What Big Tech is doing in deplatforming prominent right-wing figures, based on prodding from certain NGOs and politicians, is in fact censorship, even if Parler Chief Policy Officer Amy Peikoff calls it “censorship by proxy”. I have held this position for years. The question is not “Is the government doing this censoring?” The question is, “Are the people who are in effective control of our government doing this censoring using private companies as proxies because there is still a modicum of honesty in the courts when dealing with First Amendment issues that prevents the government (at least for now) from passing anti-hate-speech laws?”
If you look at the history of Section 230 of the “Communications Decency Act,” what you find is that the congressional intent of the license to remove “objectionable” content while still receiving immunity was to allow, indeed encourage, web sites from removing pornography, nudity, or other prurient content, NOT allowing them to curate speech based on ideas. Why no one has mentioned this in all the discussions astounds me. Why was the “Communications Decency Act” ever passed? To allow for a free flow of information without endless porn spam. (As well as Viagra spam, vituperative name calling, or illegal activity).
Lawyers will tell you that the standard for incitement from Brandenburg v. Ohio (1969) is speech that produces or is likely to produce imminent lawless action. The standard for imminence is quite narrow: it means “right now”, not “sometime in the future.” And lawless action means just that, action that is against the law. Advocating, for example, to walk to the Capitol and demonstrate peacefully in favor of a certain political action is neither imminent (it’s a 45-minute walk from the Washington Monument), nor illegal (since permits for the protest were obtained well in advance). It is certainly possible to use social media to plan imminent lawless action, but sifting that signal out of the broad noise of general twitfuckery is impossible for a human, and definitely impossible for a computer. If I sent one of my friends a Facebook message saying “Let’s you and I go attack the Capitol right now!” that might seem like an incitement to imminent lawless action, but then when the investigator discovers that I am an hour away from the Capitol and my correspondent is in another state a thousand miles away, that statement (though stupid) fails the test of imminence, and thus is not legally incitement, even if it is ill-considered. No computer can figure all this out. Thus Big Tech’s AIs are tuned to produce very few false negatives (missing threats) with the obvious consequence of producing an enormous number of false positives (claiming posts are threats that aren’t). Examples of these false positives abound on the internet.
Nevertheless, the real issue is not the AIs (which are admittedly tuned to be stupid), nor the algorithms used, which are destroying these companies’ usefulness and thus profitability all anyway. No, the people being deplatformed are not being deplatformed by AIs, but by human beings. And it is the decisions of the human beings that is at issue, not the stupid decisions of automated systems. There are hundreds of thousands of vile death threats against people every day on Twitter. I personally know an individual who has received such death threats every day, and who himself was banned for the death threats they received, while none of the death-threat senders was banned! This result is not an error. Left-wing or jihadi terror groups are allowed to use Twitter and Facebook to plan terror attacks, plan riots, intimidate businesses and individuals, and threaten entire nations with annihilation with no consequence whatsoever. [Note that in the last year or so Al Qaeda, Hamas, and some other jihadi groups were removed from Twitter after pressure from Israel, but the Muslim Brotherhood and their US affiliates and agents are still on social media.]
We tend to think of the deplatforming crisis as either an issue of free speech (akin to the First Amendment) or anti-trust (which it is, more on that later). These are both true enough. But the real crisis is much more akin to the rest of the Bill of Rights, rather than the First Amendment. Big Tech companies have the right to search (and read) your private correspondence without your permission, unlike, for example, the Post Office, which has never had this power, and still doesn’t today even though it is technically a “private” company now. People build businesses on these Big Tech platforms, and have such businesses completely taken from them without anything resembling “due process of law”. They are banned. They “appeal.” They receive a form letter within minutes saying their appeal is denied, and there is no one to speak to. The companies’ “terms of service” purport to demand arbitration, but the arbitration process is so skewed in favor of the corporations that it is almost impossible to prevail on the basic tort of tortious interference in a business relationship (which these Big Tech companies violate routinely and yet are protected by “elected” California judges who are bought and paid for by these same companies). People are banned for things they said years ago, thus not giving them the chance of a “speedy trial” or recognize the legal doctrine behind statutes of limitation. No one is ever allowed to “confront their accusers.” Indeed, given that these deplatformings are almost always driven by NGOs like SumOfUs, Hope Not Hate, the SPLC, or the ADL [some funded to a greater of lesser extent by George Soros and his Open Society Foundation], they are never even allowed to know who their accusers were! They are not allowed to produce witnesses in their favor, indeed they are not allowed to have any witnesses or even a hearing! Finally, the “punishment” is almost always the “death penalty” for their business with no warning or “strikes” or anything, making the punishment both excessive and cruel. Finally, moving to the business analogue of the 14th Amendment, no one enjoys “equal protection of the laws”. As described earlier, and from your own personal experience you know, that it is the victims that are often punished rather than the violators, if the victims have a certain philosophy and the perpetrators membership in certain favored groups. This is unequivocal.
All of the things in the previous paragraph I lump into the general category of “due process of law.” In these cases of censorship and deplatforming there is no due process of law–none whatsoever, and it is this lack that dooms any attempt to improve the situation by trying to enforce a commitment to freedom of speech or attempts to make their ridiculously subjective rules more objective. This is true even some of the more free-speech oriented sites, like the recently deplatformed Parler. A site could have completely provably objective rules, like “if you post the n-word, you will be banned.” Seems perfectly objective and straightforward, right? But what will that objective rule matter if it is unequally applied, if as Patreon proved, one group can use it and another group can’t, not in the rules themselves, but in the enforcement. Or if your account is hacked and the hacker posted the offending words (and you can prove it), but there is no ability to have a hearing to present evidence? Yes, free speech is very important, and a culture of free speech (“I disapprove of what you say, but I will defend to the death your right to say it”) is crucially important for a free society, and I applaud all of the new alt-tech sites for fighting this fight. But that is only 1/3 of the fight. The “due process of law” is the other 2/3 and no one seems to want to address it. Only when the Big Tech firms, like the Post Office, are subject to what is analogous to all the Bill of Rights (as Ayn Rand reminded us, all rights are integrated, and this applies to “civil” rights–process rights–as well as natural rights), we will not have freedom of speech in this country again.
I want to say unequivocally that I reject “regulation” as a solution to this problem. Regulation almost never works as intended since the regulators are immediately subject to regulatory capture and thus do the bidding of the companies they are supposed to regulate rather than protect the interests of the citizenry. What is needed is federal standing to sue based on breach of contract (that is, these companies do not themselves adhere to their own terms of service, or apply them arbitrarily, capriciously, or discriminatorily), tortious interference in a business relationship, false advertising, and provide the ability to federally enforce state laws that these companies violate with impunity. Federal courts are the appropriate jurisdiction to legally fight these companies’ deceptive business practices, since almost all of their customers live in different states. Similarly, given the corruption of California state courts, only in Federal court can justice be done. This type of case is exactly the original purpose of federal courts. Repealing Section 230, or modifying it, or leaving it be does not address the real problem. Only giving a federal cause of action to consumers to force the companies to abide by their own terms of service equally to all consumers will have any effect. They can then, if they wish, declare themselves partisan organizations who only invite fellow partisans to join, and they can make explicit that anyone who does not agree with whatever the Democratic Party (or the New York Times, or the ADL, or Al Qaeda) is pushing that day–that hour–is not welcome and can be kicked off their platform. This result would be much better than regulation since it would legally force these companies to be honest in their dealings with the public. That’s all any of us have ever wanted.
Finally, the collusion between Twitter, Amazon, the Democratic Party, and the ADL to deplatform Parler is a classic violation of the anti-trust laws. Now, we all know that there is a lot of ambiguity and contradictions in the anti-trust laws, but this case does not deal with any of those. This case is clear-cut out-and-out illegal. We both may agree that the anti-trust laws are immoral and should be repealed, but as long as they are on the books and have been applied to many good, honest companies, equal protection of the laws demands they be applied to evil companies. And Facebook, Twitter, Apple, Google, and Amazon are in this deplatforming campaign decidedly evil. I like the products and services of all but Google, but as the old saying goes, “If you put a spoonful of wine in a barrel full of sewage, you get sewage. If you put a spoonful of sewage in a barrel full of wine, you get sewage.” The evil in these companies needs to be cut out entirely, or the companies need to be destroyed by consumer lawsuits (as described in the previous paragraph) or anti-trust lawsuits (pending the repeal of these laws). Evil spreads like a…well…a coronavirus. We all know what happens when firm measures aren’t taken to stop the spread at the beginning. As for Google, the entire company is corrupt and, as Hillary Clinton remarked, “irredeemable.” They are in bed with our enemies, the Chinese Communist Party, which they provide both technology to oppress the Chinese people as well as critical private information about American citizens. They are thoroughly penetrated by spies, profit off of the selling of our private information without our consent (click-through “I accept” buttons do not constitute “consent” because contracts require a “meeting of the minds” which is entirely absent in these click-through “contracts”), read our every email and document [“A Google spokesman said that Docs and other files in Google Drive are policed by an algorithm that looks out for abuse of its policies, and automatically blocks files if they are deemed to violate them. Unlike some systems, which escalate a suspected issue to a moderator, there is no human review involved.”], and entirely abuse their users, as well as the United States as a country. The other companies I think can be redeemed by judicious use of the law. Google cannot be.
