ThinkProgress, an obvious left-wing publication, just learned a valuable lesson in being careful what you wish for. Just weeks after their contributors argued for the censorship against conspiracy theorist Alex Jones, one of Facebook’s controversial “fact-checkers” with a known conservative bias deleted their article critical of Supreme Court nominee Brett Kavanaugh and his confusing position on Roe V. Wade.
Towards late 2017, Facebook outsourced one of their official fact-checking positions to The Weekly Standard, a right-wing magazine with no history of credible fact-checking that consistently pushes science denial and misleading claims about key political issues on their platform. Zuckerberg, due to public pressure demanding the removal of neo-liberal bias within the company’s ranks, decided to add the magazine as one of Facebook’s newly decreed masters of the universe alongside The Associated Press, FactCheck.org, Snopes and PolitiFact, each granted sweeping gatekeeping powers that limit the reach of certain articles suddenly deemed “false”.
On Tuesday, these unchecked powers blew up in Facebook’s face.
Last week, ThinkProgress editor Ian Millhiser published a controversial article with an absurd clickbait title which reads: “Brett Kavanaugh said he would kill Roe v. Wade and almost no one noticed.” Initially, can we blame the magazine for reading this headline and declaring it false at face value? If we’re to judge facts purely on headlines, this brand of media sensationalism would certainly earn its 5/5 pants on fire Pinocchio rating.
“While ThinkProgress engages in an argument to suggest how Kavanaugh might vote in a Roe v. Wade redo, the article does not provide evidence that ‘Kavanaugh said he would kill Roe v. Wade,’” the Weekly Standard’s Holmes Lybrand writes. “This is not to suggest how the candidate might vote in the hypothetical court case, but simply to clarify that Kavanaugh has not said he would vote to ‘kill’ the court’s decision regarding Roe v. Wade.”
However, it should go without saying that articles are more than the sum of their headline. To outright label an article false requires actually reading the article’s claims and citations before it’s sentenced to the internet death penalty. Understand that once a ‘fact-checker’ rules an article false, it doesn’t just end with a simple notification giving the audience their (truthful) information. No, instead an outlet like ThinkProgress can see an immediate 80 percent loss in traffic to their work as an analytics punishment enforced by the site’s admins, which only get worse after continued flagging.
According to Facebook’s product manager Tessa Lyons, a publication that repeatedly publishes articles determined to be “false” will be punished more severely: Facebook will “cut off their ability to make money or advertise on our services.” Facebook, the digital residence of billions of users around the world, currently makes up around 10 to 50 percent of revenue for certain sites, including ThinkProgress. In March, TrigTent reported how these harsh ‘fact-check vendettas’ and politically motivated algorithm tweakings lead to job losses and entire company shutdowns (ie. Funny Or Die, LittleThings) who saw their incomes ripped away by simple tweaks from corporate watchmen.
These power positions are no laughing matter.
When Tuesday rolled around, Millhiser publicly defended his piece by accusing the social media giant of “pandering to the right” through this extreme process, which currently has a very limited appeals process for reinstatement and no real means of compensation for mistakes if Facebook ultimately says ‘fuck you.’ By the day’s end, it’s all a kangaroo court where judge, jury, and executioner are the accused admins. Messy times, indeed, which is fitting of a messy article. Despite the headline’s obtuse framing, suggesting he said things during his hearing he so clearly didn’t, the real claims focus on quotes from the past which suggest what kind of precedent Kavanaugh will uphold on the court.
Vox cited conservative and liberal legal scholars who agreed with the analysis throughout his article, each focusing on the questionable comments the judge has made regarding the “Glucksberg test” on unenumerated rights. For those that don’t know, this test refers to the 1997 Supreme Court decision in Washington v. Glucksberg, a case which found the U.S. Constitution does not grant citizens the right to physician-assisted suicide.
While people such as myself consider abortion, euthanasia, sex, drugs and rock & roll as our unspoken rights, where government shouldn’t overstep our liberty to live the way we want to, it was Chief Justice Rehnquist’s majority opinion on the court which found these unspoken rights should only be established if they are “deeply rooted in this Nation’s history and tradition.” This can be interpreted as a traditionalist fallacy where the established norm throughout the past is inherently just and good — which is the same argumentative trap Kavanaugh seems to fall into.
As law professor Jim Oleske points out on Twitter, it was Kavanaugh who said in his 2017 speech to the conservative American Enterprise that abortion must be founded on Rehnquist’s precedent on Glucksberg. “Even a first-year law student could tell you that the Glucksberg’s approach to unenumerated rights was not consistent with… abortion cases such as Roe V. Wade… as well as the 1992 decision reaffirming Roe… Planned Parenthood vs. Casey.”
This is absolutely a stretch from the headline suggesting Kavanaugh shouted he’d repeal Roe at the top of his lungs, yet it still paints the complicated way Kavanaugh could practice conservatism upon wider society, whether it’s on the 2015 decision of gay marriage or other cultural issues facing the nation. The fact-checkers don’t even mention this argument, let alone the case central to the entire article. “All roads lead to the Glucksberg test as the test that the Supreme Court has settled on as the proper test,” he concluded.
Kavanaugh has fought back against the likes of Sen. Dianne Feinstein (D-CA) in referral to other documents, such as a notorious 2003 email given to Congress, which he claims misrepresents his positions with that of certain conservative legal scholars. According to Time, it reads:
“I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since Court can always overrule its precedent, and three current Justices on the Court would do so. The point there is in the inferior court point.”
Kavanaugh told the senator that went on to explain that Roe v. Wade “is an important precedent to the Supreme Court. It’s been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. …That makes Casey precedent on precedent.”
The question remains whether Kavanaugh, over a years time, still believes in a principle any law student would know, where a 1997 decision could somehow be emphasized as more important than the 1992 precedent he seems to care for so deeply.
For either The Weekly Standard, ThinkProgress or the masters of Facebook to pretend to know they know the views of an undefined political figure is dishonest. That said, their narratives aren’t all equally fake news. As Stephen Colbert once said, “the truth does sometimes have a liberal bias.” Outlets will inevitably pitch their narratives, be it conservative, liberal or outright conspiracy garbage, and Facebook is clueless on how to handle these situations without rigging their system. It’s a casino, where the ethics don’t matter, and Facebook always finds a dishonest way to win on their turf.