Regulating Online Speach

There’s a very active discussion happening right now about free speech online after the removal of Trump from Twitter.

The least informed arguments state that this is a violation of the 1st Amendment for the banned people. This is obviously not true as the 1st Amendment applies to the power of the government and not private companies.

The more nuanced discussion moves on to accepting that these companies should be allowed to moderate. There are many examples of threatening and violent speech that require moderation. However, there is no clear standard on where that line should be and who should make that determination. Twitter’s current policies have been confused. They didn’t apply a single consistent moderation policy to all users. Twitter made the case that the United States President had newsworthiness that forced them to keep him on the platform even if they had to label his tweets.

David Sacks* has made the case that the oligopoly of Big Tech companies like Twitter, Facebook, Google, Apple, and Amazon are so large that when they apply content moderation policies and squelch someone’s voice that they are functioning as a de facto government institution and should be held to the 1st Amendment bar. He argues that the 1st Amendment was created when the idea of the internet didn’t exist. That the founders couldn’t have imagined it and that the town square is now the equivalent of your Facebook or Twitter timeline.

Sacks just tweeted that “My content moderation policy is the First Amendment. What’s yours?” The 1st Amendment, as a standard, is a horrible idea. Anything is allowed as long as it’s not so heinous or threatening that it would require us to charge you with a crime because of the words you used. No civil, productive discussion could flourish under these rules.

At the founding of this country, we had the concept of different public and private spaces in a town. Each of these spaces had different rules for acceptable behavior for the people using them. If you are unruly in a restaurant, you will be asked to leave. If you are screaming and shouting, you will be kicked out of the public library. If you don’t dress appropriately, you won’t be allowed into a fancy restaurant.

None of this means that the government is forcing you to dress a certain way or to only whisper. But it does mean that you are required to abide by the rules of a location to use that location. If you want to get together and play music with some friends, you need to find a suitable place. The 1st Amendment doesn’t mean that you can roll up anywhere and do what you please.

I believe that this relates to the online free speech discussion similarly. Each location is owned and operated by a company, and they’re free to decide how they want to moderate. If you’re not happy with how those decisions are being made, then you’re free to spend your time elsewhere. The argument that Facebook is so large that it should behave like a government is wrong. The argument should have been that we should foster alternative locations.

If a restaurant is so popular in a town that it puts all other restaurants out of business, that doesn’t mean that it now needs to function as a government service and serve food that everyone agrees with. If you’re not happy about the menu choices, you should start another restaurant and compete with it. Of course, you’re not guaranteed that your new restaurant will be very popular or profitable, but you’re free to start and run it.

Sacks has pointed to the case of as an example of starting your own restaurant not working, but I don’t think the argument stands up. Parler was able to create an app and got a large number of people to sign up. However, they continued to distribute heinous speech and were very loose in moderating it. We live in a community, and Parler relied on other vendors to provide their service. When it became clear that they weren’t going to moderate the content, the vendors decided to cut their business associations. No one banned Parler from existing, but others were not required to help them out either.

To put this into an analogy that could apply offline, you could create a restaurant that served only talking parakeets for dinner. You walk in and listen to all of the live birds talking away and then pick the bird you want to eat. The experience would be alarming to many people, but it might not technically be illegal.

All of the other vendors needed to support running this business (drink service, cleaning services, laundry) could be shocked and choose not to do business with the restaurant. This wouldn’t be a violation of the restaurant’s rights. It’s just a choice that we’re free to make in this country.

The argument for more choices applies again at the next level down. If you don’t like that AWS won’t support Parler, then don’t use AWS. If you don’t like that Twilio won’t support Parler, then don’t use Twilio. Create your own competing services and back up Parler. I don’t think there are many people that will be leaving AWS because of the decisions they’ve made.

Finally, Sacks argues “If your views are preferred by tech oligarchs, you can instantly get distribution to millions. If not, you can stand in the street yelling like a lunatic. No undue influence over our democracy there“. I agree that we have a problem in that a tiny number of companies have so much power, but I have to disagree with the remedy. I believe that just as we have many choices for offline locations, we need more varied locations to gather online. But, no company is an island unto itself. We all have to work together as a community.

*I don’t mean this to come across as if I’m attacking David. I actually think he’s thought long and hard about this and is trying to have a reasoned debate. I chose his arguments as some of the most reasoned conservative arguments that I’ve seen.