"private platforms share the same 1st Amendment rights to host, or not host, others' speech"
... just as any other business has a right to do business, only as long as it does not violate the law. But, businesses don't get to decide who they will accept as customers, and who they will not, based on wholly discriminatory criteria. They have been granted a public license, as businesses, that requires their right to conduct business includes the responsibility to comply with the law in how they conduct business. Can a bakery be forced to make a particular cake... for a particular customer... and be sued if they refuse the work?
There clearly are a number of unresolved issues related to the definition of boundaries... and what is owned, or can be owned... and what is public commons...
We don't grant telecom companies the right to censor our speech when we speak to others on the telephone... even though they clearly are "private platforms"...
On the telephone, we deem the virtual space in which our exchanges of speech occur as "not private property". The phone company owns and controls the hardware... not the content transferred across the hardware they manage. Neither, in theory, are they spying on us... and using the content of our speech as a benefit for the telecom company... or reselling information about us that they gleaned from monitoring our conversations ? The issue is not just one of "speech"... but of excess in ownership claims that go beyond asserting control sufficient to exclude someone from the virtual space in which communication occurs.
Look at old phone books... even from the 1970s... they had sections in them defining the "rules' for speaking on the phone... the words you were not supposed to use were addressed ? Etiquette, if you will... but with the implied threat of action if you violated the rules. It still didn't presume any ability to sort out miscreants for enforcement actions... based on one's expression of opinions... rather than other behavior ? It was relevant, back then, because there were anonymous crank calls... from "streams of invective" to "heavy breathing"... so monitoring occurred to limit that problem ?
Technology changes muddle a few things... some in recursive fashion... if you see "platforms" as meaning that we now have "party lines" again instead of only dedicated lines channeling all of our communications in dedicated point to point fashion... Who moderates the party line ? What are the proper limits in defining what can, and should not, be moderated ? Who decides ? Why is "the internet' any different than the telephone in determining limits to individuals right to express themselves ?
The right itself... as it was understood in context of prior technology... is expected to be surrendered now, users of the commons now are submitted to new control, by others, only because of some new technology... based on what fundamental principle ? Where, when, and how did the ownership of the virtual space where conversations occur get transferred from the commons to private ownership ?
Section 230 does not enable that... ? Instead, it recognizes the opposite... while noting that if you are not acting as a publisher... but only as a conduit of content others have published, so acting as a neutral amplifier in re-transmission of content others have placed in the commons... then, where there is a liability that is still resident in some locus, under existing law, that adheres to the publisher...
Similarly... the comms posted here on SI exist both as a function of your indulgence in allowing them... and as a function of others indulgence in allowing the trons we've manipulated on our own hardware, to cross over the platform of their wires just to get to the platform of your wires ? What happens if AT&T decides they object to use of their privately owned platform to discuss stocks, politics, and pastimes ?
Why should AT&T be treated any differently than any other "platform" ?
The virtualization of functions... has both real and virtual impacts. Staking out ownership claims based on virtual boundaries is an issue that is being avoided, rather than properly addressed, by those staking claims. That should not be a surprise. But, neither should it be a surprise that others with an interest in preserving the commons might object to those staking claims... or simply assuming and exercising ownership right on "public lands" or "public utilities"... like the internet. Who owns the internet ?
File a claim to use public lands for private purpose... and there's a process for that... a well defined set of rules. That used to include a patenting process... so a mine built on public property could be converted to private land ownership. In the era when fostering mining was deemed useful... the design of the system encouraged mining... and surrender of public land to private control made sense if you wanted to foster more of what the new private owners were doing. Since then, the public costs of that policy have become more obvious... and that benefit that was once extended... isn't any more.
That's the same in tech... where public ownership and control of the commons in "frequency spectrum" and its distribution... is not beyond the understanding of Congress and others ? But, what prevents the manufacturers of wifi hubs... from exercising control over the content they allow to pass through their devices ? Why aren't they liable... for broadcasting child pornography over the public airwaves... if a user somewhere uses a wifi router they manufactured for transmitting that illicit material ? It's because we've defined boundaries... that work not to eliminate liability... but ensure it appends to the one responsible for the decision to cause X to happen... and not the one who enables the function, but doesn't exercise the control. Responsibility is not divorced from control and decision... so the function is enabled... without the content being the issue. But, if they are insulated from liability... while they DO exercise content controls ?
Stake a claim to use or "take ownership" of "the virtual commons"... and the only rule the participants in the gold rush ongoing now want to acknowledge... as they rampage across the commons trashing the values that society intends to preserve... is that one rule claiming IN ONE VERY SPECIFIC CONTEXT that, what they do when NOT acting as publishers, but as flow through conduits of others content... means they have no social liability ? And, then, they choose, wrongly, to read that as applying outside the specific context in which that rule was created ? And, of course, there's a lot of cheating going on... as people act outside the rules... while claiming the protection of the rule when it doesn't apply outside that narrow context it was intended to define. That's NO DIFFERENT than what happened in mining on the public commons... back in the days before regulation... or back when airplanes, freely using the public airspace, generated conflicts that now require the use of the commons is regulated. Note, different rules for different uses and users ?
The goal in section 230... to protect free speech and foster free exchange of information by limiting censorship... requires preserving the commons... and protecting the use of the commons... as "the commons" ARE free speech. Otherwise, its very much like saying you have the unfettered right to speak freely... anywhere... only my claimed ownership of the air means I can decide if you are allowed to use it or not in your desire to speak.
The claims of "ownership" of broad swaths of the commons... are incompatible with the goal.
That that is true... is now proven by observing the pernicious result of tolerating the error... as free speech is under assault everywhere, now... with everyone wrongly assuming a right to limit others expression exists...
There is no such right.
You have the right to exclude me, physically, from your physical property... you have no right to exclude my virtual participation in the virtual public square... from the virtual public commons... The rest is about errors in parsing boundaries...
The question about the boundary between what is "private" and what is the "public square" is NOT fully resolved... nor, for that matter, is the conflict fully formed... as innovation has not reached any obvious limits.
But, there is also quite a lot of deliberate error mucking things up... where much that is simple is made complex... as none of this is new. We have already resolved the principles under our consideration of the liability of hardware manufacturers and/or operators.... and that of publishers. All that remains is to enable those same functions in a modestly different context... making the difficulty actually a ruse adopted to distract from other issues...
The overlap... is in the failure to properly define the limits of the commons in the virtual world... while also tolerating contract abuses that ignore dependency on (and takings of) the commons as an element... Almost all of the conflict would evaporate... with legislation properly defining personal information (including expressions of opinions)... as the property of the person... and not a "free range" element in the commons open to being harvested... or a thing whose ownership and use can be taken away by contract.
If my expression of opinion is mine... not yours... there is no reason for you to claim any right to control my expression of opinion... as it can have no impact on you... unless you are claiming an ownership right in it... so that its expression is taken by you and made yours... granting you ownership of me in that part... in order for you to control my expression of opinion...
What we see occurring now in the public square... is that error in full expression... which is no different than, and no less destructive than, the unregulated mining that was occurring on public lands a century and a half back... when the public interest was suborned to the private in "real" commons, as today in the "virtual".
The most obvious tell, of course, is that "the advocates for free speech"... who champion (their self serving misreading of) section 230 as essential to preserving free speech... are aggressively engaged in suppression of free speech... and are doing that in ways that significantly exceed any rational understanding of section 230 liability limits... far outside the limits of the virtual world... and in fact willfully violating many other laws in the expectation waving a "section 230" get out of jail free card will protect them.
The risks are enormous... because the consequence of tacitly accepting the errors entrained in the deliberate misreading of the Congressional intent in section 230... as granting a liability-free ability to censor others speech by de-platforming them... are EXACTLY what I noted earlier in this post... and those risks are already being realized.
The conspiracy to destroy Parler... is an obvious excess showing the attempted extension of the "section 230 doctrine" as it is being misapplied, even while crossing the virtual lines between section 230 applying internally to the ether inside "the internet"... and it being extended to apply outside that virtual space... to hardware... to apply it to and empower the "legacy telecom" hardware providers... who also now claim a right to "de-platform" anyone they disagree with... by denying access to and use of the hardware.
Those are obvious civil rights violations... having nothing to do with others rights to control their "virtual private property" as publishers... Section 230 will not protect those actors who have conspired to deny others their civil rights, while engaging in tortuous interference with their businesses.
If Parler can be de-platformed... not "access-limited" within the function of others sites as an editorial decision of a publisher... but kicked off the internet by being denied access to or use of the facility to maintain their own site... then that warning I sounded at the beginning of this post is already moved well beyond "a risk"
Those fostering the fraud that you "support free speech" most effectively by ending it... have jumped the shark... ensuring section 230... or, at least, the intended mis-reading and abuse of it that threatens fundamental social values... will have to end.
If you fail to understand the issues in relation to that perception of "squatters on the commons" who are seeking to carve out exclusive "virtual" ownership rights from the commons... and the views of others holding that as not being in the public interest ? That's a dangerous path... likely to predispose those who fail to understand... to error. Not hard to see how that happened in relation to Parler... with some in the industry extending the error being made into a belief they had a right, and were justified, in seeking to exclude from participation someone they disagreed with.
SI is not fundamentally different than Parler... and faces the same risks when others, not SI, presume to decide for society, and assume the power to decide, whether it should be allowed to access the internet... There are no rational limits on that path... other then whatever crazy new idea it is that the mob decides to apply as a qualifying litmus test...
Carving out an ownership interest in a virtual private property that allows you to control others speech within the limits of that property is already well and fully considered under existing law... that's what a publisher is. The work of a publisher, in print... is a not that different vehicle for the transmission of the virtual work... which exists in the ether as ideas and unique arrangements for expressing them, and not in the physical construct of paper and ink, any more than of keyboard and screen ?
That the commons where free speech occurs... has a virtual corollary... creates no new reason to alter our prior understanding of the relationship between free speech and private ownership.
Altering that understanding... is a threat to free speech... not a protection of it.
That, and while the "internet" as an idea, and the industry that has grown around it, to succeed, no longer requires any public subsidy... we can no longer afford that subsidy enabled at the social cost of denying corrections of abuses, under a shield from liability, when fundamental principle essential to our society and its survival is under attack, protected by the exemption that intends the opposite... to foster free expression rather than facilitate is suppression.
That has to be addressed, now... as the limit in liability has, instead of a protection of the public interest, become understood, by some in the industry, as a license to violate others rights with impunity.
The Supreme Court should eviscerate section 230... on that basis... that the Constitution does not intend, and does not empower Congress to grant, anyone an ability to selectively violate others rights without liability...
By accepting and operating under "the contract" that Congress offers under section 230... granting them access to the commons and a right to operate, only under conditions precedent... clearly stated in the law... those operating under its protection have already agreed to act within the law. What they have been doing instead, is to use section 230 as an unrestricted license to violate the Constitution's guarantee, to every citizen, of the equal protection of the laws. That contract, under the existing law, prohibits them from discriminating based on opinion. That they have done that... invalidates the liability exclusion...
That they went far beyond that... into conspiracy, tortuous interference, and other violations... only proves the point...
Parler should own them by the time this ends... |
