[NCAC] PRIVATE CENSORSHIP – FIGHTING SUPPRESSION OF SPEECH BY NON-GOVERNMENTAL ACTORS

conclusion to Volokh's paper cited earlier in the thread

https://reason.com/volokh/2021/07/16/conclusion-social-media-as-common-carriers/

[Eugene Volokh] Conclusion: Social Media as Common Carriers?
by Eugene Volokh
7.16.2021 10:03 AM

Finally, here's the Conclusion to my Social Media as Common Carriers? article (see also this thread); many thanks to all of you for your comments on my posts—I'll be reviewing them closely as I put the finishing touches on the piece in the next several days.

[* * *]

How should the law deal with large tech companies using their power to block certain viewpoints, as a means of influence public debates throughout the nation? (By large, I mean companies such as Facebook, Google, and Amazon, the 5th, 4th, and 3rd largest American corporations by market capitalization, with valuations from $800 billion to $1.5 trillion.[280])

One solution would be to leave this to market forces and private property rights, allowing those companies to decide what user speech to allow on their platforms, disciplined only by their own judgment and the fear of loss of users. This may well be the right approach, which after all is how we predominantly ensure product quality and customer service in other areas. Absence of governmental regulation must always be one of the choices that we seriously consider.

A second possible solution would be to focus on structural changes, such as antitrust law.[281] Perhaps it's not good to have corporations as large as Amazon, which have yearly revenue that's greater than the yearly GNP of most countries ($280 billion for Amazon in 2019,[282] comparable to the GNP of Bangladesh, Egypt, Chile, or, to cite a rich Western country, Finland[283]). Or perhaps it's specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do. Maybe they should be required to provide interoperable access, to diminish the monopoly-producing advantages of network effects.[284]

A third possible solution would be to treat social media conduits—at least as to their hosting functions—much like we treat some other conduits, such as phone companies and mail and package delivery services. Those conduits are often not even monopolies, in part because phone and mail services already provide interoperable access. But we limit their ability to pick and choose among customers, including based on customer viewpoint.

I'm not sure what the right answer is, but in this article I've tried to lay out some of the strongest arguments in favor of the third solution—both of its wisdom and its constitutionality—so that we can better consider all our options.



[280] Largest American Companies by Market Capitalization (as of July 1, 2021), https:‌‌//‌perma.cc/‌CHX9-KRSQ. I set aside here the important question whether, if there is to be any regulation, it should be imposed only on particularly large platforms—cf. City of Chicago v. Mayer, 124 N.E. 842, 844 (Ill. 1919) (interpreting state common carrier statute as limited to those "carrying on a large and extensive business")—or on platforms more generally. See Eric Goldman & Jess Miers, Regulating Internet Services By Size (working paper).

[281] See, e.g., Balkin, supra note 91, at __.

[282] Amazon, Fortune:‌ Fortune 500 (as of June 2, 2021), https:‌‌//‌perma.cc/‌KVE2-8Z6B.

[283] These countries have populations of roughly 160, 100, 20, and 5 million, respectively.

[284] See supra note 89 and accompanying text.
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"Noah Feldman: Trump’s doomed Twitter lawsuit raises one serious issue":

https://www.post-gazette.com/opinio...raises-one-serious-issue/stories/202107130014

 

Turley
White House Admits to Flagging Posts For Facebook

https://jonathanturley.org/2021/07/...to-flagging-posts-to-be-censored-by-facebook/

 

you know you're in trouble when Germany does better at protecting free speech than your own country

https://jonathanturley.org/2021/07/15/youtube-fined-by-germany-for-removing-pandemic-protest-video/

excerpt:

Perhaps the most chilling aspect of the rising censorship in the United States is that countries like Germany (with histories of antagonism toward free speech) have criticized the trend as dangerous and wrong. While Democratic leaders and media figures have supported censorship, figures like Angela Merkel (long criticized for her attacks on free speech) have criticized moves like Twitter banning Trump. Now, Germany has fined YouTube for something that many on the left in the United States have supported: the removal of a video contesting Covid-19 limits.

A German court ordered YouTube to pay a $118,000 fine for removing the video of a protest against Covid-19 lockdowns filmed in Switzerland last year. YouTube fought to censor the video because it deemed such protests to be Covid-19 “misinformation.” YouTube, like Twitter and Facebook, enforce massive censorship operations after taking sides on issues of political, scientific, and social debates.
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more at the link

 

"Keep in mind that these companies already have the largest censorship system in our history. It is being managed by private corporations but directed to some extent by government officials. Just this week, the White House admitted it has been flagging “misinformation” for Facebook to censor. This outsourcing of censorship allows government officials to do indirectly what they cannot do directly. It creates the specter of a type of shared shadow state."

https://jonathanturley.org/2021/07/...ld-be-accountable-for-vaccine-misinformation/

White House Communications Director: Big Tech Should be “Accountable” for Vaccine “Misinformation”

July 21, 2021

There was an unnerving conversation between between Biden White House Communications Director Kate Bedingfield and MSNBC host Mika Brzezinski that shows how much ground has been lost on principles of free speech. In an exchange on Morning Joe, Brzezinski asks Bedingfield why Biden has not completed his promised review of Section 230 and create an avenue to held social media companies “accountable in a real way” for spreading “misinformation” about vaccines. Brzezinski ignores not only the constitutional implications of such a move but ignores how such an approach would eviscerate free speech and free press rights. Equally chilling is the response. Bedingfield agrees and assured Brzezinski that the Biden Administration believes these companies should be held accountable for allowing others to voice doubts or dissenting opinions on such questions.

Bedingfield assures Brzezinski that they are “reviewing” Section 230 and that the Biden Administration does believe that the media companies need to d be held “accountable.”

Vaccine “truth” has become the latest means for calling for more censorship from social media companies. It is better than the prior use of election misinformation because now advocates can claim that free speech is actually killing people. Indeed, President Joe Biden recently declared publicly that Facebook is “killing people” by not censoring free speech. He later walked back his comments.

Keep in mind that these companies already have the largest censorship system in our history. It is being managed by private corporations but directed to some extent by government officials. Just this week, the White House admitted it has been flagging “misinformation” for Facebook to censor. This outsourcing of censorship allows government officials to do indirectly what they cannot do directly. It creates the specter of a type of shared shadow state.

Facebook only recently announced that people on its platform may discuss the origins of COVID-19, after previously censoring such discussion — but it still bars opposing views on vaccinations and the pandemic. Other companies actively block wayward thoughts and views; last week, YouTube was fined by a German court for censoring videos of protests over COVID restrictions.

When Twitter’s CEO Jack Dorsey came before the Senate to apologize for blocking the Hunter Biden story before the election as a mistake, senators pressed him and other Big Tech executive for more censorship.

In that hearing, members like Sen. Mazie Hirono (D., HI) pressed witnesses like Mark Zuckerberg and Jack Dorsey for assurance that Trump would remain barred from speaking on their platforms: “What are both of you prepared to do regarding Donald Trump’s use of your platforms after he stops being president, will be still be deemed newsworthy and will he still be able to use your platforms to spread misinformation?”

Rather than addressing the dangers of such censoring of news accounts, Senator Chris Coons pressed Dorsey to expand the categories of censored material to prevent people from sharing any views that he considers “climate denialism.” Likewise, Senator Richard Blumenthal seemed to take the opposite meaning from Twitter, admitting that it was wrong to censor the Biden story. Blumenthal said that he was “concerned that both of your companies are, in fact, backsliding or retrenching, that you are failing to take action against dangerous disinformation.” Accordingly, he demanded an answer to this question:

“Will you commit to the same kind of robust content modification playbook in this coming election, including fact checking, labeling, reducing the spread of misinformation, and other steps, even for politicians in the runoff elections ahead?”​

“Robust content modification” has a certain appeal, like a type of software upgrade. It is not content modification. It is censorship. If our representatives are going to crackdown on free speech, they should admit to being advocates for censorship.

The public however is not entirely sold on censorship on an expanding array of subjects from gender identification to election fraud to criticism of foreign governments. That is why the pandemic is the perfect vehicle for getting a free people to turn against free speech. You simply declare, as did Biden, that free speech kills. It can kill you. You then push companies to censor more under the threat of being held “accountable.”

The fact is that you generally cannot hold people legally “accountable” for saying things that politicians or media figures like Brzezinski do not like about vaccines or climate change or any other controversy. The regulation of companies can offer some regulatory avenues for inducing corporate censorship like threatening to take away immunity if they do not serve as surrogate censors. However, that can also raise constitutional issues both as a question of corporate speech or converting these companies into state actors.

The greatest danger is that these political and media figures are signaling that they want even greater levels of censorship and that these private companies will accommodate them. They already have. The result is the expansion of an already massive censorship system that controls much of our political discourse.


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Facebook censors "hoes"

https://www.theregister.com/2021/07/22/ny_gardeners_facebook_hoe_concerns/

excerpt

A Facebook group dedicated to gardening in western New York state is celebrating a victory over the company's algorithms after having been repeatedly threatened with censure and deletion due to use of the word "hoe".

According to Elizabeth Licata, a moderator for the 7,700-member WNY Gardeners group, posts which referred to the handy implement were being flagged by Facebook algorithms as "violating community standards."

The hoe is an ancient device dating back at least to the Neolithic period. Facebook dates back to 2004.
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more at the link

 

"Facebook blocks woman’s ‘why are men so dumb’ comment as ‘hate speech’":

https://nypost.com/2021/07/26/facebook-blocks-womans-men-are-dumb-comment-as-hate-speech/

 

Interview with Nadine Strossen on Threat of Big Tech and Big Gov Collusion Against the First Amendment
"Private sector actors are directly bound by constitutional norms, including the First Amendment" if they are being coerced by or colluding with the government

https://husseini.substack.com/p/interview-with-nadine-stroessen-on

excerpt, interview and transcript follow this exerpt:

Sam Husseini
Jul 23

Nadine Strossen, who was president of the American Civil Liberties Union from 1991 to 2008 and is now professor at New York Law School puts forward the following argument: "even private sector actors are directly bound by constitutional norms, including the First Amendment free speech guarantee, if you can show that there is in the legal term to describe this is called entanglement, sufficient entanglement between the government officials and the nominally private sector actors, that if they are essentially conspiring with the government doing the government's bidding, the government can't do an end run around his own constitutional obligations that way."

She also said: "I was really shocked at how cavalier and how dismissive the so-called mainstream media was in sneering at Trump's lawsuit, because it really has to be taken seriously."

I recently spoke to Strossen, please excuse the not terribly photo-oped nature of the audio and video. A very lightly edited and hopefully sufficiently cleaned up transcript of the interview is below. Select text is bolded for those wanting to skim.
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