Stand Down @jack: Why the First Amendment Needs to Be Applied to Social Media
The interplay between the First Amendment and corporations like Twitter, Google, Amazon, Apple, and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.
From the day the Founders wrote the 1A until very recently, no entity existed that could censor on the scale of big tech other than the government. It was difficult for one company, never mind one man, to silence an idea or promote a false story in America, never mind the entire world. That was the stuff of Bond villains.
The arrival of global technology controlled by mega-corporations like Twitter brought first the ability the control speech and soon after the willingness. The rules are their rules, and so do we see the permanent banning of a president for whom some 70 million Americans voted from tweeting to his 88 million followers (ironically the courts had earlier claimed it was unconstitutional for the president to block those who wanted to follow him). Meanwhile, the same censors allowed the Iranian and Chinese governments (along with the president’s critics) to speak freely. For these companies, violence in one form is a threat to democracy while violence in another similar form is valorized under a different colored flag.
The year 2020 also saw the arrival of a new tactic by the global media: sending a story down the memory hole to influence an election. The contents of Hunter Biden’s laptop, which strongly suggest illegal behavior on his part and unethical behavior by his father the president, were purposefully and effectively kept from the majority of voters. It was no longer for a voter to agree or disagree; it was to know and judge yourself or remain ignorant and just vote anyway.
Try an experiment. Google “Peter Van Buren” with the quote marks. Most of you will see on the first page of results articles I wrote four years ago for outlets like The Nation and Salon. Almost none of you will see the scores of columns I’ve written for The American Conservative over the past four years. Google buries them.
The ability of a handful of people nobody voted for to control the mass of public discourse has never been clearer. It represents a stunning centralization of power. It is this power that negates the argument of “go start your own web forum.” Someone did—and then Amazon withdrew its server support and Apple and Google banned their app.
The same thing happened to the Daily Stormer, which was driven offline through a coordinated effort by the tech companies and 8Chan and deplatformed by Cloudflare. Amazon partner GoDaddy deplatformed the world’s largest gun forum AR15. Tech giants have also killed off local newspapers by gobbling up ad revenues. These companies are not, in @jack’s words, “one small part of the larger public conversation.”
The tech companies’ logic in destroying the conservative social media forum Parler was particularly evil—either start censoring like we do (“moderation”) or we shut you down. Parler allowing ideas and people banned by the others is what brought about its demise. Amazon, et al, wielded their power to censor to another company. The tech companies also claimed that while Section 230 says we are not publishers, we just provide the platform, if Parler did not exercise editorial control to big tech’s satisfaction, it was finished. Even if Parler comes back online, it will live only at the pleasure of the powerful.
Since democracy was created, it has required a public forum, from the Acropolis to the town square on down. That place exists today, for better or worse, across global media. It is the seriousness of the threat to free speech that requires us to move beyond platitudes like “it’s not a violation of free speech, just a breach of the terms of service!” People once said “I’d like to help you vote ladies, but the Constitution specifically refers to men.” That’s the side of history some are standing on.
This new reality must be the starting point, not the endpoint, of discussions about the First Amendment and global media. Facebook, et al, have evolved into something new that can reach beyond their corporate borders, beyond the idea of a company that just sells soap or cereal, beyond the vision of the Founders when they wrote the 1A. It is hard to imagine Thomas Jefferson endorsing a college dropout determining what the president can say to millions of Americans. The magic game of words—it’s a company so it does not matter—is no longer enough to save us from drowning.
Tech companies currently work in casual consultation with one another, taking turns being the first to ban something so the others can follow. The next step is when a decision by one company ripples instantly across to the others, and then down to their contractors and suppliers as a requirement to continue business. The decision by AirBnB to ban users over their political stances could cross platforms so a person could not fly, use a credit card, etc., turning him essentially into a non-person unable to participate in society beyond taking a walk. And why not fully automate the task, destroying people who use a certain hashtag, or who like an offending tweet? Perhaps create a youth organization called Twitter Jugend to watch over media 24/7 and report dangerous ideas? A nation of high school hall monitors.
Consider linkages to the surveillance technology we idolize when it helps arrest the “right” people. So with the Capitol riots do we fetishize how cell phone data was used to place people on site, coupled with facial recognition run against images pulled off of social media. Throw in calls from the media for people to turn in friends and neighbors to the FBI, alongside amateur efforts across Twitter and even Bumble to “out” participants. The goal was to jail people if possible, but most loyalists seemed equally satisfied if they could cause someone to lose their job. Tech is blithely providing these tools to users it approves of, knowing full well how they will be used. Orwellian? Orwell was an amateur.
There are legal arguments to extend limited 1A protections to social media. Section 230 could be amended. However, given that Democrats benefit disproportionately from corporate and government censorship, no legislative solution appears likely. Such people care far more about the rights of some citizens (trans people seem popular now; it used to be disabled folks) than the most basic right for all the people.
They rely on the fact that it is professional suicide today to defend all speech on principle. It is easy in divided America to claim the struggle against fascism (racism, misogyny, white supremacy, whatever) overrules the old norms. And they think they can control the beast.
But imagine that someone’s views, which today might match @jack’s and Zuck’s, change over time. Imagine that Zuck finds religion and uses all of his resources to ban legal abortion. Consider a change of technology that allows a different company, run by someone who thinks like the MyPillow Guy, to replace Google in dictating what you can read. As one former ACLU director explained, “Speech restrictions are like poison gas. They seem like they’re a great weapon when you’ve got your target in sight. But then the wind shifts.”
The election of 2020, when they hid the story of Hunter Biden’s laptop from voters, and the aftermath, when they banned the president and other conservative voices, was the coming-of-age moment, the proof of concept for media giants that they could operate behind the illusion of democracy.
Hope rests with the Supreme Court expanding the First Amendment to social media, as it did when it grew the 1A to cover all levels of government, down to the hometown mayor. The Court has long acknowledged the flexibility of the 1A in general, expanding it over the years to acts of “speech” as disparate as nudity and advertising. But don’t expect much change anytime soon. Landmark decisions on speech, like those on other civil rights, tend to be evolutionary and in line with societal changes rather than revolutionary.
It is sad that many of the same people who quoted that “First they came for…” poem about Trump’s Muslim ban are now gleefully supporting social media’s censorship of conservative voices. The funny part is that both Trump and Twitter claim what they did was for people’s safety. One day we’ll all wake up and realize it doesn’t matter who is doing the censoring, the government or Amazon. It’s all just censoring.
What a sad little argument “But you violated the terms of service nyah nyah!” is going to be then.
Peter Van Buren is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, Hooper’s War: A Novel of WWII Japan, and Ghosts of Tom Joad: A Story of the 99 Percent.