In the wake of Trump's Twitter ban, big tech can't be allowed to hide behind terms and conditions any longer.
The interplay between the First Amendment and corporations like
Twitter, Google, Amazon, Apple, and Facebook is the most significant
challenge to free speech in our lifetimes. Pretending a corporation with
the reach to influence elections is just another place that sells stuff
is to pretend the role of debate in a free society is outdated.
From
the day the Founders wrote the 1A until very recently, no entity
existed that could censor on the scale of big tech other than the
government. It was difficult for one company, never mind one man, to
silence an idea or promote a false story in America, never mind the
entire world. That was the stuff of Bond villains.
The
arrival of global technology controlled by mega-corporations like
Twitter brought first the ability the control speech and soon after the willingness.
The rules are their rules, and so do we see the permanent banning of a
president for whom some 70 million Americans voted from tweeting to his
88 million followers (ironically the courts had earlier claimed it was
unconstitutional for the president to block those who wanted to follow
him). Meanwhile, the same censors allowed the Iranian and Chinese
governments (along with the president’s critics) to speak freely. For
these companies, violence in one form is a threat to democracy while
violence in another similar form is valorized under a different colored
flag.
The year 2020 also saw the arrival of a new tactic by the
global media: sending a story down the memory hole to influence an
election. The contents of Hunter Biden’s laptop,
which strongly suggest illegal behavior on his part and unethical
behavior by his father the president, were purposefully and effectively
kept from the majority of voters. It was no longer for a voter to agree
or disagree; it was to know and judge yourself or remain ignorant and
just vote anyway.
Try
an experiment. Google “Peter Van Buren” with the quote marks. Most of
you will see on the first page of results articles I wrote four years
ago for outlets like The Nation and Salon. Almost none of you will see the scores of columns I’ve written for The American Conservative over the past four years. Google buries them.
The
ability of a handful of people nobody voted for to control the mass of
public discourse has never been clearer. It represents a stunning
centralization of power. It is this power that negates the argument of “go start your own web forum.” Someone did—and then Amazon withdrew its server support and Apple and Google banned their app.
The same thing happened to the Daily Stormer, which was driven offline through a coordinated effort by the tech companies and 8Chan and deplatformed by Cloudflare. Amazon partner GoDaddy deplatformed the world’s largest gun forum AR15. Tech giants have also killed
off local newspapers by gobbling up ad revenues. These companies are
not, in @jack’s words, “one small part of the larger public
conversation.”
The tech companies’ logic in destroying the
conservative social media forum Parler was particularly evil—either
start censoring like we do (“moderation”) or we shut you down. Parler
allowing ideas and people banned by the others is what brought about its
demise. Amazon, et al, wielded their power to censor to another
company. The tech companies also claimed that while Section 230 says we
are not publishers, we just provide the platform, if Parler did not
exercise editorial control to big tech’s satisfaction, it was finished.
Even if Parler comes back online, it will live only at the pleasure of
the powerful.
Since
democracy was created, it has required a public forum, from the
Acropolis to the town square on down. That place exists today, for
better or worse, across global media. It is the seriousness of the
threat to free speech that requires us to move beyond platitudes like
“it’s not a violation of free speech, just a breach of the terms of
service!” People once said “I’d like to help you vote ladies, but the
Constitution specifically refers to men.” That’s the side of history
some are standing on.
This new reality must be the starting point,
not the endpoint, of discussions about the First Amendment and global
media. Facebook, et al, have evolved into something new that can reach
beyond their corporate borders, beyond the idea of a company that just
sells soap or cereal, beyond the vision of the Founders when they wrote
the 1A. It is hard to imagine Thomas Jefferson endorsing a college
dropout determining what the president can say to millions of Americans.
The magic game of words—it’s a company so it does not matter—is no
longer enough to save us from drowning.
Tech companies currently
work in casual consultation with one another, taking turns being the
first to ban something so the others can follow. The next step is when a
decision by one company ripples instantly across to the others, and
then down to their contractors and suppliers as a requirement to
continue business. The decision by AirBnB to ban users over their political stances could cross platforms so a person could not fly,
use a credit card, etc., turning him essentially into a non-person
unable to participate in society beyond taking a walk. And why not fully
automate the task, destroying people who use a certain hashtag, or who
like an offending tweet? Perhaps create a youth organization called
Twitter Jugend to watch over media 24/7 and report dangerous ideas? A
nation of high school hall monitors.
Consider linkages to the surveillance
technology we idolize when it helps arrest the “right” people. So with
the Capitol riots do we fetishize how cell phone data was used to place
people on site, coupled with facial recognition run against images
pulled off of social media. Throw in calls from the media for people to
turn in friends and neighbors to the FBI, alongside amateur efforts
across Twitter and even Bumble
to “out” participants. The goal was to jail people if possible, but
most loyalists seemed equally satisfied if they could cause someone to
lose their job. Tech is blithely providing these tools to users it
approves of, knowing full well how they will be used. Orwellian? Orwell
was an amateur.
There are legal arguments to extend
limited 1A protections to social media. Section 230 could be amended.
However, given that Democrats benefit disproportionately from corporate
and government censorship, no legislative solution appears likely. Such
people care far more about the rights of some citizens (trans people
seem popular now; it used to be disabled folks) than the most basic
right for all the people.
They rely on the fact that it is
professional suicide today to defend all speech on principle. It is easy
in divided America to claim the struggle against fascism (racism,
misogyny, white supremacy, whatever) overrules the old norms. And they
think they can control the beast.
But imagine that someone’s
views, which today might match @jack’s and Zuck’s, change over time.
Imagine that Zuck finds religion and uses all of his resources to ban
legal abortion. Consider a change of technology that allows a different
company, run by someone who thinks like the MyPillow Guy, to replace
Google in dictating what you can read. As one former ACLU director explained,
“Speech restrictions are like poison gas. They seem like they’re a
great weapon when you’ve got your target in sight. But then the wind
shifts.”
The election of 2020, when they hid the story of Hunter
Biden’s laptop from voters, and the aftermath, when they banned the
president and other conservative voices, was the coming-of-age moment,
the proof of concept for media giants that they could operate behind the
illusion of democracy.
Hope rests with the Supreme Court expanding the First Amendment to social media, as it did when it grew the 1A to cover all levels
of government, down to the hometown mayor. The Court has long
acknowledged the flexibility of the 1A in general, expanding it over the
years to acts of “speech” as disparate as nudity and advertising. But
don’t expect much change anytime soon. Landmark decisions on speech,
like those on other civil rights, tend to be evolutionary and in line
with societal changes rather than revolutionary.
It is sad that
many of the same people who quoted that “First they came for…” poem
about Trump’s Muslim ban are now gleefully supporting social media’s
censorship of conservative voices. The funny part is that both Trump and
Twitter claim what they did was for people’s safety. One day we’ll all
wake up and realize it doesn’t matter who is doing the censoring, the
government or Amazon. It’s all just censoring.
What a sad little argument “But you violated the terms of service nyah nyah!” is going to be then.
https://www.theamericanconservative.com/articles/stand-down-jack-why-the-first-amendment-needs-to-be-applied-to-social-media/
