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Promoted from the diaries by streiff. Promotion does not imply endorsement.

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First of all, one need not be a fan of Alex Jones and his stupidity to be disturbed at his deplatforming by the tech giants. The true test of one’s commitment to free speech is his willingness to allow even his worst enemy to speak, no matter how vehemently he opposes what is going to be said.

The fact of the matter is that things such as the freedom of speech, of association and religion are matters of culture just as much as they are matters of law. To further extend Andrew Breitbart’s aphorism, it’s not just politics, but law, that is downstream from culture.

The more they are rejected in the nation’s major cultural institutions, including corporate America, the easier it will be to see them invalidated in law. We’ve already seen it in academia with its speech codes and deplatforming campaigns. We’ve already seen every single Democrat Senator vote to amend the Constitution to limit free speech rights. We already know there are at least three Supreme Court Justices willing to allow the government prevent and punish people for publishing what some bureaucrat or politician finds unpalatable.

The second part of this, is about the status of the tech giants; are they neutral platforms … or publishers?

This is what separates the cases of Facebook and Twitter et al from that of Jack Phillips.

Section 230 of the Communications Decency Act gives immunity to internet services companies providing neutral platforms for 3rd Party provided content, basically treating them as common carriers. In other words, Facebook, YouTube, Twitter, etc. are not liable for what is posted on their platforms. Unlike a publisher, e.g. a newspaper.

So the New York Times can be held liable by Company X for publishing a letter on its pages (online and offline) alleging that Company X engages in fraud, while Facebook cannot.

This is all based on the understanding that these neutral platforms *are* neutral, open to all and uncurated by their providers outside of clear exceptions i.e. threats of violence, criminal activity, etc. The idea is that they are “common carriers” like the Post Office, FedEx, UPS – you can’t sue logistics companies for delivering a libelous or upsetting letter/package.

But if Facebook, Google, Twitter start deleting posts, banning, endorsing, shadowbanning, demonetizing, promoting, etc. based on viewpoints they agree or disagree with, then they’re now curators of content – which makes them publishers, which means they should bear legal responsibility over what appears on their platforms.

So the tech giants have to make a choice. Either;

[1] get out of the business of curating user generated content (with the narrow exceptions of criminality and abuse) and remain a neutral common carrier/platform, which means even Alex Jones gets to speak,

[2] continue but exercise some truth in advertising integrity and come clean about being a platform for exclusively for Left-Wing causes – which will immediately create a market for Right-Wing and neutral platforms or …

[3] continue but be classified as a publisher with legal responsibility for what is published on the platform.

Other legal issues; What happens when the public square is privately owned? It’s not the simple issue many seem to think it is. In Marsh vs Alabama, the sidewalk where Ms. Marsh was handing out bibles in Chickasaw, MS was privately owned, but the Supreme Court still ruled that despite it being privately owned, it was a public thoroughfare and she could not be silenced or arrested for trespassing for exercising her 1st Amendment rights there. How does this apply to the modern public square as represented by platforms like Facebook, Twitter and Spotify?

There’s also the issue of whether or not the social media giants deliberately censoring and limiting one side but not the other constitute in-kind contributions. For example, Twitter shadowbanning Ted Cruz while leaving Robert O’Rourke’s account alone (or taking measures to maximize its audience) can be argued to be a contribution to O’Rourke and monetized.

Furthermore, as a matter of simple “fairness” (for lack of a better word), there is a fundamental injustice in the fact that these social media giants attracted so many to their platforms based on their claims of neutrality – resulting in many of their users abandoning other platforms and creating campaign and business plans relying heavily on them – only for them to turn around and say no, they are not neutral after all, and start banning and limiting users and content.

For those who want to draw an equivalence between Jack Phillips and the tech giants’, this only works in a situation in which Phillips had advertised himself as willing to bake wedding cakes for gay, straight, incestuous, trans, {whatever}, and accepted the gay couple’s contract to bake them a cake, but then, after they had made all their plans and arrangements, he calls them up and tells them his religious convictions do not allow him to bake them the cake and offers to return their deposit. In that case, almost everyone, (even without supporting the decision) would agree that the gay couple have good reason to sue.