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Extend the First Amendment to Twitter and Google Now

I recently wrote [1] about how the Ohio State University is preventing white supremacist Richard Spencer from speaking on campus. Despite falling under the First Amendment, Ohio State is looking for a legal loophole to block speech it doesn’t agree with.

The semi-comforting news is Ohio State is subject to legal challenge. Not so in cyberspace, which Justice Anthony Kennedy called [2] the “vast democratic forums of the Internet in general, and social media in particular.” There, access to diverse ideas is controlled by corporations and their Terms of Service. Hiding behind the bushes of private ownership, the quasi-public forums on Twitter, Facebook, Google, and their predecessors and successors, skirt the First Amendment to control what people say, read, and by extension, think. They are the censors the Founding Fathers feared.

It is time to expand the First Amendment to quasi-public institutions.

The scope of the First Amendment has regularly expanded. In the earliest days of the Republic, it applied only to the federal, and not any state, government. It wasn’t until the post-Civil War incorporation doctrine [3], followed by court cases well into the 20th century, that those restraints applied equally to the states. In its own founding days, Ohio State could have easily banned a speaker.

Actually, Ohio State might have been able to ban a speaker it found offensive until even more recently. It wasn’t until a 1995 case [4] that the Supreme Court held a university’s choices on funding student publications fell under the First Amendment’s obligation not to discriminate against particular viewpoints. Other expansions of the First Amendment took place in the 1950s, when the Court extended protection to non-traditional speech, including nudity [5] and advertising [6].

The problem today is when you use various web sites, you agree to a dense set of conditions, their respective Terms of Service, along with the understanding that Twitter (we’ll use it as shorthand for the range of sites and apps) can interpret things as it wishes. So while the Supreme Court continues to hold the line against banning [7] “hate speech,” Twitter is free to apply any standard it wishes, along any political or ideological lines it wishes.

Twitter may also ban speech acting as a de facto arm of the government, skirting the First Amendment because it can. That appears to have been what happened with Twitter’s decision to ban advertising from Russian media outlets RT and Sputnik. A hazy intelligence community assessment accused both of influencing the 2016 presidential election. While the feds are stuck with that creaky old First Amendment preventing [8] them from chasing RT and Sputnik back to Moscow, Twitter can—literally with a Tweet [9]—silence what once were inalienable rights. Twitter followed its Russian suppression with a decision [10] to ban whatever it thinks are “violent groups and hateful imagery and hate symbols.” Google also blocks [11] users from their own documents saved in Google Drive if the service feels the documents are “abusive.”

Twitter has also suspended the account of conservative Roger Stone [12]. No explanation was given, though the suspension appears to be related to Stone’s angry, expletive-filled Tweets directed at CNN. There are regular calls for President Donald Trump to be banned from Twitter for inciting violence and hate speech. A pro-left satirist found himself banned [13] for inciting faux violence.

My own Twitter suspension occurred while defending myself against several antifa people who threatened to “punch nazis.” My response was deemed by Twitter incitement to violence (though it would not likely meet the definition the Supreme Court established—I wrote something along the lines of, “if you punch me to silence speech expect to be punched back”), and I got the boot for a week. While suspended, Twitter first forced me to delete the offending Tweet. It then allowed me read-only access, so I could see attacks continue until the antifa people tired of it all. I could not block them or respond. It felt a lot like some big guys holding me down while a bully whacked away.

Google introduced censorship in the most well-intentioned way possible: to stop child predators. The Internet giant tweaked [14] its English-language search results to block sites it believed linked to child porn. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” the company claimed [14].

While no one can argue against stopping child predators, those same tools can be used in other ways, known as the search engine manipulation effect [15]. Google can skew search results any way it wishes to. For example, the higher an item appears on a list of search results, the more users will click on it. In a test, placing links for one candidate above another in a rigged search increased the number of undecided voters who chose that candidate by 12 percent [16].

Burying a link can have a similar effect. A current Google search for “greatest president of the 20th century,” for example, highlights a brisk historical debate over Ronald Reagan versus Franklin Roosevelt, and brings up over 300,000 sites. What if it yielded only one? Americans would never accept the government issuing a list of approved books for the dead tree libraries few even use anymore, but blithely accept the same from the most-used research tool in human history.

Technology has also changed the nature of censorship so that free speech is as much about finding an audience [17] as it is about finding a place to speak. Censorship in the 21st century thus targets both speakers (example: Twitter blocks someone) and listeners (Google hides that person’s articles). There will soon be no fear that anyone will lock up dissident thinkers in some old-timey prison to silence them; impose a new Terms of Service and they are effectively dead.

The argument that Twitter and Google are private companies, that no one forces you to use their services, and in fact you are free to switch to MySpace, is an out-of-date attempt to justify end runs around the First Amendment. Platforms like Twitter are the public squares of the 21st century (seven of 10 [18] American adults use a social media site), and should be governed by the same principles, or the First Amendment will become in practical terms largely irrelevant.

Pretending a corporation with the global reach to influence elections is just another company that sells stuff is to pretend the role of unfettered debate in a free society is outdated. Absent a court decision that places quasi-public forums under the First Amendment, we face a future of debate and discussion splintered into a myriad of ideologically-based platforms such that no one will be listening to anyone they do not already agree with. It will be a future where entities like Twitter and Ohio State protect students from the words of Richard Spencer at the expense of teaching them how to challenge those words.

Peter Van Buren, a 24 year State Department veteran, is the author of  We Meant Well [19]: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War [20]: A Novel of WWII Japan. @WeMeantWell

36 Comments (Open | Close)

36 Comments To "Extend the First Amendment to Twitter and Google Now"

#1 Comment By GregR On November 6, 2017 @ 10:33 pm

This may be the most absurd thing I have read in a very long time. While I am appreciative of the sentiment the whole point f the 1st Amendment is to restrict Government action. Forcing Twitter, or any media company, to abide by its prohibitions would deny them their own 1st Amendment protections.

Twitter has a 1st Amendment right to curate the content on its own website. For the government to force them to do otherwise would be the real issue. Or would TAC be willing to provide me and everyone else who would like the right to publish here? Maybe I’ll wright a pro-abortion screed here, then an anti-Trump for Fox. And since media companies are would then be forced to publish whatever is submitted, there goes editorial control.

Heck maybe Stormfront could do a continuing series at CNN about how the Nazi’s are just misunderstood, and BLM could take over the editorial page of Fox…

That isn’t to say I don’t understand the impulse. As these companies grow to such immense size they really do become a threat to democracy. But we all ready have laws on the books to deal with them we just need to enforce them. The anti-monopoly laws that were used so well against US Steel, AT&T, et al can be applied just as successfully against Google, Facebook, and Twitter. It just takes the political will to apply them.

#2 Comment By Nicolas Martin On November 6, 2017 @ 10:47 pm

No thanks. Why don’t some billionaire libertarians create free speech platforms?

#3 Comment By Ellimist000 On November 7, 2017 @ 12:53 am

Oh, this is rich, a conservative promoting government control the affairs of private companies when they do something he doesn’t like. Particularly, giving him a week-long timeout on a medium that has been around for barely a decade and probably won’t last another. Color me surprised. How did you ever get by for the other 40ish years of your life?

Can we get you down as a supporter of net neutrality legislation then? How about the ACA? After all, dying because one can’t afford access to healthcare is a pretty strong barrier to expression, free or otherwise…

#4 Comment By a spencer On November 7, 2017 @ 1:04 am

>>The argument that Twitter and Google are private companies, that no one forces you to use their services, and in fact you are free to switch to MySpace…

You don’t have to switch to anything. There is no law requiring you to have Facebook. You can own nothing more than a land line – not even that, I’m told.

#5 Comment By Stephen On November 7, 2017 @ 2:19 am

The problem the article highlights is, of course, not just with public forum sites like Twitter and Facebook and search engines such as Google. Consider email. It is a crime for a letter you send through the US postal service to be opened by a postal employee, for that employee to then post the contents online–or send it to some tabloid scandal-sheet for publication. Yet there is nothing to prevent a GMail or Hotmail employee doing the some with an email sent by or to some celebrity.

Then there are the demonetisation issues at Youtube.com and the recent de-activation of Donald Trump’s Twitter account for eleven minutes by a disgruntled employee. (Imagine if a disgruntled employee at AT&T–or whoever holds the telecom service rights there–had disabled the phone and fax lines to the White House.)

The truth is that, when it comes to the Internet, users have no real legal rights. No enforceable ones at any rate. They rely on boons arbitrarily granted to them at the discretion of those who run the site and upon opaque rules and procedures processed by faceless people.

Boons which can be arbitrarily changed, dropped, or added to without notice and at the drop of a hat. There is no requirements that they abide by natural justice, or even that the one who enforces them be a human being, and therefore someone who at least has some chance of accountability. (Increasingly nany of the rules, especially those concerning censorship and such issues as Youtube’s demonetisation, are being enforced by algorithms, and therefore by something which cannot be fired if they do something a use objects to, let alone be able to face fines or other penalties.)

Worse, there is no right of appeal either, at least in most cases. For example, I found out a few months back that I had been banned from the comments on NationalInterest.Org. Why I was banned I have not been able to find out. I had only posted there a handful of times and as far as I can determine I was sent no email or other message informing me. Instead when I do try to use one of their comment sections I am greeted with a red warning message telling me that National Interest has banned me from commenting. When I sent them an email inquiring what the reason was for the banning I have yet to receive a reply.

That kind of arbitrary use of arbitrary power is not new. Indeed, it is one of the reasons America’s founding father’s rebelled in 1776. To see it happening again in 2017 is disturbing.

There is also the issue of what CAN be done (short of amending the US Constitution)? In that context, there is another aspect to this: giving users enforceable legal rights would surely mean adding to the cache of regulations the US possesses, something that many Americans, especially conservatives, dislike and which Donald Trump is now in the process of actively cutting back on.

#6 Comment By BCZ On November 7, 2017 @ 3:58 am

I think there is something rather profounding confusing at the core of this issue and personally, I come down on a side that makes me echo the sentiments of GregR.

Newspapers are generally considered to be among the most traditionally associated with freedom of speech and press. The fact is that Facebook and Twitter are Media companies in a very similar respect.

Twitter’s CEO as much as said so when they essentially justified not dropping Donald Trump for his CLEAR violations of the ToS because of his ‘Public’ and ‘Newsworthy’ nature…

I come down on the side of treating them as such, BUT THEN ACTUALLY HOLDING THEM ACCOUNTABLE FOR CONTENT in exactly the same way news organizations are through libel laws etc.

Now, if they want to be public fora (which is the side the CEOs come down on whenever there is any attempt to hold them accountable for content) then there is merit to what you are saying in this article. It would make sense to regulate them and apply law to them as though they are a semi-public forum for the expression of private views, and thus no arbitrary editorial control should be possible.

I tend to think that this is unrealistic, and unless it was to be regulated for USERS as a public space as well (thus no more firing people for their facebook posts when the company is not at all mentioned or represented) then I think that is a conversation we can have.

But in terms of their social function and use, Social Media is increasingly about news aggregation, editing, and advertising… which looks a whole heck of a lot like a news media company to me…

and the CEO even implicitly seem to agree half the time 😉

#7 Comment By JonF On November 7, 2017 @ 6:00 am

The First Amendment applies only to governmental institutions. It was never intended as a structure against the conduct of private businesses. Don’t like Twitter’s policies? Don’t use it!

#8 Comment By Bungalow Bill On November 7, 2017 @ 6:34 am

What a scary concept! Government forcing private companies to adhere to laws that only apply to the federal government. This is the equivalent of forcing bakers to bake cakes with content they don’t want in their bakeries.

Incorporation doctrine sucks! Don’t expand it.

#9 Comment By Chuckles On November 7, 2017 @ 6:34 am

This is only a test…BDS

#10 Comment By Chuckles On November 7, 2017 @ 7:14 am

Does Google, Twitter and Facebook ( and this publication) still allow one to use The First to say B.D.S.?!

#11 Comment By D On November 7, 2017 @ 7:50 am

Here’s an idea: don’t engage in insipid tough guy posturing on twitter.

#12 Comment By John On November 7, 2017 @ 8:33 am

Verizon, AT&T, etc. can’t censor the **content** of what people say over their networks. Well, more accurately, they **could** censor that content, but public officials and the public at large would almost certainly not stand for it.

It’s not at all unreasonable to view other private companies, such as Twitter, Facebook, etc., as performing a similar function to a phone company. They’ve developed a system which is used for communication between people. And then they’ve advertised it, saying “Come use our system to communicate with people!”

As such, it’s not at all unreasonable to expect that they would not then interfere in the **content** of what people use their system to say.

The idea is not absurd. (If anything, the notion that an entity is exercising its first amendment rights when it denies others the right to free self-expression is much closer to absurd, especially in that word’s sense of being “incongruous”.)

And any analogy to news organizations invalid, as those entities do not and never have advertised themselves as methods of communication for the public at large. They were built as “one way” communication mechanisms. They are merely the 21st-century equivalent of the newspaper.

And I don’t see where the author is suggesting that Stormfront should be given air time on CNN. It’s ironic, though, that Stormfront is the example, since that happens to be an entity which had its domain name “seized” by Network Solutions, apparently for the reason that some people didn’t like what Stormfront says on its website.

And before anyone wants to lecture me on “supporting Nazis”, let me save you the time. I’m old enough to remember quite vividly how the ACLU supported the right of Nazis to march in Skokie, Illinois back in 1977.
( [21])

The fact that it’s almost 100% likely that the ACLU would not do the same thing today is evidence of how much our free speech rights have deteriorated over that time, even without entities like Facebook and Twitter pitching in to help.

#13 Comment By Peter Van Buren On November 7, 2017 @ 9:09 am

You may have taken me too literally; the idea is not to apply 1A to all media, but to enlarge its scope to certain forums for social media. I like the idea of using the anti-monopoly laws to get to the same ends. That’s worth more exploration.

#14 Comment By Alex On November 7, 2017 @ 9:29 am

@GregR: It’s a unique problem, and I don’t think anti-monopoly laws will be the solution. Not all industries respond well to trust busting. Things like utilities serve the public best when conglomerated and regulated. To keep up these days we already have to have a Facebook, Snapchat, Instagram, Twitter, etc., having more social media companies won’t help too much. On the other hand, excessive government regulation may be problematic because these are global companies. Will foreign governments accept US government regulation of what their population sees in when they Google something? Answer: not likely. Maybe we should just bow down to our new information overlords.

#15 Comment By Fran Macadam On November 7, 2017 @ 9:31 am

Of course, you’ll never hear about any efforts to develop the political will to enforce anti-monopoly (effectively dead by government policy since 2001) because these giant monopoly media gatekeepers will do everything in their power to prevent that consensus developing, through censorship.

The first commenter’s absurd contention makes of everyone with a Facebook or Twitter account an unpaid and exploited intern or employee of these monopoly entities. One might as well say that phone conversations can be banned by shutting off telephone access if the phone company doesn’t like them.

As a person who was doxxed on social media, by those posing as myself and creating an account in my name, then posting the most obnoxious material in order to discredit and ruin me, because they disagreed with me in a church matter, I found that the social media company would not delete it, making it clear that they agreed my beliefs were so hateful that I deserved to be ruined, while protecting the anonymous.

#16 Comment By Namor On November 7, 2017 @ 9:47 am

GregR

You are more right than you think.

As you can see TAC barely bothers with editorial control, they let a lot of whackadoodles like Van Buren publish things, which are often quite insane.

And, they edit and control comments, so they also somewhat don’t practice what they preach.

#17 Comment By SteveM On November 7, 2017 @ 10:42 am

Re: Nicolas Martin, “No thanks. Why don’t some billionaire libertarians create free speech platforms?”

Exactly. Thank you.

Parenthetically, while the web-o-sphere is ostensibly a platform of universally diverse information and opinion, it is actually a massive archipelago of self-reinforcing ideological ghettos. Even intelligent and rational counters to a web site’s ideology labels the commenter a “troll” who is summarily banned. If Twitter and Facebook went away tomorrow, the closed-minded ghettos would just reform on other platforms.

The percentage of people actually induced to change their opinions based on Twitter or Facebook content espousing positions antithetical to their inherent biases is probably near zero. E.g., how many people who follow Roger Stone tweets who don’t already agree with Roger Stone?

BTW, why wouldn’t Peter Van Buren’s suggestion also apply to the MSM including PBS/NPR and Fox as well as the left leaning networks that implicitly censor via various flavors of “Fake News” reporting?

The U.S. has massive systemic problems. And those wouldn’t be fixed by constricting the First Amendment.

#18 Comment By JJ On November 7, 2017 @ 10:43 am

Regulating these forums are indeed necessary and moreover, are indeed conservative. The fact that many “conservatives” here repeat the tired old “it’s against government interference only!” or “Don’t like it? Don’t use it!” rhetoric, is exceedingly pathetic. Social media accounts on these platforms are forums of an evolving society and indeed, they are the tools that brought so many other viewpoints to the greater public outside of the drab propoganda on television and newspapers. Or maybe you’ve forgotten, that these social media corporations can indeed be *influenced and insinuated* by the government, in powerful but unofficial capacities?

This is against the public good. Regulation or not, this republic, dedicated to the protection of freedom of speech, must protect speech. Social media sites are forums dedicated to *communication*. Since it is so, it must be regulated.

The only argument that is truly effective against such an action is this: that our federal institutions are so corrupt and inefficient that they will abuse such regulation. And that is the only argument that will stop this dead in it’s tracks. All the more reason to overhaul or even overthrow the regime and replace with a moralistic government? Against that notion? Then you better be satisfied with an outdated system raped on a daily basis by oligarchs and radicals.

#19 Comment By Fran Macadam On November 7, 2017 @ 10:56 am

Looks like the trolls who like PC mandated control of allowable expression are out in full force. The idea that if you can privatize and corporatize everything in a society, that you can then do away with functional enforcement of the Bill of Rights is what is called inverted totalitarianism, where government and big business interests become identical, with corporate ownership of both legislators and public policy. Obviously, there is then no public accountability. Is being ruled by the whims of the modern equivalent of warlords staking out their turf out of only self-interest, preferable to democratic accountability? (Zuckerberg sees himself as a reincarnation of the despotic Caesar, and dreams of using his media platform to become a new kind of President – megalomania, not what we call representative government.)

#20 Comment By kevin on the left On November 7, 2017 @ 11:02 am

“The fact that it’s almost 100% likely that the ACLU would not do the same thing today is evidence of how much our free speech rights have deteriorated over that time, even without entities like Facebook and Twitter pitching in to help.

Um, the ACLU sued the city of Charlotesville when it tried to prevent the Spencer march there.

#21 Comment By Fran Macadam On November 7, 2017 @ 11:06 am

Liberty is hardly giving the freedom to a rogue elephant to crush underfoot everyone in the closed room it becomes angry with.

As for having no influence, precisely the opposite is true, else these public platforms would not have the multibillion dollar valuations they do. They are valuable precisely because they can influence opinions, making merchandise out of their participants.

Covert experiments performed on the public showed that they could alter voting patterns and choices by at least 12%.

That is why they have become a battleground for what opinions will be allowed to be expressed and heard.

They are enticing people in the main, by appealing to their narcissism. Other uses that violate the marketing model or are disruptive of making merchandise of participants, are viewed as threats to the bottom line of directed manipulation for corporate purposes.

#22 Comment By GregR On November 7, 2017 @ 11:22 am

As I thought more about this I really do stand by the idea that trying to apply the 1st Amendment to companies is just to fraught with issues to be a practical concern. And while I think using Anti-Monopoly laws to break up large internet companies is going to be necessary the reality is that the network effect of things like Facebook and Twitter are just too powerful. These industries are by their nature monopolistic, your decision to use Facebook for instance simply isn’t based on market considerations but based on your entire network of friends and family that use it.

The better suggestion would be to apply a set of Common Carrier like rules to those companies with a market share above a certain level. Not my area of law but converting Twitter from a de facto to de jure common carrier would resolve a lot of these issues. The question I just don’t know the answer to is what if any defenses against doing so social media companies could raise, or if they would even want to.

#23 Comment By Will Harrington On November 7, 2017 @ 11:49 am

I could come up with some good pro arguments. One, the internet is based on DARPA products and the government has a good argument to declare it as much of a public resource as the airwaves (which weren’t even a government creation, but the best argument is even simpler. These are not private platforms any more than a public square or park built with private funds is a private platform. If you want the ability to control what people can say on your private platform, don’t make it public by inviting everyone to join it for free. You just created a virtual public square and should not be able to abrogate the right of the public to speak there. If you want a private forum then restrict membership by charging a subscription, which would create a private club. No, what social media companies have done is invite you into an apparently public square, addict you to it to make you a captive audience, sell your eyeballs to advertisers, and just to add insult to injury, claim the right to deny you yours. Don’t regulate them. Keep them in the realm of the justice system but make it clear that a free forum IS a public forum and those speaking there have full first amendment protections.

#24 Comment By Mark On November 7, 2017 @ 12:55 pm

I’m not sure how you’d enforce that. Are you extending the amendment to servers that are within US borders? Only US users? US corporations?

#25 Comment By Filip Johansson On November 7, 2017 @ 1:03 pm

@GregR; I would say the opposite, I find it difficult to not agree with the author.

The 1st Amendment is, among other things, about guaranteeing the right of free speech. But power in society is imbued in so many different actors, not only the state. Only restricting the state, but not others, e.g. Private companies, makes very little difference in our times as most of our daily lives are spent in the shadows of private enterprise.

Sure, it’s possible to argue that the 1st amendment is about the right of free speech, and not the right to free speech, and these are of course two different things; the one about being able to express yourself freely without interference from the state IF you yourself have the ability to do so; the other about ensuring there are platforms provided for citizens to express themselves through. Still, a discussion can still be had about how to create an optimal balance. For example, one could say no citizen has the right to have a platform through the freedom of speech, but if there is a platform already existing, these have no right in censoring speech, as long as it’s not in accordance with federal or state law.

Of course private companies need to be able to curate their own platforms, and to a certain degree should be responsible for doing so (though there should be a discussion on how far this responsibility goes). But if they can willy-nilly deny people access to their services based on flimsy T&Cs, very many citizens will be devoided of reasonable access to speech within our societys market of ideas. In fact, because it is mainly private companies that drive and maintain the communication networks we use today that we didn’t have yesterday (internet, phones, TV), the argument for including these into a framework of citizens right to speech is rather big.

Still, one of the more important points I understood in your comment was that having private enterprise being covered within this extension of the free speech right would in itself infringe on their 1st Amendment rights. Now, whatever any supreme court may say about that, companies are not individuals, and even less so companies that are publicy traded via stocks. They have no right to rights and freedoms granted to individual citizens. Despite the uselessness of the word today thanks to countless leftwingers frivolously throwing it around, having a society where private companies entlitled with inaliable rights does move the thoughts toward fascism. Not originally understood as in Mussolini Italy, but a more modern form. I know that’s a very harsh judgement, and a complete society is of course not a fascistic society just because of this particular feature, that’s not at all what I’m trying to say.

American society today if vastly different from what it used to be when the constitution was written. A textualist reading ensures nothing will change, but a purposivist (and more reasonable)approach would clearly mean this should change. It makes no sense to keep a constitution if it cannot be purposefully applied to contemporary conditions, then it’s better to scrap and go back to the drawing board. In fact, in my very personal opinion, one of the reasons for the US recent self-inflicted debacles and mistakes is because of this in many ways very outdated consitution. Still, that’s my opinion.

Anyhow, I hope my rambling makes at least some sense.

#26 Comment By Dakarian On November 7, 2017 @ 2:07 pm

@Will
“I could come up with some good pro arguments. One, the internet is based on DARPA products and the government has a good argument to declare it as much of a public resource as the airwaves (which weren’t even a government creation, but the best argument is even simpler. These are not private platforms any more than a public square or park built with private funds is a private platform. If you want the ability to control what people can say on your private platform, don’t make it public by inviting everyone to join it for free. You just created a virtual public square and should not be able to abrogate the right of the public to speak there. If you want a private forum then restrict membership by charging a subscription, which would create a private club. No, what social media companies have done is invite you into an apparently public square, addict you to it to make you a captive audience, sell your eyeballs to advertisers, and just to add insult to injury, claim the right to deny you yours. Don’t regulate them. Keep them in the realm of the justice system but make it clear that a free forum IS a public forum and those speaking there have full first amendment protections.”

As others have pointed out, wouldn’t that effectively mean every content producer would have to either gate their entry or be unable to regulate their own content? For example, TAC is free to visit and post in as is most forums.

People like to use the ‘reverse mentality’ argument, such as a heavy leftist bashing conservatism on TAC, but I’d go for much worse. Go visit a youtube comment section for anything popular or any unregulated forum. Or go visit 4chan.

Nevermind counterpolitical dialogue, do we really want these forums full of “FREE spEecH FR cAT PICTURES ?” Those would be just as free to post in 1st amendment protected areas, and it’ll take flat out damaging the amendment itself to stop it. Much of the public seems more than willing to wipe out their own rights for the sake of pursuing their current agenda.

The alternative is a subscription service for TAC effectively blocking off large groups of the public from their messaging. Or just the elimination of the forums here.

If you DO want to play the regulation game, make the Public Utility argument where areas that can’t have effective and fair competition have to be regulated by outside forces. But then that’s the Net Neutrality argument which it seems has been rejected.

Otherwise, push for alternatives, and prevent the Big companies from disrupting it. For example, I use duckduckgo for search now. Meanwhile facebook doesn’t have to rule forever, as Myspace learned.

#27 Comment By MEOW On November 7, 2017 @ 3:21 pm

I stopped reading and watching MSM. It is basically neocon propaganda. Would make Pravda and Goebbels proud. Fortunately, there is the internet with fewer barriers to exit and entry. The question do these mega companies full cost or even marginally cost their use of the internet? If not, they are subsidized by the government and must comply with the First Amendment or declare they are really only an advertisement (mouthpiece) and informational strainer for a particular belief system. The last has not been heard.

#28 Comment By One Guy On November 7, 2017 @ 6:34 pm

The First Amendment has nothing to do with private companies. TAC should know better.

#29 Comment By GregR On November 7, 2017 @ 9:00 pm

Filip,

I am not saying that your understanding about what the 1st Amendment should be is unreasonable, but it is not what the law is.

All the 1st Amendment does is restrict the governments ability to prevent speech it disagrees with. While speech has been expanded to encompass ass expressive activity, from flag burning to dancing, all it has ever been is a shield against government action. It cannot, and has never, been used as a sword to force action.

Just look at the text… “Congress shall make no law… … abridging the freedom of speech, or of the press.” All it does is establish the limits of government power to restrict citizen behavior, it has no effect on non-state actors.

Thats why I would suggest that classifying social media companies as common carriers is really the only good option to ensure open access. The issue I just don’t know is what the difficulties would be in classifying Twitter as a CC would involve. Historically there has been a tradeoff of liability and guaranteed profit against open access. I am just not sure how that would work here.

#30 Comment By polistra On November 7, 2017 @ 9:02 pm

Nonsense. Nothing new.

All platforms have limits. Newspapers have always published only the letters they chose.

The solution to a limitation by ideology is to start up a platform that limits in the opposite direction.

Back in the ’50s lots of unfashionable views were carried by small publishers using offset presses. Even if GoogleNSA shuts the entire web, physical printing on physical paper is still possible. Be creative.

#31 Comment By Hopley Yeaton On November 8, 2017 @ 10:51 am

Who cares what Twitter says? It is just a flood from the bots anyway.

#32 Comment By Filip Johansson On November 8, 2017 @ 12:16 pm

@GregR

Honestly, I have only been dimly aware of the CC statute, and frankly it could very well solve the problem without having to go into constitutions and amendments.

Sure, point taken, it’s not what the 1A says.

I guess I’m arguing too much of a normative perspective, saying that since power rests within far more actors than the state, and laws protecting citizens from encroachment of their rights should reasonably be extended to certain types of private enterprises. Still, that’s maybe another discussion. A type of CC solution sounds reasonable for now.

#33 Comment By grumpy realist On November 8, 2017 @ 4:50 pm

Actually, what Mark has pointed out above is quite apropos–how do you define the limits of “the internet” and how do you insist on imposing the First Amendment (which isn’t applicable in this situation, but nebbermind) on a company which can a) move its servers outside the geographic limits of the US, and b) move its corporate headquarters abroad? What are you going to claim as the basis of your authority?

(And if you do claim authority based on US citizens/people located inside the borders of the US looking at Company X’s webpages, don’t be surprised when other countries use the same argument back at the US and start insisting that all US corporations with an internet presence adhere to the EU’s privacy regulations. What’s good for the goose is good for the gander.)

#34 Comment By Arnold I. Reeves On November 9, 2017 @ 4:03 am

What GregR said.

Most Americans have no idea of how insane the current deification of the First Amendment strikes conservatives in the rest of the world as being. Just as the rest of the world’s conservatives usually see the Second Amendment in 2017 as doing nothing more legitimate than enabling an NRA shadow-government, so they also see the First Amendment protecting Hugh Hefner, Larry Flynt, and the neo-Nazi tongue-chewers who notoriously wanted to march through Skokie. Accordingly they think for the umpteenth time: “Your First Amendment is nothing but a suicide pact.”

But then again, those who think this are, you know, conservatives. As opposed to Trumpkins, Ayn Rand groupies, or the sort of Prozac-chomping maniac in his mother’s Wyoming attic who interprets the word “a well regulated militia” as meaning “I have a right to more automatic rifles than the entire army of Bangladesh.”

Here is Orwell, in 1946, on a far better way to balance the competing claims of freedom and decency:

Some people used to declare that it would be better if the libel laws were abolished altogether, or at any rate greatly relaxed, so that newspapers had as much latitude as they used to have, for instance, in pre-war France. I cannot agree with this. Innocent people have a right to protection against slander. …

It seems to me that the way to put this right is to make sure that a libel action cannot be profitable. Except where it can be shown that actual loss has been suffered, let no damages be paid. On the other hand, where a libel is proved, the guilty party should make a retractation in print, which at present does not usually happen. Big newspapers would be much more frightened of that than of paying out £100,000 damages, while, if no money payments were made, the motive for blackmailing actions would have disappeared.

#35 Comment By Blue On November 10, 2017 @ 5:34 pm

Reinstate the Fairness Doctrine at the FCC. Repeal Citizens United.

Then get back to me, nose-deaf hypocrite.

#36 Comment By Blue On November 10, 2017 @ 5:45 pm

SMH. Crying for relief to a private corporation, with a TOS, not a First Amendment right to anything and folks like you helped to bring that about so quit your crying “snowflake” and suck it up. YOU asked for it.