Reader Request Week 2015 #1: Free Speech Or Not

It’s time to begin this week’s Reader Request Week! So let’s start with something chunky. Evan H asks:

There seems to be increasing polarization between those who view freedom of speech as an absolute, unfettered necessity for free society, and those who argue that since speech can cause harm, and the job of government is to protect its citizens from harm, the government should be allowed to limit speech in some (perhaps restricted) way.

Philosophically, where do you fall on this issue? Do you think speech is fundamentally different from other potentially harm-causing actions? Should the government ever be able to limit speech in pursuit of the greater good?

Tangentially: large free services like Twitter and Facebook are severely blurring the line between privately-owned spaces (where they have complete control over what speech is permitted) and public forums (where they do not). Twitter is legally a private space, but most of the time it *feels* a lot more like a public forum. Do you think the law needs to “catch up” in how it handles these quasi-public forums?

Let’s begin by noting that “free speech” here is by no means an absolute on the level of individual governments. People, and on the Internet particularly, often seem to take their concept and definition of “free speech” from United States constitutional norms, but, strangely enough, no country in the world is actually bound to the United States constitution but the United States. This is a state of affairs that often appears to confuse people.

In point of fact, however, the First Amendment of the Constitution of the United States and the assorted Supreme Court rulings associated with it apply only to the United States. Everyone else works under whatever rules regarding free speech their countries have. By and large, particularly in Western countries, this means quite a lot of leeway in what one is legally able to express, but there are limits (generally) which are more strenuous than those in the United States, and obviously there are other countries where these limits are even more strenuous than that.

Let’s also put onto the table that even in the United States, which is generally acknowledged to have the fewest legal impediments to unfettered free speech, there are still limits, which the government has acknowledged. The old chestnut that free speech does not include the right to (falsely) yell “fire!” in a crowded theater is still applicable (even if the the reasoning in the Supreme Court case in which the comment appeared has been largely overturned by more recent jurisprudence). These limits are few, but they are there, and the over the course of US history, they have been continually reinterpreted by the courts. I imagine this goes on in other countries as well. So anyone who argues (other than philosophically) for a state in which “free speech” was indeed ever unfettered by government expectation is either referring to a point before actual human governments larger than a family unit, or doesn’t much know what they’re talking about.

Let’s also do acknowledge that as a practical matter, “free speech” laws and obligations apply to governments and public institutions, to private institutions rather substantially less (although the government, in the US at least, may try to oblige private institutions to these laws in some manner and through various mechanisms) and to individuals and their private spaces almost not at all. This is also deeply, deeply confusing to many people, apparently.

Finally, let’s make the point that your right to “free speech” does not mean I (or anyone else) is obliged to listen. I can, and often will, walk away if I think you’re spouting nonsense. This is another fact which seems to deeply confuse certain people; the idea that being dismissed or ignored equates to censorship appears to be hardwired in their heads. But it’s wrong, and they’re wrong for believing it, which makes them wrong twice.

With all that as the landscape in which we will walk during this discussion:

Personally speaking, I tend to be, both philosophically and as a political actor, a believer in the value of a robust definition of “free speech” as it applies to governments and public institutions, not just in the United States but worldwide. This belief in a robust definition of free speech means that I acknowledge that hateful, hurtful, triggering and generally awful speech must be given a place by the government in the public sphere. Racists, sexists, homophobes and other assorted bigots cannot have their soapboxes in the square removed — not just for the defensive measure of “and then the government will come for me” but because, simply, I believe in the end you acknowledge a human right to express yourself, even if that other human is wrong, or you don’t. The limits I would place on speech are pretty high and of the “imminent harm” level — exhorting a mob to violence against someone and giving them directions to their house is an example I would give as speech that crosses that line. Short of that: It’s got to be allowed by the government.

But I also place a pretty hard line between the government and everything else. The government has to tolerate your bullshit and give space for it; I don’t. Neither, for that matter, does Twitter, or Facebook or any online social media network or construct not run by the government. I don’t accept the argument that services like Twitter or Facebook blur the line between private entity and public service, regardless of whether they are “free” (i.e., no cost to use); that’s a little like saying my local Kroger’s or Safeway is a public gathering place because anyone can walk through the sliding doors (shopping malls? The same, unless you are in California or New Jersey).

If you want to argue that Twitter/Facebook/etc are in fact “quasi-public” spaces, my first response would be “show me the law.” I doubt there is one there that makes it so. My second response would be “have you asked Twitter/Facebook/etc what they think?” Because I’m reasonably certain that their corporate lawyers would mount a pretty robust argument that they are, in fact, private entities rather than a public good or utility. Their lives become immensely more complicated if they are judged the latter.

Not to mention everyone else’s lives: If the Supreme Court of the United States ruled, for example, that Twitter/Facebook/etc are public services, with regard to the First Amendment, I don’t suspect the ruling would be confined to those specific services; it would probably apply to online sites generally — including this one, as it is housed on WordPress — and what a mess that would be. My own response to such a ruling would likely be to close comments forever, since if I am not allowed to moderate that space I’m responsible for, then I’m just not going to bother having comments. I have standards.

So, no: Twitter/Facebook/etc are not “quasi-public”; they are in fact private entities, and they have a right to dictate to the people on them — as I have a right to dictate to people who comment here — the rules of the virtual road. The First Amendment (and, I suspect, whatever free speech protections that exist in other countries) simply do not exist on these services. Facebook is not obliged to house your bigotry, nor Twitter your harassment of people you don’t like, nor I your bad arguments that offend me in their stupidity. Whether any of us do allow them is up to our own particular levels of tolerance for such things. I myself make it pretty clear what I’m willing to put up with. I don’t think the law needs to “catch up” to this in any way; I’m not a proponent of the government nationalizing Twitter, or Facebook, or, well, my blog.

As for whether the government should protect people from the harm of free speech, well, per above, I don’t believe that speech needs to be curtailed by the government, but let’s also recognize that speech doesn’t occur in a vacuum. Context matters, and government should recognize that speech — even and perhaps especially protected speech — has consequences, and that an appropriate role of government may be to protect speech and to handle the effects of it. What form and shape might that “handling” take? Well, that’s indeed an interesting question, and one that is neither simple nor likely to be resolved in the scope of this entry. But it is a question worth asking and trying to answer. If a government wants to promote free speech — as it should — it should also be ready for what comes from free speech.

On a personal note, it does seem to me that a lot of the kvetching about “free speech” and censorship comes down to people wanting the right to be just plain assholes in every possible situation. Well, fine: You can be an asshole in every possible situation, if that’s a thing you want, and bless your heart. But I do believe that a great deal of free speech is not about what you have the right to say, but what you choose to do. I made a joke recently that (without specific intent on my part) referenced child sexual abuse, and some folks called me on it. I had the right to say “it stays because I think it’s funny,” but what I did was to say “whoops, you’re right, let me fix that,” and to change it to something else funny that didn’t have the same set of problems. I have the right to display visual images of Mohammad; I haven’t because I know that many Muslims dislike that, and I can work with that as part of my world view. I have the right to call trans folks by the gender they are transitioning from, but I would prefer to acknowledge them for who they are rather than who they were. And so on.

The point is that it’s not really difficult to pay attention to the concerns and interests of others and still be able to say what you need to say; I have not found it difficult to do so, in any event (unless you are a complete bigot, I suppose, but, well. I guess you just have to live with that). My point is that I haven’t found my own ability to speak freely — and pointedly — on any subject at all constrained in any real sense by being aware of other people’s concerns. It is slightly more work. But, you know what, one, I’m a writer, this is kind of in my wheelhouse, and two, if a little more work means more people are receptive to what I say because I don’t unnecessarily antagonize them, it’s worth the investment (I do occasionally antagonize people on purpose).

And you may say: But what about the people who demand trigger warnings and that the world revolve around their sensitivities? Well, personally, trigger warnings don’t really bother me, in part because, look, if you’ve had trauma and reading what I wrote (or what I’m pointing you to) will cause that trauma to revisit you, I think it’s reasonable for you to know that ahead of time. I don’t think trigger warnings are a demand that the world revolve around you; they might be a simple recognition that you exist in the world, which is a different thing. Likewise, I don’t think everything has to be tailored to the people who have triggers or other concerns, but letting them know they might want to route around things is fine. This is, I don’t know, courtesy? Courtesy seems okay to give.

I’ll close by noting that obviously this piece speaks only in broad strokes — as noted, speech is not a free-floating concept; it’s heavily embedded in the real world and all its complexities. Anyone who tries to separate the two of them is showing they don’t really understand the issue. With that said, I think it’s possible to be a free speech maximalist and someone who understands that with the right to free speech comes a responsibility to consider one’s speech. Rights are what one can do; but it’s what one should do that is equally important.

(There’s still time to ask questions for 2015’s Reader Request Week — get your requests in here.)

104 thoughts on “Reader Request Week 2015 #1: Free Speech Or Not

  1. I do believe you mean kvetching (complaining) rather than kvelling (what you do when you’re proud of your kid/sibling/pet/whatever).

  2. I’ve always seen trigger warnings as one of those things you do because it’s part of the ‘considerate netizen’ thing, like not hotlinking images. It’s a small thing that doesn’t affect anyone who doesn’t need them.

    Yeah, in general, I agree there’s all kinds of distinctions between public and private, and illegal and ‘legal, but that means I’ll think you’re an asshole’. I was also reflecting on that issue while reading City of Stairs.

  3. The challenge with “trigger warnings” is mostly that there’s no obvious upper bound. I know people who have genuine PTSD-type responses to the phrases “get to bed at a reasonable hour” or “eat smaller portions”. I am pretty sure we can’t really expect “trigger warnings” on those, though.

    Not that I have a solution in mind, I just recognize that there’s a real problem with the idea of expecting or demanding trigger warnings. Requesting them seems reasonable, as long as you’re not a jerk about the possibility that sometimes the answer is “no”.

  4. “The limits I would place on speech are pretty high and of the “imminent harm” level — exhorting a mob to violence against someone and giving them directions to their house is an example I would give as speech that crosses that line. Short of that: It’s got to be allowed by the government.”

    I started to write a long comment asking your opinion on doxxing and the like, and whether you think it should be considered unprotected speech, especially when it’s explicitly coupled with a call for harassment. But I think this quote more or less wraps up your opinion on that.

    Then I was going to ask your opinion on edge cases where there’s no explicit call for harassment, and how you think that would or should be legally handled. Then I remembered that we already have the concept of a “chilling effect,” so I think that sort of answered my question.

  5. Yeah, “unnecessarily” is the key, there. I don’t mind being an asshole on occasion if it seems warranted or if it amuses me. I hate to be an asshole accidentally. There’s also the question of simple pragmatism – why make enemies unnecessarily? You might need a favor sometime from somebody you have just antagonized for no good reason – and if a wolf should come out of the forest, what then? Everyday life on the road or on the internet shows me that a huge number of us don’t think that way. I don’t know if it’s childish self-centeredness or stupidly unresolved anger or what, but it sure is a pain. Life is tough enough – why make it harder?

  6. It seems like the public understanding of free speech is rooted in some of those Supreme Court legal arguments. One I’ve seen kicking around is the concept of the ‘marketplace of ideas’, which posits that ideas are analogous to products, and good ideas will triumph over bad ideas when on a level playing field. This is obviously wrong, and it bothers me that it seems to be taken so seriously.

  7. What about free speech in the context of a public university? As a concrete example, a poster for a “Can One Laugh At Everything? Satire and Free Speech After Charlie” debate at the University of Minnesota featured a copy of the post-attack cover of Charlie Hebdo, with a man in a turban reasonably presumed to be Mohammed. Some people at the university saw the image as offensive. An administrator sent out a request that the posters should come down.

    https://www.insidehighered.com/news/2015/05/05/u-minnesota-responds-student-complaint-about-posters

    http://www.startribune.com/poster-for-free-speech-forum-sets-off-debate-at-university-of-minnesota/302689691/

    I’m kinda torn on this one myself. I think I tend towards the “free speech” side. But I don’t know that it’s a slam-dunk.

  8. I like the way you lay this out and I agree with you. One bit you didn’t address that I find troubling is the recent move to equate money with free speech. I think Citizen United was wrong on its face, regardless of its effects (which I would argue have also been bad.)

    So a follow-up question for you – what constitutes “speech”? I think it’s clear that writing should, most art probably, but to me money and other acts should fall under a different category. So, for example, I would say your right to burn the flag isn’t free speech, it’s under your right to protest. But I have a hard time articulating where the line should be and I’d like to hear your thoughts on it.

  9. Jon Marcus:

    My default is that public universities are government institutions, with everything that entails re: the First Amendment. I’m open to seeing an argument elsewise, but I’d have a pretty high standard to meet.

    I think it’s fine for an administrator to say “You have a First Amendement right to post this poster, but could you please not, because it’ll be more trouble than it’s worth.” I’d also say it’d be fine for the student(s) to not accede to the request. More than that and then it’s a matter for various free speech organizations to take up with the University, I suspect.

    ProfMel:

    I have serious reservations that merely spending money is the same as speech, so I’m not 100% in love with Citizen’s United, either. I do suspect what will have to happen there is either that the ruling will be revisited by a later court, or that a constitutional amendment will have to be offered that addresses political campaign funding.

    On the latter score, and without having thought about it a very great amount, I think it would be interesting to have a constitutional amendment that specifies that private money in a political campaign (individual or corporate) can only be donated by those in the area represented by the office — that is, only people or businesses in a congressional district can donate to a campaign for a House seat, only people or businesses in a state can donate to a campaign for Senate, while everyone can donate to a presidential campaign. I don’t know if that would solve any problems, or merely introduce new ones.

  10. It’s a subset of “The Golden Rule: them with the gold makes the rules”. The hard part is making sure everyone who wants a soapbox gets one, but also making sure that your desire for free speech doesn’t trample on other folks, whether because of money or determination to make an ass of oneself.

  11. I think you’re dodging the difficult questions in the debate. On the quasi-public nature of Twitter and Facebook, it’s a question of scale. If a hundred people read your blog that’s different to the sort of exposure mass- social media platforms boast. So a different set of rules apply. Telephone and road infrastructure are good examples of things that began as private spaces, but grew in scale to the point where there was a legitimate public interest in regulating them. I certainly hope the same is true of your blog, but I doubt it.

    As for the difference between having the right to free speech and ‘just being an asshole’, I think the difference is in the threat of violence (either on the part of the state or the offended party). It’s fine for you to not post Mohammad cartoons because you don’t want to offend; it’s different when you don’t post them because you are afraid of going to prison or being shot in the head with a Kashlinakov.

    Likewise, I’m entirely convinced the Holocaust DID happen, and have no desire to give offence to those who suffered from it. But the fact that I have no right to deny it in France of Germany makes that part of me that seeks to defend free speech want to stand in front of the Brandenburger Gate with a sign declaring the whole thing a hoax.

    So while you personally may not have found yourself constrained, the folks over at Charlie Hebdo have had a different experience. It’s for them that we must consider what the constraints are and where they should be. Simply stating ‘we must all be courteous’ is not a sufficient response.

  12. Graham Stull:

    “On the quasi-public nature of Twitter and Facebook, it’s a question of scale.”

    Is it? Again, show me the law that makes that so.

    “Simply stating ‘we must all be courteous’ is not a sufficient response.”

    Well, then, it’s excellent I never said that.

    It doesn’t seem I’m dodging the difficult answers, Graham, as opposed to simply not finding answers you might choose to agree with.

  13. How about a government entity deleting comments on a Facebook page for the government entity? As an example, the numerous police departments that maintain Facebook pages and delete disparaging comments?

    And I know, I read way too much Popehat.

  14. Is it? Again, show me the law that makes that so.

    On “quasi-public” places, there’s a whole bunch of Supreme Court law saying “that in some instances private property is so functionally akin to public property that private owners may not forbid expression upon it.”

    http://law.justia.com/constitution/us/amendment-01/54-quasi-public-places.html

    (And lists some of the cases)

    Now, all of these cases are talking about physical property, but they are on point to the idea that free speech discussions do sometimes apply to private spaces.

  15. “If a hundred people read your blog that’s different to the sort of exposure mass-social media platforms boast.”

    Aside from Scalzi’s reply… why is it different? Where’s the breakpoint? 10,000 readers? 100,000? 1m? Twitter has north of 200m active users…. but I have under 200 followers. Which number do we use to assess scale? You can assert what I quote above all you want, but assertion isn’t argument. What’s the logic behind stripping a private entity of its rights and declaring it a public utility? Where’s the evidence?

  16. What’s the logic behind stripping a private entity of its rights and declaring it a public utility? Where’s the evidence?

    From Marsh v. Alabama:

    “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’

  17. Hmmm….seem to recall that the Bill of Rights in the U.S. Constitution begins, “Congress shall make no law prohibiting….” That doesn’t mean that Facebook or Twitter, or any other social medium, or a newspaper, or magazine, TV network, etc, need allow you to say anything and everything you wish. How many times have you written a letter to the editor of your local newspaper and seen how it was redacted almost to the point where you wouldn’t have recognized your own letter? Is this an abridgment of free speech – I don’t think so. They don’t HAVE to publish your letter, the TV network doesn’t HAVE to put on your advertisements or messages, so claiming your free speech is being stifled is in my opinion, ludicrous. Please note the kerfluffle over “Duck Dynasty” and their so-called First Amendment rights. Um, if the family signed a contract with the network, and the terms of that contract stipulate certain behaviors, or refraining from certain behaviors, speeches, etc., then that is not, in my opinion, a curtailment of their First Amendment rights. Who twisted their arms to sign that contract? Do I have to like what you say? Hell no! Do I have to agree with what you say? Hell no! But if I expect to be allowed to express myself in a civilized fashion, then I should be willing to allow others with whom I disagree the same right – hmmm? Isn’t that what makes us a better society?

  18. It speaks volumes about your critics that they cast you as the second coming of Lenin, but when you lay out your views on rights they are more in line with the right wing parties of the world (and the rightward edge of those parties at that)

    I’m more in line with the view John Barnes outlined when you and he touched upon this topic some time back, but different strokes and such

  19. I am in general agreement with the entire post and its reasoning. I could also see myself living in the UK, New Zealand, et. al. where free speech is somewhat more constrained than here and being agreeable with that circumstance. Adaptable we humans be.

  20. David:

    “Now, all of these cases are talking about physical property, but they are on point to the idea that free speech discussions do sometimes apply to private spaces.”

    Has someone tried to apply them? And if so, how has that gone? I’m very curious to know.

  21. Nothing is free. Our laws about ‘Free’ speech came about because a group of ‘terrorists’ revolted against their ruler and formed their own nation.

    Expand on that, then responsibility goes along with free speech. You say it, you write it, you own it.

    Loop back. Then how far are you willing to go to defend free speech?

    Given the current nature of our country, the rights we’ve been willing surrender since 9-11 in the name of a false sense of security, most Americans aren’t willing to go very far at all.

    As the NSA computers scan this comment, feed it through various parameters and decide if my free speech is a threat or not. If it is judged a threat, my speech would be free to utter until they try to take it from me. At that point do we become ‘terrorists’ again?

    It’s all academic until there’s a knock at the door.

  22. Personally I equate trigger warnings to allergies. The first time (or if I can’t recall from the last time it came up) I invite someone over to my house I say “We have cats”. I ask about food allergies before planning meals for someone new. It’s what you do so people are comfortable in your space.

  23. From Marsh v. Alabama:

    “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’

    That is what we in the legal business refer to as “dicta”. The holding of Marsh only applied to “company” towns, and I am not aware of any precedent that has extended that holding to anything even remotely resembling something like Twitter or Facebook. (Though one district court explicitly declined to extend it in that manner.)

    And just so this is clear, you are aware that extending the Marsh holding to Twitter and Facebook would mean that those sites could no longer filter spam, correct? I strongly doubt those sites would remain usable for long in a world where they were subject to the First Amendment for precisely that reason.

  24. I can understand your saying that, at least, in the US, free speech means that the government can’t stop me from declaring in a public space my dislike of fondant, that I am free to print up anti-fondant pamphlets and hand them out, but you are under no obligation to tolerate that you consider cake-decoration hate-speech in your comment section, nor is Twitter, Facebook, etc.

    But should Time Warner Cable be able to decide that they also don’t tolerate anti-fondant speech, and thus filter traffic passing through their network to my “50 reasons why fondant is evil” web page (where-ever it may be hosted)?

  25. David

    Reading further down the page you link to I note that the decision in Marsh v Alabama has subsequently been circumscribed; you are arguing as if those later decisions don’t exist.

    I appreciate that this is necessary if you have any chance of praying it in aid of your suggestion that the Courts would use it to bring Twitter and Facebook into the ‘public’ purview, but leaving out the contents of subsequent judgements suggests that you are being less than wholly candid about this.

    I live in England where we take a more nuanced view; last year a man who bombarded a woman with Twitter threats of rape, because she had supported the campaign to use the image of the author Jane Austen on a banknote, was sentenced to 16 weeks in jail. His claim that he was exercising his right to freedom of speech didn’t go down too well with the Court.

    He continues to have a restraining order against him. I have no doubt that many trolls would desist from sending rape threats if similar consequences applied to them…

  26. Has someone tried to apply them? And if so, how has that gone? I’m very curious to know

    Your old stomping ground, as a matter of fact:

    Cyber Promotions vs. AOL (1996). The court (it wasn’t the Supreme Court) held that AOL did not meet the Marsh v. Alabama test and thus could install filters to block Cyber Promotions spam emails.

    Law journal article here:

    http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1181&context=btlj (warning! PDF)

    I am not aware of any precedent that has extended that holding to anything even remotely resembling something like Twitter or Facebook

    Yes, I’m not aware of any precedent that applies it to Twitter or Facebook either. The comment I was making was purely about law concerning “quasi-public” spaces, thanks.

    And just so this is clear, you are aware that extending the Marsh holding to Twitter and Facebook would mean that those sites could no longer filter spam, correct?

    Yes, I’m also aware of that. You are aware that I wasn’t advocating that Marsh v. Alabama should apply to Twitter & Facebook, simply pointing out that the public vs. private distinction isn’t quite clear, correct?

  27. If we accept the notion that free speech doesn’t apply to private places that provides accommodation to the public, then shouldn’t theory also apply to a number of other restrictions on such places places, such as smoking bans in bars?

    I have serious reservations that merely spending money is the same as speech, so I’m not 100% in love with Citizen’s United, either.

    It isn’t literally the spending of money that is the issue. If I’m going to spend the money paid advertising, or transportation to a public speaking event, isn’t curtailing the expenditure, curtailing speech?

  28. @Seebs – Agreed – sometimes it is very hard to work around triggers, though to me it falls under the purview of being considerate. IRL, I do think trigger warnings for common triggers (suicide, sexual assault, hate crimes, etc) should be a thing on college campuses, though, or at least something someone can go to their professor and say ‘If any of the assigned readings or discussions deal with the following topics, please let me know in advance and I would like the option to read an alternate reading or do an alternate assignment’. (Within reason: someone triggered by discussion of violence or violent imagery probably shouldn’t take a “WWII and the Holocaust in Film and Media” class like I did, but it would’ve been nice to know in advance that Everything is Illuminated had a suicide in it, so I could ask to leave class for that part of the film) Just like a student triggered by eyes getting injured/dissected probably shouldn’t be in a veterinary opthalmology class (or a class where dissecting eyeballs is a big part of the course). And for times when you’re accidentally triggered, some sort of page/pamphlet on how to deal with it would be a sensible precaution.

    I’m not sure if that should be something you’d have to go through disability services for or not, though – they’re often overworked and require a lot of outside testing/documentation, which may be out of financial reach for many students, or they may just tell students to suck it up (response will probably vary depending on university/case worker, and psychological issues often get treated a lot less seriously by disability services). And unfortunately, there are professors who would, absent official university language saying ‘Don’t do this or you will get in trouble’, respond to a student’s request by deliberately triggering.

    I do think that it is something colleges should address, though. There are some fields where you have to get desensitized to graphic images pretty quickly (pre-med, pre-vet biology, etc), but outside of those areas, a little warning is polite and helps students actually focus on learning.

  29. @Scalzi: I think the issue was when an administrator just said to a professor: “Please take that down” without your prolog about “I know you have a 1A right, but…” When my boss says, “Please do X” she’s not making a request, she’s politely giving me an order. It’s reasonable to assume the professor felt he was being given an (arguably unconstitutional) order. On the other hand, the administrator’s point that the debate was over and keeping the posters up was offensive to their students seems kinda legit too.

    @blaisepascal2014, In the case of TimeWarner (or whichever ISP/cable provider) you’re talking about a public utility. In many locales, local government provides them with a monopoly. That means that TimeWarner != Twitterbook

  30. Reading further down the page you link to I note that the decision in Marsh v Alabama has subsequently been circumscribed; you are arguing as if those later decisions don’t exist.

    I’m not arguing anything except that there is (US) law that concerns free speech rights in private spaces. I don’t think that there are later cases circumscribing it changes that point. To argue with my point, you would need to argue that there is NO law discussing free speech in private spaces. Is that what you’re saying?

    your suggestion that the Courts would use it to bring Twitter and Facebook into the ‘public’ purview,

    Since I made no such suggestion, I have no idea what you’re talking about.

  31. David

    In which case I completely misunderstood you; I had thought that your first post purported to provide to John the legal justification for Graham’s claims which he had requested.

    I am delighted to discover that in fact you were not purporting to answer the question posed by John, even though, confusingly, you appeared to be saying you were…

  32. Sorry about that, my comment was a bit more confrontational than I intended it to be. I get your point on both points.

    @dr. fancypants No worries.

  33. Geekhyena — I had the same thought, both wondering if this was something disability services could accommodate, then realizing they often had enough trouble with their current scope. (I’ve had students on the mild end of needing services who often elected to go through me privately rather than deal with the office, because they needed only a few times in their college career, not for every class or exam. I already accommodate students who have illness or activity reasons*.)

    As a student, our English professor had us reading A Clockwork Orange. As I recall, I opted out from watching the film version and completed an optional assignment.

    * And the time I had my final exam on Friday afternoon before Spring Break. That was, as they say, a learning experience.

  34. I think the other complaint of the “curtailing my Free Speech” people (as pointed out in that xkcd) is “I’m allowed to say what I want *immune from criticism*.” That might even be general; being trimmed or unpublished or moderated is treated as criticism. But also calling them out, or making clear to their employer what their employees are saying while wearing a company shirt/badge, or suggesting a boycott of companies whose CFOs want to proscribe people’s lives (but that would never apply to the way their company would treat us, right?), or other responses to people’s free speech.

    They, of course, don’t realize that can’t be universal, or the people they’re Free Speeching about would have something to say about *their* immunity from criticism; it’s simply an I-centric view of the world. *I* should be allowed to pronounce without criticism or uncomfortable consequences; *you* need to let me.

    I’ve started to refer to Certain People as “Me’s Rights Activists” – because it seems to be right. I guess a shorter term for that, as Our Host suggests, is “asshole”. Even when I’m pulling that stunt.

  35. I find the money-as-speech sub-issue of great interest. Mostly because it takes the issue beyond the “can we make words about things” and brings into areas where there’s visible, demonstrable effect.

    On the one hand, saying “I’m sorry, sir, you don’t get to use your own money in support of a cause you fervently believe in” just seems all kinds of wrong. I mean, if somebody wanted to donate all his money to a homeless shelter, and somebody tried to block him from that because it’s “promoting a welfare state” or some such, that’d be horrible.
    On the other hand, it basically allows incredible, game-changing, near-unbeatable power to whoever happens to have money.

    I don’t know if this is common in other places, but here in Israel, there’s a daily newspaper handed out on street corners and train stations, free. It’s well known to be almost entirely bald-face pro-Netanyahu propaganda, often to embarrassing levels (in fairness: in Israel we have newspapers of every political stripe; all of them deeply embarrassing), but hey, it’s also an actual newspaper. It’s known to be funded by Sheldon Adelson, an American Republican business magnate. It’s also held to be the most commonly-read newspaper in Israel (which does not mean, let me note, that it’s held in any great regard).

    That’s the kind of extreme that money and free speech can get to, combined.
    I’m still on the free speech side for this issue, myself – if only because I can’t see any way to prevent people from putting money behind their ideas without becoming oppressive and totalitarian.

  36. Let’s not forget the Sedition Act of 1918, which was used to imprison political opponents of Wilson and many others.

    Piddly Pet Peeve: People who say that they are exercising their freedom of speech when you disagree with them, but who stare at you blankly when you remind them that you’re doing the same and have the same rights that they do.

  37. I’m sympathetic with Graham’s perspective, here. The institutions under discussion, whether Facebook, Twitter, or physical structures, effectively function as public spaces. They even encourage this perception, in a variety of manners. They all also depend greatly on technology and institutional structures that were constructed with public funds. At the same time, they are private profit-driven institutions. That strikes me as blurring those lines, even as the law tends to emphasize private property. (The legal decisions about mall protest seem to be still up in the air, despite the fact that the most recent decision went against protest.) It’s also worth noting that civil rights legislation also regulates access to facilities open to the public, demanding access to all, so there is already a distinction between the private property of businesses and the personal property of a home.

  38. In the specific context of the internet: I’ve been (and still am, in a few places) a moderator with a number of online groups — usually special-interest groups such as brain-injury survivors, psoriasis sufferers, and most recently, a social group for seniors.

    All too often we’ve been challenged by members (or even guests) as denying them “free speech” if we try to enforce the site-operator’s wishes as set out in TOS or equivalent. And that’s what these folks are missing — with extremely rare exceptions, every website in the world is owned and operated by *someone* who has set rules about what he/they consider is proper behavior. If you visit the site, your status (and I believe this is also true in a legal sense) is the same as if you physically visited the owner’s house — he’s totally entitled to insist you behave yourself, or as in the cartoon above, show you the door if you won’t cooperate.

  39. And on some level, the question of “power” has to enter the discussion explicitly, although it’s already been implicitly part of several thoughtful comments.

    Just as the folks who claim it’s possible to be “racist” against caucasians, or “sexist” against cis males, are technically correct but functionally irrelevant to serious discussions of discrimination, the people who claim that “restricting” the cash “speech” of billionaires is a slippery slope to the Gulags for anyone hollering “f*** tha police!” on a street corner are being naive at best.

    Which end of the power equation one is on, makes a difference in how rights are perceived and enforced, how laws are interpreted, etc. The impetus behind the evolution of representative government (as opposed to oligarchic or monarchic authority) was to begin leveling playing fields to offset the power conveyed by culturally institutionalized privilege, such as wealth, or aristocratic lineage, membership in a religious or ethnic group. etc.

    This is partly why it’s so very important to the holders of such privilege, to pretend it doesn’t exist– they stand to lose the power it imparts, if a representative government perceives that as unfairly tilting the playing field in terms of governmental influence or power.

    When it comes to speech, and particularly the issue of money equating thereunto, we have entered into the territory of “how should a representative government undertake to balance the power conveyed by money, status, etc.”

    For example, we used to have laws that guaranteed equal time for various politically-inclined content in broadcast media. We also used to have laws and regulations that restricted any individual or company, no matter how wealthy or powerful, from controlling too large a segment of the press and broadcast media.

    Those laws were created from the bitter experiences of previous generations and other nation/states, that an unbalanced access to the public’s eyes and ears constituted an effective restriction of the free speech of those denied such access because they didn’t own all the radio stations in a given market.

    Leaving the power equation out of any discussion of free speech sidesteps a lot of messy dilemmas with no clear “good” solution, but it also leaves the heart of the topic only slightly explored.

  40. Yeah, “free speech” also means that other people have the same freedom to disagree with you, mock you, ignore you, refuse to do business with you, inform you that they’re going in a different direction and that your services are no longer required, organize a boycott of you, complain to your employer, repeat that thing you said, and all that. Lots of people seem to think that “free speech” means “freedom from the consequences of speech” and well, no, it doesn’t work that way. Freedom’s a two-way street.

    If the government (in any of its official manifestations) isn’t throwing you in jail, smashing your printing press, or gathering up and destroying all copies of your work, then your right to free speech isn’t being violated.

  41. @Becca Stareyes I’m not taking any classes in grad school that might trigger me, but given that disability services is a joke at this college (apparently students with mobility issues have no right to be at class on time), I’d go about it privately if I did it, even though I do have an official diagnosis of cPTSD. After SDSS demanded I pay $1000-2000 out of pocket for hearing testing about my hearing issue (and you can’t test parsing issues that way anyways), I elected to go the route of explain to professors “I was mostly deaf as a kid because of untreated ear infections, it caused long term parsing issues, can I please have a copy of your lecture notes because I can’t read lips if you’re writing on the chalkboard” and hope they understood and were willing to accommodate me. Most of them have been, though there was one professor whose response was assholish enough that I deliberately requested he not be on my QE committee (which led to some confidential discussions with my adviser and the dept head, but lucky for me,it went well).

    In many universities, disability services are underfunded and/or staffed by people who have the attitude of “the real world won’t accommodate you, why should college?”, so really, using disability services to handle this would probably just make things worse. We need a massive overhaul and enforcement, but that takes time and money no one seems willing to invest. That said, I agree with what happened to you with a Clockwork Orange – that is totally sensible. As long as it doesn’t interfere with the course, alternate options should be available.

  42. Weighing in on the Facebook/Twitter part of the debate, I get the sense you’re answering a question other than the one that was asked (I say this because I’m curious as to your opinion on a different point, not to criticize). At issue isn’t whether Facebook/Twitter are public entities – they most definitely are not. At issue is whether they create public spaces.

    So, as you say, they are not obliged to house bigotry or harassment. That decision would have (and does have) minor implications at the most. But what if they decided they aren’t obliged to house statements that support a particular political party? A particular religion? A particular individual? Theoretically speaking, of course, can Mark Zuckerberg decide he dislikes Hillary Clinton and hence refuse to host any statement in support of her candidacy? Given the market penetration of Facebook in the US, and the barriers to entry to putting up a competing service (paging Google Plus, line two…), wouldn’t such a decision injure Hillary’s campaign in a material way? Wouldn’t it also injure people who seek to use Facebook to support Hillary (publicize rallies, raise money, etc.)? Would those folks have no legal recourse?

  43. Brian Greenberg:

    “Would those folks have no legal recourse?”

    I would assume not, and why would they? It is relatively trivial for anyone to create their own space online for the purpose of advocating whatever they like. A number of social media services already do have content limits for their sites; this is non-controversial as a legal issue (if not, always, as a tactic). This is a different question than whether Zuckerberg (as an example) would be foolish to decree it as Facebook policy; he probably would.

    Facebook isn’t a public space. It’s a private space with a very low bar to entry.

  44. Interesting that this is today’s topic when Wyoming just made it illegal to discuss factual science (such as “this particular stream has high levels of bacteria”) or participate in citizen science events (I’m wondering if the Audubon people will be able to do their Christmas bird counts?).

    Add to that the state of Florida saying we can’t talk about climate change (when there is plenty of evidence to be found of the effects of climate change within the state itself and Florida had better prepare cause oh, boy are they going to be hit hard).

    Censorship is alive and well even within the US. SCIENCE is being hushed up – talk about a frightening series of events! I’m waiting for the court cases on these. Someone brave needs to step up and stop this trend (I don’t live in either state so I’m not a likely candidate).

  45. If the government (in any of its official manifestations) isn’t throwing you in jail, smashing your printing press, or gathering up and destroying all copies of your work, then your right to free speech isn’t being violated.

    It’s a lot more complicated than that. Just to give one example, the UN Declaration of Human Rights says nothing about the government in its discussion of free speech:

    “Article 19.

    Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

    To give another: the First Amendment doesn’t establish the right to free speech, it protects an already existing natural right to free speech from government interference. Free speech as a moral right could be construed much more broadly than that legal manifestation.

  46. “Jerome O’Neil” shows, with the XKCD dissertation, what I tell people who complain about “censorship” when they are criticized for saying something asshole-ish, or have their comment deleted for same. In addition, I tell them that the Right to Free Speech comes with an unwritten and unregulated Responsibility to not be a jerk about it. Unfortunately, a lot of people are unaware of this responsibility, which in the past has been referred to as “courtesy”. As the Supreme Court case back in the 70’s decided, one does have the right to dress up in a Nazi uniform and swastikas and gather in Skokie, IL, a city with a large Jewish population, so one can spout that abominable brain vomit to the world, but one doesn’t have the right to complain about the negative reaction one receives for being a rabid, violent, hateful, moronic ass-monkey in public. On a more recent note, Professor Grundy at Boston University has every right to tweet racist brain vomit about white males, however, she has no right to complain about the offended response she receives from Boston U alumni calling her a racist. And Boston University has every right to fire her for hate speech.

  47. I think the first amendment has been abused and misinterpreted almost as much as the second amendment. We are in a situation now where the wealthy are going to spend billions of dollars in the next presidential election under the guise of free speech. When someone censures a public figure for saying something horrible and offensive, we rush to their defense because free speech. We act as if the threat of censorship is more terrible than someone having actual consequences for the bull shiit they spew out. We as a country have a foundation of bullshitting and making up facts to suit our opinions that is owed at least in part to our reverence for free speech.

    It warms my american heart every time i see a news report calling out the government for injustices, or corporations for wrongdoing, or the wealthy for abuses of power. But more often than not, free speech is used to defend someone writing a clearly autobiographical song about killing their girlfriend, or spouting nonsense unsupported by facts, or being a bigot or a jerk on a blog commenting section. It feeds into this idea that the most important thing is that we have the right to say whatever we want, whenever we want, and everyone needs to listen to us. Which isn’t true.

    I don’t want to curtail our rights to free speech, I just wish we placed an equal value on not being an ignorant loudmouth jerkface.

  48. You have the right to say whatever you want. (Free speech) You have the responsibility to live with the repercussions of the things you say.

    So be as hateful as you want; reasonable people will not listen, and when you cross the line into unlawful speech (threats of harm against someone else), you’ll get arrested.

    Why is this hard for people to understand?

  49. Facebook isn’t a public space. It’s a private space with a very low bar to entry.

    Creating a social media service (from a blog on up) has a low bar to entry. But the first hit on Google says that Facebook has more than 133 million US subscribers (43% of the population). Creating another private space with anything approaching that reach has quite a high barrier to entry, indeed.

    I’m not suggesting that Zuckerberg is (or should be) required by law to host content he doesn’t want to host (and yes, a decision like the one I described above would be monumentally foolish on his part), but I don’t think a lawsuit seeking a change in that kind of policy would be dismissed out of hand. I think it would be hotly contested…

  50. before actual human governments larger than a family unit

    There isn’t even absolute free speech in a family unit. At some point, the young’uns get overruled. If Thog Jr. mouths off to Mrs. Thog, Thog is going to apply his club to Junior. Nowadays, little Emma gets a timeout.

    Excellent use of “bless your heart”. Generations of Southern women are nodding at the Yankee boy getting it right.

    Trigger warnings: They’re polite. They keep people from being subjected to unnecessary stress. They don’t harm anyone who doesn’t need them, and they don’t alter the content in the least. Who could object to that? I mean, there’s someone who’ll complain about everything, bless their hearts. But really. It’s called being courteous and is generally considered a virtue.

    Back (yikes) 30 years ago, before we called ’em that, my History of Film teacher told the black students that they were under no obligation to watch “Birth of a Nation”, and if they opted out, they wouldn’t have to answer those questions on the test. IIRC all but one of them stuck it out, and even that one made it partway through. None of the white, Hispanic, Asian, Pacific Islander, or any of the above students had a problem with excusing the black kids. Except one dudebro jock, and he was just a RSHD asshole to begin with. He also hated the foreign films, because subtitles.

    @Geekhyena: yikes. My college was great about that stuff, but disability services is always overworked. I, too, just asked individual professors for an accommodation. We didn’t have laptops then, you had to take notes by hand, and after a car accident, I couldn’t write very fast. So I got permission to record the lectures and transcribe them at home each night, and a few extra minutes on the essay questions. It was such a small thing, I didn’t want to take up the resources that the students who were blind, in wheelchairs, etc. needed.

    One professor made NO allowances for anyone, and I dropped that class. She was a bitter old bat anyway; I later made a friend who said he was dropped from her class after he called her out on her dismissive attitude. No free speech in that dictatorship. Ironically, it was a speech/debate class! Talk about a double standard, “I – centric” thing.

    @Kel: Egos. ME ME ME. That’s why.

  51. To add one wrinkle that gets really blurred in the University setting, especially with public universities – classrooms aren’t the public square either. The government is providing services to the students, who have a reasonable expectation to get that service in a professional and non-hostile way, and government employees have HR rights. But the government should have a high standard for curtailing the speech of students, even when it’s offensive. I don’t know how to resolve those issues without someone’s rights getting squished. In the internet context, there was the recent case of folks on Jezebel who called on their employer to do a better job to shield them from the trolls they had to deal with as part of their jobs. http://www.slate.com/blogs/xx_factor/2014/08/11/jezebel_to_gawker_media_do_something_about_the_violent_rape_gifs_in_our.html

    The public square is where people have the choice to listen or to walk away.

  52. Brian Greenberg:

    “Creating another private space with anything approaching that reach has quite a high barrier to entry, indeed.”

    Meh. Facebook has 133 million users but that doesn’t mean all 133 million are going to see any one post or account. The aggregate user base is not the same as the reach of any one single account.

  53. fb is nothing like walking through the park and having to hear the preacher ranting through his megaphone, while I am within hearing distance (aka public sphere). It is much more like showing my cousin the door, when they start spouting non-sense in my home (aka private sphere).

  54. The U.S. gov’t publishes a comprehensive annotated guide to the Constitution: https://www.congress.gov/constitution-annotated/

    It’s a great resource for both lawyers and laypersons.

    Also, state laws may be more protective of speech than the U.S. Constitution requires. To answer specific questions about whether an entity must allow speech, you may need to look beyond the First Amendment (which is why, as Mr. Scalzi mentioned, some parts of privately owned shopping malls in California are treated as public free speech zones – see the discussion here: http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins ).

  55. It’s somewhat disingenuous to say “show me the law” when someone isn’t claiming a legal argument, and in fact they specifically note that the law would be “catching up.” You can discuss the moral, ethical, or philosophical implications of something without it being directly reducible to some statute or court case.

    It’s a fact that in the past we’ve decided that certain private companies are incorporated so entirely and essentially into how we communicate that it is necessary to apply to them the principles of free access and lack of content discrimination that are a large part of what we mean by “freedom of speech.” They’re called common carriers, and how that term gets applied has continuously evolved right up to the present day, leading to the recent net neutrality regulations. Before the new regulations there was no “law” that said Comcast couldn’t completely undermine net neutrality however it damn well pleased. “Show me the law that says they can’t do that,” not actually being a get-out-of-jail-free card, in no way shut down public support for net neutrality. Public support, of course, directly led to the law, in the form of reclassification, popping into existence after all.

    Could the same exact law be applied to Twitter, even in theory? Maybe not. At one point, though, there was no Communications Act, and someone back in 1934 could have given the same exact table-pounding “show me the law” reply, right up until they went and passed the law. So, you can argue that twitter isn’t essential, or universal, or important, or irreplaceable, or any number of reasons for why it doesn’t and won’t ever need the same treatment, but you can’t treat the status quo as if it were an actual argument, in and of itself. We have ample precedent for deciding that private companies are too important to be able to control how and what we communicate.

  56. endash2:

    “It’s somewhat disingenuous to say ‘show me the law’ when someone isn’t claiming a legal argument, and in fact they specifically note that the law would be ‘catching up.'”

    I don’t know about “disingenuous”. The assertion was made that these entities are blurring the lines between public and private; it’s perfectly appropriate to ask where in the law such a blurring is being made, because it would be particularly relevant. and also, whether those who own those spaces would agree that this blurring is taking place. That a legal argument wasn’t being made doe not preclude me from asking about the potential legal aspects. It’s not disingenuous, it’s merely pointing out that the assertion is just that — an assertion, without legal weight or standing. Also, of course, I noted I don’t believe the law needs to “catch up,” in part because I disagree with the validity of the assertion.

    I’m not entirely sure we’re disagreeing here; we may be taking separate paths to a similar conclusion. I don’t think it’s impossible that social media outlets like Twitter/Facebook/etc are eventually judged to be public goods. But I don’t see the companies themselves jumping to make that argument, and I don’t see much support for in a general sense. It’s not necessary, for one, when so many other options for getting one’s self online exist. In a dystopic future when all social media is owned by Facebook? Possibly. We’re not anywhere near that.

  57. @snickle – they did offer me the option of using a recording pen, but I’d used one in undergrad and the quality is such that I’d have to be sitting right next to the professor to get anything I was capable of parsing later. Basically my hearing was so reduced as a kid that some of the speech parsing centers didn’t get enough stimulation *shrugs* The scar tissue from the ear tube surgeries didn’t help, either. But in a crowded classroom setting, where there’s background noise and the professor is having to talk over everyone, I sort of need notes to help follow along. I’m fine if they don’t go too fast and I can read lips, but honestly, I parse text so much faster than speech that just having like a ‘topics we’re going to cover today’ or a slide printout really helps me understand the material. But yeah, disability services here sucks. Like, ‘debating filing an ADA complaint’ sucks – they have a mobility shuttle for people in wheelchairs/crutches, but they have stated that they have no obligation to get students to/from class on time, and students have to accept that. My roommate has Ehlers-Danlos and cannot get to/from the vet school and central campus without the shuttle, and half the time it’s late or doesn’t show up. I’m glad I’m mostly good with working things out between professors – I’d hate to see how SDSS would mess up my requests if I tried again.

    Also, anyone who thinks there’s free speech in a family unit must’ve grown up in a radically different family than mine. Every family has a list of Things We Do Not Discuss (politics, religion, alcohol consumption, the sexuality of family members and people’s Views on “those people”, certain scientific topics) – most families run not on free speech, but on a polite veneer of denial and deliberate avoidance of certain topics. Or else my family was significantly more messed up than the norm in this regard (entirely possible)

  58. @John Scalzi

    I suspect we both read the letter differently, although from your last paragraph it seems we did end up in the same place, after all. Which is to say that there’s nothing in principle to say FB/Twitter won’t eventually get the FCC treatment, but we’re nowhere near that yet, if we’ll ever be. (Myspace! Friendster!)

    As for the question itself, I read that part of the letter as simply a rather clumsy misappropriation of legal terms to describe something not intended legally at all. The key word actually being “feels” rather than “public forum” or whatnot. This would be a typical case of a lay person using terms of art in a casual and confusing manner. I think this is supported by the “catch up” part of the question, which is an acknowledgement that at least as it stands the law doesn’t treat twitter or facebook any differently. It’s possible the writer was looking for an inexact legal analysis from someone with no legal training (I think? correct me if I’m wrong), but the more likely reading is that the writer is anxious about the possibility of a situation where we technically have free speech, but with all speech filtered through giant corporations which are free to impose any restrictions it desires.

    My reading could be wrong, though, and admittedly is the more generous, avoiding as it does the attribution of any bogus legal mumbo jumbo argument to the writer.

  59. (Sorry if I appear to be comment spamming, I have trouble leaving any point unelaborated upon)

    My above paraphrase of the FB/Twitter part of the question is actually quite awful and I’d probably phrase it differently if I could edit it. What follows ISN’T a better paraphrasing, but rather a partial description of how I interpreted and related to the question, take that for what you will.

    There’s a very real anxiety at play here, around the fact that as more and more social interaction gets moved online, we’re shifting a significant chunk of our interactions with friends and family into a sphere firmly controlled by a private company. This goes counter to our intuitions, not only because the service is “free,” but because we never leave our homes, or even change technology: the same phone on one hand connects us to a guaranteed neutral network, and on the other to Facebook. For its part, Facebook does not discourage the common view of Facebook as just another communications tool. All Facebook has to do is say and do nothing and let people’s trusting nature and preconceptions guided by historical experience make them comfortable.

    From a human perspective the transformation from sitting in the same room, talking over the phone, or mailing photos to interacting over Facebook doesn’t seem to make a difference at all. It’s just one more new, convenient technology in a long chain of them. Except that appearances and feelings are deceiving: Facebook is not like a phone company, and can do anything from selectively blocking certain terms all the way up to deleting your account without any warning. Their “experiment” showing whether status messages could affect mood or not is a perfect example of the sort of leverage people are handing over. They could do this at a low level continuously, or they could not do anything at all for 20 years and then decide to start flexing their muscle overnight. Current behaviour is no guarantee of future behaviour.

    Even if Facebook never achieves monopoly status, it could still capture a large enough share of electronic communication to have outsized ability to influence people. And while use is completely voluntary, mere voluntariness has never been a justification for a corporation acting in ways contrary to the public interest. There are other justifications, of course, but in many ways we do protect users/customers from being taken advantage of via their own disinterestedness.

    So, if you accept the premises that (1) social networking is gaining or has the potential to gain outsized control over our communications, (2) this runs counter to our historical norms of protecting neutral communication in practice as well as in theory and (3) there are important elements in this case that aren’t anticipated by current law (e.g, science experiments being run on users), then it does make a lot of sense to ask whether our laws need updating in order to ensure the continuation of norms that we still take completely for granted.

    I think this is a reasonable position for someone to be in and to begin to reason from, which doesn’t bring public forums or whatever into the picture at all. Clearly, it’s not what the writer was asking, if only because it’s at least 10 times as long. And, hey, the writer might have gotten a post deleted by Facebook support and just wants to gin up a quasilegal justification for being outraged. I couldn’t say for sure that isn’t the case.

  60. ” People, and on the Internet particularly, often seem to take their concept and definition of “free speech” from United States constitutional norms, but, strangely enough, no country in the world is actually bound to the United States constitution but the United States. This is a state of affairs that often appears to confuse people.”

    Speaking as an Australian… tell me about it! Having to explain to my fellow countrymen (at times) that “no, we don’t have the same rights as people in the USA” can get just a little bit frustrating. Mind you, I’m sure our police are much more annoyed by this apparent confusion of boundaries, since they probably get asked repeatedly why they’re not giving people their “Miranda” warning properly… and having to explain over and over again Australia is a different country to the USA, and the rules change. (And no, the “formal caution” you heard on “The Bill” isn’t right either – we became a different nation to the UK back in 1901).

    That said, I think at least part of the problem a lot of people have with the concept of “free speech” is they’re ignorant of the wider historical context. An example of what free speech laws were put in place to prevent happened recently in the Netherlands – someone has been arrested, and faces jail, for the crime of “lese-majesty”, or “insulting the dignity of the king”. (This is in a nation which is not overly monarchical, and is very pro-freedom-of-speech overall). Basically, it used to be that if you insulted the dignity of the monarch by (for example) criticising their decisions (even within the privacy of your own home) and the monarch or the monarch’s representatives heard about it, you could be fined, imprisoned, have your title (if you had one) removed, or even be judicially tortured and/or murdered, if you had a sufficiently bloody-minded and petty monarch. As systems moved from absolute monarchies to mediated systems such as parliamentary systems, or outright republics, a lot of governments wanted to keep the right of lese-majesty – and the concurrent freedom from criticism it entailed.

    What the US first amendment guarantees in effect is that if you disagree with your government, and say so in private or in public, you cannot be arrested, fined, or jailed for this. If you think your member of Congress or State Senator is a pompous windbag who’s only in it for the money, you can say that and not be arrested for it (you may face charges of libel or slander, depending on your medium of expressing those thoughts, but that’s another matter).

    On the issue of censorship, well, I speak as someone who lives in a country with a very active and present censorship board. Film and Literature coming into this country is actually censored (as are video games, hence my ongoing frustration with Steam’s lovely “oops, we recommended something we’re not legally allowed to sell you because of where you live” message in my recommendation queue) in the sense of “the government makes a decision as to whether or not something is legally allowed to be sold here”. Now, mostly the “censorship” as such consists of rating things like film and video games to give an idea of the approximate age ranges which should be permitted to play them. However, until very recently, Australian censorship rules forbade the sale or import of any game which could be rated R (our highest rating level for general productions, usually reserved for stuff with either excessive violence or actual full-frontal nudity, or both). This meant we actually missed out on certain games because the designers or marketers weren’t willing to make the required alterations to their product to bring it down to MA15+ (the highest rating which could be imported and sold here).

    When “American Psycho” was first released, it was required to be sold in a plastic wrapper. Magazines with too much “adult” content are required to be sold wrapped as well. This is actually an improvement – when “Lady Chatterley’s Lover” first came out, it wasn’t actually allowed to be imported (too risqué!).

    We don’t actually have government censorship of the media here in Australia – what we have instead is over 70% of our nation’s media being owned by a single entity (News Corporation) and the rest being split up between about half a dozen powerful families. So we don’t need government control to hide certain ideas, notions, people and concepts from the public notice – it can largely be done by our commercial media deciding that not publishing them is a commercial advantage. (Which is, incidentally, why I love the side-effect of the internet – the growth of free online media outlets offering alternative takes on what’s important. Means I can give up on the newspapers and the television and radio news, most of which is either advertising or propaganda anyway).

  61. The public college/university thing has all kinds of interesting quandaries. It’s a public institution, so it shouldn’t restrict speech at all, yet public campuses do have rules and restrictions about what can be said, and most especially where and when and how certain things can be said. A student can’t stand up in the middle of a class, for instance, and start spouting their views out of turn, especially when they are interrupting a class activity and/or have no bearing on the course content. And most public universities do have rules about sexual harassment and hate speech on campus, even when someone argues that their opinions about a group of people or about the appearance of a woman’s breasts should be protected free speech. The line is sometimes blurry, but there are indeed limits to what some people would call free speech in academic settings.

  62. I then it does make a lot of sense to ask whether our laws need updating in order to ensure the continuation of norms that we still take completely for granted

    Meaning, what, exactly? That private companies like Facebook or Twitter should be turned into utilities by government fiat, or that First Amendment jurisprudence should change what a public forum is? I mean, I see a lot of vague generalities being thrown around here – legal recourse, continuation of norms – but not much more than a general, kind of hand-wavy sense that it would be a Problem For Free Speech if those private companies chose to restrict speech, and so something legal-y ought to be done about it.

    Specifically, why should the laws be updated, and in what manner should they be updated? If we are talking about the potential for lawsuits, then on what basis would those lawsuits be filed? (As I’m sure you know, you can’t just sue people for doing stuff you don’t like; there must be a basis for the suit. “Didn’t let me post about Hillary Clinton” is probably not actionable.)

    Speaking of disingenuous, it’s more than a little so to start a discussion that ventures into legal waters, and then sneer at someone for ‘pounding the table’ with law as an angry retort to having one’s legal acumen questioned.

  63. @megpie, the mass media in the US suffers from the same constraints of ownership in about the same number of hands, although ol’ Rupe still owns less than 70%. But as the money here is so much greater, and he can basically make or break 50% of the politicians in the country, he’s all “EXXXXXXXCELLENT”, which is why he dumped your citizenship.

    But by golly, we still got sex and violence in our entertainment. USA! Although the naughty magazines are all wrapped up in plastic here too… whatever naughty magazines are still being sold, because who needs Playboy when you’ve got the internet? You couldn’t sell unexpurgated “Lady C’s Lover” in the US till about 1960 either. Still can’t curse or show full frontal nudity on free TV. But plenty of videogame fun. And tentacle porn.

  64. The USA’s First Amendment, and the US federal laws derived from it, only protect a person’s right to expression from government interference.

    It’s a very American – and libertarian – take on “rights”. Sure the govt can’t stick you in jail for expressing your beliefs in the USA. But your boss can fire you for expressing them (of course someone may give a state with a counter-example of that – sweeping statements about US law being tricky).

    Most other democractic western countries have a different view about rights. In most european countries your boss couldn’t fire you for expressing your political or religious beliefs because their laws guarantee you free speech. Etc.

    The problem is that if you really want the govt to robustly protect your rights – to give you a right to Free Speech that actually leaves a normal person free to express your beliefs – the only way to do that is if they start limiting the rights of others (their right to fire you because they don’t like your politics, for example).

  65. @endash2: You made very much the same points I was planning to. The OP said:

    I don’t think the law needs to “catch up” to this in any way; I’m not a proponent of the government nationalizing Twitter, or Facebook, or, well, my blog.

    This is a strawman. There is no serious prospect that all websites will be “nationalized”. But they can be, and are, regulated.

    An example is the “right to be forgotten” ruling by the European Court of Justice. A lengthy but interesting discussion of the judgement is here: http://www.theguardian.com/technology/2015/feb/18/the-right-be-forgotten-google-search

    Basically, individuals can ask to have stories about themselves removed from Google and other search engines, subject to various legal caveats. If Google chooses to stamp its foot and say, “I’m a privately owned business, you can’t tell me what to do,” it will not impress the European regulatory authorities.

    When websites reach the size of Google or Facebook, it’s reasonable to discuss how much their freedom of action should be constrained in the public interest. It’s pointless to say, “the law doesn’t need to catch up.” The law will evolve and adapt to this new sphere of activity, whether Mr. Scalzi wants it to or not.

  66. BTW John, I agree with almost everything else in the OP. I just think you’re mistaken on the issue of regulating websites. When you say “show me the law,” in many cases there is no law. But one day there will be, because we are talking about billion-dollar businesses here, and legislation and court rulings will grow up to cover their activity.

    A much more interesting question is what the law should look like. If you want to argue for absolute hands-off treatment of companies like Google and Facebook, that’s fair enough. But there are respectable counterarguments to that position and we don’t know how the law will eventually develop.

  67. There have been free speech arguments about Facebook and Instagram that have nothing to do with racism and other ‘isms. For example, I remember there being a kerfluffle about showing women’s breasts – specifically a woman breastfeeding and a woman showing her post mastectomy chest. These were censored based on Facebook’s terms of service against nudity.

    Many people (IMO rightly) objected to this. This could certainly be seen as a free speech issue. These large websites do control a good bit of what we see, and their decisions can effct who gets a voice. While there is no First Amendment protection against Facebook, there is room for a worthy debate on the principles guiding their censorship.

  68. @Geekhyena, I wasn’t thinking in terms of your situation, which is more of an “accommodation” issue than a “free speech’ one, and I’m sorry that you had a professor react badly. In this context, is that professor’s reaction “free speech”? Maybe, but it effects your ability to receive the education you are paying for and hurts your ability to participate in the class by adding your own speech to the discussion.

    Many of us don’t mind making accommodations for others, especially when the cost is low. Trigger warnings are an example of this, a minor thing that makes it easier for others to navigate their own participation. But I know people who don’t want to accommodate anything ever, and I also know some more reasonable folks who feel like they’re being asked to accommodate too much. I’ve also run into some people online who use the language of accommodation to refuse to accommodate others.

    As Gemmer said, FB/Twitter/Instagram keep having to police their brands with what they’ll allow to be shown, such as the bright line against nudity (it’s for the children!) running up against promoting breast feeding (it’s for the children!). But content seems to still be more free than the days of print, where the editors had even more control.

    The romantic in me likes for rights to be absolute, and for lines to be bright. But then I drink my coffee, look at the real world, and realize that it’s all a balance.

  69. If Google chooses to stamp its foot and say, “I’m a privately owned business, you can’t tell me what to do,” it will not impress the European regulatory authorities.

    That won’t impress US authorities, either, in that privately-owned businesses in the US are subject to all sorts of regulations; but the example you gave is perhaps not helpful to the idea that large internet sites ought to be nudged into a of free-speech utility or public square by government action. The European regulatory authorities are forcing Google to prevent speech, not allow it; in other words, it’s the government being allowed to do things (ban or limit speech) that the Free Speech Clause wouldn’t permit in the US. That doesn’t translate reflexively into, therefore, the government can also force Facebook to allow you to say whatever you like.

    So what should “the law” look like, in the sense of a law prohibiting (say) Twitter from deciding that posts making fun of Chris Christie violate its TOS?

    On a slightly related note, the ‘free speech for me but not thee’ principle many have mentioned was well-described at Popehat as the Preferred First Speaker Doctrine.

  70. Also, to take it to the extreme, there was recently another murder in Bangladesh about an atheist blogger. This is the third such murder. The murders are apparently motivated on suppressing the speech espousing atheism. While this is a terrible thing, if you take the position that free speech isn’t important unless the government is doing the suppressing, then this isn’t an important free speech issue, just another murder among the many murders that occur each day.

  71. The murders are apparently motivated on suppressing the speech espousing atheism

    So, a hate crime? In the US, labeling it such, and suggesting that it is, and therefore should be treated more harshly than “just another murder” is likely to put you in the crosshairs of those who are vocal advocates of free speech and consider such to be criminalizing thought and freedom.

    Happily, nobody here appears to be arguing that “free speech isn’t important unless the government is doing the suppressing”. Is there a such thing as a strawhobbyhorse?

  72. Well, John, I’m glad to see you’re standing up for free speech. Unlike a lot of lefties and some righties (damn O’Reilly and his Rockerfeller ideals) won’t.

  73. So, a hate crime? In the US, labeling it such, and suggesting that it is, and therefore should be treated more harshly than “just another murder” is likely to put you in the crosshairs of those who are vocal advocates of free speech and consider such to be criminalizing thought and freedom.

    Perhaps, perhaps not, depending on the hate crime law and whether it could apply to atheists. Governments which specialize in infringing on the rights of atheists probably aren’t inclined to call such a thing a hate crime. Neither are the majority of the people in those countries, who will be happy to go with the status quo so long as the government doesn’t infringe on their rights, nor will they have a ton to fear from minorities who don’t have the political capital to get their viewpoint across seriously.

  74. @mythago: I realise the “right to be forgotten” is not an exact analogy, but it is an example of government regulating online content. Whether regulation takes the form of “you must remove this content” or “you must not remove some other content”, the principle is similar.

    Why do we protect free speech at all? Because individuals, and society as a whole, benefit from free discussion of ideas. The Internet gives us the power to share ideas more easily than ever before.

    Most of that idea-sharing is mediated through companies such as Google, Facebook, Twitter, etc. These are not neutral platforms; they are corporations whose business model depends on exposing us, the users, to content which generates advertising revenue. Facebook (probably) doesn’t ban nudity because Mark Zuckerberg thinks it’s icky; it does so in order to maximize revenue.

    At some point, the business model may come into conflict with the free speech rights of individuals, or the broader well-being of society.

    An analogy with banks may be helpful. In theory, I’m not compelled to use any particular bank. I can take my money elsewhere, or keep it in cash under the mattress. In practice, it’s very difficult to function in modern society without a credit card and other banking facilities, so effectively I have to use a bank. Moreover, banks have the opportunity to screw over their customers in all sorts of ways which may not be apparent until it’s too late. Therefore, they are closely regulated by government.

    By the same token, if you boycott the major social media companies, then in practice your ability to participate in the exchange of ideas is severely constrained. A lot of important discussions occur primarily, or solely, on social media. This gives internet companies a great deal of power which for now is largely unregulated. I Am Not A Lawyer, but I think that may have to change.

  75. And just to clog up the thread a bit more – I’m curious as to what many think of this stuff about Saida Grundy, a professor about to start at Boston University. She said some definitely offensive but also definitely provocative things about white people, things I think need to be said. Boston University (a private institution) initially said it respects her free speech rights, but after a deluge of complaints, especially from wealthy white people with money, they seem to be changing their tune, as of course they are “deeply saddened” and whatnot.

    So, is this a free speech issue? Or a market issue?

  76. @Iain Roberts: I’m not sure what “the principle is similar” means in this context. In one case, the government is changing the character of a formerly private forum so that it has the broader rules of a public forum. In the other, the government is actively censoring and prohibiting certain kinds of speech. The latter has First Amendment implications that the former absolutely does not.

    The analogy to banks does not work, because there is no clause in the Bill of Rights guaranteeing your right to use a Visa card. It also doesn’t work on a practical level in a world where anyone can come up with and promote the next social media app. It’s a hell of a lot easier to create and spread YikYak or Whatsapp or Ello than it is to found a bank – and, ironically, that is so in large part because banks are so heavily regulated.

    The argument about social media seems to be “yeah, but your chat app won’t be as popular as Facebook”. Yes, and my blog isn’t going to be as popular as Scalzi’s, either. That’s not an argument to force Scalzi to allow speech that I would allow on my blog that he wouldn’t.

    So, again, I keep seeing these arguments about how it’s a problem that Facebook or Twitter have so much of our social media attention, and how much of a problem it would be if those companies suddenly decided to exercise their censoring muscles even further than they already do: but I’m not seeing any solutions, other than, well maybe the government should [do something] to turn Facebook into a town square. And I don’t see 1) how you get there, legally speaking, and 2) how you get there without telling Scalzi, also, that he has to permanently stow the Mallet.

  77. @mythago: Intentionally or not, you (and Scalzi) seem to be conflating individual free speech rights with corporate rights.

    Whatever is Scalzi’s own personal website. On it, he can publish (or not publish) anything he wants (excluding libel, incitement to violence, and the like). No reasonable person disputes that.

    Facebook is not Mark Zuckerberg’s own personal website. It is a corporation with thousands of employees, hundreds of thousands of paying advertisers, hundreds of millions of users, and market capitalization $217 bn (at the time of writing).

    Individual Facebook employees have a right to free speech. If Zuckerberg sets up his very own website campaigning for him to be elected President, or have his face carved on Mount Rushmore, or have San Francisco renamed Zuckerberg City, fine. He’s totally within his rights. That doesn’t mean he can or should be able to direct Facebook to back him (assuming he could persuade the other shareholders to go along with it).

    Facebook, the corporate entity, does not necessarily have any such right. It is entirely possible to regulate online corporations above a certain size, without applying that regulation to individuals. (It might not happen for political reasons, but that’s an entirely separate issue.) The right-to-be-forgotten ruling does exactly that — it applies to search engines, but not to the individual content publishers.

  78. It *used* to be that if a person used a phone booth, that the cops didn’t need to get a warrant because it wasn’t technically the person’s private property or some such thing.
    Katz v. United States changed that. (and of course, now the Patriot Act seems to have rendered that whole issue moot). But hte point being, constitutional ideas such as free speech and search and seizure have changed as technology changed.

    So just because the law doesn’t say its a free speech thing, doesn’t mean that it should be the end of the conversation.

  79. I have serious reservations that merely spending money is the same as speech, so I’m not 100% in love with Citizen’s United, either.

    The obvious reductio ad absurdum for “money equals speech”:
    Mega Corporation is pleased to announce a gift of $1,000,000 to each and every legislator who chooses to vote in favor of the proposed Think of the Puppies! Act of 2020. Because Freedom!

    I mean, they’re just pre-announcing their “thank you” notes. Right?

    On a different point, the “private” versus “public” discussion hasn’t dredged up the phrase “public accommodation” yet (or I missed it). A “public accommodation” is a private space, such as a restaurant open to the public, that legally may not enact regulations in very narrow ways, such as by denying entry due to race or gender, while still allowing other arbitrary forms of regulation, such as enforcing a dress code. Without having a very informed clue on this area of the law, I nonetheless suspect that most or all web-based businesses are now “public accommodations” while many or most non-business websites are not; Stormfront can restrict participation as it pleases, but Facebook can’t restrict in certain narrow ways. (While many businesses would of course be insane to test this, I suspect we’ll see a clash between a “Christian business” and some member of a newly protected class before too long, at least on the state level.) Our host could at any time start demanding a valid SJW card before allowing commenting, since SJW isn’t yet a protected class. (Reminds me, I need to send in my renewal.)

  80. I find this discussion particularly interesting in light of the comments directed towards Michelle Obama regarding her commencement address at Tuskegee University this past weekend. It is mind blowing to me that these people did not protest when Rodner Figueroa compared the FLOTUS to an ape, but they are incensed that she would discuss the racist treatment she has endured in her six years in the White House.

    It could be me, but it seems like Twitter and Facebook have allowed a lot of previously quiet assholes to spew their venom all over the place while hiding behind the anonymity of their computer screens. Yeah, the free speech amendment covers a multitude of sins.

  81. @Basil Forthrightly: Very interesting, and I think it speaks to the reason why internet giants should be regulated.

    The problem with a restaurant excluding black people is not just that it makes it more inconvenient for them to get food. The problem is that it unfairly constrains their ability to participate in the social life of the community. The same applies to bars, coffee shops, sports clubs, and so on.

    You could make a very strong argument that, say, Facebook’s position in the community is *at least* as dominant as that of a restaurant in a small town. Accordingly, it should be constrained in its ability to dictate what users can or cannot publish on its website.

    Of course there will be edge cases and problems of definition, but that’s why we have lawyers.

  82. One more thing. Way back in the OP:

    My second response would be “have you asked Twitter/Facebook/etc what they think?” Because I’m reasonably certain that their corporate lawyers would mount a pretty robust argument that they are, in fact, private entities rather than a public good or utility. Their lives become immensely more complicated if they are judged the latter.

    Giant corporations want to be allowed to do anything they want. That is not surprising. I don’t consider it much of an argument.

    My counter-argument is that public policy should be based on considerations other than what giant corporations find convenient. In this day and age it might mark me out as a dangerous leftist radical, but there you have it.

  83. Another, other thing, and apologies for the comment spam.

    In the OP and comments above, John Scalzi sounds like a stereotypical gun nut: “You can have my Mallet when you pry it from my cold, dead hands!”

    John, nobody is going to take your Mallet. But some of us are concerned about the vast arsenals of mallets, blades, catapults, and big heavy things with spikes wielded by the likes of Facebook.

  84. @Iain Roberts

    Except that a restaurant denying service to POC falls under anti-discrimination legislation, not free speech. If Facebook tried to deny service to POC, they’d run into the same problem.

    This is more akin to a restaurant deciding that the street preacher who usually stands in the square, but is now inside railing at customers isn’t welcome and asking him to leave if he won’t shut up.

  85. @Katherine V.

    If a user is actively harassing or disrupting other users, that’s one thing. But Facebook reserves the right to arbitrarily ban any content it dislikes. This is more like a restaurant asking a customer to leave, because he is having a conversation at normal volume and the management disagrees with his opinions.

  86. @Iain Roberts

    But that’s still legal. If the restaurant denied service to a POC because they’re a POC, then that’s illegal. But asking a customer to leave because they don’t like what they’re wearing or saying is perfectly legal.

  87. @Katherine V.

    I know it’s legal. The more interesting question is whether it should be legal for companies like Facebook to do this, given the amount of power it places in their hands. Under the “Facebook = Public Utility” argument, maybe it shouldn’t be.

  88. Perhaps I’m misinterpreting scalzi’s thoughts. What if we apply this reasoning to someone like Galileo. Should he have made his opinions public when he knew they would enrage a major religion and almost certainly provoke violence or his own death?
    The freedom riders knew their activities in the South would incite violence and murder from the majority, should they have continued? I’m certain most of us would agree with their causes. But why would you support only the ‘assholes’ you agree with?

  89. @Iain Roberts

    I really don’t see the argument for Facebook as a public utility. By their very nature, public utilities have a very high barrier to entry (like internet service providers, electricity providers, etc.). Regulations, high levels of technical expertise, land, raw materials, permitting requirements, etc. etc. etc. These all take lots of time and (more importantly) a shit ton of money to accomplish. Which is why one of the only new major players in the ISP market is Google–because they’re one of the few companies big enough to have the resources to do it.

    Social media platforms have a pretty low barrier to entry. Yes, they’re not all popular, but it’s not hard to create them. All you need is a competent programmer and a server. There’s a reason there are so many of them.

  90. @Katherine V

    Social networking has very low barriers to entry. This is not so for social networking on the scale of Facebook. Their website does not run off a single server in somebody’s spare bedroom.

    Facebook’s major asset is the size of its user base. Why are you unlikely to move from Facebook to Shiny New Social Network? Because SNSN has much less utility unless you can persuade your 300 Facebook friends to also move to SNSN.

    Moreover, Facebook has very deep pockets and will do its best to crush any upstart SNSN competition. That includes, but is not limited to, lobbying lawmakers or simply buying out SNSN with an offer its creators can’t refuse.

    To be clear, Facebook has every right to do this. But it’s still an 800 pound gorilla. This raises distinct regulatory issues, in the same way that regulating Citibank is more difficult and complex than regulating the First State Bank of Punxsutawney, PA.

    Similar considerations apply to other online giants such as Twitter, Google, Apple, Amazon, etc.

  91. John, based on what you wrote about speech I’m curious what your thoughts are on the people who cite religious freedom as the reason they want to refuse service to LBGT weddings. Particularly the cake and catering controversies that have come up recently. I’m conflicted by it

    1. I don’t know if we should force people who own a company to do something, but
    2. It seems stupid to me that you would refuse a customer that wants your product

    It seems like there’s a conflict here between liberty/freedom and equality and the obvious parallel is refusing service based on race or whatever other stupid requirement. I’m curious to hear your thoughts.

  92. @Iain Roberts

    Except that what you’re describing is not a high barrier to entry, but a high market share by a competitor. Sure, most new social networks won’t succeed on the level of Facebook, but that doesn’t mean that they can’t try. Twitter started out as a shiny new social network. Hell, so did Facebook in the era of MySpace.

    High barriers to entry mean that new businesses in that sector can’t even get started, not that they can’t succeed (or aren’t likely to on a large scale) due to overwhelming marketing share by a competitor. Those are fundamentally different concepts.

    Expanding the notion of public utility to any sector with low barriers to entry, but an overwhelming market share by a competitor effectively dilutes the meaning of the term to nothing. Operating systems on personal devices? Public utility. Search engine? Public utility. Paypal? Public utility.

    You might be right that Facebook deserves some regulation on what speech it can and cannot suppress due to its overwhelming size (I don’t think you are, but that’s neither here nor there for this discussion). However, trying to frame Facebook as a public utility doesn’t stand up to scrutiny. It’s nothing like other public utilities, except for size/influence and size/influence isn’t something unique to utilities. It’s part of it, but there’s so much more going on there–like barriers to entry–that Facebook really doesn’t match.

  93. @Katherine V

    I’m not convinced. I think Facebook’s size, importance and market share does qualify it for a higher degree of regulation. It would be analagous to, but not the same as, regulation applied to banks and utility companies.

    The alternative is to take a laissez-faire approach, and assume that capitalism will somehow make everything all right. We have seen how well that worked in the financial sector.

  94. Incidentally, a single company with overwhelming market share also brings antitrust/monopoly considerations into play. We have seen exactly that with, yes, personal computer operating systems in the case of Microsoft.

  95. @Iain Roberts

    Except that’s not what you were saying above. You literally said “under the ‘Facebook = Public Utility’ argument”. Facebook isn’t anything like a public utility or a bank in most of the ways that matter, so you really shouldn’t compare them at all.

    You’re welcome to say that you think Facebook has too much influence, so should be regulated. But comparing Facebook to entities that it’s nothing like is disingenuous and seriously dilutes your argument. Let it stand on it’s own. I disagree with it, but it’s a strong one. If you want to compare Facebook to something, it should be:

    “Facebook is very influential in what information gets disseminated and what we know about private individuals–like Google. Let governments regulate content and privacy settings on Facebook to a similar degree that they do Google and other search engines. This means little in the US, but European courts have been very active on this issue.”

  96. @Katherine V

    Good grief. It’s not necessary to put words in my mouth.

    Facebook = Public Utility is a goddamned metaphor. I never said the laws which regulate the electric company literally apply to Facebook without any modification. That would be idiotic.

    Facebook is not a bank, not an electricity supplier, not a telecoms company, not a television station, not a physical meeting space. But by analogy to these things we can see that Facebook’s size and importance may require additional regulation. Similar considerations apply to Google, Amazon, and other Internet giants.

    Is that clear?

  97. @Iain Roberts

    Yes it’s clear. What I’m saying is that it’s a really bad analogy because they don’t share any of the same characteristics. I didn’t think you meant it literally, but I still don’t think it’s an appropriate metaphor because they literally share nothing in common but size and influence. That’s not enough.

    Furthermore, there’s are some truly fundamental differences between public utilities and other large, influential companies. For example (in addition to the others furnished above, like barriers to entry), public utilities are by their nature, state-sponsored (or at least sanctioned) monopolies. Upthread, however, you discuss the antitrust implications of large companies like Google and Facebook. These are fundamental, opposing concepts that make your metaphor/analogy/whatever nonsensical and flawed.

    Basically, use a different metaphor because this one sucks on so many levels.

    (Also, I was trying to have a civil discussion with you and then you started swearing and being rude. That was really unnecessary and something I’ve noticed guys doing when they don’t like being told they’re wrong by women. Stop it.)

  98. There seems to be a bit of misunderstanding about what Citizen’s United was about. It was not about corporations donating to candidates, that is still illegal.

    It is about the right of ALL associations of persons to free speech, including advocating for or against political candidates. Prior to this, powerful unions and even more powerful media corporations were allowed free speech, but ordinary people or associations of people or businesspeople could not. Why should the media or unions be the only associations to have free speech protected? Particularly the unions, which at the time, could take your dues and support candidates to which you were opposed?

    I don’t know about you, but giving coercive enterprises such as unions, unlimited money and political power kinda goes against my libertarian sensibilities, but that’s just me, I wouldn’t join an association like that if my life depended on it.

Comments are closed.