Comment by rzwitserloot
5 days ago
> Technically, the first amendment applies only to state actors, not private entities.
That's probably not what the person you're responding to is talking about.
Americans have this unfortunate tendency to harp on and on about 'free speech' in contexts where the first amendment obviously does not apply, or, even more intriguingly/ironically, where the first amendment pretty clearly states the exact opposite.
For example, if some non-government-owned platform (such as a social network) bans a user, and that user says "My free speech rights are being infringed".
Whereas what the 1A actually states is the exact opposite: That platform has the right to ban that user, and the government is constitutionally restrained: If the government were to make a law that forces this social network to unban this user, that'd be the 1A violation.
Then there are only 3 options:
1. That user wildly misunderstands free speech. And given how common this is, 'most americans' is perhaps [citation needed] but the sentiment is understandable. It's not just that "My free speech!" is so common, it's also that articles about some incident pretty much never talk about this. Lawyers, legal wonks, legal podcasts that sort of thing - they talk about it, but, niche audience.
2. The meaning of 'free speech' in the sentence 'this social network has banned me; my free speech is being infringed' is not referring to 1A but to the concept as a general principle; a principle that is orthogonal, or even mutually exclusive with, the definition of 'free speech' the way 1A intends it.
3. They know exactly what 1A means but they are lying through their teeth in order to get some internet group ragin' going on.
If we make a habit of assuming good intentions, the nicest choice is option 2.
The somewhat famous "Section 230" covers part of this, and explains some of the pragmatic reasoning behind MCAC v Halleck: If you hold private companies responsible for having infringed free speech rights, then private companies are going to bend over backwards making clear they are not going to moderate. Anything. For any reason. Legal reasons, you see.
It's a combination of 1 and 2 for the most part.
There's a lot of nuance lost when the Bill of Rights is being taught in US grade schools. Most kids read each of the amendments but then are given a simplified interpretation. "The first amendment guarantees a right to free speech" would have been correct enough for a test answer when I was in school, although it loses enough nuance to frequently be incorrect, because people often presume that equates to "I can say what I want without consequence and the government will protect my ability to do it", when it more accurately should probably be taught as "the government has a limited ability to meddle in other's speech"
The net effect is both that people misunderstand the 1st amendment, and they also believe that what they thought it meant is an important value.
If I build a bridge and offer it for public use for a toll, and I overhear you saying something I don't like as you travel across in your car, you think the government stepping in if I ban you from traversing the bridge solely for that reason is a 1A violation?
This principle is obvious if I was running a newspaper and printing user-submitted comments. I can have whatever inclusion policy I deem fit, or my own speech would be curtailed.
But this is now being applied by private companies in cases wildly removed from that. Meta er whoever can ban two users having a private conversation on their platform.
It seems to me that the private bridge builder in the example above has a stronger case than these companies in such cases.
Perhaps I overhear that you dislike fast-food, and I only sell billboard space to fast-food companies.
Or perhaps you think that would be just fine, and we just need to close the technological gap of being able to embed hypersensitive microphones into asphalt.
[dead]
> Then there are only 3 options
I can imagine at least one more:
4. Americans believe companies too frequently do the government's bidding, and by allowing corporations to suppress speech, they're allowing the government to exploit that and indirectly violate their direct 1A rights.
> I don't understand what you're on about.
Likewise, I think we have a miscommunication here because I agree with everything you wrote.
I'm not making a legal argument about free speech at all. I agree with your analysis on the legality there. Now that said, I do think the Biden admin crossed the line of legality with their collaboration (and a little implied threatening) Twitter and Facebook, and their whole establishing an office whose job it was to report "disinformation" on social media to the tech giants.
I'm speaking culturally. To go back to the Lab Leak Theory example when Youtube was taking down any videos that even mentioned it (even if the mentioner was a well-respected Evolutionary Biologist) wasn't illegal, but it was a total abandonment of free speech principles. It feels like it's abated quite a bit in the last year or two, but for a while there, there were ideological rakes all over the place that any mention of would get your content taken down by big tech.
Now all that being said, I do think there's a point at which the line between private corp and government starts to blur, and I do think big tech is approaching that line. For most of history, no corporation could even approach the level of power over our lives as government, but increasingly they are getting so powerful that we can't even function in society without them. I think we're approaching or past the point where regulation and/or breaking them apart is necessary to reduce the amount of power that they have over us.
> To go back to the Lab Leak Theory example when Youtube was taking down any videos that even mentioned it (even if the mentioner was a well-respected Evolutionary Biologist) wasn't illegal, but it was a total abandonment of free speech principles.
Not really, this is a case where two cooperating parties, who both have speech rights, have a dispute about which speech they collectively want to espouse.
Unless you're saying that people should lose their speech rights when they form a business?
> Unless you're saying that people should lose their speech rights when they form a business?
I tried to make clear I wasn't making a legal argument, but since you mentioned it I will address it, but first I'll just say that no I'm not saying that people should lose their free speech rights when they form a business. I'm not sure how you got that from what I wrote, but no, legally they don't and shouldn't (with maybe one exception, mentioned next). What I have a problem with is the lack of cultural appreciation for free speech. Culturally, the powerful people at Youtube decided that free speech was not important, at least not as important as controlling the narrative and preventing the spread of ideas they considered "dangerous" (or whatever description they might provide). I think that's the mainstream cultural attitude in the USA today, and I think that's unfortunate. I wish that everyone would believe as I do, that free speech as a cultural value is important and should be honored and respected, especially when it's speech you disagree with.
But to the legal argument: When that "business" gets to be the size and scope of a company like Youtube, yes I do think some regulations (i.e. restrictions) on what they are allowed to impose on their users are reasonable. If we had a dozen small providers then I don't think there's any need for regulation there because the market competition will provide a powerful check on potential abuse, but Youtube is an entrenched behemoth with a giant moat. At that scale, the amount of power they have over the people is immense, and IMHO approaches that of the government, and therefore there need to be some checks on that power.
I do also think the "compelled speech" defense for Youtube et al is a bit of a stretch. I agree that compelled speech is not ok and is just as bad as restricted speech. However, I do see a difference between being a communication service and someone being compelled to say certain speech. I would strongly oppose an attempt to compel Youtube the company to say something, but I don't think somebody having a channel that is clearly attributed to themselves and not to the parent company, is the equivalent of forcing Youtube the company to say something specific.
For example, imagine a world where the telephone system operators got to decide which speech was permitted on their phone lines. They had people listening in the conversation and "moderating" by cutting off the live feed if the topic veered into something they disagreed with, and any voicemails/recordings made were also deleted and scrubbed so the recipients wouldn't hear the wrong think. In that scenario would you defend the rights of the phone company not to host "compelled" speech that they disagree with? Compelled speech would be forcing the company themselves to say something. Them passing the electricity on the wire (aka being a "dumb pipe") is not the same thing.
I also think the argument falls apart when taken to it's logical extent. Who decides what speech they are "compelled" to host? If I make a Youtube video and say "I support <presidential candidate not favored by the company>" are they being compelled to say that? I don't think so.
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