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

this is fun . . . Antifa member makes a death threat against Portland Mayor Ted Wheeler (at 1:45).

It even includes Wheeler's home address at 3730 SW Shattuck Rd, Portland OR, in case anyone wants to go trick or treating at Wheeler's place.

Twitter Approved™

 

nice summary of where the issue stands to date:

https://reason.com/volokh/2021/05/0...ern-how-americans-speak-with-other-americans/

Whose Rules Should Govern How Americans Speak with Other Americans?
(1) American law? (2) Rules set by a large corporation? (3) International law?

EUGENE VOLOKH | 5.5.2021 1:37 PM

Today's Facebook Oversight Board decision on the Trump ban raises many interesting questions: When should politicians' speech be blocked on the grounds that it "supports" or "legitimizes" riots (whether right-wing or left-wing)? When can Facebook ban claims of electoral fraud on the grounds that they are "unfounded," and when should it conclude that the debate about the often uncertain events in a recent election is ongoing and legitimate? (Say what you will about bans on Holocaust denial, but those came after a consensus built on decades of comprehensive scholarly study of the subject.) What sort of further transparency should Facebook provide for its decisions? How long should Trump be banned from Facebook?

But for this post, I want to set those questions aside, because the question at the heart of the matter is much more far-reaching: It is,

What rules should govern how Americans communicate with other Americans, including on Facebook, which "has become a virtually indispensable medium for political discourse, and especially so in election periods"?
​

There are at least three possible answers:

1. American free speech principles, coupled with the judgment of American speakers and American listeners.
2. An immensely rich and powerful corporation, and its immensely rich and powerful owners and managers.
3. International law principles, as made and enforced by an international group of decisionmakers (on which Americans are represented but are understandably not in control).

There is a lot to be said for each of the possible answers. Obviously, many libertarians and other supporters of private property rights would support option 2: By default, property owners are entitled to control what is said and done on and with their property. That of course has historically been so for many other powerful entities, such as newspaper, magazine, and book publishers. It isn't always so: For instance, phone companies (land-line or cell) and delivery services (such as UPS and FedEx) are "common carriers," which can't just cancel someone's phone number or delivery service because they think that person's or group's viewpoints are dangerous or evil.

But many libertarians would oppose such common-carrier rules as well. And even people who think private-property principles can be overcome in unusual situations might view Big Tech power as not being perilous enough to justify restrictions on private property here. (Plus there are few problems so bad that they can't be made even worse by badly crafted or implemented government regulations.)

Likewise, many people might support option 3—the option that the Facebook Oversight Board seemed to take (you can start by counting the number of references to international norms in their decision). They might think that international law principles related to free speech are better than American free speech principles. Or they might think that it's just better to have uniform principles, especially for decisions of a multinational corporation. Or they might think that American free speech principles are better when it comes to threat of jail or fines, but the international free speech principles are better when it comes to decisions about whom to eject from social media platforms.

I have to say, though, that I'm tentatively inclined towards option 1 (and of course towards similar options for other democracies' laws as to speech among their residents). That's so for speech by a sitting President to his citizens. It's so for speech by other officials, who may have fewer other ways than Trump did of reaching the public. It's so for speech by candidates for office, and activists, and ordinary citizens. This ability to effectively communicate with each other is vital to American democracy, not just to our individual rights.

I was just on a radio program on this with an expert from the Brennan Center, who noted that Facebook couldn't "totally suppress" people's speech. Of course that's right—it can only partially suppress their speech. But such partial suppression can still do much to shape the course of American political debate. Should it be able to?

Of course, historically newspapers and other publishers have had substantial power over public debate, and I think they have the First Amendment rights what to print in their pages. But I think (more on that in later posts) that, when it comes to their decisions about what to host, Facebook, Twitter, and Google's YouTube should be treated more like phone companies, who don't have such a right.

As Facebook's own Oversight Board mentioned, and as I quoted above, Facebook "has become a virtually indispensable medium for political discourse, and especially so in election periods." It is in effect close to a monopoly in its immensely important market niche—which is especially important in an environment of political competition, where even small restraints on speech can swing elections and other public decisions. Facebook shouldn't have the power to control political debate, any more than phone companies should.

That's particularly clear when you see the minority views mentioned in the Oversight Board opinion. (We don't know how large the minority was, but my guess is that it was repeatedly mentioned in the opinion because it wasn't just one or two people—and a minority today can become a majority soon enough.) Here is the passage; the citations are to international legal rules (emphases and paragraph breaks added added):

For the minority of the Board, while a suspension of an extended duration or permanent disablement could be justified on the basis of the January 6 events alone, the proportionality analysis should also be informed by Mr. Trump's use of Facebook's platforms prior to the November 2020 presidential election.

In particular, the minority noted the May 28, 2020, post "when the looting starts, the shooting starts," made in the context of protests for racial justice, as well as multiple posts referencing the "China Virus." Facebook has made commitments to respect the right to non-discrimination (Article 2, para. 1 ICCPR, Article 2 ICERD) and, in line with the requirements for restrictions on the right to freedom of expression (Article 19, para. 3 ICCPR), to prevent the use of its platforms for advocacy of racial or national hatred constituting incitement to hostility, discrimination or violence (Article 20 ICCPR, Article 4 ICERD). The frequency, quantity and extent of harmful communications should inform the Rabat incitement analysis (Rabat Plan of Action, para. 29), in particular the factors on context and intent.

For the minority, this broader analysis would be crucial to inform Facebook's assessment of a proportionate penalty on January 7, which should serve as both a deterrent to other political leaders and, where appropriate, an opportunity of rehabilitation. [The majority also noted that "[p]eriods of suspension should be long enough to deter misconduct."]
​

I'm all for deterrents to political leaders. I just think that the deterrent should be threat of voters throwing the bums out—not the viewpoint-based judgments of a massive corporation applying international law norms.

I don't want American candidates (or activists or citizens) to be pressured to adjust their messages to foreign legal standards, or to the judgment of Facebook employees or executives or oversight board members. And I don't want people who want to operate on an equal footing with their political opponents to feel the need to "rehabilitate" themselves, in international lawyers' eyes or a massive corporation's eyes.

EUGENE VOLOKH is the Gary T. Schwartz Distinguished Professor of Law at UCLA.​

 

Free Speech Inc.: How Democrats Have Found A New But Shaky Faith In Corporate Speech

https://jonathanturley.org/2021/05/10/free-speech-inc/

excerpt:

When free speech concerns are raised over corporate censorship, Democrats often drop references to “free speech” violations and instead address “First Amendment” violations. Indeed, when Trump objected to the ban on Twitter as “banning free speech,” a host of media outlets ran stories like: “Fact Check: Did Twitter Violate President Trump’s First Amendment Rights?” Experts like Wayne State University law professor Jonathan Weinberg chimed in that, under the First Amendment, a company “gets to choose who it does business with and who it doesn’t.”

Likewise, when questioned about the Board’s decision and its impact on free speech, board member and Stanford Law Professor Michael McConnell dismissed such concerns by insisting that the First Amendment does not apply to Facebook and “no judge in the country would rule” in favor of the former president.”

The First Amendment is not the full or exclusive embodiment of free speech, however. It addresses just one of the dangers to free speech posed by government regulation. Many of us view free speech as a human right. Corporate censorship of social media clearly impacts free speech, and replacing Big Brother with a cadre of Little Brothers actually allows for far greater control of free expression.

This is even more concerning when politicians openly pressure companies to increase censorship. In one hearing last year, Sen. Richard Blumenthal (D-Conn.) actually warned Big Tech CEOs that he and his colleagues were watching to be sure there was no “backsliding or retrenching” from “robust content modification.”

Obviously, these politicians would insist that the Masterpiece Cakeshop case is about discrimination while the Facebook controversy is about disinformation. However, some of us have long viewed all of these controversies as about free speech. Indeed, taking a free speech approach avoids the hypocrisy on both sides.

Under a free speech approach, cakeshop owners have a right to refuse to prepare cakes that offend their deep-felt values, including religious, political or social values. Thus, a Jewish cakeshop owner should be able to decline to make a “Mein Kampf” cake for a local skinhead group, a Black owner to decline to make a white supremacist-themed cake, or a gay baker to decline to make a cake with anti-LGBT slogans. While these bakers cannot discriminate in selling prepared cakes, the act of decorating a cake is a form of expression, and requiring such preparation is a form of compelled speech.

In the same way, NFL teams have a free speech right to prevent kneeling or other political or social demonstrations by players during games, Citizen’s United has a right to support political causes — and, yes, Facebook has a right to censor speech on its platform.

Free speech also allows the rest of us to oppose these businesses over their policies. We have a right to refuse to subsidize or support companies that engage in racial or content discrimination. Thus, with social media companies, Congress should not afford these companies legal immunity or other protections when they engage in censorship.

These companies once were viewed as neutral platforms for people to exchange views — people who affirmatively “friend” or invite the views of others. If Big Tech wants to be treated like a telephone company, it must act like a telephone company. We wouldn’t tolerate AT&T interrupting calls to object to some misleading conversation, or cutting the line for those who misinform others.

As a neutral platform for communications, telephone companies receive special legal and economic status under our laws. Yet, it sometimes seems Facebook wants to be treated like AT&T but act like the DNC.

In defending Big Tech’s right to censor people, University of California at Irvine law professor Richard Hasen declared that “Twitter is a private company, and it is entitled to include or exclude people as it sees fit.” That is clearly true under the First Amendment. It also should be true of others who seek to speak (or not speak) as corporations, from bakeries to sports teams.

Yet, when the Supreme Court sent back the Masterpiece Cakeshop case in 2018 for further proceedings, an irate House Speaker Nancy Pelosi (D-Calif.) declared: “Masterpiece Cakeshop is a commercial bakery open to the public, and such services clearly must be made available to the public on equal terms … No business or organization open to the public should hide their discriminatory practices behind the guise of religious liberty.” But Pelosi applauded when social media companies barred some members of the public based on viewpoint discrimination on subjects ranging from climate change to vaccines to elections.

The difference, of course, is that Masterpiece Cakeshop was willing to sell cakes to anyone but refused to express viewpoints that conflict with the owners’ religious beliefs. Conversely, social media companies like Twitter and Facebook are barring individuals, including a world leader like Trump, entirely from their “shop.” And, taking it one step further, Facebook has declared it will even ban the “voice of Donald Trump.”

Big Tech is allowed to be arbitrary and capricious in corporate censorship. However, our leaders should follow a principled approach to corporate speech that does not depend on what views are being silenced. Because Elizabeth Warren was right. This “never was about a cake” or a tweet or “likes” for that matter. It was always about free speech.
​

more at the link

 

"Facebook reverses ban on posts claiming COVID-19 was man-made":

https://nypost.com/2021/05/26/facebook-reverses-ban-on-posts-claiming-covid-was-man-made/

 

"Facebook’s Lab-Leak About-Face":


https://www.wsj.com/articles/facebooks-lab-leak-about-face-11622154198?mod=hp_opin_pos_2

Facebook’s Lab-Leak About-Face
The company acts in tandem with government on speech control.
By The Editorial Board
May 27, 2021 6:23 pm ET

Question: When does “misinformation” stop being misinformation on social media? Answer: When Democratic government authorities give permission.

Witness Facebook’s decision to stop censoring some claims about the origin of Covid-19 the same day President Biden said his Administration will investigate whether a Chinese lab may have been involved.

It’s been clear for more than a year that the Wuhan Institute of Virology, which collects and tests coronaviruses, deserved scrutiny over the emergence of the pandemic in Wuhan. Yet Facebook announced in February that it would expand its content moderation on Covid-19 to include “false” and “debunked” claims such as that “COVID-19 is man-made or manufactured.” Facebook deployed fact-check warnings against an influential Medium post this month on the origins of the virus by science journalist Nicholas Wade.

As long as Democratic opinion sneered at the lab-leak theory, Facebook dutifully controlled it. But ideological bubbles have a way of bursting, and the circumstantial evidence—most of which has been available for months—finally permeated the insular world of progressive public health. This prompted officials like Anthony Fauci to say more investigation is needed, while the White House issued new intelligence directives reflecting lower certainty of a natural emergence.

Facebook acted in lockstep with the government: “In light of ongoing investigations into the origin of COVID-19 and in consultation with public health experts, we will no longer remove the claim that COVID-19 is man-made or manufactured from our apps,” it said Wednesday.

The shift is better late than never, but note the apparent implication: While a political or scientific claim is disfavored by government authorities, Facebook will limit its reach. When government reduces its hostility toward an idea, so will Facebook.

YouTube’s Covid-19 policy similarly forbids contradicting “health authorities.” The Centers for Disease Control and Prevention is run by a political appointee and its evolving guidance is clearly influenced by political considerations. YouTube, owned by Google, used this policy to remove a roundtable on virus response with scientists and Florida Gov. Ron DeSantis.

Perhaps the social-media giants think their censorship carries more legitimacy if they can appeal to government. In fact such coordination makes censorship even more suspect. Free speech protects the right to challenge government. But instead of acting as private actors with their own speech rights, the companies are mandating conformity with existing government views.

In 2019 a wiser Mark Zuckerberg, the Facebook CEO, said “I don’t think it’s right for a private company to censor politicians or the news in a democracy.” If he’d stuck to that spirit instead of bending to pressure, he’d have avoided this embarrassment, and the more like it that are sure to come.

Appeared in the May 28, 2021, print edition.
​

 

Turley
Facebook: People Will Now Be Allowed To Discuss Whether Covid-19 Originated In Wuhan Lab

https://jonathanturley.org/2021/05/...uss-whether-covid-19-originated-in-wuhan-lab/

Facebook: People Will Now Be Allowed To Discuss Whether Covid-19 Originated In Wuhan Lab

Read that headline a couple times. There was a time when such a headline would only appear on The Onion, but it is true. Facebook has long banned anyone who discussed the evidence that a worldwide pandemic killing millions and destroying the global economy may have been released from a government lab in Wuhan, China. Facebook would not allow the theory to be discussed as “debunked” despite widespread criticism that Facebook was, again, engaging in corporate censorship. The false claim that this theory was “debunked” was pushed by various media platforms as part of the criticism of then President Donald Trump and his Administration. Now however Dr. Anthony Fauci and others have acknowledged that there is a basis to suspect the lab as the origin of the outbreak. So now Facebook will allow you to talk about it.

Since February, Facebook has been banning posts claiming the virus was man-made or manufactured “following consultations with leading health organizations, including the World Health Organization” who had “debunked” the claim. It was ridiculed at the time as entirely divorced from actual science. While the theory was not proven, it was never disproven. Many (including Fauci) maintain that natural evolution is still the most likely explanation but the lab could be the original source for the outbreak.

Now, Facebook has declared

“In light of ongoing investigations into the origin of COVID-19 and in consultation with public health experts, we will no longer remove the claim that COVID-19 is man-made from our apps. We’re continuing to work with health experts to keep pace with the evolving nature of the pandemic and regularly update our policies as new facts and trends emerge.”​

Putting aside the lack of a basis for the earlier ban, the statement reflects that assumption that, of course, Facebook should be the arbiter of what can be discussed by users. I previously wrote about how Facebook is running a campaign to convince young people to accept “content modification” as part of their evolution with technology. This reframing of expectations has been fostered by Democratic leaders who have pushed social media companies for more censorship to protect people from errant or damaging ideas. Last year, Sen. Richard Blumenthal (D-Conn.) warned Big Tech CEOs that he and his colleagues were watching to be sure there was no “backsliding or retrenching” from “robust content modification.”

This censorship craze is not just limited to the lab story or to Facebook. Indeed, last year, House Democrats Anna Eshoo and Jerry McNerney of California wrote a letter to cable carriers like AT&T to ask why they are still allowing people to watch Fox News. The members stressed that “not all TV news sources are the same” and called these companies to account for their role in allowing such “dissemination.” Thus, it is not just specific stories but whole sources of information that need to be banned to protect innocent, gullible citizens.

In all of these exchanges, the underlying portrayal of the public is the same: they are unwitting dupes who must be protected from harmful thoughts or influences. It is safer for them to have these members and these companies determine what they can hear or discuss.

Facebook’s decision to allow people to discuss the theory follows the company’s Oversight Board upholding a ban on any postings of Trump, a move that even figures like Germany Angela Merkel and Sen. Bernie Sanders (I., Vt.) have criticized as a danger to free speech. Even Trump’s voice has been banned by Facebook. Trump remains too harmful for Facebook users to hear . . . at least until the company decides that they are ready for such exposure.

Facebook’s announcement is meant to assure that it will not abuse its power as the overseer of any political or social discussions. It is similar to the benign dictator pitch where a government argues that, despite authoritarian powers, it uses such powers in a benign and tolerant fashion. There is an alternative. It is called free speech.

I have long described myself as an Internet Originalist. There was a time when the assumption was that the Internet is a forum for largely unimpeded free speech. This was particularly the case with social media. Users of Twitter and Facebook state a desire to hear the views of other individuals or groups. Yet, companies like Facebook started to assert the right to monitor those exchanges and decide if it approves of the views or representations being made. What began with censoring out violent threats has morphed into censoring “misinformation” or “harmful” thoughts on subjects ranging from climate change to gender issues to Covid-19 to election fraud.

It is a familiar pattern as speech controls become insatiable and expansive. We would never tolerate a company like Verizon intervening in telephone conversations to correct or cut off arguments. However, Facebook now regularly censors views and is running a glitzy television campaign to get people to love the company for its paternalistic limits on what they can see and discuss.

I do not know if the virus escaped from the Wuhan lab. However, it is less likely that we will find an answer with companies actively preventing people from sharing information and views on the subject. Yet, it is probably more important to understand how a little free speech escapes from Facebook. The fact is that it did not escape. It was a controlled release. Facebook and other companies have turned a rolling ocean of free speech on the Internet into a swimming pool of censored and managed expression. Worse yet, according to its ubiquitous commercials, Facebook wants us to love it for the loss of free speech. So rejoice, Facebook and its censorship board will now allow us to discuss whether China is responsible for the release of this virus . . . for now.






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not what this thread is about. it's about
PRIVATE CENSORSHIP – FIGHTING SUPPRESSION OF SPEECH BY NON-GOVERNMENTAL ACTORS