In this open letter to Mark Zuckerberg, the Lawyers’ Committee for Civil Rights Under Law describes how he is not just making poor governance decisions—Facebook is exposing itself to legal liability for failure to protect the safety and civil rights of its users. Facebook is enabling disinformation, voter suppression, hateful intimidation, conspiracy theories, and digital redlining. This letter provides a road map for how Facebook could face additional lawsuits from individuals, civil rights organizations, state attorneys general, and the federal government if it does not change course.

Mark Zuckerberg
Chief Executive Officer
Facebook
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.[1] 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[2] and by your decision not do any fact checking of “opinion” content.[3] 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.[4] Your own employees are calling for revocation and reform of these policies.[5]

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.[6] 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.[7] Responsibility for discrimination in ad delivery lies with Facebook, not its advertisers.[8] 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.[9]

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.[10] 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.”[11] Being included in Facebook News conveys legitimacy. You are choosing to act in a manner that normalizes white supremacy and other forms of bigotry.[12]

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.[13] 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.[14] 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.”[15] 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,[16] 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.[17]

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.[18]

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.[19] 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.[20] California’s statute, in particular, creates liability for “unfair, deceptive, untrue or misleading advertising.”[21] 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,[22] 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.

Sincerely,

Kristen Clarke
            President and Executive Director
            Lawyers’ Committee for Civil Rights Under Law

Help Us Hold Facebook Accountable!

CC:

Laura Murphy
Megan Cacace, Relman, Dane & Colfax

U.S. House of Representatives, Committee on Financial Services

William Barr, United States Attorney General
U.S. Department of Justice, Antitrust Division
U.S. Department of Justice, Civil Rights Division

Ben Carson, Secretary, Department of Housing and Urban Development

Joseph J. Simons, Chairman, Federal Trade Commission
Federal Trade Commission, Bureau of Competition
Federal Trade Commission, Bureau of Consumer Protection

Steve Marshall, Alabama Attorney General
Kevin Clarkson, Alaska Attorney General
Talauega Eleasalo V. Ale, American Samoa Attorney General
Mark Brnovich, Arizona Attorney General
Leslie Rutledge, Arkansas Attorney General
Xavier Becerra, California Attorney General
Phil Weiser, Colorado Attorney General
William Tong, Connecticut Attorney General
Kathy Jennings, Delaware Attorney General
Karl Racine, District of Columbia Attorney General
Ashley Moody, Florida Attorney General
Chris Carr, Georgia Attorney General
Leevin Taitano Camacho, Guam Attorney General
Clare Connors, Hawaii Attorney General
Lawrence Wasden, Idaho Attorney General
Kwame Raoul, Illinois Attorney General
Curtis Hill, Indiana Attorney General
Tom Miller, Iowa Attorney General
Derek Schmidt, Kansas Attorney General
Andy Beshear, Kentucky Attorney General
Jeff Landry, Louisiana Attorney General
Aaron Frey, Maine Attorney General
Brian Frosh, Maryland Attorney General
Maura Healey, Massachusetts Attorney General
Dana Nessel, Michigan Attorney General
Keith Ellison, Minnesota Attorney General
Jim Hood, Mississippi Attorney General
Eric Schmidt, Missouri Attorney General
Tim Fox, Montana Attorney General
Doug Peterson, Nebraska Attorney General
Aaron Ford, Nevada Attorney General
Gordon MacDonald, New Hampshire Attorney General
Gurbir Grewal, New Jersey Attorney General
Hector Balderas, New Mexico Attorney General
Letitia James, New York Attorney General
Josh Stein, North Carolina Attorney General
Wayne Stenehjem, North Dakota Attorney General
Edward Manibusan, Northern Mariana Islands Attorney General
Dave Yost, Ohio Attorney General
Mike Hunter, Oklahoma Attorney General
Ellen Rosenblum, Oregon Attorney General
Josh Shapiro, Pennsylvania Attorney General
Denisse N. Longo Quinones, Puerto Rico Secretary of Justice
Peter Neronha, Rhode Island Attorney General
Alan Wilson, South Carolina Attorney General
Jason Ravnsborg, South Dakota Attorney General
Herbert Slatery, Tennessee Attorney General
Ken Paxton, Texas Attorney General
Denise N. George, United States Virgin Islands Attorney General
Sean Reyes, Utah Attorney General
T.J. Donovan, Vermont Attorney General
Mark Herring, Virginia Attorney General
Bob Ferguson, Washington Attorney General
Patrick Morrisey, West Virginia Attorney General
Josh Kaul, Wisconsin Attorney General
Bridget Hill, Wyoming Attorney General


[1] Nick Clegg, Facebook, Elections and Political Speech, Facebook (Sept. 24, 2019), https://newsroom.fb.com/news/2019/09/elections-and-political-speech/.

[2] Id.

[3] Jeff Horwitz, Facebook to Exempt Opinion and Satire from Fact-Checking, Wall Street Journal (Sept. 30, 2019), https://www.wsj.com/articles/facebook-to-create-fact-checking-exemptions-for-opinion-and-satire-11569875314.

[4] For example, your policy seems out of step with the common law of defamation, which routinely grapples with these issues. “Although ideas and opinions are constitutionally protected, the First Amendment does not, however, create a wholesale defamation exemption for anything that might be labeled ‘opinion.’ Statements of opinion can be actionable if they imply a provably false fact, or rely upon stated facts that are provably false.” Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1241 (D.C. 2016) (citations and quotation marks omitted).

[5] Mike Isaac, Dissent Erupts at Facebook Over Hands-Off Stance on Political Ads, N.Y. Times (Oct. 28, 2019), https://www.nytimes.com/2019/10/28/technology/facebook-mark-zuckerberg-political-ads.html.

[6] An Examination of Facebook and Its Impact on the Financial Services and Housing Sectors, Hearing before the U.S. House Committee on Financial Services (Oct. 23, 2019),  https://financialservices.house.gov/calendar/eventsingle.aspx?EventID=404487. For example, Chairwoman Waters, Rep. Clay, Rep. Beatty, and others repeatedly emphasized that Facebook’s lacking diversity and inclusion numbers are a contributor to many of the company’s civil rights problems. Rep. Meeks observed that Facebook is an “accelerant” in political conflicts. Rep. Himes noted Facebook’s role in violence against the Rohingya. Rep. Tlaib highlighted how anti-Muslim hate groups use Facebook to organize armed intimidation outside mosques. And in response to Rep. Casten and Rep. Ocasio-Cortez, you were unable to explain how your political fact-checking rules would operate under real world conditions.

[7] See Muhammad Ali et al, Discrimination through optimization: How Facebook’s ad delivery can lead to skewed outcomes (Sept. 12, 2019), https://arxiv.org/abs/1904.02095.

[8] In addition, in the process of stopping discriminatory targeting in housing, employment, and credit ads, Facebook also cut off the ability for advertisers to do affirmative outreach to underrepresented communities, which is especially important for promoting diversity and inclusion in employment.

[9] Academic research has linked online hateful activities with an increase in real-world hate crimes and violence. See, e.g., Karsten Muller and Carlo Schwarz, From Hashtag to Hate Crime: Twitter and Anti-Minority Sentiment (Sept. 12, 2019), available at https://warwick.ac.uk/fac/soc/economics/staff/crschwarz/hashtag_to_hatecrime.pdf.

[10] See Charlie Warzel, Why Will Breitbart Be Included in ‘Facebook News’?, N.Y. Times (Oct. 25, 2019), https://www.nytimes.com/2019/10/25/opinion/mark-zuckerberg-facebook.html.

[11] Sarah Posner, How Donald Trump’s New Campaign Chief Created an Online Haven for White Nationalists, Mother Jones (Aug. 22, 2016), https://www.motherjones.com/politics/2016/08/stephen-bannon-donald-trump-alt-right-breitbart-news/.

[12] See, e.g., Joseph Bernstein, Alt-White: How the Breitbart Machine Laundered Racist Hate, Buzzfeed News (Oct. 5, 2017), https://www.buzzfeednews.com/article/josephbernstein/heres-how-breitbart-and-milo-smuggled-white-nationalism#.rjN2YVkQx; Allum Bokhari and Milo Yiannopoulos, An Establishment Conservative’s Guide to the Alt-Right, Breitbart (Mar. 29, 2016), https://www.breitbart.com/tech/2016/03/29/an-establishment-conservatives-guide-to-the-alt-right/; Timothy Johnson, Facebook is including Breitbart in its Facebook News feature, despite supposed prohibition on hate speech, Media Matters (Oct. 25, 2019), https://www.mediamatters.org/facebook/facebook-including-breitbart-its-facebook-news-feature-despite-supposed-prohibition-hate (discussing Breitbart articles such as “Bill Kristol: Republican Spoiler, Renegade Jew,” “World Health Organization Report: Trannies 49 Xs Higher HIV Rate,” “Birth Control Makes Women Unattractive and Crazy,” and “Data: Young Muslims in the West are a Ticking Time Bomb, Increasingly Sympathising with Radicals, Terror”).

[13] See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); NAACP v. Alabama, 357 U.S. 449 (1958).

[14] See Holly B. Shakya and Nicholas A. Christakis, A New, More Rigorous Study Confirms: The More You Use Facebook, the Worse You Feel, Harv. Bus. Rev. (Apr. 10, 2017),https://hbr.org/2017/04/a-new-more-rigorous-study-confirms-the-more-you-use-facebook-the-worse-you-feel; Amit Chowdhry, Research Links Heavy Facebook and Social Media Usage to Depression, Forbes (Apr. 30, 2016), https://www.forbes.com/sites/amitchowdhry/2016/04/30/study-links-heavy-facebook-and-social-media-usage-to-depression/#1cffebdc4b53.

[15] Frederick Douglass, What to the Slave is the Fourth of July? (July 5, 1852), available at https://teachingamericanhistory.org/library/document/what-to-the-slave-is-the-fourth-of-july/.

[16] See, e.g., Russell Brandom, Facebook has been charged with housing discrimination by the US government, The Verge (Mar. 28, 2019), https://www.theverge.com/2019/3/28/18285178/facebook-hud-lawsuit-fair-housing-discrimination.

[17] Cal. Govt. Code § 12900 et seq. We are using California laws as a point of reference because that is where Facebook is headquartered, but the laws of other states may apply as well.

[18] Cal. Elec. Code § 18302.

[19] Cal. Civ. Code § 51; White v. Square, Inc., 446 P.3d 276 (Cal. 2019).

[20] Cal. Bus. Code § 17200.

[21] Id.

[22] Annie Palmer, 47 attorneys general are investigating Facebook for antitrust violations, CNBC (Oct. 22, 2019), https://www.cnbc.com/2019/10/22/47-attorneys-general-are-investigating-facebook-for-antitrust-violations.html.