Top Civil Rights Lawyers Warn Mark Zuckerberg of Potential Criminal Liability in Scathing Open Letter

Priscilla Chan and Mark Zuckerberg seen at the 8th Annual Breakthrough Prize Ceremony at NASA Ames Research Center on Sunday, Nov. 3, 2019, in Mountain View, Calif.
Photo: Peter Barreras for AP

In a letter aimed at gutting Facebook’s rationale for allowing misleading and dishonest political ads across its platform, a prominent civil rights organization on Tuesday issued a stern warning to Mark Zuckerberg, outlining a number of federal laws to which, the group claims, Facebook may theoretically be held to account.

Lawyers’ Committee for Civil Rights Under Law (LCCRUL), a group founded in 1963 at the request of President John F. Kennedy, said in an open letter addressed to the Facebook CEO that Facebook is exposing itself to liability under various federal and state-level statutes, including those aimed at promoting voting rights, protecting consumers from unethical business practices, and preventing racial and religious discrimination.

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Over the past month, Facebook has faced intense criticism over its controversial policy that essentially allows politicians to lie in political ads. Zuckerberg has insisted that the policy is based on a commitment to free expression and has invoked the First Amendment and the values it protects as the impetus behind the company’s decision. Following Twitter’s announcement that it would banish all political ads across its microblogging platform, Zuckerberg said in a call with reporters, “In a democracy, I don’t think it’s right for private companies to censor politicians or the news.”

“We monitor elections and hear from voters every day,” LCCRUL president and executive director Kristen Clark, one of several civil rights leaders who were invited to a dinner on Monday night at Zuckerberg’s Palo Alto home, wrote in the public letter. “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.”

“The Communications Decency Act will not save you,” she goes on to say, referring to the safe harbor that shields website operators from civil liability—in most cases—in lawsuits stemming from user-generated content.

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Clark writes that Facebook’s commercial relationship creates a duty for Facebook to provide a nondiscriminatory service, noting that the company profits from all forms of content on its site, whether it’s paid to promote it or not. “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,” she said.

The letter goes on to identify several specific laws that LCCRUL believes Facebook might be in conflict with, such as 42 U.S.C. 1981 (Section 1981): “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,” Clark wrote.

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Under Section 1981, Facebook could be held liable, she said, if the company “delivers ads to people of color that are harmful or valueless, such as false statements designed to deceptively suppress voting or census participation.” It may also be held liable under the same law if it “knows of a conspiracy to interfere with voting rights, has the ability to prevent it,” she added.

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The letter was also sent to several relevant federal agencies, including the Federal Trade Commission, the Department of Housing and Urban Development, and the U.S. Justice Department’s civil rights division, along with attorneys general in every state.

“The Lawyers’ Committee has provided important feedback and perspective and we look forward to continuing the discussion with them on the issues they have raised,” a Facebook spokesperson said.

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Clark also takes aim at the protracted failure of Facebook to address the spread of white supremacist content, writing that individuals conspiring on Facebook to carry out attacks against people of color or religious minorities may qualify as a conspiracy to deprive them of their civil rights under 42 U.S.C. § 1985. Facebook, she said, could also be held liable if it knew, but neglected to prevent such activity.

“The First Amendment is not the only amendment. Democracy works by balancing an interrelated set of rights, each of which are essential and equal,” Clark writes, a reference to Zuckerberg’s recent speech at Georgetown University, in which he defended Facebook’s decision to allow deceptive ads by politicians by repeatedly referencing the importance of the First Amendment. “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,” she said.

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Quoting Frederick Douglass, Zuckerberg said in the October 17 speech that free expression is the “great moral renovator of society.” He went on to cite University of Columbia law professor Jack Greenberg, saying that “nearly all the cases involving the civil rights movement were decided on First Amendment grounds.”

Clark countered Zuckerberg’s use of the Douglass quote, writing that the statesman, a former slave, understood that touting a single constitutional value while ignoring the others “does not establish moral solvency—particularly when that value is exercised to the detriment of marginalized people.”

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“The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me,” Douglass said, in a quote attached by Clark. “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.”

Update, 2:45pm: Updated with a statement from Facebook.

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Dell Cameron

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