Time for Tech Titans to Choose

Social media companies cannot both censor and also avoid liability.

There seems to be no end to the controversies about freedom of speech versus censorship on the Internet.  This week's explosion featured the amazingly coincidental and abrupt ban of Alex Jones and all links to his InfoWars web site from the major social media sites.

Kook Speech

Alex Jones is arguably a kook.  He first said that the 2012 massacre at the Sandy Hill school never occurred, then said that the supposed victims were child actors.  He claimed that vaccines cause autism and that the Comet Ping Pong pizza shop was a center of pedophile child abuse.

He has been making these nutty arguments, along with many others, for years, but only now was he banned from Facebook, YouTube, and Apple.  But his nuttiness is not the official reason for the ban.

Instead, Apple declared that the company "does not tolerate hate speech."  Facebook removed Jones's pages for "glorifying violence, which violates our graphic violence policy, and using dehumanizing language to describe people who are transgender, Muslims and immigrants, which violates our hate speech policies." YouTube blamed "hate speech and harassment" in explaining why they took down Jones's videos.

Regardless of the merits of banning Mr. Jones, the manner in which it was done is disturbing.  Instead of laying out an objective standard of some kind, such as directly calling for violence or criminal activity, they booted him for violating their vague standards for "hate."

That's why so many conservatives and even a few liberals are defending his Constitutional right to spread his views.  It's not because they believe his material to have any value, it's because they do not like people being banned from what has become our public square for vague, arbitrary reasons.

When conservatives criticized the New York Times for hiring Sarah Jeong because of her hateful, racist tweets, the left defended her on the grounds that nonwhite people cannot be racist.  Their bigotry was promptly proven when black conservative Candace Owens retweeted Ms. Jeong's exact same tweets, except with "white" and "black" exchanged, and was instantly banned for hate speech.

Her tweets show that nonwhites can certainly spout hate and racism.  One Times writer was wise enough to understand:

But the criterion for racism is either objective or it’s meaningless: If liberals get to decide for themselves who is or isn’t a racist according to their political lights, conservatives will be within their rights to ignore them.

Senior management at the Times doesn't seem to agree that Ms. Jeong is a racist.  The mandarins of Twitter have not so much as suspended Ms. Jeong's account even though they were lightning-quick to memory-hole identical tweets with the races reversed..

Camel's Nose

We also know that the leftists who control the banning process won't stop at Mr. Jones.  The Washington Post reports that lawmakers are accusing these firms of selectively banning Republican lawmakers.

Facebook, Google and Twitter on Tuesday sought to defend themselves against accusations from Republican lawmakers who said the tech giants censor conservative news and views during a congressional hearing that devolved into a political sniping match.

Lawmakers had convened the nearly three-hour session before the House Judiciary Committee to explore the "filtering" practices of major social media companies, where a mix of human reviewers and powerful yet secret algorithms review online content - a process meant to stifle offensive speech that even tech giants admit is not perfect.

Censorship also affects non-political material which can't be called "hate speech" by any stretch of the imagination.  The Washington Free Beacon reports that

Brandon Combs, president of the Firearms Policy Coalition, told the Free Beacon that links to CodeIsFreeSpeech.com have been blocked by Facebook, and Amazon has taken the site down from its servers. The website, which has republished the gun-design files at the center of the Wilson case, is a joint project of the Firearms Policy Coalition, Firearms Policy Foundation, Calguns Foundation, and California Association of Federal Firearms Licenses. Combs said publishing the files was within their First Amendment rights and the actions taken by employees at the tech giants is an attempt to censor them that he believes may have wide-ranging consequences.

Facebook has engaged in an even more pervasive censorship campaign, ensuring that the link to the website cannot be shared on any of its platforms.

The material in question is a set of files which can be fed into a 3-D printer to create a one-shot plastic gun.  Making guns at home has been practiced for centuries.  Publishing instructions on anything that isn't classified has been regarded as protected speech for decades; there is no "hate speech" justification for blocking access to it.  This is politically-driven censorship, no more and no less.

Fish or Fowl?

Despite appearances, it's important to clearly point out that these bans and censorship have nothing to do with the First Amendment.  Our Bill of Rights applies to what government may not do to you.  Twitter, Apple, and so on are private companies, who traditionally have a right to do business largely how they please.

You have a Constitutional right to write or say whatever you wish, on your own property or the public square; you do not have a Constitutional right to use Facebook's servers in a way they'd rather you not.

That said, it's not generally a good idea to make your customers feel oppressed and ill-treated, which is exactly what their current policies are doing.  Silicon Valley is dangerously close to a point where half the country views them as a worse enemy than the Mainstream Media, a high bar indeed.

And this is indeed a choice that they are making, for there are clear alternatives.  Instead of relying on vague terms such as "hate speech," they could simply prohibit libel or slander on their platforms.  Unlike hate speech, these terms have precise legal meanings which have been established over centuries, and there are well-defined standards for deciding whether any given utterance falls into either category.

Or, they could simply decide that "anything goes," and leave legal liability to the courts to shake out.  That would entirely remove them from the job of censorship, much like the phone company - does anybody blame AT&T when a blackmailer or harasser uses a phone to commit their crime?  No.

Historically, we have two models of communications utilities.  The telephone system is a "common carrier," which means that absolutely anyone can use the phone for absolutely anything they please.  Phone companies are not liable for any material that passes over their systems.  They cannot get in trouble when someone uses phones to conspire to commit a crime, for example.  In return, they must provide their services to anyone at an equal level of service for a specified, well documented price.

This has been tested many times in court.  The federal government sued Federal Express, arguing that FedEx was aiding and abetting drug dealers by carrying their products to customer's residences.  FedEx won the resulting lawsuit, arguing that it was up to the Feds to tell them whose packages they couldn't carry.  The court agreed that determining what was legal and what was not legal was not their responsibility; they were a common carrier open to all, and liable for nothing so long as they obeyed any legally-issued search warrants, court orders, and subpoenas, which they do.

Newspapers, in contrast, are publishers.  They have total freedom to publish any material or advertising they like and reject anything they do not like, but in return, they are held responsible for their content.

As a result, they face lawsuits if they publish falsehoods about people; this is where libel and slander come in.  That's why publishers always reserve the right to reject or edit letters to the editor; they don't want to end up on the wrong end of a libel suit unless they're absolutely sure that what they printed is the truth and can be defended in court.

Internet companies clearly want it both ways.  They want a publisher's freedom to censor content they do not like, and at the same time, they want total protection from liability for any damaging material their users post.

They might have once had a claim to common carrier protection from liability for harmful material.  That's an absurd claim today: they routinely and publicly take it upon themselves to censor users by deleting their posts.  Making and enforcing such decisions puts them in the "publisher" category.

Indeed, the Guardian reports that Facebook has declared in court that it is in fact a publisher and enjoys a publisher's First Amendment rights:

Facebook has long had the same public response when questioned about its disruption of the news industry: it is a tech platform, not a publisher or a media company.

... Attorneys for the social media company presented a different message from the one executives have made to Congress, in interviews and in speeches: Facebook, they repeatedly argued, is a publisher, and a company that makes editorial decisions, which are protected by the First Amendment.

The contradictory claim is Facebook's latest tactic against a high-profile lawsuit, exposing a growing tension for the Silicon Valley corporation, which has long presented itself as neutral platform that does not have traditional journalistic responsibilities.

Mehta [a Facebook attorney] argued in court Monday that Facebook's decisions about data access were a "quintessential publisher function" and constituted "protected" activity, adding that this "includes both the decision of what to publish and the decision of what not to publish."  [emphasis added]

At the same time, the New York Times explained that a federal judge has ruled that Twitter is a public forum.  As a result,

...on Wednesday, one of Mr. Trump's Twitter habits - his practice of blocking critics on the service, preventing them from engaging with his account - was declared unconstitutional by a federal judge in Manhattan.

This has implications for Twitter which go far beyond Mr. Trump.

Their complaint argued that Mr. Trump's feed amounted to a "digital town hall" where not only did the president and his aides communicate information but members of the public - by replying to Mr. Trump's tweets and others who responded to him - exchanged views with one another. By blocking particular people from viewing or replying to message chains because they had expressed views he did not like, it argued, Mr. Trump had violated their First Amendment rights[emphasis added]

A Time for Choosing

If Twitter is indeed a "digital town hall" such that Mr. Trump cannot control access to his Twitter account, does Twitter have the right to block particular people from viewing or replying to message chains because they express views Twitter does not like?  Logic would suggest that they don't - that what this judge has ruled, in effect, is that Twitter has become a common carrier whether its owners like it or not.

The tech titans have had everything their own way for long enough.  There's no need for this to continue, as the danger is becoming apparent to all Americans.  They need to be hammered with lawsuits and court rulings demanding that they pick one or the other: Are they a publisher, with the right to choose what they publish and subject to full liability for all of it?  Or are they a common carrier, with no right to discriminate against anyone or anything, and no liability for any of it?

What they can't be allowed to do is to continue straddling, using their monopoly power to censor anything that offends the San Francisco left.

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Business.
Reader Comments

A big part of the problem is that Silicon Valley has built a business model which is actually unethical and should be made illegal. Namely, their business model is spying on people in a way that would be considered harassment if any actual person did it to 1/10th the degree that Google, Facebook, etc. do it.

It is now known that Google & Apple's cell phones are constantly recording your conversations. Your conversations made through VOIP, or texting services are spied upon. They read your emails and contact list to determine your personal interests and associations. They are tracking your location via GPS, and correlating your stops in each area with known business listings. If you are using online shopping they are tracking your purchases and the amounts, if you pay for things in person using a credit card processor they will track it that way. This is all just the tip of the iceberg and behind the scenes the statistical modelling of these companies probably provides a better picture of you as an individual than you yourself could provide.

All of this is enabled because the US government permits these companies to constantly engage in harassing, surveillance behavior of people online. We could, and should, mandate that internet traffic be anonymized in order to avoid the negative consequences of having malicious companies in control of such detailed personalized data.

Even if Google & Facebook were run by literal saints with the best of intentions, this type of information is dangerous and can always be revealed by accident or oversight. Having your personal data collected and breached via company's imperfect security measures harms innumerable millions of people.

It also just so happens that mandating real, serious encryption and privatization at the Federal level that couldn't be defeated through any modern cryptographic means, would put a stake into the heart of the Google & Facebook business model.

Mandating real data security (that is, the data is never accessible to be collected or stored by a fallible actor) violates no principle of the free society, nor does it rely on any subjective content enforcement. But it would change the relationship of these tech giants to their customers. Instead of the customers essentially being victims to ply with a honeypot of tools & features, having to actually compete on-cost would go a long way towards establishing a business-client relationship instead of spy-mark relationship.

We should start there.

August 16, 2018 12:45 AM

Great article! So glad I finally figured out how to share to FB! You really should submit this to The Federalist and Patriot Post sites! They would/ should run with it! Best explaination I have read so far! Thanks so much for sharing your intellect! Also, Intellectual Takeout! All are on FB. [ found you on the Federalist] Joan

September 8, 2018 4:00 PM
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