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

https://www.wsj.com/articles/big-te...-common-carrier-11627656722?mod=hp_opin_pos_1

On Censorship, Big Tech Has It Both Ways
The companies enjoy the privileges of common carriers without the responsibilities. State antidiscrimination laws are one promising remedy.

By Philip Hamburger and Clare Morell
July 30, 2021 2:11 pm ET

Does the Constitution require Americans to accept Big Tech censorship? The claim is counterintuitive but the logic is clear: If you submit a letter to this newspaper, the editors have no legal obligation to publish it, and a statute requiring them to do so would be struck down as a violation of the Journal’s First Amendment rights. Facebook and Twitter, the argument goes, have the same right not to provide a platform to views they find objectionable.

Big Tech censorship has provoked interest in new civil-rights statutes—state laws that would bar the companies from viewpoint discrimination on their platforms and services. The First Amendment defense of this private censorship arose in a recent federal district court opinion expressing skepticism about a Florida anticensorship statute. It will come up again when other states, such as Texas, consider civil-rights statutes that focus more tightly on viewpoint discrimination.

With the possibility of multiple state statutes barring Big Tech viewpoint discrimination, it will be essential to understand the extent of the tech companies’ freedom of speech. For this, it is important to consider whether they are common carriers.

A statute limiting the ability of a Big Tech company to express its own views would almost certainly be unconstitutional. What about a law limiting viewpoint discrimination where the companies serve as a publicly accessible conduit for the speech of others?

This sort of distinction has long been ingrained in federal law—including Section 230(c)(1) of the 1996 Communications Decency Act, which distinguishes between information provided by an interactive computer service and “information provided by another information content provider.” Whatever the shortcomings of that statute, it draws a common and reasonable distinction between a company’s own speech and the speech of others for which it provides a conduit. This distinction doesn’t apply in the case of a newspaper. Its pages are not open to the public to post their views, and so it is speaking for itself when it makes editorial decisions about letters and other outside contributions.

Another reason to doubt the First Amendment claim: Antidiscrimination laws are familiar limits on speech. The U.S. has a range of local, state and federal antidiscrimination laws with significant speech consequences, and courts haven’t held that they violate the First Amendment. One has a First Amendment right to bigoted speech, but not, according to the courts, in circumstances that, for example, amount to discrimination in employment or public accommodations.

Yet another reason is that large tech platforms and services function as common carriers. The states and the federal government have the power to regulate common carriers, and this certainly includes the authority to ban discrimination. The common-carrier tradition can be traced to the common law, which viewed persons serving as common carriers as privileged by government. At the same time, it barred them from discriminating.

A similar common-law heritage regarding public accommodations underlay the Supreme Court’s decision in Heart of Atlanta Motel v. U.S. (1964), holding that Congress could adopt laws barring discrimination by private parties. The 14th Amendment empowered Congress to bar state discrimination, but it was the power over interstate commerce that let Congress prohibit private discrimination.

When a company offers its services to the public, it can qualify as a common carrier in one of two ways. It can serve a public function, so that even a small bus company can be treated as a common carrier. Or it can enjoy market dominance—when the services of one or a few companies are so prevalent as to leave the public with little alternative.

The large tech companies meet both definitions. They serve a public function, providing the public square or conduit for the information age. We meet and communicate on their services or platforms much more than on the grass of the village green.

These companies also enjoy a market dominance. Whether or not this amounts to a monopoly, it is enough to be an independent ground to recognize their services and platforms as common carriers.

One might protest that this doctrine penalizes private success. Why impose restrictions only on companies that are so innovative and efficient that they become dominant? Might that be invidious or at least irrational discrimination against the prosperous?

Not really. The point isn’t to restrict those that flourish, or that are large, but to recognize the reality that they provide publicly accessible conveyance for speech. The speech at stake is not the speech of the companies, but the speech of others that they convey. And if the physical conveyance of persons without invidious viewpoint discrimination is worthy of protection, so is the conveyance of their speech.

Nineteenth-century telegraph companies were treated as common carriers, and then telephone companies, and then some forms of television. Communications technologies change, and each is different, but the legal analysis still fits.

The recent court opinion questioning the Florida anticensorship statute noted that in censoring some speech, the tech companies are choosing what speech they will convey. From this, the court concluded that the companies’ platforms and services were more akin to newspapers than common carriers. But unlike a newspaper, these platforms and services are offered to the public for the conveyance of their speech. Unlike a newspaper, they serve the function of a common carrier. What is more, they enjoy market dominance.

That Big Tech is subject to common-carrier regulation is especially clear because Section 230 already recognizes the tech companies as akin to common carriers. Along these lines, Section 230(c)(1) protects Big Tech from being treated as “the publisher or speaker of any information provided by another information content provider.”

In other words, Section 230(c)(1) recognizes that the Big Tech platforms and services are conduits for information—that they serve the function of a common carrier. On this account, the section gives them the substantial statutory advantage of immunity from traditional publisher liability, and for a quarter-century they have not objected to it. On the contrary, they lobbied for recognition of their common-carrier-like function, and the corresponding statutory privilege, and they continue to defend it fiercely.

The problem with Section 230 is that it privileges the companies for serving the function of a common carrier without imposing the corresponding duties. This makes them uncommon carriers. They are so powerful as to avoid the burdens of common-carrier status while obtaining benefits for their role as conduits. State antidiscrimination statutes would merely impose a small portion of the common-carrier duties that Big Tech has thus far evaded.

Common-carrier status is particularly consistent with the First Amendment because the companies aren’t merely private actors. Yes, they are private. And they might protest that their dominance is simply a product of their private enterprise and superior product. But they have had profound government support, which helped secure their dominance.

The public privileging of these companies is extraordinary. Consider the fair-use doctrine in copyright law. A teacher can copy a small number of pages to show to a class. Google can copy whole books, and even when it shows only a snippet to the public, it can use the entire volumes to develop its algorithms and offer the public an online index. This appears to have been important for Google’s early enticement of the public into its services.

Section 230 privileges tech communication over print and in-person communication by excusing tech companies from liability in the courts. In contrast, paper and in-person communication is still fully subject to liability. The result has been to accelerate and accentuate tech dominance over other modes of speech.

So it isn’t true that the large tech services and platforms reached their dominance merely by private effort. Their dominance is partly the product of public privileging, and this reinforces the conclusion that tech dominance over speech is not only private enterprise. It is also the result of enterprising capture of government.
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more

 

conclusion

Not merely a generic subsidy for tech communication, Section 230 privatizes censorship. Section 230 relieves the large tech services and platforms of liability for restricting a congressionally specified list of materials, even when the materials are “constitutionally protected.” As one of us has explained in these pages, this is privatized censorship—a license to censor, free of concerns about ordinary legal duties that would apply to anyone else, including newspapers and individuals.

One might think it a newfangled mode of censorship, which the Constitution failed to anticipate. Not so. Rather than directly censor printing, the 17th-century English government mainly asked private entities, such as the universities and the Stationers Company (the printers trade guild), to suppress objectionable material. This was the primary example of what the First Amendment’s speech and press clauses prohibited.

The large tech companies are private, and the point isn’t that they violate the First Amendment when they censor users’ speech. But they have participated in the censorship secured by Section 230’s privileges. It therefore is not unreasonable for states to protect Americans from the tech company’s government-sponsored censorship.

The time has come to subject the Big Tech services and platforms to at least statutory barriers against viewpoint discrimination. They serve the function of common carriers or public squares and enjoy profound dominance. They achieved this dominance with substantial government privileges, including privileges they sought for serving as a conduit for information. So they can be regulated as common carriers, including with state antidiscrimination provisions. And this surely is just, for they have used their government-established dominance and privileges to enforce congressionally privatized censorship.

Mr. Hamburger teaches at Columbia Law School and is president of the New Civil Liberties Alliance. Ms. Morell is a policy analyst at the Ethics and Public Policy Center, where she works on the Big Tech Project. She worked in the White House Counsel’s Office and the Justice Department during the Trump administration.​

 

https://eet.pixel-online.org/files/etranslation/original/Mill, On Liberty.pdf

 

Mill is generally considered the patron saint of free speech, Locke generally did not address free speech directly. In the Letter on Toleration however, Locke argues for freedom of belief in the guise of protecting members of religious denominations from the 'mischief of the magistrate' seeking to prevent the spread of non-favored religious beliefs and the practice of sectarian rituals. In this way one could generate a fairly powerful interpretation of a Lockian defense of free speech along the lines of a freedom of religious belief and expression.

Mill cuts right to the chase and just defends free speech directly.

 

related:

John Locke's recipe for pancakes

 

Twitter Suspends Science Writer After He Posts Results Of Pfizer Clinical Test
https://jonathanturley.org/2021/07/...ter-he-posts-results-of-pfizer-clinical-test/

excerpt:

Now all three posters (Berenson, The Post, and The Times) were citing studies and accused of not putting them into context. However, only Berenson was suspended.

Obviously, none of these posters should be suspended and Twitter should not be enforcing one of the largest censorship programs in history. However, the silence of free speech supports, academics, and journalists to this hypocrisy is deafening.

The rise of corporate censors has combined with a heavily pro-Biden media to create the fear of a de facto state media that controls information due to a shared ideology rather than state coercion. That concern has been magnified by demands from Democratic leaders for increased censorship, including censoring political speech, and now word that the Biden Administration has routinely been flagging material to be censored by Facebook.
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more at the link

 

https://www.nytimes.com/2021/08/10/opinion/facebook-misinformation.html

We Research Misinformation on Facebook. It Just Disabled Our Accounts.
Aug. 10, 2021, 3:15 p.m. ET

By Laura Edelson and Damon McCoy
Ms. Edelson is a Ph.D. candidate in computer science at N.Y.U.’s Tandon School of Engineering, where Dr. McCoy is an associate professor of computer science and engineering. They are affiliated with the nonpartisan research group Cybersecurity for Democracy.

We learned last week that Facebook had disabled our Facebook accounts and our access to data that we have been using to study how misinformation spreads on the company’s platform.

We were informed of this in an automated email. In a statement, Facebook says we used “unauthorized means to access and collect data” and that it shut us out to comply with an order from the Federal Trade Commission to respect the privacy of its users.

This is deeply misleading. We collect identifying information only about Facebook’s advertisers. We believe that Facebook is using privacy as a pretext to squelch research that it considers inconvenient. Notably, the acting director of the F.T.C.’s consumer protection bureau told Facebook last week that the “insinuation” that the agency’s order required the disabling of our accounts was “inaccurate.”

“The F.T.C. is committed to protecting the privacy of people, and efforts to shield targeted advertising practices from scrutiny run counter to that mission,” the acting director, Samuel Levine, wrote to Mark Zuckerberg, Facebook’s founder and chief executive.

Our team at N.Y.U.’s Center for Cybersecurity has been studying Facebook’s platform for three years. Last year, we deployed a browser extension we developed called Ad Observer that allows users to voluntarily share information with us about ads that Facebook shows them. It is this tool that has raised the ire of Facebook and that it pointed to when it disabled our accounts.

In the course of our overall research, we’ve been able to demonstrate that extreme, unreliable news sources get more “engagement” — that is, user interaction — on Facebook, at the expense of accurate posts and reporting. What’s more, our work shows that the archive of political ads that Facebook makes available to researchers is missing more than 100,000 ads.

There is still a lot of important research we want to do. When Facebook shut down our accounts, we had just begun studies intended to determine whether the platform is contributing to vaccine hesitancy and sowing distrust in elections. We were also trying to figure out what role the platform may have played leading up to the Capitol assault on Jan. 6.

We are privacy and cybersecurity researchers whose careers are built on protecting users. That’s why we’ve been so careful to make sure that our Ad Observer tool collects only limited and anonymous information from the users who agreed to participate in our research. And it is also why we made the tool’s source code public so that Facebook and others can verify that it does what we say it does.

We strongly believe we are not violating Facebook’s terms of service, as the company contends. But even if we had been, Facebook could have authorized our research. As Facebook declared in announcing the disabling of our accounts, “We’ll continue to provide ways for responsible researchers to conduct studies that are in the public interest while protecting the security of our platform and the privacy of people who use it.”

Our research is responsible and in the public interest. We’ve protected the privacy of our volunteers. Essentially, our ad tool collects the ads our volunteers see on their Facebook accounts, plus information provided by Facebook about when and why they were shown the ads and who paid for them. These ads are seen by the specific audience the advertiser targets.

This tool provides a way to see what entities are trying to influence the public, and how they’re doing it. We think that’s important to democracy. Yet Facebook has denied us important access to continue to do much of our work.

One of the odd things about this dispute is that while Facebook has barred us from research tools available to users and other academic researchers, it has not blocked our Ad Observer browser either by technical or legal means. It is still operational, and we are still collecting data from volunteers.

Still, by shutting us off from its own research tools, Facebook is making our work harder. This is unfortunate. Facebook isn’t protecting privacy. It’s not even protecting its advertisers. It’s protecting itself from scrutiny and accountability.

The company suggests the Ad Observer is unnecessary, that researchers can study its platform with tools the company provides. But the data Facebook makes available is woefully inadequate, as the gaps we’ve found in its political ad archive prove. If we were to rely on Facebook, we simply could not study the spread of misinformation on topics ranging from elections to the Capitol riot to Covid-19 vaccines.

By blocking us from its platform, Facebook sent us a message: It wants to stop us from examining how it operates.

We have a message for Facebook: The public deserves more transparency about the systems the company uses to sell the public’s attention to advertisers and the algorithms it employs to promote content. We will keep working to ensure the public gets that transparency.

Laura Edelson is a Ph.D. candidate in computer science at New York University’s Tandon School of Engineering, where Damon McCoy is an associate professor of computer science and engineering. They are affiliated with the nonpartisan research group Cybersecurity for Democracy.

​

 

"YouTube suspends Sen. Rand Paul for 7 days over videos questioning the efficacy of masks":

https://www.msn.com/en-us/news/poli...-questioning-the-efficacy-of-masks/ar-AANbPog

 

Turley beats the dead horse

https://jonathanturley.org/2021/08/11/youtube-censors-sen-rand-paul-for-speaking-against-mandates/

 

Banning Alex Berenson From Twitter Is a Mistake
"The pandemic's wrongest man" can likely profit from martyrdom

https://reason.com/2021/08/30/alex-berenson-twitter-ban-vaccine-covid/

excerpt:

In summary, Berenson is not someone to be taken seriously. All that said, Twitter's decision to banish him is concerning for at least two reasons.

First, while Berenson is a uniquely misguided COVID-19 pundit, he is far from the only person to mislead the public about some aspect of the pandemic. Social media sites have taken great pains to purge so-called misinformation from their platforms, but they have largely taken their cues from government-approved sources of information, which have huge blind spots. It was the government's own health officials, after all, who cast doubt on the idea that COVID-19 could have possibly emerged from a lab and encouraged Big Tech to crush any dissenting views on this subject. But neither Twitter nor Facebook have banned any mainstream media accounts for wrongly deriding the lab leak theory as an unfounded and completely impossible conspiracy theory.

Similarly, White House health experts and the Centers for Disease Control and Prevention have changed their minds on masks, the herd immunity threshold, and many other topics. Their recommendations, projections, and forecasts routinely turn out to be less than reliable, but they suffer no formal reprisals. Social media moderators appear to be especially deferential to the mainstream media; examples of misinformation that speak to the media's bias against contrarian news sources are treated as critically important, while the government's own mistakes get a pass. The difficulty of evenly enforcing misinformation bans is probably a good reason for Big Tech to take a cautious approach; social media sites can avoid charges of hypocrisy by taking a broadly permissive view of what sort of content is allowed on their platforms.

Of course, that's a matter of personal preference: Social media sites like Facebook and Twitter are private companies, and thus have every right to arbitrarily ban any user for any reason. But perhaps they should consider whether banning Berenson actually serves the goal of undermining misinformation. After all, Berenson is currently trying to monetize his suspension, and is calling on his admirers to subscribe to his Substack, which costs $6 per month. (His Twitter feed was free.) Make an idea seem dangerous and forbidden, and some people will pay money to hear it.

There's every reason to believe Berenson is actively trying to profit from martyrdom. When I briefly engaged with him during a television appearance, he claimed that he was a victim of cancel culture because The New York Times had declined to review his latest novel. This is a person who thrives off the idea that he's a brave truth-teller being unfairly denied a megaphone. I say let Berenson spout his nonsense. It's less seductive when it's out in the open—and it earns him less money.
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more at the link

 

the mother of one of the marines killed in Kabul:

 

Calling all Barbz: Twitter rallies behind Harvard students told to remove Nicki Minaj flag from dorm window

https://www.thefire.org/calling-all-barbz-twitter-rallies-behind-harvard-students-told-to-remove-nicki-minaj-flag-from-dorm-window/

excerpt:

Barbz — the name given to the devoted fans of rapper/singer/songwriter Nicki Minaj — have taken to Twitter to defend the expressive rights of several Harvard undergraduate students who were told to take down a flag depicting the rapper hanging in their residence hall window.

On Sept. 5, a Harvard undergrad writing under the Twitter handle @imjustjuice tweeted that he and his suitemates had been contacted and told to remove the flag over concern that “the community will find the flag offensive.” Presumably sent by a Harvard official, the email did not explain how the flag — depicting a bikini-clad Minaj saluting in front of an American flag — could be considered offensive.

@imjustjuice tweeted, accompanied by a photo of the flag and a screenshot of the email:

Harvard really said no Barbz allowed in school THIS is where harvard draws the line?! #JusticeForNicki.

Screenshot of Harvard undergraduate @imjustjuice’s deleted tweet from the account @barbzstruggle.
He has since deleted this tweet and made his account private, but not before the tweet went viral and was noticed by Nicki Minaj’s official Twitter account.

Before making his account private, @imjustjuice tweeted that he deleted the original tweet over concern that Harvard might do something to jeopardize his spot at the university in response to the attention his original tweet received.
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more at the link