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What The US Constitution can teach us about reforming modern media

This week, the Facebook Oversight Board (the pseudo-independent, pseudo-judiciary body created by Facebook) upheld Facebook’s decision to indefinitely ban former President Trump from the platform. But in their letter to the company explaining their decision, they practically demanded that the company assess the principles and processes it uses to govern these kinds of decisions. Despite Facebook’s motivational poster rhetoric that “Nothing at Facebook is somebody else’s problem” (these posters are everywhere on its campus), The board correctly recognized that one of the major problems with Facebook is that it doesn’t seem to want the kind of responsibility that its role in our society demands. What the Oversight Board is begging for — and what our society desperately needs from Facebook — is clarity about how Facebook is willing to be responsible for its role in the public sphere, what its algorithm does with the speech expressed on its platform, and to be public and transparent about those principles.

But if Facebook doesn’t want the responsibility it has, going forward it is going to be up to us — the public who depends in part on the spaces Facebook has created as part of our public sphere — to articulate what kinds of rights and values we demand for these spaces. But do we get there?

One of the traditional debates amongst constitutional scholars is the distinction between positive rights and negative rights. (If this is a new concept to you, the play “What the Constitution Means to Me” by Heidi Schreck — currently streaming on Amazon Prime — opened my eyes to the idea and is a clear and non-academic way to explore the distinction and how important it is to our daily lives in the United States.) In layman’s shorthand, negative rights are meant to protect people from government action generally by establishing procedure or restricting government — for example a right to due process or to maintain private property. Positive rights are meant to articulate what government must ensure, provide, or protect — for example the right to assemble or women’s suffrage.

Insight into the authors of a system of rights gives us a lot of insight into the nature of the rights they enshrine…