Facebook’s Mark Zuckerberg is trying to take the right approach. He has increasingly taken a public role in declaring his and his company’s support for free speech. The company recently announced the creation of an independent oversight board that will hear appeals in cases in which people think Facebook inappropriately removed or censored their material. Its board’s bylaws clearly establish the company’s overriding goal to “protect freedom of expression,” a value at the heart of the First Amendment and Section 230’s protections.
Trump would have been wiser to offer the carrots of applause to good actors such as Zuckerberg rather than wield the sticks of new regulation. But social media executives also need to understand their role. Courts have frequently held that privately held property can be forced to permit free speech when it is the functional equivalent of an old town square. If executives try to keep one side out of the square, they should expect a sheriff to ride into town and put things right.