The Constitution in the age of Facebook: Freedom of Association
Editor’s Note: Lori Andrews joined Forbes blogger Kashmir Hill, New York Times reporter Jennifer Preston, and publisher Christopher Wink to speak about how the Founding Fathers might have handled online social networks at the National Constitution Center on January 12, 2012. The podcast can be heard by clicking the play button below.
The U.S. Constitution puts a high value on freedom of association, which is protected by the First Amendment. Peaceful protests, union gatherings, and religious services are favored ways of associating for political change, workplace benefits, and spiritual development. Without a doubt, social networks like Facebook have enhanced the Constitutionally-protected freedom of association since they allows groups to form. Class of 1995 reunion committee. Fans of Justin Bieber. Movement for the Release of the West Memphis Three.
But social networks have opened the door for people’s associations to be used against them. A woman lost custody of her child because she joined a Facebook group in favor of legalized marijuana. A teenager was given a harsh sentence for a minor crime because he wore gang colors in his Myspace photo, indicating an association with a gang. When, without any notice, Facebook in 2009 changed its policy so that lists of friends and affiliations were made public and no longer subject to people’s privacy controls, the repercussions were felt around the world.
In Iran, authorities questioned or detained the Facebook “friends” of Tehran’s U.S.-based critics. People were beaten. Americans traveling to Iran were detained and had their passports confiscated for just having a Facebook page.
Under the U.S. Constitution, a crucial part of the freedom of association is the right not to reveal your associations. In 1958, the U.S. Supreme Court used the Constitutional right of freedom of association to allow the civil rights organization for African Americans, the NAACP, to keep its member list secret from the government of Alabama. The NAACP argued that compelled disclosure would “abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs.” In deciding not to compel disclosure, the Court held that people might be afraid to exercise their freedom of expression and engage in collective action to further those beliefs if their membership in the organization was known. Exposing a person’s membership in a group could lead to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”
Constitutional rights like the freedom of association only protect people against inappropriate actions by the government. But a recent action by the Federal Trade Association against Facebook goes a long way in assuring that people won’t be harmed by the revelation of their associations. The FTC used a federal statute to charge Facebook with “unfair trade practices” for its 2009 revelation of peoples’ associations. Under the November 2011 settlement of the case, Facebook will not be allowed to change its privacy settings without letting people know in advance and giving them a choice about what information they will reveal. This change will go a long way toward protecting freedom of association on social networks.
Lori Andrews is Distinguished Professor of Law at Kent College of Law; Director of the Institute for Science, Law and Technology; and Associate Vice President at Illinois Institute of Technology. Her new book is I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy.