Free speech is fundamental in a free society. It’s how we process our thoughts, refine our positions and battle for policy. It’s why Congress is forbidden to make any law “abridging the freedom of speech, or of the press.” Doesn’t matter if the press uses paper or pixels.
But what if it’s not a federal law but the actions of a private company suppressing speech?
After skeptically listening to friends complain for several years of conservatives being shut down on social media, it finally happened to me. On Jan. 6, both my personal and public Facebook accounts were blocked for 30 days for posting “in violation of community standards.”
It probably wasn’t for the cliffhanger post to friends the night before with a picture of my fuel gauge on empty. Or the plea for prayers for our country that morning or the post rejecting violence and anarchy that afternoon. Presumably it was sharing one last post that evening from a radical progressive lesbian feminist group with which conservative, mostly heterosexual Christians and Jews share common ground on the importance of defending the biological definition of man and woman.
The post was a simple link to a Women’s Liberation Front Media Guide offering advice on how to address sex and gender accurately and “adhere to the strictest principles of journalism ethics.” No fighting words – a link to a publication about using words.
And there was no way to appeal. No way even to confirm the problem. The “Community Standards” link was useless mush, language which Lewis Carroll’s Humpty Dumpty could easily master to make a word mean “just what I choose it to mean – neither more nor less.” The faceless wizards behind the curtain had exercised complete control over what speech of mine was acceptable in public, and it didn’t set well.
That’s where Section 230 of the 1996 Communications Decency Act comes into play, along with the 1973 Supreme Court decision in Norwood v. Harrison. Section 230 says tech companies can’t be sued for the speech on their platforms or for removing speech on their platforms, “whether or not such material is constitutionally protected.” The earlier Supreme Court ruling, however, says government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
In other words, Section 230 wrote a free pass to private companies to censor constitutionally protected speech. It wasn’t a big deal in 1996. No one anticipated a personal communicator in almost every pocket, not even Andy Grove, then CEO of Intel, calling it a “pipe dream driven by greed.” Pull your phone out and plug “worst tech predictions last 100 years” into the search bar, and realize you are trusting the search engine to play fair.
No one thought to look back to Norwood v. Harrison for constitutional guidance on private censorship, whether by individuals or algorithms. Now the social network companies have awesome power. After banning Trump from Twitter, CEO Jack Dorsey tweeted “over the long term it will be destructive to the noble purpose and ideals of the open internet. A company making a business decision to moderate itself is different from a government removing access, yet can feel much the same.”
Suppose the social media wizards decide their community standard rejects violence, and traumatic brain injury is too dangerous to allow pro football on the platform. All NFL accounts on Twitter and Facebook are closed. Individuals who post stories about the Super Bowl find themselves shut out for 30 days.
Or vegans control the levers and decide all posts about raising livestock and eating meat are now purged. Or vegetarianism is suppressed because we need more ruminant animals to recycle carbon back into the soil. Or conservatives buy out the tech companies and cancel Bernie Sanders’ account.
The NFL might even want to sue. But under Section 230, tech companies are immune to litigation over their censorship decisions. It shouldn’t set well with anyone, and it needs reform.
Newsweek reported in January “that the decision to suspend Trump from social media could set a precedent for big tech companies to silence less privileged voices,” following a statement from ACLU senior legislative counsel Kate Ruane expressing concern over Twitter’s decision to block Trump’s account.
It’s easy to demand voices be silenced when you’re pretty certain the silencers agree with you. It’s a civil liberty that needs protecting.
Contact Sue Lani Madsen at firstname.lastname@example.org.