New founders same as the old founders

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. If you are privileged to be able to assume your personal safety and access to basic needs, you’re more likely to focus on negative rights. Those who are traditionally safe need negative rights to ensure they don't become unsafe. The U.S. Constitution was written by landed white men to protect the interests of landed white men.  And so, as expected, our constitution is an almost entirely negative rights document.  

What our founders did not consider is that people who live under constant threat — physical, economic, spiritual — need positive rights to become safe. The amendments, starting with the Bill of Rights, have attempted to include and protect more communities over time by expanding access to citizenship and political power and are therefore more oriented toward positive rights. 

“Wait… this is not a constitutional law seminar,” you say.  “What’s this got to do with Facebook?” you ask. Stay with me.

Today, the Silicon Valley giants and media titans are our new founders — just as creative and inspired, and just as deeply imperfect. And, it turns out, imperfect in almost exactly the same ways.

Thinking about our media and technology systems, most of the platforms and tools we rely on to discover and consume stories have been built by teams that are mostly made up of wealthy, white men. (VC-backed founding teams are 82% all male and 72% white according to DiversityVC Report.) Because in America wealthy white men are more or less always safe, they are similarly focused on design choices and norms that look like negative rights instead of positive rights: ones that ensure that these wealthy white men are not constrained or limited in any way instead of rules and practices that would ensure curation of healthy discourse, proactive inclusion, and protection of marginalized voices. 

Too often people who are safe assume safety rather than design for it. They assume discourse, rather than design for it. They assume public moral goods, rather than design for them.

Our media systems have been optimized for engagement and profit, and they’ve run unguided for more than a decade.  As a result, our society and democracy are fracturing under the weight of unhealthy information, increased polarization, and less productive public discourse. We are now seeing that diverse, inclusive, pluralistic democratic discourse cannot be assumed or guaranteed by negative rights alone. It must be demanded, guided by positive rights. Our public conversation must articulate what those rights are, and our systems must be designed to actively and proactively support them. 

Our modern media systems can still realize their potential and ensure that greater connectivity leads to greater equity and more effective, more representative democracy. But we must articulate with clarity and conviction a set of positive rights that guide the next wave of innovation.  Innovation in systems and in regulation that is intentionally and proactively meant to unlock what has always been possible but withheld or undermined by a privileged understanding of what is needed to make us more safe and more free in our public sphere:  

  • Discovery innovations like requiring algorithmic transparency and increasing individual agency by making it easier to distinguish the type, intent, and sources of content.  

  • Content innovations like easily portable open protocols that make that distinguishing metadata easily available along with metrics for tracking credibility and authority over time.  

  • Regulatory innovations like new definitions for monopoly power in a graph and an updated understanding of what we want these platforms to be liable for relative to the health of community and discourse and not just illegal behaviors.  

And dozens of others that serve to proactively guide our public sphere toward spaces we can all inhabit with confidence and explore with the curiosity we need to genuinely engage with the grand diversity of America.

Facebook’s Oversight Board was right to demand the broader review of Facebook’s policies; however, the past decade has taught us that we cannot not leave responsibility for our civic discourse up to Facebook.  If we want them to support us rather than exploit us, then we need to take the responsibility that they will not accept and demand that they design for individual agency, optimize for community vibrance, and protect healthy discourse in an inclusive, diverse public sphere.  We must make these demands rather than expecting our new founders to do it for us.


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