How free speech works on the Internet

posted by Jeff | Saturday, January 9, 2021, 4:50 PM | comments: 0

The big social media companies kicked Donald Trump to the curb this week (about six years too late), and with that, the Internet is now full of self-appointed experts on free speech. Honestly, the First Amendment is not particularly complex, and there have certainly been plenty of cases that test its limits and set precedent, but it isn't fundamentally difficult to understand:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The subsequent case law that likely matters most is that "Congress" is interpreted to mean government at all levels.

When the Internet was starting to expand beyond the niche of nerds like me, the question about what this meant in terms of free speech on the Internet went through a fairly quick cycle of refinement. The thing that was settled early was that Internet services, which is to say Web sites and apps, as opposed to the service providers that have a wire to your house or radio signals to your phone, are not subject to any particular special regulation when it comes to free speech. Indeed, as someone who has operated online communities for over two decades, when Mark Zuckerberg was just entering puberty, I can assure you that we've bounced countless racists, homophobes and xenophobes over the years. The fact is, I pay the bill for hosting the service, and I'm under no obligation to allow anything I don't want there. Twitter, Facebook, Google are no different. Well, except that they make money and I mostly don't.

The First Amendment has nothing to do with these services. Those services are not government operated, and as such, not subject to the First. Is there a moral argument about the power these companies have to potentially censor people? Maybe, but isn't it a "conservative" value to be hands off and let the market decide if the product and behavior of these companies is not appropriate? Apparently, only when it's convenient for some. The fact remains that anyone can access the Internet and build their own thing to facilitate whatever speech that you want.

The president recently kept calling for the repeal of Section 230 of the 1996 Communications Decency Act, which the dipshit doesn't really understand is probably the only reason that he was able to post the nonsense that he did. This bit of law says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In other words, if someone posts some incendiary shit on your service, you aren't responsible for the content of it. This is the only reason that Twitter, et al., can safely allow someone to post things that are potentially dangerous or likely to incite harm, because they can't be held liable for it. But the question about whether or not they should allow it is an entirely moral question, and it's the one that the social media services have been beat up for a lot in the last few years. Crazy assholes like Alex Jones eventually pushed them to ban the right-wing conspiracy nuts, in the same way that they would ban jihadists or anyone trying to radicalize people toward violence. Unfortunately, the president became one of those assholes, and for the longest time they gave him a pass because, as a world leader, he was a person of particular consequence. They were under no obligation to do this, and I suspect after last week, they regretted doing nothing for as long as they did.

Now, the party of victimhood and constant grievance (and the people that follow them) insist that it isn't fair, or whatever, even though they are the party who champions free market capitalism (which they understand about as well as free speech, it seems). If you're a "real" conservative, you don't try to regulate these companies, you let the market sort it out. What I love about this is that the right-wing conspiracy nuts could certainly have their own social networks, but they are niche in interest and hard to fund with advertising, since advertisers mostly don't like to support the white nationalists and insurrectionists that the niche has been hijacked by.

It's also important to recognize that free speech doesn't mean that speech has no consequences. Sure, you're free to shout fire in a theater, but it's still a crime. Defamation law has a pretty clear test where you will lose if you knowingly say things about someone or some company that isn't true, and their reputation is harmed in the process. It seems like there's a lot of entitlement around saying whatever you want, and so you have professional lives ruined because people get online and say racist things or support racist politicians. This seems like a pretty horrible time to commit to doubling down in support of Trump, as the Internet doesn't forget, and your words are one search away from some future employer.


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