Alex Jones, the head of a right-wing lifestyle brand selling paranoid insanity ― and boner pills ― complained this week that his suspension from a handful of major digital platforms constitutes an assault on the First Amendment and his right to free speech. He wasn’t the first person to be booted from an online platform and he won’t be the last.
The platforms said they suspended the Infowars host for violating their terms of service related to hate speech, harassment and targeted abuse. For Jones and others who have had their accounts blocked, the platforms’ actions ― often made under tremendous public pressure ― feel like censorship. But casting this as a First Amendment violation makes little sense. It’s not.
Jones doesn’t feel censored because moderating content on a platform is the equivalent of government censorship ― after all, he still has his own website where he can continue to slander the parents of murdered children. The reason is that platforms like Facebook and YouTube have reached such scale that if you run a media company, even ― rather, especially ― one that deals in conspiracies, you need to be on them to reach an audience.
The problem here is that certain platforms have monopolized the market for audiences.
Why First Amendment Judicial Doctrine Won’t Get Jones His Accounts Back
On Monday, Apple, Facebook, Spotify and YouTube (owned by Google) all booted Jones from their platforms, removing many of his posts, podcasts and videos. These digital platforms and the private companies that own them have broad freedom to remove users and content they don’t want ― so long as they don’t violate civil rights laws. There are few other laws and no constitutional provisions protecting speech on a privately owned website.
In fact, First Amendment judicial doctrine hardly has anything to say about the policing of speech on private digital platforms by the companies that own them. In the 20th century, courts defined the right to freedom of speech as a protection against censorship by the government. Private actors like Google and Facebook are not governments (even if they act like them). They are private companies that are allowed to moderate content on their platforms as they please and remove users that are disruptive or screwing up the experience for everyone else. (See this frequently shared XKCD comic.)
That’s why others have tried to argue that online social media platforms are more like the modern-day public square, rather than the government. Twitter currently faces a case in California state court brought by Jared Taylor and his New Century Foundation.
Taylor is a buttoned-up white supremacist who, according to Todd Blodgett, the former head of the neo-Nazi record label Resistance Records turned FBI informant, is one of “the most vile, hateful sociopaths I’ve ever met or ever dealt with.” Taylor’s case against Twitter argues that the social media platform cannot expel neo-Nazis and other white supremacists because it is a virtual public square and, therefore, the First Amendment applies to any effort to suppress speech within its confines.
Taylor’s legal argument centers on a 1980 court case called Pruneyard Shopping Center v. Robins, about the distribution of pamphlets inside a mall that had prohibited such activity. The California Supreme Court ruled that under the state constitution ― not the U.S. Constitution ― shopping malls constituted a public space and free speech was protected within their bounds. Taylor wants to apply this ruling to Twitter in California. Taylor also references Justice Anthony Kennedy’s majority opinion in Packingham v. North Carolina in which Kennedy called the internet “the modern public square.” (The Packingham decision said that it was unconstitutional for a state government to ban registered sex offenders from using social media websites.)
The removal of Taylor and other white supremacists from Twitter “is a crippling blow,” the legal complaint argues, as “access to Twitter’s open public forum is nothing short of essential to participate as citizens in public affairs in today’s America.”
California courts have heard this complaint before. White nationalist blogger Chuck Johnson, conservative personality Dennis Prager, and rape coach and men’s activist Mike Cernovich have all brought cases with similar arguments against the likes of Twitter, YouTube and Medium, respectively. A judge overseeing Johnson’s case stated in June that the complaint has no merit, as Twitter is allowed under the First Amendment and Section 230 of the Communications Decency Act to moderate and remove content that it does not want to promote to the public.
Again, the issue here is that this supposed public square is actually a small group of digital platforms owned by an even smaller group of giant transnational corporations. It’s not really a public square.
One can imagine other legal arguments aimed at convincing a judge that platforms fall under First Amendment doctrine. Perhaps, due to their governmental power over users, social media companies could be labeled “company towns” under the legal doctrine of the 1946 case Marsh v. Alabama. Or maybe social media platforms constitute public utilities akin to power and water companies.
Both of those arguments came up in early litigation over the internet, and also give a sense of what platforms like Twitter and Facebook might look like if courts banned them from moderating content. These cases related to spam filters used by companies like AOL and CompuServe in the 1990s. Spammers argued that AOL and CompuServe either constituted “company towns” under Marsh or public utilities like power companies, and they repeatedly lost in court. So now you have a spam box in your email.
Outside of the courts, Sen. Mark Warner (D-Va.) floated the idea of classifying some platforms owned by large tech companies as “essential facilities,” which would require them to operate like utilities. But the examples Warner gave focused on Google Maps and made no reference to social media companies.
The Way To Deal With The Problem? Antitrust Law
If Twitter, Facebook or YouTube were constitutionally required to host any and all content anyone wanted to post to them, they would become unworkable platforms overrun by spam and bad actors attempting to distort the platforms to their desires.
And none of this would address the actual underlying problem, which is that removal from Facebook and YouTube feels like actual censorship because the major platforms have monopolized the audience for certain formats of online media content. If you are creating videos to be distributed online, you have to be on YouTube. That is where the audience is. If you are writing articles or other content online, you have to be on Facebook because it has 2.2 billion users.
There is a way to deal with this problem that doesn’t make it impossible for platforms to moderate content users post to them. It’s called antitrust law. If there weren’t one main platform for video distribution and one main platform for social media ― and if those platforms didn’t also own their biggest competition ― an actual market for different platforms that hosted varied content could exist instead of one platform overrun with every type of jerk.
That may not really be what Jones or white supremacists or Gamergaters want. These personalities and groups thrive on the centralized platforms because they allow every individual crank, neo-Nazi or violent misogynist from cities and small towns around the world to meet in a single online location ― where their targets of abuse are also located ― so that they can amplify their messages to the largest possible audience. Jones benefited from this dynamic and from algorithms that accelerated users toward conspiracy content.
Breaking up the social media giants wouldn’t keep Jones from wanting access to a monopoly platform, but it might keep future lunatics at bay without limiting speech or turning the internet into a spam-filled nightmare of raving lunacy.
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