Big Tech Tries to Have its First Amendment Cake and Eat It Too

 

While my headline lacks something in concision, the topic for today is anything but simple:  whether internet-based enterprises such as Amazon, Google, Tiktok, and X are free to do basically anything they want with the input their users provide, or whether the states of Texas and Florida can impose certain restrictions on content moderation.  Last week the U. S. Supreme Court heard opening oral arguments in two related cases on this topic that the Court has decided to hear together.

 

NetChoice v. Paxton pits the trade association NetChoice, which includes such heavy hitters as Amazon, Google, and X, against the Texas state gadfly and attorney general Ken Paxton, who attempted to enforce a bill that would prohibit social media companies from censoring posts except in extreme cases such as obscenity and libel.  Moody v. NetChoice concerns a law that was passed in Florida at the urging of Gov. Ron DeSantis to prevent social media firms from "de-platforming" a political candidate actively running for office.  The lawsuits arising from NetChoice's objections to what it sees as restrictions on its members' First Amendments freedom of speech have percolated through the federal courts and ended up at the Supreme Court last Monday.

 

There are two extreme positions that mark the boundaries of this debate.  One extreme is taken by the state legislatures, which is that large internet-based firms, including but not limited to social-media outfits such as X and TikTok, are used so universally that they should be considered as "common carriers."  A common carrier, in legal parlance, is a service that is so essential to modern life that it must accept customers and their activities on a basis limited only by common-sense rules.  The classic common carrier was the old Ma Bell system back when all you could do with a phone was call Aunt Maude.  As long as you paid your monthly bill, you could say absolutely anything you wanted to say, and Ma Bell wouldn't stop you.  And anybody who can muster up the cash for a bus ticket can ride the bus.  Similarly, the state bills object to censorship, de-platforming, and other ways that social media companies either emphasize or obscure certain users depending on what they are saying, because the state laws tend to view them as common carriers.

 

The other extreme is taken by NetChoice, which views its members as valiant warriors protecting their own freedom of speech as well as that of their users.  Their classic analogy is the old-fashioned hot-type newspaper, back when all you could do with the paper was line the bottom of the birdcage—after reading it, of course.  Nobody presumed to tell the editorial-page editor what letters he could or could not include in the paper, and so no state law should tell X which tweets to suppress or encourage, or leave alone.  They are private firms and it's their business what they do with their content, not the states' business. 

 

A report on the first day's arguments by the Electronic Privacy Informatiion Center (EPIC) indicates that the Supreme Court justices are not enthusiastic about either end of this spectrum.  In particular, they seem to think that NetChoice is being more than a little hypocritical because of how it has used a law called Section 230.

 

Section 230 of the federal Communications Decency Act gives NetChoice members immunity from prosecution for libel for what any of their users say, in this sentence:  "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."  The word "publisher" echoes our exemplary newspaper editor, and Section 230 lets X say, in effect, "Man, we didn't write or publish or say that.  Our crazy user said that, and you can't blame us for what he said."  Section 230 protection is one of the carefully guarded legal jewels of the NetChoice empire, and flocks of lawyers appear whenever anyone threatens it.

 

At least two Supreme Court justices perceived that NetChoice is trying to have its free-speech cake by defeating the state laws limiting their content-moderation actions, and eat it too by claiming innocence when someone posts something objectionable and a NetChoice member claims immunity under Section 230.  At one point, Justice Gorsuch asked, "So it's speech for the purposes of the First Amendment, your speech, your editorial control, but when we get to Section 230, your submission is that that isn't your speech?"  And at another point, Justice Alito said, "It's your message when you want to escape state regulation, but it's not your message when you want to escape liability under state tort law." 

 

It's anybody's guess what the Court will decide in these cases, but indications are that neither NetChoice nor the states will get everything they want.  My own view is that social-media firms, by catering to the lower instincts of the human mind and heart, have wrought incalculable damage to the political and social structures of not only the U. S. but many other countries as well.  And especially when the government begins to "assist" social-media firms in deciding what is free speech and should be left alone or promoted, and what is "disinformation" and should be de-emphasized or suppressed, we have traveled a good part of the way down a slippery slope to something akin to the old Soviet Union, or the present Peoples' Republic of China, where everything you say and do is monitored and assessed and has consequences that can be quite dire if you go against what the government wants you to do. 

 

The Texas and Florida laws are a first step toward opposing this trend, and NetChoice's actions opposing them is exactly what you would expect a bully to do if someone challenges his dominance.  Fortunately, the federal structure of our government is still functioning, although seriously damaged, and I hope that the justices' decisions in these cases will clip the wings of an industry which, Icarus-like, is flying way too close to the sun.

 

Sources:  I referred to an editorial by Jennifer Huddleston in the Mar. 1, 2024 edition of the Austin American-Statesman, a blog post on the EPIC website at https://epic.org/four-key-takeaways-from-the-netchoice-v-moody-and-paxton-oral-arguments/, and the Wikipedia articles on NetChoice and Section 230.

Is Twitter a Wholly Owned Subsidiary of the FBI?

 

When Elon Musk took over Twitter last October, he made available to reporters a large number of internal company emails relating to content moderation, deplatforming, and other interventions that the firm has done at the request of, or under the influence of, the U. S. government.  Like most people, I was dimly aware of these revelations, but the news coverage of them was intermittent and depended greatly on the political orientation of the media outlet reporting it.  And I'm sure that remains the case today.

 

But recently I came across one report that summarizes the facts in a chilling and alarming way.  If what this report says is true, we indeed have a major problem that involves not only electronic social media, but the government and fundamental constitutional issues. 

 

In all such cases, one should consider the source.  The source of this report is John Daniel Davidson, a senior editor at The Federalist, a conservative website which Wikipedia says has carried false and misleading information at times.  The particular report I refer to did not appear in that website, but in a newsletter called Imprimis issued by Hillsdale College, a private college that is one of the few serious colleges in the U. S. that refuses to take federal funds on principle.  Adapted from a talk Davidson gave at the college, the report is entitled "The Twitter Files Reveal an Existential Threat."

 

Davidson details three examples of how the FBI, working both on its own behalf and as a liaison between a number of other federal agencies and Twitter, directed the firm to flag, suppress, or suspend numerous accounts such as those of the New York Post, whose offense was to break the news of the Hunter Biden laptop; President Trump, whose suspension after the January 6, 2021 Capitol riot was sui generis in its disregard for internal suspension policies; and during the COVID-19 epidemic, in which Twitter was asked to, and did, squelch information that did not follow the official line on the pandemic that prevailed at the time.

 

The main point of Davidson's article is summed up in these words toward the end of the piece:  ". . . the entire concept of 'content moderation' is a euphemism for censorship by social media companies that falsely claim to be neutral and unbiased."  Davidson presents evidence that in 2017, Twitter publicly announced that all content moderation took place "at [Twitter's] sole discretion," but internally, they would censor anything that "U. S. intelligence identified as a state-sponsored entity conducting cyber-operations," whether the intelligence community was right or not.  As later events proved, the suspected Russian influence on U. S. elections was largely a smokescreen for allowing the federal government to suppress a wide variety of actors, most of which were not sponsored by any state, in direct violation of the First Amendment.

 

Currently, the U. S. Supreme Court is considering two cases that involve Section 230 of the Communications Decency Act.  The basic thrust of the section is to allow social-media companies to claim immunity from prosecution regarding material posted on their sites by third parties—namely, anybody but the company itself.  It also exempts the companies from lawsuits involving content moderation as long as the company can show such moderation was a good-faith effort to remove "objectionable" material. 

 

This law was passed in the very early days of social media, when it was not at all clear that internet-based systems such as Facebook and Twitter would ever make money.  Those days are long gone, and the pipsqueak upstarts of the 1990s have become the 900-pound gorillas of the 2020s. 

 

Far from being a minor sideshow in the ways the public learns what their elected officials and the rest of the government are up to, Twitter is arguably the primary source of breaking news from officialdom, equivalent to the Associated Press wire service of the long-ago day when news really traveled mainly over copper wires to teletype machines.  As publishers, the newspapers, radio, and TV outlets of yore (yore being anytime before about 1980) knew that they were legally responsible for what they printed or broadcast, and made careful distinctions between what was news and what was analysis or opinion.  They had the freedom to print what they wanted to print, courtesy of the First Amendment, which prohibits the federal government from "abridging the freedom of speech, or of the press."  But they also had the responsibility of standing behind what they printed as facts, and so they stressed fact-checking and accuracy, plus an effort to present all the significant news and suppress none of it, no matter how far it strayed from the newspaper's own political position.

 

Granted, this was an ideal that was only approached in practice.  But if you transpose what Twitter has done in the last few years to the register of how news was produced in, say, 1970, the results can be shocking.

 

Suppose the 1970s Watergate break-in, Deep Throat's revelations, and the secretly recorded Nixon White House tapes had been systematically expunged from all newspaper, radio, and TV coverage through the intervention of the FBI, saying that it was all a plot by the Russians?  After Nixon told the news media that they wouldn't have him to kick around anymore following his 1962 loss to Pat Brown in the California governor's race, suppose all the networks agreed to ban him from ever appearing on radio or television again, again at the behest of the federal government? 

 

I am no fan of Richard Nixon.  But my point is that none of these acts of censorship happened back then, because the reigning media companies kept their distance from the government, no matter who was running it.

 

Needless to say, the situation is different now.  Davidson's summary of the Twitter Files is an indictment of the hand-in-glove way that the federal government, using the channel of the FBI, has succeeded in manipulating the media landscape to suit its purposes, and not the best interests of the American people at large.  It is far past time to restore a responsible distance between social media and the government, but doing that will require a well-informed public, and the media we have may not be up to the job.

 

Sources:  John Daniel Davidson's article "The Twitter Files Reveal an Existential Threat" appeared in Vol. 62, No. 1 (Jan. 2023) of Imprimis, a publication of Hillsdale College.  I also referred to a report on the Supreme Court Section 230 cases at https://www.cnbc.com/2023/02/21/supreme-court-justices-in-google-case-hesitate-to-upend-section-230.html and Wikipedia articles on The Federalist and Richard Nixon's November 1962 news conference. 

Time Is Running Out on TikTok in the U. S.

 

The video-sharing app TikTok has come up several times in this space in the last year, and never in a complimentary way.  In April, I noted that a couple who learned the suicidal art of fractal woodburning over TikTok succeeded in killing themselves and burning their house down.  In September, a number of U. S. TikTok executives resigned in protest over being forced to take orders from the Chinese corporate headquarters (TikTok is a subsidiary of the Chinese company ByteDance).  And just last week, following revelations that TikTok executives lied about whether data from U. S. users could be accessed from China, several states banned its use from all state-provided devices and members of Congress began looking into the possibility of banning it from the U. S. altogether.

 

A recent article in National Review outlines the increasing concerns that TikTok poses for uses who don't want to be spied on by the Chinese Communist Party (CCP) or be subjected to propaganda and social-media manipulation coordinated by that entity. 

 

According to members of the U. S. House's Oversight Committee, TikTok executives told them that "China-based staff cannot access U. S. users' locations."  A few weeks later, reports indicated that the China-based parent company ByteDance was laying plans to do exactly that. 

 

In common with many China-based corporations, part of ByteDance is owned by the CCP and hosts a CCP committee that meets at the company's headquarters.  We have learned that there are "no meaningful firewalls" between the U. S. division of TikTok and ByteDance, and 300 TikTok and ByteDance employees formerly held jobs with the Chinese state media, which are not known for fairness or objectivity.  While there is no smoking gun showing that TikTok is taking orders direct from Xi Jinping, it's pretty clear that ByteDance and consequently TikTok are heavily influenced by CCP policies and goals, including its policies toward the minority Uyghurs.

 

Among the actions taken against TikTok this week were bans on using it on state-provided devices in South Dakota and Texas.  This follows a bill introduced by Senator Marco Rubio and Representative Mike Gallagher to ban the app outright in the U. S.  The FBI and the Treasury Department are also beginning to view TikTok as a threat to national security, as the app is beginning to cover more general news and political issues, as well as music videos and failed juggling attempts.

 

TikTok appears to be most appealing to people under 30, who increasingly rely on it for Google-type services as well as amusement and social connections.  This poses a problem for laws that would ban it outright, but less radical steps such as insisting that ByteDance relinquish ownership of the U. S.-based TikTok division are more likely to succeed.

 

The Internet famously knows no boundaries:  global, state, or local.  And so it's not surprising that one of the newest rapidly-growing and popular social media apps (it became available worldwide only in 2018) originated in China. 

 

As we have learned in recent years, there is no such thing as a neutral social-media app.  The depths of human depravity ensure that as an app grows beyond a few hundred thousand users, the worst stuff on it will be so bad that some form of control or monitoring becomes necessary, even with the protection of Section 230 of the Communications Decency Act, which exempts internet service providers (e. g. TikTok) from lawsuits over content provided by third parties. 

 

Given that TikTok has to exert some kind of control over its content, and also has to amass user-generated data to satisfy its advertisers, why should we be worried that all this goes on under the watchful eye of the CCP?  It all depends on how well you trust the CCP to act benevolently toward the United States, its citizens, and anybody in the U. S. who has drawn its unfavorable attention. 

 

In my somewhat misspent teenage years, one day I was rummaging through some old books at our house and came upon a slim volume with a black-and-white dust cover that carried the bold title "YOU CAN TRUST THE COMMUNISTS—to do exactly as they say!"  In other words, when a country such as China excoriates another country such as the U. S. for doing things like being friendly to Taiwan and protesting maltreatment of Uyghurs, and China threatens to take over the world in the future, there's no reason not to believe that they are serious. 

 

In such a situation, allowing a CCP-friendly company to embed itself so deeply in the lives of U. S. citizens and residents as to track their movements all the way from Beijing is a dumb thing to do.  Fortunately, more and more government leaders are seeing things that way, and the main question now is how to disengage from TikTok without fomenting a revolution among those 25 and under.

 

Perhaps a corporate breakup similar to what happened with Standard Oil or AT&T is in the best interests both of the U. S. at large, and the millions of TikTok users who depend on their daily fifteen seconds of buffoonery and news reports, or whatever it is they use TikTok for.  But any breakup will have to be rigorously enforced, because corporate breakups have a way of losing effectiveness after a while.  Even in such a relatively benign case as AT&T, after a decade or two the sundered pieces began rejoining like a cut-up flatworm turning into lots of little flatworms that crawl back together for a party.  (That's a lousy simile, but then again, I never took biology.) 

 

The point is that even if the U. S. division of TikTok is formally severed from its ByteDance parent, informal ties through corporate leaders and relationships could persist—in fact, would have to persist unless there was a leadership shakeup along with it.  As one of the most popular apps for sharing music, TikTok worldwide is on track to garner $12 billion in revenue in 2022, so a split-off piece of it would probably attract U. S. investors, who could then dispense with the political slant toward China and concentrate on just making money.

 

That won't mean TikTok's troubles are over, as accusations of addiction and other problems will not be solved by a change of ownership.  But at least if TikTok was cut off from its Chinese corporate parent, we wouldn't be harboring a giant social-media spy network, which is pretty much what it looks like right now.

 

Sources:  I referred to a National Review article calling for the ban of TikTok in the U. S. at https://www.nationalreview.com/2022/12/ban-tiktok-from-operating-in-america/, Gov. Abbott's declaration of a ban of TikTok on state-provided devices at https://gov.texas.gov/news/post/governor-abbott-orders-aggressive-action-against-tiktok, and a Fortune profile of TikTok at https://fortune.com/2022/11/08/tiktok-profits-record-industry-wants-increase-royalties-revenue/.  I also referred to the Wikipedia article on TikTok.

Social Media Faces the Supreme Court

 

In an insightful article in National Review, Dan McLaughlin lays out the spectrum of how discussion platforms, online video, search engines, and the whole social-media megillah are regulated by a 1994 law called Section 230 of the Communications Decency Act, and why the U. S. Supreme Court is probably going to weigh in soon on some apparently irreconcilable lower-court decisions.  While at first glance this may seem to be an obscure matter for legal specialists, it has the potential to affect everything from childrens' mental health to the survival of democracy.

 

When the Act was passed in 1994, there was no Google, Facebook, or YouTube, and legislators felt that the infant web-based communications industry needed some special protections to keep it from being nipped in the bud by lawsuits.  So they passed the two parts of Section 230 which now receive intense attention, because they do complementary things.

 

The first part protects providers of interactive computer services (e. g. Google, Facebook, etc.) from being treated as though they originated stuff that a third party came up with.  This sharply distinguishes them from conventional print publishers, for example.  National Review itself was the target of a costly lawsuit by climate scientist Michael Mann, who claimed the magazine and its writer Mark Steyn defamed him.  If Steyn had instead posted his article as a blog in online-only form, it's possible that the magazine could have claimed Section 230 immunity.

 

The second part of Section 230 more or less exempts private companies operating interactive computer services from being liable for consequences of their own censorship actions.  This almost makes it seem like the services can have their cake and eat it too.  If someone objects to a third party's content on a company's site, the firm can claim they aren't publishers and they're protected under the first part of Section 230.  But if the firm squashes a client organization's posts, as for example banning Donald Trump from Facebook after the Jan. 6, 2021 riots, the company can claim it can't be held liable because of its protection under the second part of Section 230. 

 

In general, organizations such as Facebook have tried to steer a middle ground between the two extremes of letting absolutely anything show up (protected by the first part of Sec. 230) and being the Mrs. Grundy of the Internet (protected by the second part of Sec. 230).  As there isn't much profit in censoring salacious material, the main abuses of censorship that have been most widely objected to concern political speech or postings on controversial topics such as abortion. 

 

Compared to the pre-Internet days when anyone could print nearly anything they wanted, but distribution was a difficult and expensive proposition, the Internet has reduced the cost of distributing speech to nearly zero (or even negative numbers, if you consider monetizing).  And a feature of social media which is not really addressed by Section 230 at all is the fact that in order to increase hits and thus advertising revenue, social media companies have developed sophisticated and exquisitely tuned algorithms to make using their platforms as habit-forming as possible.

 

As with other habit-forming enterprises such as alcohol and tobacco, users of social media form a spectrum.  Some like me rarely deal with it, and others spend eight or ten hours a day on it.  With the exception of Prohibition, now conceded by all hands to be a failure, society has chosen to deal with such habit-forming enterprises by restricting their use to adults and by taxation which is not prohibitive, but definitely inhibitory. 

 

Most of the commerce in the form of advertising and data sales that goes on in social media avoids direct taxation, and although some voices have been raised in favor of restricting the use of social media to those over 18, it's hardly a groundswell of opinion.  So for the time being, social media will continue on its merry way doing unknown but tremendous things to the democratic process and exerting incalculable powers to mold public opinion.

 

While it is probably a good thing that the Supreme Court will finally get to pass judgment on some issues regarding Section 230, the two extremes that the law regulates are more like guard rails than they are like lane markers.  By the time someone is either kicked off a social-media platform or decides to sue one for something online, some pretty serious damage has been done, at least in the eyes of the person getting censored or suing.  It's unlikely that the Court will turn the steering wheel violently toward one or the other guard rail.  I don't think anybody wants to see a completely unrestricted social-media world, although the type of restrictions that are currently imposed have huge blind spots influenced by profits (I'm thinking especially of online porn).  And it's just as obvious that we aren't likely to see companies clamping down on all sorts of questionable content, because it would cut into their revenues.

 

The problems caused by social media today are real.  Teen suicides, the polarization of political speech and resultant paralysis of government functions, online bullying, and many other abuses cry out for some sort of solution, or at least a mollifying influence.  Unfortunately, given the choices that the Court will face, its response will probably amount to tinkering with technical legal details, rather than making any wholesale revolutionary changes to Section 230 or how it is enforced. 

 

In any event, the Court—or any court, for that matter—is not where we should look first for improvements in human behavior.  As G. K. Chesterton responded to a question posed by a newspaper:

 

"The answer to the question, 'What is Wrong?' is, or should be, 'I am wrong.'  Until a man can give that answer, his idealism is only a hobby.  But this original sin belongs to all ages, and is the business of religion."  (from The Daily News, Aug. 16, 1905)

 

Neither the Supreme Court nor Google nor Facebook can do anything about original sin.  But they can make it easier for people to avoid sinning, and let's hope for some progress in that direction.

 

Sources:  Dan McLaughlin's article "The Supreme Court Joins the Section 230 Fight—Halfway" appeared on the National Review website at https://www.nationalreview.com/corner/the-supreme-court-joins-the-section-230-fight-halfway/.  I also referred to an article about the true origin of the Chesterton quote, which is often misquoted, at https://www.jordanmposs.com/blog/2019/2/27/whats-wrong-chesterton.

Texas Moves to Ban Social Media Banning

 

On Sept. 9, Texas Governor Greg Abbott signed HB 20, a law designed to keep social media companies with more than 50 million subscribers from blocking users whose viewpoints the company disapproves of.  Scheduled to take effect in December, the law has already attracted controversy and threats of lawsuits to keep it from going into effect.

 

Currently, if a user is de-platformed from a large site such as Facebook, there are not a lot of alternatives.  The overarching law in the U. S. pertaining to such situations is Section 230 of the federal Communications Decency Act, which prevails if there is a conflict between it and a state law.  However, there is wiggle room that Section 230 leaves, at least according to State Rep. Briscoe Cain, who authored the Texas statute.  Cain regards social media in the same light as telephone companies—that is, "common carriers" whose business it is to take on any and all comers and not discriminate among them based on content. 

 

Such discrimination happens all the time, as one unconfirmed incident I heard of recently attests.  A man at the church I attend volunteers at a local pregnancy resource center, which is holding an online fundraising event in a few weeks.  He told me that the center has found that some of their emails sent to supporters have mysteriously disappeared, implying that the internet service providers' spam filters had been adjusted to block emails from the center. 

 

Another example taken at random from a web search concerns Ryan Moore, a self-described writer and advertising broker, who tried to advertise a video he made in the spring of 2019 in which he was wearing a red "MAGA" (Make America Great Again) hat.  While I have not viewed the video (I checked the link and it is now "unavailable") his description of it sounds mild enough—criticism of the Christchurch, New Zealand terrorist bombing, good wishes for a nice St. Patrick's Day, and so on.  Not only did Google refuse his ad to promote his video, it permanently banned him from ever having a Google ad account again, and confirmed this decision when Moore inquired, saying "Since this decision is final, the account will not be reinstated." 

 

I could multiply such instances that range everywhere from a single post being blocked to the wholesale destruction of an entire business when the Parler app and website were de-platformed by Google and Apple in 2019. 

 

Not everyone who gets de-platformed is defensible, and even Rep. Cain probably does not want to allow hard-core child pornography to go unrestricted on the Internet (although it probably does if you look hard enough).  But HB 20 is an attempt to redress the huge power imbalance that happens when an individual or small organization has its access to social media blocked by a giant well-funded firm that exercises essentially monopoly powers.

 

Either the Texas attorney general or the wronged entity could sue under the new bill, and this may be a point of vulnerability, in that opponents of the bill claim it may interfere with the ability of social media companies to regulate their own content.  Of course it will.  NetChoice, a trade association which counts Google, PayPal, and Facebook among its members, issued a statement condemning the passage of HB 20 and saying that it will probably be blocked by a federal court once it goes into effect.  NetChoice's position is that social media firms, as private entities, are entitled to carry only content that they choose, and by using their facilities, users put themselves at the mercy of the firm's discretion. 

 

This reminds me of a scene out of the 1940 Disney animated film "Fantasia," which set to music cartoon characters both familiar and otherwise.  In time with the famous ballet music "Dance of the Hours," viewers are greeted by a company of baby hippopotamuses, each with a frilly pink lace tu-tu encircling her waist.

 

The analogy is clear—we have a troop of baby-hippo Big Tech giants stomping over the public stage, asking us to believe that their private-firm tu-tus, which might have been appropriate in the very early days when legacy media such as TV and newspapers overshadowed them, mean that whatever they decide about their content is their own business because it affects so few people. 

 

The tu-tus no longer fit, if they ever did.  Big Tech now operates a lot of 900-pound gorillas, to mix the animal metaphor, who do exactly as they please with regard to content that currently will not gain attention any other way than being filtered through the social-media monopoly.  The Texas legislation is one state's attempt to make dealing with social media a little less unfair.

 

I note a disturbing trend of which this controversy is only one example.  A nation, to be a nation, must share a common pool of underlying principles or philosophies, in order to endure.  By their behavior in China, for example, Big Tech firms such as Apple, Google, and Facebook make it clear that nations mean little or nothing to them when it comes to the bottom line.  Of course they need to stay within the law, but "the law" is a slippery and many-faceted thing, especially when you have deep enough pockets to hire enough lawyers to keep even states busy for years just trying to keep from being overwhelmed with lawsuits. 

 

In past controversies involving freedom of speech in this country, opposing sides could at least agree on the statement, "Well, at least we're all Americans."  But I have a hard time picturing the leaders of Big Tech freely admitting such a thing even in public, let alone in private.  Great wealth confers great power, and as Lord Acton said, power corrupts.  It is not yet time to despair that the systems of government that the founders deeded to us can overcome the exercise of raw power with the rule of law, which is all we have to guard ourselves against despotism.  But the upcoming battle over the implementation of HB 20 will be yet another skirmish in the war that is currently being fought over the right of free speech, which Big Tech increasingly wants to define for itself. 

 

Sources:  I referred to a Texas Tribune article "Social media companies can’t ban Texans over political viewpoints under new law" at https://www.texastribune.org/2021/09/02/texas-social-media-censorship-legislature/ and an article from The Verge at https://www.theverge.com/2021/9/9/22661626/texas-social-media-law-hb-20-signed-greg-abbott..  Ryan Moore described his permanent ban from Google advertising in the Des Moines Register on Sept. 26, 2019 at https://www.desmoinesregister.com/story/opinion/columnists/2019/09/26/one-many-conservatives-banned-social-media/3773954002/.

Censoring the Censors? Florida's Anti-Censorship Law

 

On May 24, Florida Gov. Ron DeSantis signed a bill designed to stop social media firms from censoring free speech.  At least that's what the governor's website claims it does.  Two big-tech industry groups, Netchoice and the Computer and Communications Industry Association (CCIA), sued the state of Florida in early June over the legislation, which is scheduled to take effect on July 1.  What exactly does the law do, and why are organizations such as Facebook, Twitter, Amazon, and Google sponsoring a lawsuit to halt it?

 

People of certain political persuasions need not look far for motivations to pass such a law.  Following the assault on the U. S. Capitol on Jan. 6 of this year, the alternative social networking service Parler, which attracted users that had been suspended from mainstream media such as Twitter, found itself without Amazon's hosting service and cut off from Apple's and Google's facilities as well.  And former president Donald Trump is still banned from mainstream social media.  These are just the tips of an iceberg of censorship that some people view as politically motivated.

 

The bill signed by Gov. DeSantis would provide for fines of up to $250,000 for "willfully deplatforming" political candidates, and also allows private citizens to sue firms committing such indiscretions as well.  Social media firms cannot de-platform any statewide or local political candidate, or else they face penalties of up to $250,000 a day. 

 

The Netchoice-CCIA suit alleges that this law constitutes a "smorgasbord of constitutional violations," according to an article in National Review.  If allowed to take effect, the suit says it will impede the social media firms' ability to "protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material." 

 

Just to take a hypothetical extreme case, you have to admit that the CCIA suit has a point.  Suppose for the sake of argument that a Florida candidate for statewide office chose to post some child pornography in a political blog on Facebook.  Leaving aside the bad judgment on the part of the candidate, Facebook would be caught between a rock and a hard place.  If they deplatform the candidate, they would face fines from the State of Florida.  But if they leave the post alone, they will be an accomplice to numerous other violations of federal and state laws. 

 

On the other hand, the law is part of a growing trend for legislatures and governments in general to put the screws to Big Tech in various ways.  Now that social media carry the bulk of public discourse (as opposed to the legacy media of radio, television, and newspapers), they find themselves walking a fine line between suppression of free speech and toleration of harmful content.

 

The Florida law is only the latest in the history of attempts on the part of states to suppress or control mass media.  Lousiana saw a more blatant effort when Huey Long, who formally left the governor's office in 1932 to be a U. S. senator but effectively kept running the state anyway, passed a steep tax on large-circulation Lousiana newspapers, calling it a "tax on lying."  In the present case, ironically, Florida is not penalizing the media for what they're saying, but for what they're not saying, or rather for what they're not allowing certain parties to do or say on their platforms. 

 

This issue can be viewed as a contest between rival goods:  the good of free speech for political discourse and democratic government, and the good of avoiding what, in the phrases of the CCIA suit, is "harmful, offensive, or unlawful."  And the unfortunate thing is that the parties to the conflict have little or no agreement as to exactly what these rival goods are.

 

Take the concept of free speech.  Back at a time, say sixty or eighty years ago, when there was a general public consensus that airing political views of almost any stripe, from theocratic conservatism to anarchic Communism, was to be tolerated for the good of the republic, there was also a general public consensus that hard-core pornography should be banned from publicly accessible media, including the U. S. Postal Service.  Gradually, however, the concept of free speech was expanded to encompass what earlier generations would regard as pornography, and today there is a multibillion-dollar worldwide online trade in porn, which not only effectively enslaves thousands who are involved in producing it but corrupts those who watch it.

 

Unfortunately, there is today no general consensus on what sort of content is harmful, offensive, or even unlawful.  If everything I think is harmful or offensive was banned from the Internet, the Internet would be a much smaller enterprise.  Yet when social-media companies hire hundreds of young people and give them whatever training they receive to identify undesirable content that violates the firm's "standards," and remove the content if necessary, they  exercise personal judgment which inevitably turns out to be inconsistent, intermittent, and subjective. 

 

Of course, important decisions such as banning Donald Trump are undertaken with the knowledge and approval of the firm's leadership, but my point is that the diffuse and multifaceted nature of social media means that whatever restrictions they try to apply will also be diffuse, multifaceted, and guaranteed to make somebody unhappy.

 

I don't have a good solution to this problem.  Section 230 of the Communications Decency Act protects social-media firms from being sued as though they themselves originated the stuff that their users post.  If we began treating social-media companies as common carriers like the telecommunications firms, and insisted that they let anybody post anything, we would need a more effective legal means to go after the individuals who would exploit this new freedom than what we now have.  But if we simply shrug our shoulders and let Mark Zuckerberg and his friends suppress anything they don't like, we have handed the keys of democracy to a bunch of billionaires, and that is likely to turn out badly too.  Stay tuned.

 

Sources:  The National Review article "Groups Representing Tech Companies Sue Florida over DeSantis Anti-Censorship Bill" appeared on June 2 at https://www.nationalreview.com/news/groups-representing-tech-companies-sue-florida-over-desantis-anti-censorship-bill/.  I referred to Gov. DeSantis's website description of the bill at https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/, and Elizabeth Kolbert's 2006 article on Huey Long in The New Yorker at https://www.newyorker.com/magazine/2006/06/12/the-big-sleazy, from which I took the quotation about a tax on lying.

 

Can Democracy in America Survive Big Tech?

 

Two articles I came across recently raise the question in the headline of today's column.  One is by a journalist named Allum Bokhari, who gave a speech last November at Hillsdale College, one of the very small number of U. S. colleges that does not accept Federal grants, loans, or other funding.  The other is by Robert D. Kaplan, a geopolitics specialist at the Foreign Policy Research Institute.  Both gentlemen are deeply concerned that social media, as it now works, constitute an existential threat to American small-d democratic government.

 

Kaplan is concerned that social media may create conditions in which the "fragile, perhaps even ephemeral" experiment called American democracy cannot survive.  His studies of nation-states range widely over time and geography.  The old USSR, he points out, was not defeated from without by nuclear or conventional warfare.  Rather, it was destroyed by internal weaknesses and a crisis of purpose that led to its disintegration.  Regarding the present rivalry between the U. S. and China, he sees social media playing radically different roles in the two countries.

 

In China, the authoritarian government ensures that everything on social media reinforces the "blood-and-soil nationalism" of the dominant Han cultural matrix.  Traces of dissent are ruthlessly stamped out, and ethnic minorities such as Tibetans and Uighurs are suppressed and even locked up in concentration camps.  There is basically one political story available in China, and social media reinforce it.

 

In the U. S., on the other hand, Big Tech effectively control social media, and recent events emphasize the subtle but increasingly effective control they exert.  The dominant vision embraced by those who inhabit the upper reaches of corporate and cultural America is a transnational one which, when it looks at American history at all, sees a story of exploitation and shame, exemplified by the New York Times's "1619 Project" that attempted to show that the founders based America on slavery, not on anything noble.  Even worse, the economics of social media have come to embrace the divide-and-conquer principle that feeding different kinds of people what they most want to hear means cutting up the citizenry into "racial, gender, political, or sexual" identity groups that are often pitted against each other, to the great loss of the basic unity that any nation needs to survive.

 

Allum Bokhari brings his experience with Breitbart News to the table.  While I am no fan of Breitbart News, the old principle of free speech (much abused lately) says that every voice deserves to be heard, if not believed.  And he brings some indisputable facts to the table that are worth considering.

 

Unlike the early days of the Internet when no single social-media platform was dominant and everybody had more or less equal access to everybody else's website, today's Internet is a creature of the Google-Facebook-Amazon complex of corporate control.  And control is the right word.  The velvet glove of free apps and fun-looking websites conceals an iron hand of manipulation that is so subtle and complex, powered by advanced AI software, that the vast majority of users have little or no idea that they are being manipulated.  But they are.  

 

Cadres of software engineers spend countless hours devising complex algorithms to change behavior, not only to the benefit of advertisers on Big Tech's media, but for other reasons as well.  One quote that Bokhari reports from a source he interviewed at Facebook says it all:  “We have thousands of people on the platform who have gone from far right to center in the past year, so we can build a model from those people and try to make everyone else on the right follow the same path.”  If this isn't manipulation, I don't know what is.

 

In recent months, the manipulation and control has come above ground for everyone to see.  Bokhari cites the actions of Facebook, Twitter, and other Big Tech firms in de-platforming President Trump, and of Amazon and Apple in kicking the upstart social-media platform Parler off their equipment (or in the case of Apple, off the privately owned phones of millions of users).  One can argue about the motivations for such actions.  But the bare fact of the actions remain:  privately owned companies, largely unhindered and in fact protected by government regulation from lawsuits that private individuals can be subject to (that is what Section 230 of the Communications Decency Act does), unilaterally censored an entire social-media network regardless of who or what was on it, and also censored the sitting President of the United States. 

 

For those who can remember the old days of only three television networks, the only analogous action I can imagine would be if the President decided to make a speech one day, and in the middle of his words spoken to the "pool" camera that all three networks were taking their video feed from, executives decided to pull the switch and return to their regular programming of the Beverly Hillbillies or whatever.  Nothing like that ever happened, but if it had, the roars of outrage from common citizens of every political viewpoint would have been deafening. 

 

Today, roars—or anything else—can't be heard unless Big Tech approves of the roar.  The dominant progressive political views of the transnational cultural elite who are in charge are squeezing out the wide spectrum of views that, no matter how annoying some of the extremes are, turn out to be vital to the survival of democracy.  To those who deplore disagreement and debate, I would say this:  disagreement and debate are features of democracy, not bugs.  Cut them off and you are left with a softer form of what China has:  a homogenized, uniform, expert-driven technocracy that maintains the form of democracy, perhaps, but denies its power.  If this nation, which has endured for 245 years, is to preserve government "of the people, by the people, for the people," the malignant effects of social media and corporate control must be dealt with.  And soon, before it is too late.

 

Sources:  Allum Bokhari's post, based on a modified version of his Nov. 8, 2020 speech at Hillsdale College, is available at https://imprimis.hillsdale.edu/control-need-rein-big-tech/.  Robert D. Kaplan's article "How We Lose Against China" appeared in the Feb. 8, 2021 issue of National Review on pp. 27-29.

Our Unelected Big-Tech Overlords

 

Last week I blogged about how Twitter kicked off @realDonaldTrump, and how decisions like that give the lie to Twitter's claim of common-carrier-like protection against lawsuits granted by Section 230 of the Communications Decency Act.  Normally I like to change topics every week, but this week is an exception. 

 

A week ago today, on Jan. 10, Amazon Web Services shut down its web-hosting services for the social-media network Parler, taking it off the Internet and capping a series of moves by Amazon, Apple, and Google that effectively ended the company's ability to serve its customers.  It was an extraordinary and united show of the power that large tech companies have to censor social-media speech.  Leaving aside for the moment the question of whether the action was justified, it now appears that not only can Big Tech edit content on its own sites as it pleases, it can exert the same editorial power on supposedly independent companies like Parler.

 

The background of this incident is informative.  As Twitter and other mainstream social-media outlets began ramping up their removal and suspension policies, Parler began to attract many of the users who left Twitter for that reason.  The New York Times reported that by Jan. 9, the day before Parler disappeared, it was the No. 1 free app for Apple's iPhones.

 

No matter.  Some things are more important than money.  Last week, Apple and Google announced that they were no longer going to allow Parler to be downloaded to phones with their proprietary operating systems, which meant that while existing customers could still use the service (at least till Jan. 10), nobody new could join.  But when Amazon pulled Parler's plug Sunday, even those apps became useless.

 

The reason given by Apple, Google, and Amazon is that in their view, Parler was not sufficiently monitoring the content of their posts for incitements to violence and crime.  I have no way of judging that, being a non-user of social media myself, but reports that Parler was used to coordinate the Jan. 6 assault on the Capitol in Washington seem credible.  So we will allow that this was a problem. 

 

Reportedly, Apple gave Parler 24 hours on Friday, Jan. 8, to "clean up its act" and remove offending posts, but Parler's efforts were deemed inadequate, and Apple removed Parler from its app store on Saturday. 

 

In a piece in National Review, Wesley J. Smith points out that Big Tech—Apple, Google, Amazon, etc.—are now behaving more like a fourth branch of government than ever.  However tenuously, the three constitutional branches of the federal government—the legislative, the executive, and the judiciary—are beholden to the citizenry of the United States.  But no one elected the leaders of the media giants who can, unilaterally and without breaking any laws, decide that a competing social-media service that is growing rapidly and under the protection of the same Section 230 that allowed them to become what they are today, decide to kill a competitor like Parler in a matter of days. 

 

Historically, the United States has been a haven for freedom of speech.  It was a bedrock principle in the philosophical discussions which led to the founding of the country.  In 1798, seven years after the Bill of Rights was added to the U. S. Constitution, Congress passed and President John Adams signed the Alien and Sedition Acts, which made it a crime to make false statements critical of the federal government.  These acts proved very unpopular, contributing to Thomas Jefferson's victory in the presidential election of 1800, and the acts limiting free speech were allowed to expire by 1801. 

 

Jay Cost points out that tolerating a certain amount of offensive speech is the price of allowing freedom of speech, which is vitally necessary to a self-governed people.  He quotes Madison as saying, "Our First Amendment freedoms give us the right to think what we like and say what we please.  And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority."

 

The excessive restrictions of the Alien and Sedition Acts were duly removed in keeping with the idea that any significant restriction of free speech is inimical to the free exchange of views that a free citizenry needs in order to govern itself.  Madison realized that certain people would abuse that right, but he regarded it as the price we had to pay in order to avoid suppression of thoughts that the powerful in government disapproved of.

 

I am personally appalled by the execrable and deadly riot at the Capitol, and by anyone who uses the Internet to encourage violence.  But for some time now we have been trying to have our social-media cake and eat it too.  The vaunted freedom of social-media speech is no longer free if those who run the media empires can squash, not only speech on their own systems, but speech on rival companies by shutting them down.

 

One choice is to accept the fact that in order to use social media at all, we will be subject to the consensus censorship of the powerful few who run the "private" sevice providers, and we will simply have to accept whatever they think is right as far as what can be posted and can't be.  This is the direction we are heading.  And it looks to me no different than the regime imposed by the Alien and Sedition Acts, a situation in which anyone who wants to post anything that the powerful firms think goes too far is simply out of luck and can't do it, with no appeal.  Yes, we might agree that letting people organize an attack on the Capitol is not a good idea, but in killing Parler, Apple/Google/Amazon are acting as legislators (making their rules), executives (imposing the rules) and judges (deciding where the rules apply).  And if you don't agree with what they decide, which many of the millions of users of Parler who didn't post objectionable material didn't, well, you are just out of luck.

 

Another alternative is to take Section 230 of the Communications Decency Act seriously, and go only after the individuals responsible for objectionable speech if they violate any laws, or prompt such violation of laws.  That is what Parler more or less tried to do, and you see what happened to them.  As deplorable as much of the material they carried on their system was, Parler was much more in the spirit of Madison's attitude toward free speech.

 

China shows that huge successful economies can thrive under a repressive government that makes people watch everything they say and hauls them off to a concentration camp if they say the wrong thing.  But, as I said, some things are more important than money.

 

Sources:  The New York Times report on the squelching of Parler appeared at https://www.nytimes.com/2021/01/09/technology/apple-google-parler.html.  Wesley J. Smith's editorial on Big Tech appeared in National Review at https://www.nationalreview.com/corner/big-tech-now-the-fourth-branch-of-government/.  Jay Cost's essay on James Madison and freedom of speech appeared in the same journal at https://www.nationalreview.com/2017/09/james-madison-free-speech-rights-must-be-absolute-nearly/.  I also referred to the Wikipedia articles on Parler and the Alien and Sedition Acts.