Should Facebook Be Regulated as a Public Utility for Free Speech?
By Granite State Report
Introduction: When the Public Square Becomes Private
For centuries, democracy has depended on the idea of a public square — a space where citizens meet, argue, persuade, and listen. In New Hampshire, this still happens at town meetings, the most local form of self-government. But increasingly, the real debates, organizing, and persuasion happen not in the school gym or town hall, but online.
And in that digital space, one company towers above the rest: Facebook.
With nearly three billion users worldwide, and a dominant share of Americans using the platform for news and civic communication, Facebook has effectively become the infrastructure of speech. Yet, unlike the traditional public square, it is not governed by constitutional free speech protections but by corporate content policies. This shift raises a profound question: Should Facebook — and platforms like it — be regulated as public utilities, with obligations to protect speech, fairness, and transparency?
Facebook’s De Facto Monopoly on Civic Conversation
National Scope
- Dominance: Pew Research reports that 30% of U.S. adults regularly get news from Facebook. No single television channel or newspaper rivals that reach.
- Dependency: Nonprofits, small businesses, campaigns, and even government agencies rely on Facebook pages and events to reach constituents. Without Facebook, many groups lose their main audience.
- Barrier to Exit: While alternatives like Twitter (X), TikTok, or local forums exist, none replicate Facebook’s cross-generational, community-based dominance.
New Hampshire Sidebar:
Granite State Organizing on Facebook
From school funding protests in Concord, to North Country opioid recovery groups, to local political debates in Manchester, Granite Staters are using Facebook groups and events as their new town halls. Local campaigns report that Facebook is the only affordable way to reach older voters — especially in rural towns where traditional media coverage has declined.
How Facebook Shapes and Limits Free Speech
Content Moderation Beyond the Law
- Facebook bans illegal speech (threats, incitement), but also restricts lawful speech under broad rules: “misinformation,” “hate speech,” or “sensitive topics.”
- Enforcement is uneven: users often don’t know why posts were removed or why reach is limited.
Algorithmic Gatekeeping
- Facebook’s News Feed algorithm decides what people see. This makes visibility itself a form of speech control.
- Nuanced, complex posts often get less reach than sensational or emotionally charged ones — not because they’re less important, but because they generate fewer clicks.
Advertising Rules & Political Speech
- Facebook requires extra verification for ads about social issues or politics. While intended to prevent abuse, this system often blocks grassroots campaigns or nonprofits with limited resources.
- Example: Small NH advocacy groups have reported rejected ads on topics like climate change or education policy, even when factual and lawful.
New Hampshire Sidebar:
2022 Midterms on Facebook
Candidates for governor and Congress reported that advertising restrictions on social issues made it harder to run local issue ads. While big campaigns could afford compliance teams, smaller campaigns — particularly independent or third-party candidates — struggled. In a state famous for its Independent voters, the barriers were especially frustrating.
Legal and Scholarly Perspectives
Why the First Amendment Doesn’t Apply
- The First Amendment restricts government, not private companies. Facebook, as a private entity, can set its own rules.
- But some scholars argue Facebook performs a “public function” — hosting debate and speech once held in public squares — which may justify constitutional obligations.
Common Carrier Analogy
- Telephone companies can’t cut off calls because they dislike a viewpoint. Scholars suggest Facebook should be regulated similarly — as a common carrier of speech.
- Legal battles in Texas and Florida are testing this theory, with laws banning viewpoint-based censorship on large platforms. Courts remain split.
Public Utility Theory
- Like electricity or water, Facebook is now “essential infrastructure.” You don’t have to use Facebook, but in practice, to organize politically or socially, you must.
- As Professor K. Sabeel Rahman puts it, digital platforms are “informational infrastructure” — and should be regulated as such.
Case Studies: When Facebook Decides Who Gets Heard
Case 1: Political Ads and Social Issues
Grassroots campaigns in New Hampshire and beyond report that their ads on education, climate, or housing get flagged or denied, while consumer ads (fast food, cosmetics) run freely. This makes issue advocacy harder — unless you’re well-funded.
Case 2: Ad Discrimination Research
A 2019 study found that Facebook’s ad delivery algorithms skewed job and housing ads toward certain demographics, even when advertisers targeted broadly. This isn’t just unfair — it undermines equal access to opportunity and information.
Case 3: The Pandemic and Health Speech
During COVID-19, Facebook struggled to balance misinformation removal with preserving debate. Some factual content, including legitimate critiques of policy, was mistakenly removed. In New Hampshire, local health groups reported posts on vaccine clinics being incorrectly flagged.
Why Facebook Should Be a Public Utility
| Utility Criteria | Facebook’s Reality |
|---|---|
| Essential service | Central to civic organizing, political campaigns, news sharing |
| No real alternative | Network effects make switching nearly impossible |
| Monopoly power | Dominates U.S. social media market, especially among older users |
| Gatekeeping role | Algorithms & ad rules determine who is heard |
| Public interest | Speech, democracy, elections hinge on access |
Potential Models for Reform
- Common Carrier Regulation
- Require nondiscrimination in content delivery.
- Platforms cannot suppress lawful speech based on viewpoint.
- Transparency & Accountability
- Mandate algorithmic transparency.
- Require public reporting of moderation decisions.
- Independent Oversight
- Expand beyond Facebook’s current “Oversight Board.”
- Create independent, legally empowered review boards.
- Interoperability & Competition
- Force data portability so users can move communities across platforms.
- Encourage new entrants by reducing Facebook’s lock-in effect.
- Public Alternatives
- Invest in nonprofit or public digital platforms (akin to PBS).
- Provide civic space not governed by ad revenue models.
New Hampshire Sidebar:
Granite State Politics in the Digital Age
- Local Campaigning: In a state where door-knocking and retail politics are legendary, Facebook has become the new front porch. Campaigns reach voters not just in diners but in Facebook groups.
- Independent Voters: With NH’s large share of independents, Facebook is often the only place they see debates between candidates. Restrictive ad policies can therefore distort political competition.
- Town Hall Tradition: Ironically, the state that prizes open debate in real town halls now sees much of its discourse mediated by corporate policies written in California.
An advertisement for Starting a Political Independent Party Movement called the “Unaffiliateds” (Group on Facebook) was rejected by Facebook. When you can block legally formed groups and potential parties for no legitimate reason, how is that not private industry controlling politics and ultimately the government? If you control information; if you control words; you can control thought, if you can control thought, you can control essentially everything, and these older generations of politicians DO NOT understand or grasp that concept, thus private industries like Facebook continue to have a monopoly over information, coalition building, and essentially our lives.
How is that not a blatant overreach and abuse of corporate power? How is it that corporate monopolies can have this much control over the 1st Amendment, the 1st Amendment was meant to be absolute, ESPECIALLY in a political context like the advertisement is. Is Mark Zuckerberg protecting the two party duopoly by blocking an advertisement for an independent political movement?
Depicted below is the advertisement REJECTED by Facebook for promoting a third party political movement which obviously entails social issues.
Risks and Objections
- Corporate Free Speech: Critics argue forcing Facebook to carry all viewpoints violates its own First Amendment rights.
- Moderation Needs: Platforms must remove illegal or harmful content — regulation must balance openness with safety.
- Implementation: Who decides which platforms qualify? How to enforce neutrality without political manipulation?
Conclusion: Democracy Needs a Digital Town Hall
The public square is no longer on Main Street — it’s on Facebook. But when one corporation controls the infrastructure of speech, democracy is at risk. The solution isn’t to abandon digital platforms but to govern them as the public utilities they have become.
For New Hampshire, the stakes are clear: a state famous for independent politics and open debate now finds its democratic tradition filtered through the algorithms and ad rules of a private monopoly. If we want to preserve the spirit of the town hall in the digital age, it may be time to recognize Facebook for what it is — the new public utility of speech.
References
- Pew Research Center (2023). News Consumption on Social Media Platforms.
- Balkin, J. (2020). Free Speech in the Algorithmic Society. Yale Law School.
- Klonick, K. (2018). The New Governors: The People, Rules, and Processes Governing Online Speech. Harvard Law Review.
- Napoli, P. (2019). Social Media and the Public Interest: Media Regulation in the Disinformation Age. Columbia University Press.
- Knight First Amendment Institute. From Private Bads to Public Goods.
- Arxiv.org (2019). Discriminatory Ad Delivery on Facebook.
Join the UNAFFILIATEDS FACEBOOK GROUP to join the Independent Voter Movement
