Freedom of association captures the idea of freedom of speech better than freedom of speech itself, I think. Private parties are (with some number of government constraints) free to pick who to work with, who to play with, and who to talk with, and who they don't want to do anything with.
It’s weird to repeatedly see the argument that a corporation’s moderation of human individual’s speech is itself a form of protected speech, from a group of people who until recently mostly thought corporate speech wasn’t even broad enough to cover a corporation’s production and distribution of its own message in a political movie.
Like I think “corporations are people too, my friend” but corporate moderation as a form of protects speech or association takes Citizens United to the next level.
That article doesn’t address the point I’m making, which is whether content moderation decisions are protected speech. I agree with French’s analysis that the Hunter Biden stuff isn’t a first amendment violation insofar as Biden wasn’t a government actor at the time he made the request.
The rationale behind regulating Twitter would be the same as the ones behind campaign finance laws: to keep a big corporation from using its power to influence elections. Except the difference is that producing a political movie is clear political speech, while the decision to delete particular items from a firehose of user generated content doesn’t seem to be expressing any message in the part of Twitter itself. As far as I can tell, the Twitterati are not addressing the implications of the “must carry” line of cases like TBS v. FCC which hold that forcing a corporation that provides a pipe for content to carry particular types of content isn’t a first amendment violation.
The Twitter internal emails confirm that folks inside Twitter weren’t treating suppression of the Hunter Biden news as a political statement on the part of Twitter. They were concerned about the potential impact on the election.
The figure at the center of all of this, when he was banned, literally just said whatever and started a competing social media site. Concerns about this topic have picked up over the last decade; "we'll carry anything" companies have formed in response. Not that those didn't exist before.
In any case, you can get online somewhere to say what you want. Use Cloudflare. The market surrounding the matter of publishing stuff online is healthy, and the nature of the internet/web is such that you can reach a global audience with relatively minor equipment.
On the consumer side, what is the argument? There is no lack of outlets, serving every niche, freely available on the same connection that delivers you Twitter. What's the problem? That people can't look away from Twitter?
One pretty easy bit of subtext to infer from these discussions: American politics have polarized on education and SES, and the platforms where plugged-in knowledge workers, hipsters, and celebrities tend to hang out are naturally inflected with the politics of those cohorts of people, which really pisses off conservatives who want to hang out in those spaces.
When I am weaker than you I ask you for freedom because that is according to your principles; when I am stronger than you I take away your freedom because that is according to my principles.
There used to be a nice delineation between regulation of commercial and non-commercial activities, with the press, often straddling the divide, enjoying specialized treatment. But political, legal, and technological developments seem to have all conspired to make hash of that old, basic dichotomy.
It's hard to call out hypocrisy without first establishing some coherent principles. I'm not sure what those might be for any of the major political or legal factions. For example, how do we categorize and differentiate health care relationships, for when the government might want to dictate which pamphlets a provider must make available in their waiting rooms or which warnings must be placed on a label. It's roughly similar to the situation with social media companies in the sense of commercial entities mediating private relations, but I suspect a substantial number would find themselves on the opposite side of any hard line drawing.
Should media companies be required to provide a platform for government leaders to broadcast their messages?
To me this is basic 1st amendment stuff. We've gone pretty far down the road to authoritarianism when people think we need to protect the leader of the government's ability to force media companies to carry his messages.
It’s authoritarian when leaders force media companies to carry their messages because it puts the imprimatur of the New York Times or CNN on government propaganda. But Twitter isn’t a “media company” it’s a platform for user generated content. It doesn’t purport to have its own viewpoint, or its own editorial stance. Nobody at Twitter purports to stand behind the content posted by users in the site. In that respect Twitter is much closer to say broadband providers than to media companies. Even most opponents of Net Neutrality didn’t argue it was a First Amendment violation to regulate the terms on which third party content was carried. (Maybe they weren’t creative enough.)
The question is whether the government can require a platform to host otherwise legal content on politically non-discriminatory terms. Put differently, it’s about whether platform owners can use their market power over what’s essentially infrastructure to distort the country’s political debate.
Insofar as many folks on the left believe that corporations don’t have free speech rights period, it’s not “basic 1st amendment stuff.” And even for folks who think Citizens United was correctly decided, a company producing a political movie in its own name is much closer to core political speech than the moderation decisions of a user-generated content platform.
> It doesn’t purport to have its own viewpoint, or its own editorial stance.
The central issue here is whether government officials can override the moderation policies of these companies.
The idea that twitter and other social media companies are just neutral platforms doesn't make any sense. Moderation and promotion of messages based on the content of the message has always been central to their business.
Also, the idea that you can just call a company "a platform" and then the government can just start directing the content of its media operations is rather alarming.
> Insofar as many folks on the left believe that corporations don’t have free speech rights period
To the extent the first amendment has anything to do with free speech anymore, they do. "The press" would have to be understood as an organization, not individual people. I don't know much about your far left people, though.
> The idea that twitter and other social media companies are just neutral platforms doesn't make any sense. Moderation and promotion of messages based on the content of the message has always been central to their business.
The issue isn’t neutrality, but rather expression. The First Amendment protect’s a person’s expression. It protects articles in the New York Times because those articles carry the imprimatur of the Times. When an article is published, the Times is the one speaking.
Twitter may or may not purport to be neutral, but it does not claim that the content on its platform is its own speech. Nor does it even claim that it’s moderation expresses any message from Twitter. Indeed, if they banned Trump because they hate Trump, and were willing to stand behind that position, that might well be protected speech.
But as you acknowledge, Twitter’s moderation and content promotion is just part of their business. They promote content they think users will like and moderate content they think users won’t. It’s like Google’s search results. Could the government prohibit Google from promoting its own products first and hiding the sites of its competitors in search results? Almost certainly.
> Also, the idea that you can just call a company "a platform" and then the government can just start directing the content of its media operations is rather alarming.
The difference between a “media outlet” and a “content platform” really isn’t a fine one, or at least Twitter isn’t anywhere close to the line. Is the company purporting to communicate a message? The New York Times is. CNN is. Twitter is not.
> It protects articles in the New York Times because those articles carry the imprimatur of the Times.
If that were true it would create a loophole so big that the first amendment would practically not exist. The President could require the New York Times to carry a daily editorial on the front page from the desk of the president, with just with an additional caveat "This editorial does not reflect the opinions of the NYT". The President could require TV stations to broadcast speeches from the president speaking in the Rose Garden.
> Could the government prohibit Google from promoting its own products first and hiding the sites of its competitors in search results? Almost certainly.
You're just pointing out that the free speech guarantees of the first amendment aren't absolute, which isn't in dispute as far as I know. It doesn't follow though, that therefore the first amendment allows the government officials to dictate any content they want to be published by media companies.
> Is the company purporting to communicate a message?
Well, when twitter adds a fact-check to a tweet, they are obviously communicating a message.
> If that were true it would create a loophole so big that the first amendment would practically not exist. The President could require the New York Times to carry a daily editorial on the front page from the desk of the president, with just with an additional caveat "This editorial does not reflect the opinions of the NYT". The President could require TV stations to broadcast speeches from the president speaking in the Rose Garden.
If the government is, in effect, simply hijacking a private communications medium to carry a message that's clearly from a different speaker, that's permissible. In TBS v. FCC, the Supreme Court held that cable companies can be forced to carry local channels: https://supreme.justia.com/cases/federal/us/520/180/#tab-opi.... It found the burden on "cable providers editorial discretion in creating programming packages" to be insufficient to raise a first amendment problem.
Under the reasoning of TBS, Twitter has even less of a basis for claiming first amendment protection. Cable companies exercise "editorial discretion" in curating channels to fit into a limited number of available slots. Twitter doesn't need to do that and doesn't purport to do that.
> You're just pointing out that the free speech guarantees of the first amendment aren't absolute, which isn't in dispute as far as I know.
Not just that, but the guarantees are greater or less depending on the type of speech. The protection is very low for commercial speech that isn't purporting to carry any sort of message.
> Private parties are (with some number of government constraints) free to pick who to work with, who to play with, and who to talk with, and who they don't want to do anything with.
This is so true. The problem we have now is that online platforms are preventing us from making those choices for ourselves. We're being told we're not allowed to talk to certain types of people, often for ideological reasons.
Online platforms shouldn't limit our choices, they should empower us to find whatever content we want and block/remove content we aren't interested in.
To you and the OP's point, if I am understanding where you are going with this, Twitter previously had a right to remove people it didn't like, as they should. That seems fine. Although there is no obligation to provide any reasoning, I think it would have been better for Twitter to just say "yes, if you are ____ please don't come on here". I don't think it would have even had any consequences. It's not even weird given how social media sites tend to self segregate. Instead we got lectures about policies and disinformation and algorithms and moderation teams. Why not just make explicit rules?
Because the point was to shape public discourse and opinion. Explicitly stating a bias that has been coded into the system somewhat defeats the purpose
Musk already made it clear that he's not an absolutist, but picks and chooses what he wants to allow.
Most prominently, his public justification for keeping Alex Jones off Twitter is that it's personal for him. Which is just fine with me mind you, but doesn't constitute any kind of "free speech enthusiasm".
I'm not sure how aware people (you) are, in general, about Twitter and other big tech (fb, ggle) accommodating the government and political parties to amplify their messages and curtail the distribution of certain other messages.
I really don't know if that's something you or others might know about or consider deleterious to the operation of a free nation. You might be a proponent of those messages and opposed to the messages that previously had been systematically removed from the platform.
The problem is that allowing these things to occur will ultimately be bad for you as well..
Musk is as much free speech enthusiast as he is astronaut. He is systematically and notoriously punishing any speech he does not like. He did that pretty much anywhere he had power.
§ 230 allows platforms (and individual users with moderation tools provided by platforns)
to exercise active moderation based on their own view of standards; in fact, allowing that without it invoking liability as a publisher for the platform or moderating users in order to encourage and protect active private moderation is the whole purpose for which § 230 was included in one of the most sweeping internet censorship laws the US ever passed (most of which, other than § 230, related to government censorship and was struck down for violating the First Amendment.)
§ 230 does not require neutrality, and such a requirement would defeat its purpose.
You are being deliberately obtuse. No matter how one answers your question, most internet users still have unaccountable 3rd parties opaquely choosing who they communicate with [1].
Do you admit this is a problem, but you just don't see a solution compatible with the 1st amendment's freedom of association? Do you support the Civil Rights Act's restriction of freedom based on race and/or think it is constitutionally valid? Why would the same logic not hold for restricting companies such as Twitter then?
[1] Spare me rebuttals of "if they really wanted to communicate, they could do so by carrier pigeon!" - 99% of users won't go through with such effort, or even know who they are being herded away from. The remaining motivated 1% is too small to have any political power, and so the censor wins.
> Do you support the Civil Rights Act's restriction of freedom based on race and/or think it is constitutionally valid?
Sure, just as common carrier regulation is constitutionally valid. The Constitution isn't a suicide pact; the Founding Fathers very clearly did not intend it to be one. We've accepted a non-literal wording of the First and other amendments since the beginning.
> Why would the same logic not hold for restricting companies such as Twitter then?
Because being kicked off Twitter is hardly the same as not being able to dial 911 or purchase critical services. We've passed laws to correct specific, significant harms that are nothing like being unable to tweet. We weighed First Amendment rights against the rights of those being harmed in these situations and had to decide which conflicting rights mattered more.
That same process happens here. Different situation, different consequences, different decision.
> Spare me rebuttals of "if they really wanted to communicate, they could do so by carrier pigeon!" - 99% of users won't go through with such effort, or even know who they are being herded away from.
> Because being kicked off Twitter is hardly the same as not being able to dial 911
The Civil Rights Act also prevents Twitter (or any company) from banning users based on protected characteristics (e.g. race and sex). It is not remotely limited to critical services or common carriers.
We view certain companies that provide essential services as “common carriers” — who aren’t allowed to discriminate based on how you use their product. Common carrier status for essential services is one of the ways we protect freedoms in the US.
Examples: power company, phone company, ISP.
People are starting to view Twitter et al as similar to phone companies — and hence think they should be bound by common carrier rules.
Sure. US law, particularly Section 230, makes it very clear that social networks are not common carriers. Section 230 indemnifies them for liability when moderating material that is "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected".
These actions that would be explicitly forbidden for a common carrier to perform; as such, we can pretty conclusively state Congress never intended to apply common carrier status to places like Twitter.
Right — I said “should” to explain why people socially expect that they should be treated that way.
I didn’t say the current law was that way. Twitter didn’t exist (nor did social networks) when they law you’re citing was written - so it’s quite possible Congress didn’t contemplate this case or express any intent at all.
That would be a good reason to change the law:
If the way it is written doesn’t match how it should apply because the case in question wasn’t contemplated at the time.
Twitter doesn't have monopoly power like phone companies or railroads tend to, nor are the consequences as impactful. There's zero impact on your ability to publish your personal free speech from being kicked off Twitter.
Most people in the world don't have Twitter accounts and get along perfectly fine. You need phone service to apply for most jobs, contact government emergency services, go to school. It's a far more essential service.
Although the definition of a common carrier isn't necessarily that it is essential anyway. It's that it is offered explicitly as being available to the general public, not involving any sort of individual contacts between carrier and users. Everybody gets exactly the same deal. In that sense, Twitter arguably qualifies, but being a common carrier doesn't mean you can't ban people. Taxis and airlines are common carriers and can absolutely ban you if you don't follow their rules.
I think there’s lots of good reasons to consider Twitter and similar as common carriers:
The presidents and major politicians of many nations communicate via Twitter.
Major businesses, eg Gooogle and its subsidiary YouTube, only respond to customer service via Twitter, eg improper account bans.
There are some businesses, eg YouTube content creators, who you can only contact through Twitter; and some businesses, eg news agencies, which primarily source their content from Twitter.
- - - - -
> Everybody gets exactly the same deal. In that sense, Twitter arguably qualifies, but being a common carrier doesn't mean you can't ban people. Taxis and airlines are common carriers and can absolutely ban you if you don't follow their rules.
The difference comes when Twitter bans the NY Post from receiving the same treatment because they posted a true story that was politically inconvenient for Twitter leadership during an election.
There is more to it than a common carrier can “ban you for not following their rules”. Common carriers have limits on their rules:
A taxi service can’t refuse to take you to a political rally because they don’t like your politics; nor a phone company disconnect you because they don’t like what you’re saying.
Sure, the issue is that every time a political partisan or politically partisan organization gets banned from a service, they and their followers will always believe it's because of the party they're a member of, and not because they were being an asshole. It acts as cover to engage in any kind of behavior at all, as long as you're a partisan. That isn't what those protections were meant for.
Rules are enforced by imperfect detectors of infractions because there is no such thing as a perfect detector. No matter how careful a review process is, failures will always happen. Innocent people are convicted by real courts through decades of appeals in spite of all the due process. You will always be able to find some instances where a member of party A does exactly the same thing as a member of party B, but only one of them gets punished. Does this mean we should try the best we can and accept that we will fail a non-zero number of times, or should we never have rules instead because that's the only possible way to be fair?
I'm going to be perfectly honest here. I don't follow Twitter at all. I've never had an account. I haven't read an article from the NY Post that I can remember in probably 20 years. I don't actually care about this stuff and think it's silly internet drama that should not be dominating national headlines. So it's entirely possible Twitter really was biased here. I don't know. Organizations are not never in the wrong. When black people were banned from every lunch counter in 15 states, it wasn't an innocent mistake by organizations trying their best to exercise their right to freedom of association. When communists were purged from Hollywood, they were definitely targeted because of their party, not because they'd explicitly done anything.
But without stooping to the specifics of whether one single incident was right or wrong, I would like to agree that it is okay for a service like Twitter to have terms of service and remove content and block accounts that breech those terms. Legally, at least right now, they are not treated as a common carrier, but if that ever changes, one of those terms of service can't be "no Republicans," but that also doesn't mean no Republicans can ever be banned. If you think you can prove disparate impact in a court of law, have at it, but just be aware that you're in the ample company of every political partisan ever who believed themselves to be some unjustly persecuted minority being suppressed for just telling the truth. The fact that some small number really were doesn't do much to impact the overall probability distribution of holding that belief.
