Saturday, January 7, 2017

Time to call B.S. on Private Censorship

Public and Private Censorship

The Constitution applies, for the most part, only to government. It's illegal to hold someone as a slave, but that's because there are laws specifically forbidding it, laws passed under the authority of the Constitution. It can be illegal to search someone's locker. Schools are bound by the law because they're government institutions, and employers may be bound by union contracts to observe due process. You can't be arrested or fined for just saying something, but very often you can be fired for posting something or banned from a Web site. 

Web site operators accused of censorship fall back on the idea that the Web site is their private property and they have a right to ban anyone they choose from using it. Many of them would froth at the mouth if someone else tried to defend barring gays or minorities from their business on the grounds of private property.

It's time to call B.S. Private censorship is still censorship. A public blog is a public accommodation every bit as much as a motel or gas station, and it should be subject to the same civil rights laws.

Suppression of Public Speech

This one is so obvious as to need little comment. Interfering with someone's ability to speak, or someone else's ability to hear him, by shouting the speaker down, is a violation of their civil rights, and should be punishable the same way any other violation of civil rights are punishable.

The same applies to barring someone from going where they have a right to go. Sit-ins that blocked access to buildings, so popular in the 1960's, were violations of the civil rights of people who were barred from going about their  business. Anti-abortionists who tried it at abortion clinics were slapped with RICO prosecutions. Any obstruction of people's movements is a violation of their Federal civil rights and should be punished at the Federal level.

In many cases, high profile events set up "free speech" zones where protestors can congregate. Activists object that the zones keep them out of public view. But anyone who wants to hear what they have to say (and that would be just about nobody) can easily go and hear them. If you want to object to someone, wear a T-shirt, carry a placard, but when they're talking, SHUT UP.


Content on blogs brings the free speech rights of the blog owner into conflict with those of the poster. 

A site doesn't have to invite comments. More and more sites don't, and while I may find that slightly disappointing at times, I absolutely understand why. This site doesn't, for example, and for a very simple reason. I just don't give a flying firetruck what you think. If you don't like my content, go someplace else.

And if the owner of the site decides to delete a comment as inappropriate or offensive, or simply irrelevant, they have a right to control the expression of their site. But few sites have such a small volume of traffic that they can be individually moderated.

Complete lack of moderation is not an option. There are places that go that route and they're widely regarded, except by the denizens of those sites, as the septic tank of the internet.

No, the real problem is sites that simply delegate moderation to readers and self-appointed content flaggers. And there have been myriad cases where that capability has been systematically abused. Repressive regimes have hired writers to blitz pieces by authors hostile to the regime. In some cases, those writers open dozens of dummy accounts to multiply their impact. On some sites, merely casting a large enough number of downvotes is enough to get a piece pulled or a writer banned. Recently, far rightists have gone to book sites and systematically downvoted any books by authors they find offensive.

The solution is relatively simple: due process. Any time someone is banned from a site, they must be told what specific post led to the ban, and told in detail what specific aspects of the post violated policy and why. And there must be a process of appeal. And the response must be prompt and timely.

And there need to be sanctions for people who file frivolous objections to posts. If they flag a post and their objection is overturned, they lose their flagging and voting privileges, maybe even get banned themselves. Better would be to not extend those privileges at all until the reader has a substantial  track record of responsible commentary.

Social Media

There have been tons of cases of people being fired for what they post on social media. Unless the person specifically identifies their employer (cops or other employees in uniform, the workplace clearly identifiable in the video, or whatever) this practice needs to be flatly banned. Your kid's English teacher has a lingerie ad on line, but she's not wearing school colors? Tough. Lucky kid.  None of your business. Your local dog catcher posts a politically incorrect rant, but he's off duty and wearing civilian clothes? First Amendment. Someone recognizes him as the dog catcher. So what? If the post doesn't otherwise violate any laws, like incitement to violence or treason, and the person's institutional connections aren't evident in the medium itself, social media should be absolutely immune from adverse actions. Especially, people should be absolutely immune to adverse actions for anything they posted before being hired.

Lots of people have posted approval of people getting fired for saying things on line, saying that the freedom to say things doesn't guarantee immunity from consequences. Well, ma'am, there's a new sheriff in town. See how you like it when people start getting fired for expressing sentiments you approve of.

Free Market, Free Speech?

"We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."
- Thomas Jefferson writing to William Roscoe, December 27, 1820
Jefferson's vision of free speech was basically a free market of ideas where ideas lacking merit would be driven out of the intellectual marketplace. Unfortunately, "reason was free to combat" error only as long as it took someone to file a libel suit against someone who criticized him. 

Long before the internet, I had noted that crank movements tended to live in a self-contained bubble. In those days, the "information" circulated as Xeroxed pamphlets and pulp magazines. Believers in a young earth or massive UFO visitations never encountered any real counter-evidence. Nowadays, keeping track of cranks is like mopping up a tsunami with a Q-Tip. And the internet is a completely solipsistic world, where each bubble concocts its own facts.

Maybe the ultimate solution is a kind of digital Galt's Gulch, a new and restrictive internet open only to people with real credentials. Anyone can read it, but the vetting process for contributing to it is severely strict.

The Courts

As the comment below notes:
It's already been ruled unconstitutional to force other people to publish your speech, see Miami Herald Publishing Company v. Tornillo, 1974.
Ignoring for the moment the near universal confusion between the Constitution and what the courts say about it, that's not exactly what the ruling says. The case challenged a Florida law that required newspapers to provide equal space for rebuttals of political editorials. The court ruled that, since newspapers are limited resources, requiring a paper to provide free space for rebuttals might discourage papers from printing editorials, the so-called "chilling effect." (The idea that the "chilling effect" is one of the stupidest legal concepts around is left for another essay. In fact, Jefferson's quote above makes it clear that free speech can only be effective in the presence of a "chilling effect.")

Interestingly, in cases involving broadcast media, the courts have used the very same scarcity argument to compel broadcasters to grant access to people who want to rebut opinion pieces. In those cases, the argument has been that the broadcast spectrum is a finite resource belonging to the public, that broadcasters are merely licensed to use part of it, and the government has the right to impose requirements on licensees. With cable and internet media, the limited resource argument isn't as critical.

The reality is that it has not been ruled unconstitutional to force other people to publish your speech. The Department of Labor site on Workplace Posters ( has a long list of government-mandated posters that employers must post, whether they agree with them or not. They include posters on the Federal minimum wage, equal opportunity, OSHA rules on workplace safety, and labor relations. Not surprisingly, a number of these rules have been challenged as "compelled speech." So far none have reached the Supreme Court.

Sooner or later, anti-gay rights activists will quit using the doomed argument of "religious rights" (Which was demolished by Reynolds v. United States (1878). The Court upheld a bigamy conviction, saying that beliefs were inviolate but actions could be punished). It will be interesting to see what will happen when someone argues that being forced to provide a service for a gay wedding amounts to "forced expression."


Anonymous said...

It's already been ruled unconstitutional to force other people to publish your speech, see Miami Herald Publishing Company v. Tornillo, 1974

Steve D said...

That's true, but court decisions can be and often have been reversed. As my title says, time to call B.S. on that idea.

It will be interesting to see what will happen if newspapers refuse to print announcements of gay weddings, or bakery owners refuse to do wedding cakes and use "forced speech" as a defense. My guess is the courts will decide that "forced speech" doesn't apply in those cases.

You can't seize private property for public use, either, but we have laws that say that any business that deals with the public is a public accommodation that can be forced to deal with all groups equally. People have objected that that constitutes taking their property and gotten nowhere. Extending that concept to speech outlets is a natural outgrowth.

Anyway, what I'm actually calling for is a requirement for due process, transparency in the moderation process, a clear and rapid appeals process, and accountability for people who flag or downvote comments on specious grounds. And physically preventing someone from speaking or being heard is absolutely indefensible and needs to be slammed down hard.

Steve D said...

Addendum: Broadcast media can be required to permit public access. How is this any different? If we declare that internet sites are common carriers, the debate is over.