Facebook’s Trending Topics Are None of the Senate’s Business

[Commentary] Chairman Thune’s letter demanding details about Facebook’s editorial process claims to be based on the Senate Commerce Committee’s “oversight authority.” But oversight of what, exactly? The First Amendment states, “Congress shall make no law … abridging the freedom of speech, or of the press.” If Congress can make no law abridging these freedoms, how exactly can it claim to have oversight over them? As much as we may care about Facebook’s alleged manipulation of news feeds, we should be concerned about this federal intrusion into an independent organization’s editorial process even more.

Congress doesn’t have to explain itself, but three possible explanations might justify its demands: Facebook doesn’t qualify for First Amendment protection; the inquiry doesn’t involve First Amendment–protected activity; or Facebook’s editorial process is an appropriate subject for Congress to probe. None of these remotely hold water. Facebook would do well to remind Chairman Thune of his own words when he argued against the proposed revival of the Fairness Doctrine nearly a decade ago: “I know the hair stands up on the back of my neck when I hear government officials offering to regulate the news media and talk radio to ensure fairness.” By declining to participate in this improper inquiry, Facebook will be honoring its heritage and protecting its destiny.

[Rubin is a lecturer on law at Harvard Law School, fellow at the Stanford Law School’s Center for Internet and Society, and special counsel at the law firm Quinn Emanuel Urquhart & Sullivan]