c) reviews. Leave Facebook to the tweens and the teens who don't vote in any event.; 5/11/16, 11:29 AM
Franklin said...: This is what Democrats have been calling for all these years, "Fairness Doctrine", and they're the ones that want to get rid of the First Amendment altogether. Democrats should be cheering!

John Roberts ensured that Americans understand that there is no longer any rule of law in this country, it's now "Get them before they get me". Professor Althouse endorsed it yesterday with Tushnet's cri-de-coeur. The Democrats have declared all-out war on us and our families, we must respond in kind.; 5/11/16, 11:36 AM
Ambrose said...: Seems like Abrams and other are making the right "play by its own rules." Where have I heard that before.; 5/11/16, 11:45 AM
Sigivald said...: 1) Yes, it's absolutely none of the Senate's business (or the State's in general).

2) If Facebook pretends to be neutral with "Trending" and is not, it should be liable to its users for the misrepresentation. Class action, anyone?; 5/11/16, 11:58 AM
Birkel said...: If Althouse were the coach of the Wisconsin Badgers, she would require the other teams to play without linebackers and defensive backs. But Wisconsin should get 15 players on both sides of the ball.

As for politics, she thinks the culture wars are won and conservatives should quit asserting their own interests. And Republicans in Congress cannot play by the same rules as Democrats.

Why? Because cruel neutrality, punks!; 5/11/16, 12:11 PM
Chuck said...: For the non-lawyers:

Floyd Abrams isn't just a First Amendment lawyer. He is THE First Amendment lawyer.

And contrary to the liberal tastes of his clients at the New York Times, Abrams litigated the "right" side of Citizens United v. FEC. If i recall correctly, he represented the ACLU as amicus. Floyd Abrams is nothing, if not a consistent, principled defender of speech. Conservative speech included.; 5/11/16, 1:02 PM
hombre said...: Althouse: "Yeah, but it's none of the Senate's business! Thune should be embarrassed."

If he's talking about censoring Facebook, maybe. If he's talking about exposing Facebook fraudulently trying to influence elections, maybe not.; 5/11/16, 1:04 PM
Birkel said...: Chuck:

Nobody on this board is talking about restricting the First Amendment. Get that through your thick skull.

People on this board are saying fraud is unprotected speech, outside the protections of the First Amendment. And, people on this board are criticizing the double standard.

Stop pretending either of those points is unclear.; 5/11/16, 1:33 PM
Chuck said...: And what is the fraud? What is the legal relationship, and where is the legal reliance? Do a legal fraud analysis for us. Take your time. Professor Althouse might agree to grade you. For my benefit, balance the First Amendment considerations involved in any "fraud" protection.; 5/11/16, 1:43 PM
Birkel said...: So the fraud must be self-evident, Chuck?

Consumers might reasonably have relied on public statements about the news feed. Or perhaps this was a known risk - if exposed - to the business model that should have been disclosed in SEC filings. Could this have been a material omission upon which investors might have relied?

Can you prove the negative before an investigation, Chuck?

Otherwise, fuck off, you holier than thou boob.; 5/11/16, 1:54 PM
Mark said...: Birkel, refusing to answer the question does not put the onus on Chuck.; 5/11/16, 2:03 PM
Birkel said...: I say RICO Facebook. They may have been part of a criminal conspiracy to use telecoms to (fill in the blank here with some dumb ass legal theory) and should get a Trump DOJ enema.

Too Big to Fail needs the Ma Bell treatment. Facebook and Google and their little doggie too.; 5/11/16, 2:05 PM
Birkel said...: "People on this board are saying fraud is unprotected speech, outside the protections of the First Amendment."

Mark, I answered before Chuck managed to ask. You managed to ignore that Chuck asked a bull shit question about balancing the First Amendment if there is a fraud -- which can only be discovered after investigation.

Two jack asses are not better than one.; 5/11/16, 2:09 PM
dwick said...: Big Mike said...
Thune is making Facebook sympathetic when, before, it wasn't.

Really? Who do you know who is sympathetic to Facebook and/or Zuckerberg?

Althouse is sort of the mirror image of Pauline Kael - instead of "Everybody I know voted for McGovern" it's "Everybody I know is sympathetic to Facebook"...; 5/11/16, 2:13 PM
Mark said...: Birkel, calling me names does not prove your point.

Despite being a common argument tactic by many people here, it just exposes your inability to answer a question.

Please, throw around more personal insults. It is clearly all you have.; 5/11/16, 2:19 PM
Chuck said...: You're the guy who first raised the issue of fraud. There ought to be an articulable case; you haven't even described it yet. And the Senate isn't the SEC (?!) or the DoJ.

And your political angle on this is freakish. You would join (as I would) the condemnation of the preposterous "climate change" inquisition, but can't see how this story has some of the same hallmarks?

I get the "political theater" angle. Democrats do it all the time, to hype pet complaints; Flint water, black lives matter, voter suppression. You name it. So if somebody wants to defend this as a useful political stunt notwithstanding the lack of legal merit, okay. I wouldn't endorse it. And I like agreeing with Althouse on this one.; 5/11/16, 2:30 PM
Birkel said...: Mark,
Asked and answered. Your inability to see that does not create an obligation on mine to convince you anything. This is especially true when I know you are dishonest.; 5/11/16, 2:35 PM
Birkel said...: Chuck,

So you are claiming definitively that there is no fraud? Prove it.; 5/11/16, 2:37 PM
Birkel said...: Also, I was not the first to suggest a fraud. Read above, Chuck.; 5/11/16, 2:39 PM
pcrh said...: I did a little Fraud analysis. It is hard to come up with a case that consumers were defrauded. But the advertisers have a better case.

Elements of Fraud:
(1) false statement (FB seems to have said their news feed is based on popularity when that is not true)
(2) knowledge of the falsity (FB seems to have known they were manipulating the news feed)
(3) intent to deceive (we have to presume this intent which seems reasonable given their actions)
(4) reasonable reliance on the falsehood (if I am choosing between FB and MySpace, I chose FB because their newsfeed is so awesome! I can keep up with all the things my friends think are popular! Therefore I relied on this aspect of FB's service when I choose FB instead of MySpace. Incidentally, this enriches FB because their ad revenues go up marginally with my account)(how about the advertisers? They relied on the entire product offering in making their spending decisions--including the fact that FB has this neat feature which they crow about, their "trending news story" widget. That means it will attract even more eyeballs, so I want my ads on FB. But if I had known their news (and if consumers knew their news) was based on curated selections for ideological purity, I would have chosen differently.)
(5) actual loss suffered because of the reasonable reliance (this is not as easy for the consumer...but how about my opportunity cost? I could have gone to MySpace. Doesn't seem like there is any money loss by the consumer because FB is free. Is it a "loss" to believe a lie? I think not--that would defeat the whole "actual loss" element. But what about advertisers, who are basing their ad decisions (and spending) on the quality and attractiveness of FB's offering? And saying "our newsfeed is manipulated by ideologues!" isn't exactly an attractive product characteristic. So FB's lie may not have caused consumers to lose anything, but their lie did cause advertisers to "lose" something--they invested in ads on FB when they might have preferred to invest with some other web page if they'd known about FB's lie.)

I think that argument, at least with respect to defrauded advertisers, would pass Rule 11 muster. YMMV.

This is the kind of thing the market can handle. As people learn about FB's deception, they can vote by using some other service. If they want to continue using FB, they will get what they ask for. And advertiser dollars will follow the user eyeballs.

That said, it does seem inconsistent to castigate Thune but remain silent over the various state AGs who are currently investigating "fraud" by Exxon for daring to disagree with the idea of catastrophic, human-caused global warming. I think that is why many conservatives seem to suddenly be on the side of "Yeah, get'em!" If one side uses lawfare enough, eventually the other side catches on. Neither side is right to do it. If an advertiser thinks they were defrauded, let them sue. If users think they were lied to, let them choose another service.; 5/11/16, 2:52 PM
Real American said...: Liberals can't complain about "none of the Senate's business". That ship sailed in the 30s.; 5/11/16, 3:22 PM
Real American said...: A massive interstate fraud is the Senate's business.; 5/11/16, 3:23 PM
Mark said...: Facebook 'curates' everything you see on your feed, it is part of their product they offer. You don't see everything posted, just stuff that they think will keep you on their site.

Yet people are claiming curating is fraud?

They are not selling you fair and balanced news, they are selling their advertisers clicks and views, which they provide.

I don't see who is defrauded here. The aren't promising advertisers that the news feed is solely determined by clicks are they?; 5/11/16, 3:41 PM
pcrh said...: >>I don't see who is defrauded here. The aren't promising advertisers that the news feed is solely determined by clicks are they?<<

If FB publicly lied about the qualities of their services, advertisers may have a case. Advertisers place ads with FB because FB has a product that attracts eyeballs. Advertisers also rely on FB's public statements. Lying about the qualities of FB's product could induce an advertiser to spend money with FB.

>>Yet people are claiming curating is fraud?<<

No one is claiming mere curating is fraud. Lying about curating could be though.; 5/11/16, 3:55 PM
Birkel said...: Mark: "I don't see..."

We have reached an accord. I agree. You don't.; 5/11/16, 4:12 PM
William said...: The government cannot tell Facebook how to run its business. I don't see where conducting an investigation is violating First Amendment rights, though. It may or may not have some chilling effect, but that is another question.; 5/11/16, 6:04 PM
Fritz said...: Facebook: If you're not paying, you're the product.; 5/11/16, 7:07 PM
Moneyrunner said...: A law professor not quite up to speed on commercial fraud?; 5/11/16, 7:44 PM
Mark said...: Prch, it would seem someone who wanted to demonstrate that they lied to their advertisers could find a link if they wanted to.

As I have not seen that being shown here, I get the feeling this is not the case.

Instead all we hear is insults and outrage,the song of the lost argument.; 5/11/16, 7:53 PM
Birkel said...: Mark:

Why would anybody waste an argument with you? Demonstrate your good faith a single time or find a new blog to infest.

Or pay me my hourly rate.; 5/11/16, 8:06 PM
Mark said...: Birkel, you have shown zero good faith here as you refuse to anewer questions and just respond with personal insults.

You are not Ann. Do not pretend to be.

If you want to control readership, gey your own blog.

You think you are adding value here? Lol; 5/12/16, 4:32 AM
Rusty said...: This would be an outrage if not for the politicalization of the IRS, EPA, DoJ, etc. We are a post constitutional republic.; 5/12/16, 6:05 AM
Birkel said...: Mark:

In what world am I trying to control anything but myself?

And how did you decide you are in charge of determining value added?

It's almost as if you are trying to control something, but it's not working.; 5/12/16, 8:29 AM
pcrh said...: >>it would seem someone who wanted to demonstrate that they lied to their advertisers could find a link if they wanted to.<<

I don't know what public statements FB has made about their news feed. If they have publicly advertised it as being based on an algorithm or that it represent actual reader likes etc. (as opposed to being selected/filtered by an employee) then the public statements might be enough for an advertiser to claim they were deceived. FB doesn't have to directly communicate with them. Their public statements could be enough. The argument is that they misrepresented the quality of the product they are offering. That is generally considered a deceptive trade practice. If someone (here, the advertisers) relied on that mischaracterization of the product, there is the possibility it is fraud. I am not saying that is the answer. But it seems possible. For me, it looks like a much harder case for the FB users to make, but the advertisers spent money with FB.; 5/12/16, 10:52 AM
Birkel said...: https://www.theguardian.com/technology/2016/may/12/facebook-trending-news-leaked-documents-editor-guidelines

It looks like Facebook has been lying to the public.

And advertisers.

What about it, Fakebook defenders?; 5/12/16, 11:25 PM