Tag: free speech

AIER: Explaining Free Speech to the Twitterati

In Explaining Free Speech to the Twitterati, Max Borders at the American Institute for Economic Research writes about free speech and free speech on private property. If someone holds up their private property as a public forum, should they be held to respect free speech, including free speech that the owner doesn’t like? Additionally, just because the US Constitution is a limitation on government, does that mean that the concept of free speech holds no moral suasion against private individuals?

Reason and free enquiry are the only effectual agents against error. … Reason and persuasion are the only practicable instruments. To make way for these, free enquiry must be indulged; and how can we wish others to indulge it while we refuse it ourselves.

– Thomas Jefferson, from Notes on the State of Virginia

If ever you were wondering about free speech, you could turn to Twitter. The Twitterati will tell you everything you need to know about free speech and what it means in 280 characters or less. 

First, they will tell you that free speech has nothing to do with anything that happens on Twitter because Twitter is a private company. 

Private companies may control speech as they wish “ya dopes” because the Constitution only protects citizens from censorship by the U.S. government. 

Got that? 

Free speech has been reduced to 45 words. And if you are not a U.S. citizen, those words don’t apply.

Then, they will tell you that critics of private companies like Twitter are, therefore, not only out of bounds but that free speech concerns are an affront to freedom of association (and therefore also disassociation). 


From this, you might think that apologists for digital lynch mobs and private censorship have been worshipping at the altar of libertarian brutalism. Though technically accurate in Abstractionland, narrow construals of free speech overlook more than a few essential points. 

Free Speech: Letter and Spirit

In the United States, it is true that the First Amendment only protects people from government censorship. It is also true that private property rights trump free speech. Property owners generally make the rules about speech on their property, and those rules can be illiberal, arbitrary, and grossly unfair as long as the government is not involved in setting those policies. (The latter point is an important qualifier to which we’ll return).

But the thing about free speech is it has a letter and a spirit, which the Founders understood. 

So, apparently, does Elon Musk.

The letter is the law, but the spirit transcends the law among conscientious people. And Musk is one of them. He just bought the largest stake in Twitter, which will surely test the Twitterati.

But according to liberals such as John Stuart Mill, we ought to practice speech toleration even in private settings. The ought here is moral, not legal. If one objects to censorship or suppression on private platforms, she appeals to the spirit of free speech, which differs from the First Amendment. One can and should apply moral suasion beyond a strict legal doctrine. We do it all the time. Sure, some people get confused about the difference, but some free speech “scolds” are simply appealing to an established liberal doctrine, which we call toleration.

By analogy, let’s imagine that the same brutalist libertarian criteria applied to people living in the Jim Crow South. Regarding the law, one can agree that property rights and freedom of association should always trump free speech in private settings. So when a racist denies entry to a person of another race, solely because of his race, one might argue that is wrong. To forbid an innocent human being from sitting at a lunch counter or attending a university, even if the owner’s decision comports with a principle of property rights and freedom of association, would still be wrong. That’s because discrimination based solely on race is wrong under most liberal ethics. So if Adam Bates (referenced above) is determined to protect “freedom of association,” but refers to anyone who evokes the spirit of free speech as “scolds,” he must also be prepared by his own narrow rationale, to defend the racist owner of the lunch counter in our example. 

Good luck with that.

By Twitterati logic, anything goes as long as it’s legal, and if it’s legal, you should just shut the eff up. But that sort of thinking excludes too many extra-political and extra-legal standards and practices that give rise to peace and progress. 

The Atlantic’s Conor Friedersdorf tries mightily to find the spirit of free speech among the free-speech reductionists.

Friedersdorf got a number of dismissive responses including this, from someone I generally respect and consider a liberal:

Therefore, the idea that “consequence cultures” has, and ought to have, no limiting principle at all, nothing that checks it, questions it, or stands in its way–according to reductionists. Not even the greatest Enlightenment liberals offer anything of substance to the conversation because they appeal to points on spectra that don’t exist.

What a godawful failure of imagination. 

The “consequences” of consequence culture can therefore be completely arbitrary – the contrivances of a mob or any illiberal march through the institutions – as long as they do their job. That job is to contrive “consequences” that push people into submission, subjection, or silence.

Too many people are “basically okay with that,” which is one reason discourse has turned to shit, not to mention much of social media. I suspect those who tolerate such intolerance enjoy watching Twitterati team sports more than they seek understanding or strive to uphold any principles essential to community life outside The Church of State.

Those who think they have some sort of gotcha when it comes to this two-step about “private companies” might be Brutalist Libertarians, Regime Leftists, or something in between — but they don’t seem to be liberals. To be a liberal, after all, is to think that the best antidote to bad opinion or “misinformation” is higher-quality speech and evidence that tracks truth and respects discourse norms. Liberals seek to protect speech in both spirit and letter to a greater extent, even if such protections can never yield perfect outcomes. The discursive process generally creates better outcomes over time. 

In the domain of morality – which is distinct from politics or law – people have to practice it together for community to form and strengthen. Toleration is a moral practice. It’s no wonder that beltway types never seem to appreciate that. Washington is a cesspit where good opinion is about whom you know and what you’re trying to get out of them. Twitter is just Washington’s domination discourse extended to the centralized internet. In other words, it’s politics all the way down. The moral fibers that help weave people together in community and collective intelligence might as well be dental floss among the purveyors of politics, policy and punditry.

But human progress depends on a dance of cooperation and competition rooted in discourse norms designed for people to track truth. As we have indicated, one such discourse norm is the practice of speech toleration. As Mill writes in On Liberty,

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

Now, I have a Jewish daughter. My appreciation of Mill doesn’t mean I’ll invite neo-Nazis into my home to say hurtful things to her, you know, out of some disproportionate sense of liberal toleration. 

I’m simply arguing we can all do better, even if there are no bright lines or points on a spectrum. For example, it is possible to have moderated platforms with far more liberal speech policies. The owners of said platforms ought to liberalize those policies, notwithstanding real threats from authorities. Likewise, individuals needn’t be so quick to press the block button when someone disagrees with them. Instead, they can try harder to use it with patience and discernment in a framework of liberal toleration. Why? At the very least, contact with diverse ideas, viewpoints, and opinions help one test and strengthen one’s position. 

Illiberalism Goes Viral

Mill’s insights have perhaps no more important application than in our effort to understand an evolving virus during a dangerous pandemic. School marms, censors, and public health authoritarians have too frequently sought to silence dissenting voices, mock alternatives, and belittle justifiable questions about any number of illiberal public health measures. And, ironically, they have also been the greatest purveyors of misinformation…(continues)

The American Mind: Terms of Servitude

The editors of The American Mind write about the chilling of online political speech in Terms of Servitude.

After January’s explosive drama, the battle for digital control of American life is now proceeding quietly, by soft degrees. The shock of 1/6 has morphed into a pretext for something still more consequential: a new phase of national crisis wherein corporations with strategic control over Americans’ communications enforce a creeping line of censorship against critics of the sitting regime. While online platforms claim only to be applying their terms of service in neutral fashion, those terms themselves stink of delegitimization. Once this shadow falls upon you and your account, you are as good as deactivated. You know this; you know they know this; they know you know they know it. Forced de facto to impose a precautionary principle on yourself, you “voluntarily” recoil well from the fuzzy line of unofficial censorship that advances far beyond the bright official line.

Already in March of 2020, Google had erased heterodox research on COVID-19. But things escalated rapidly when election season came in earnest. The New York Post was locked out of Twitter for breaking a story about Hunter Biden’s Chinese business ventures. The sitting president had his social media accounts shut down entirely. Twitter competitor Parler was removed from Amazon’s servers for hosting discussions among Trumpists about the unfolding events. And YouTube banned even the allegation of widespread election fraud. Americans realized—or should have—that they had suddenly been herded into a communications control system unlike any ever imposed—or even conceived—in America.

Not merely a handful of fringe cranks, but a full half of the country, is being pre-screened out of the kinds of political discourse fundamental to American citizenship. Yet this radical change is setting in with unnerving ease and rapidity. Day by day, Americans are losing faith that there is anything they can do about it. Day by day, they are getting used to it. Ryan T. Anderson’s fair and sensible interrogation of transgenderism was stripped off of Amazon; Shelby Steele had to fight tooth and nail before his documentary on race relations would stream on Prime, which also axed Michael Pack’s Created Equal: Clarence Thomas in his Own Words (which even PBS was open-minded enough to air) during black history month. Though all these turns of events got some press in the predictable places, each new act of censorship goes down a little easier with the general public. This “reset”—this revolution—is just the way things are now.

This week, The American Mind experienced the new “normal” firsthand. A recent piece of content entitled “The Ruling Class Strikes Back” was removed from YouTube “due to a violation” of what YouTube calls its Community Guidelines, specifically the prohibition regarding “spam, deceptive practices, and scams.” Our colleagues pressed YouTube’s support team on the claims and discovered that the video was flagged for “advancing false claims that widespread fraud, errors, or glitches changed the outcome of the U.S. 2020 presidential election.”

This action is much more than the online equivalent of a moving violation. It is a permanent warning, which flags not just one’s challenged content but one’s entire account. In this way, any finding of another infraction between now and eternity results in a suspension and, in effect, a blacklisting. Officially, it’s three strikes you’re out. Unofficially, and no doubt deliberately, after just one transgression against the political speech code, the only reasonable reaction is to bend over backwards to silence yourself—not just on the original matter, but on any matter that might cause the Eye of Sauron to swivel your way again.

In our case, we suspect the offending verbiage concerns the election-season wave of court suits and legislation deployed to strengthen the prospects of the Left: “Its lawfare had the effect of making vote fraud on a mass scale far easier, and harder to trace, than ever before. If nothing else, this had the effect of irrevocably undermining American confidence in our elections.” In other words, it is “deceptive practice” to suggest that the 2020 election was anything other than perfectly regular and beyond reproach in every regard. Though the podcast is still accessible on our Apple Podcasts feed, the black mark will remain on our record with YouTube—making us vulnerable to a complete account wipe down the line should we “misstep” again.

None of this is illegal. We recognize that. We understand the argument, repeated somewhat tiresomely, that private companies are free to host speech or not, and to do business or not, as they wish. But Twitter, YouTube, Google, and Facebook are more than private companies. They are now powerful quasi-government entities, with no precedent or constitutionally established role in our government, which, by their own admission, have a profound national effect on American politics. (That’s how Twitter justifies the need for its “Civic Integrity policy” in the first place.) Clinton voter Robert Epstein, senior research psychologist at the American Institute for Behavioral Research and Technology, found in 2018 that “no company in the history of the world has had the ability to shift votes and opinions to the extent and on the scale that Google has.” These companies are not just doing business: they are reshaping our regime. At the very least, we should have a say in how this goes down. But on just this question of the ruling class transforming our form of government against our will and without our participation, the noose of suppression tightens, and Americans slip into silence.

As a governing logic for our national culture, as a regular dynamic of public life, this creeping censorship is inescapably un-American. Our colleague Michael Anton pointed out to Tucker Carlson that the way to settle concerns about election integrity in a free society is not to punish them but to answer them, with open discussion in the public square. Instead, even a conscientious objection to proclaiming affirmatively what the ruling class demands is being denied.

And what is good for the goose of the 2020 election is good for the gander of whatever the regime chooses to officialize, from the politics of transgender activism to those surrounding coronavirus lockdowns. To make the broadcast of one set of views all but mandatory, and to keep those who disagree from organizing, having their say, and engaging on their merits, is flatly inconsistent with our most fundamental habits and mores, our way of life, and, ultimately, our form of government.

We will continue sharing our frank assessments of this and subsidiary issues at the heart of the political crisis forced on our country by its current revolutionary regime. We will not stick to the pre-approved script of a powerful minority or sing from the hymnal of policed opinion. For Americans’ concerns to be answered honestly and resolved legitimately, we must protect their digital communications from the command and control of ruling-class authoritarians. Technologized censorship cannot coexist with the American way of life. It is an irrepressible conflict. And we know which one has to go.

Independent Institute: Big Tech’s Gravest Sin? Working with the Security State

From the Independent Institute, Big Tech’s Gravest Sin? Working with the Security State . There is an argument that Big Tech censorship is not a violation of free speech because they are private entities. But when those Big Tech companies get financially entangled with the government, who can say when quid pro quo censorship is occurring?

The “de-platforming” of Donald Trump by Twitter, Facebook, and Google-owned YouTube—that is, Big Tech—recently garnered big headlines. Trump’s change in status has raised cries among some conservatives of “censorship.” Yet a more libertarian view holds that these are private companies that have a right to control their own content, just as private broadcast and print media do. The word “censorship” has been traditionally and more appropriately applied to government violations of the Constitution’s First Amendment guarantee of free speech.

More disturbing might be Big Tech’s aiding of law enforcement’s violations of the rights of individuals at home and contributions to the military’s violation of human rights abroad. Despite its reputation for independence, it has recently been revealed that Big Tech’s relationship with the American national security establishment may be stronger than was previously thought. At some tech firms, workforce opposition has arisen over company contracts with the military and law enforcement. Yet these employee objections have usually led the companies to hide such government business through the use of mundane and nondescript subcontractors.

Big Tech has had a long-standing relationship with the U.S. government and military. During World War II, the government used IBM’s punch card technology to keep track of prisoners at unconstitutional domestic internment camps housing Japanese Americans, who even government reports admitted posed no threat to the American war effort. (At the same time, Nazi Germany was using similar IBM technology.) The Advanced Research Projects Agency (ARPA) of the Department of Defense (DoD) funded research on computing in the 1960s that led to the Internet and later to Siri. Such spinoffs are beneficial, but it is more efficient for the private sector to invest in them directly. Less positively, Honeywell Aerospace manufactured fragmentation bombs, which killed many civilians during the Vietnam War. Silicon Valley was no stranger to military contracts, with Lockheed (now Lockheed Martin), builder of military aircraft, missiles, satellites, and other defense systems, being the biggest player there during the 1980s.

Nowadays, Big Tech companies have loads of contracts with the military and law enforcement. Tech Inquiry, a non-profit organization promoting tech accountability, has reported that DoD, ICE, FBI, DEA, and the Federal Bureau of Prisons have thousands of contracts with Microsoft, Amazon, Google, Facebook, Dell, IBM, and Hewlett Packard. Microsoft is by far the contract champion, with 5,000. Amazon and Google trail with 350 and 250, respectively.

For example, Amazon’s facial Rekognition software could easily be misused by the government, yet the company is still marketing it to government agencies such as Immigration and Customs Enforcement (ICE). Furthermore, Amazon’s cloud services are employed by Palantir, a company that creates databases for ICE. Microsoft even admits that its software allows ICE to “utilize deep learning capabilities to accelerate facial recognition and identification” of immigrants. Dell also licenses software to ICE.

Google was involved in Project Maven to provide artificial intelligence for U.S. drone warfare in foreign nations. American presidents have used drones to illegally kill people, including Barack Obama’s assassination of Anwar al-Awlaki in Yemen. Awlaki was an American citizen, killed by his own government without charges, a trial, or sentencing. Almost 4,000 Google employees demanded the company end the contract and some resigned over it. Yet Google is now providing off-the-shelf technology for drones.

Big Tech is even helping foreign governments conduct what can be legitimately called “censorship.” For example, Google, in a project called Dragonfly, sold the oppressive Chinese government a censored version of its search engine. Microsoft beat out Amazon for a whopping $10 billion JEDI (Joint Enterprise Defense Infrastructure) contract to provide cloud computing for DoD.

Big Tech should be leery of working with both the U.S. and foreign governments—and not only because many of their employees object to contracts that can result in deaths or the violation of human rights. Government money never comes without strings attached. Contracting with the government will bring a slew of regulations that can change the commercial nature of any business, rendering it less creative and innovative.

Nonetheless this admonition may fall on deaf ears—because the government is so big and spends so much money in the private sector that it is hard for tech companies to avoid being tempted by its pot of gold. Although it pretends differently, Big Tech has a long and lucrative relationship with government contracting and, unfortunately, that business will probably continue to grow in the future.

Real Clear Politics: Big Tech, Big Brother and the End of Free Speech

Real Clear Politics has an article on Big Tech, Big Brother and the End of Free Speech.

In George Orwell’s “Nineteen Eighty-Four,” members of the Outer Party of Oceania engage in the Two Minutes Hate ritual against Emmanuel Goldstein, who is supposed to be the enemy of the people but may actually just be a fabricated symbol to distract the people from their real enemy — Big Brother.

In Nancy Pelosi’s “Twenty Twenty-One,” members of the Democratic Party engage in the Two Hours Hate against Donald Trump, who is supposed to be the enemy of the people, but may actually just be a fabricated symbol to distract the people from their real enemy — Big Tech.

 Two hours of hate — er, debate — was held in the House of Representatives last Wednesday for the avowed purpose of removing a president of the United States. That’s all it took. Two hours. That should tell you everything you need to know about the state of democracy in our country.

More time is routinely spent on picking wallpaper. But let’s face it, most families wouldn’t trust Congress to pick out wallpaper for their living room, so why should we trust these self-appointed moral arbiters to pick our president?

Well, we don’t. Not all of us.

Rep. Doug LaMalfa, a Republican representative from California, put it plainly in his 90-second speech when he said the “second annual impeachment” of Donald Trump “isn’t really about actual words spoken at a rally. No, this is all about the unbridled hatred of this president [by Democrats]. You use any extreme language and any process to oppose the core of what he has really fought for. You hate him because he is pro-life, the strongest ever. You hate him for fighting for the freedom of religion. … You hate him for Israel. You hate him for defending our borders. … You hate him for putting America first.”

They certainly shouldn’t hate him — or impeach him — just for telling a rally crowd that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But that’s what they did. In two hours.

And before they ever got around to impeaching Trump, they de-platformed him. With stunning suddenness, Trump went from the most powerful man in the world to a cornered, desperate fugitive. Twitter, Facebook, Instagram, Google — they all came for him. Most importantly, they came for us. Everyone who sided with the president, everyone who agreed with the president about the questions of election fraud, we are all now guilty by association, and Big Tech has turned its sights on all of us.

“Are you now or have you ever been a member of the Communist Party?”

Those were the words that terrified millions of Americans in the 1950s when Joe McCarthy and other senators tried to purge the United States of what they considered a subversive movement designed to overthrow the government.

In that case, of course, it was conservative senators — both Democrat and Republican — who were trying to expose what they called a communist conspiracy. In their zeal to protect the nation, they trampled on the civil liberties of individual Americans and tried to strip them of their jobs, their reputations and in some cases their very freedom.

What was the crime most of those Americans had committed? They had either attended a meeting of the Communist Party, donated money to the Communist Party or signed a petition on behalf of the Communist Party. In other words, they had exercised their First Amendment rights of speech and assembly. They had used their own minds and reached unpopular opinions. That was all it took for McCarthy to try to ruin their lives.

Apparently the American left never forgot what was done to them, and now that they have achieved absolute power, it looks like they want revenge.

In the lead-up to the impeachment vote, Rep. Jim McGovern of Massachusetts put Trump defender Jim Jordan “on trial” for the new crime of having a dissenting view on the 2020 presidential election. The question McGovern barked at Jordan in a congressional hearing last week could be repeated in job interviews for years to come:

“Will you admit that Joe Biden won fair and square and that the election was not rigged or stolen?”

Jordan avoided a direct answer, but of course he and millions of other people don’t believe that Biden won fair and square. In a free country, they could say so, but in Pelosi’s “Twenty Twenty-One,” you say so at your own risk. To begin with, you can lose your Twitter account or your Facebook account, but who’s to say that you won’t lose your bank account next? China has a “social credit” system that deprives citizens of certain rights if their score falls below a certain level of acceptability — meaning if they don’t follow the party line in their thinking and their public persona. You might lose your job. You might be denied a ticket on a train or a plane. The only recourse is to do what the party tells you to do — even if it means accepting that 2+2=5.

Now, in modern America, we are precipitously close to duplicating the monolithic control of information that Orwell predicted in “Nineteen Eighty-Four” and that the Chinese Communist Party has perfected.

In the last two weeks, we have seen the power of Big Tech unleashed mercilessly. With the complicit assistance of Big Media, the Silicon Valley oligarchs not only neutered President Trump as a political leader by taking away his bully pulpit but also effectively crushed dissent by demanding that only social media companies that censor unpopular opinions can have a platform on the Internet. Bye-bye, Parler. You can also make a reasonable case that Democrats in Congress would never have impeached President Trump from public office so hastily were they not goaded into action by Twitter and Facebook taking the first step of banning him from public life.

In a sense, Big Tech has taken cyberbullying to its logical conclusion. When 13-year-olds are entrusted with cellphones and Snapchat accounts, they can use them to bring shame on innocent children and even destroy their lives. Often, this involves spreading false rumors about the person or discrediting them for something they espouse, like their religion, their political beliefs or their sexual identity.

Tell me how this is different from what Twitter, Facebook and YouTube have done to Donald Trump and, by extension, the more than 74 million people who voted for him. This group of post-pubescent cyberbullies in Silicon Valley doesn’t like Donald Trump. They feel justified in calling him names like white supremacist and Nazi and racist. They don’t care whether it hurts him or not. They don’t care whether it is true or not. They are strangely enlivened by what they perceive as their ability to hurt him, to weaken him. Like the mob that they have attempted to link the president to, these bullies act in mindless concert, emboldened by each other to see who can strike the deeper blow, who can make the victim hurt more.

And over what? Differences of opinion, for the most part. Strong border or no border? Mask or no mask? Globalism or Americanism? Carbon credits or fracking? Abortion or no abortion? And then the last straw — fair election or fraudulent election?

These should be legitimate subjects for debate in a free society. But not anymore. Big Tech has banned debate about government policy on the coronavirus, and any discussion of election fraud is treated as if it were a crime. But wait? It’s only a crime to question the government in a totalitarian system, like that in communist China or Orwell’s fictional Oceania, right? In America, we have the right and obligation to question our government, don’t we? Because, if we don’t have that right any longer, then what are they afraid of? What are they hiding?

Bottom line: At some point in some election, the allegations of election fraud have to be real. It can’t always just be the figment of some right-wing president’s imagination. And if we aren’t allowed to have free speech, then how do we fight back? If Big Tech and Big Government have their way, we don’t. Just keep your head down and your nose clean — and never ever question what you are told.

Remember, 2+2=5.

Pluralistic: Censorship, Parler and Antitrust

Today’s post – Censorship, Parler, and Antitrust – by Cory Doctorow of Pluralistic found its way to us through Kyle Rankin of Purism article/sales pitch Parler Tricks. Both talk about some recent deplatforming, especially of social media application Parler.

As Parler disappears from the Android and Ios app stores and faces being kicked off of Amazon’s (and other) clouds, people who worry about monopolized corporate control over speech are divided over What It Means.

There’s an obvious, trivial point to be made here: Twitter, Apple and Google are private companies. When they remove speech on the basis of its content, it’s censorship, but it’s not government censorship. It doesn’t violate the First Amendment.

And yes, of course it’s censorship. They have made a decision about the type and quality of speech they’ll permit, and they enforce that decision using the economic, legal and technical tools at their disposal.

If I invited you to my house for dinner and said, “Just so you know, no one is allowed to talk about racism at the table,” it would be censorship. If I said “no one is allowed to say racist things at the table,” it would also be censorship.

I censor my daughter when I tell her not to swear. I censor other Twitter users when I hide their replies to my posts. I censor commenters on my blog when I delete their replies.

Dress is up as “content removal” or “moderation” if you’d like, but it’s obviously censorship.

That’s fine. Different social spaces have different rules and norms. I disagree with some censorship and support other censorship. Some speech is illegal (nonconsensual pornography, specific incitements to violence, child sex abuse material) and the government censors it.

Other speech is distasteful or hateful (slurs, insults) and the proprietors of different speech forums censor it. This legal-but-distasteful speech is a mushy, amorphous category.

I’m totally OK with hilarious dunks on the insurrectionists who stormed the capitol. Tell jokes about Holocaust victims and I’ll throw you out of my house or block you.

And when I do, you can go to your house and tell Holocaust jokes.

I’m not gonna lie. I don’t like the idea of anyone telling Holocaust jokes anywhere. Or rape jokes. Or racist jokes. But I have made my peace with the fact that there are private spaces where that will happen.

I condemn those spaces and their proprietors, but I don’t want them to be outlawed.

Which brings me back to Parler. It’s true that no one violates the First Amendment (let alone CDA 230) (get serious) when Parler is removed from app stores or kicked off a cloud.

But we have a duopoly of mobile platforms, an oligopoly of cloud providers, a small conspiracy of payment processors. Their choices about who make speak are hugely consequential, and concerted effort by all of them could make some points of view effectively vanish.

This market concentration didn’t occur in a vacuum. These vital sectors of the digital economy became as concentrated as they are due to four decades of shameful, bipartisan neglect of antitrust law.

And while failing to enforce antitrust law doesn’t violate the First Amendment, it can still lead to government sanctioned incursions on speech.

The remedy for this isn’t forcing the platforms to carry objectionable speech.

The remedy is enforcing antitrust so that the censorship policies of two app stores don’t carry the force of law; and it’s ending the laws (copyright, cybersecurity, etc) that allow these companies to control who can install what on their devices.

https://locusmag.com/2020/01/cory-doctorow-inaction-is-a-form-of-action/

I got into a good discussion of this on a private mailing list this morning and then I adapted them and published them in the public “State of the World 2021” discussion on The WELL.

https://people.well.com/conf/inkwell.vue/topics/510/State-of-the-World-2021-page04.html#post82

There are three posts: the first deals with Apple and Google’s insistence that they removed Parler because it lacked an effective hate-speech filter. Given that there is no such thing as an effective hate-speech filter, this is obvious bullshit.

The second addresses the fundamental problems of moderation at scale, where you are entrusting a large number of employees to enforce policies against “hate speech.”

https://people.well.com/conf/inkwell.vue/topics/510/State-of-the-World-2021-page04.html#post83

The biggest problem here is that “almost-hate-speech” is emotionally equivalent to “hate speech” for the people it’s directed at. If tech companies specify hate speech, trolls will deploy almost-hate-speech (and goad their targets into crossing the line, then narc them out).

And if tech companies tell moderators to nuke bad speech without defining it, the mods will make stupid, terrible mistakes and users will be thrown into the meat-grinder of the stupid, terrible banhammer appeals process.

The final post asks what Apple and Google should do about Parler?

https://people.well.com/conf/inkwell.vue/topics/510/State-of-the-World-2021-page04.html#post84

They should remove it, and tell users, “We removed Parler because we think it is a politically odious attempt to foment violence. Our judgment is subjective and may be wielded against others in future. If you don’t like our judgment, you shouldn’t use our app store.”

I’m 100% OK with that: first, because it is honest; and second, because it invites the question, “How do we switch app stores?”

EFF: COVID-19 and Digital Rights

The Electronic Frontier Foundation is the leading nonprofit organization defending civil liberties in the digital world. Here are their thoughts on threats and opportunities arising from COVID-19 response, COVID-19 and Digital Rights.

Surveillance. Governments around the world are demanding extraordinary new surveillance powers that many hope will contain the virus’ spread. But many of these powers would invade our privacy, inhibit our free speech, and disparately burden vulnerable groups of people. Mindful of the stakes, we ask three questions when analyzing proposals that would provide greater surveillance powers to the government: Would the proposal work? Would it excessively intrude on our freedoms? Are there sufficient safeguards? Different proposals raise different issues. For example:

  • Government has not shown that some intrusive technologies would work, such as phone location surveillance, which is insufficiently granular to identify when two people were close enough together to transmit the virus.
  • Some surveillance proposals are too dangerous to a democratic society, such as dragnet surveillance cameras in public places that use face recognition or thermal imaging, mounting such technologies on drones, or giving police officers access to public health data about where people who have tested positive live.
  • Some technologies, such as aggregate location data used to inform public health decisions, need strict safeguards.
  • No COVID tracking app will work absent widespread testing and interview-based contact tracing. Bluetooth proximity is the most promising approach so far, but needs rigorous security testing and data minimization. No one should be forced to use it.

Many new government surveillance programs are being built in partnership with corporations that hold vast stores of consumers’ personal data. We need new laws to protect our data privacy.

Free speech. The free flow of ideas about COVID-19 is vital. This includes anonymous whistle-blowing about containment efforts, online criticisms of government responses to the crisis, and prisoner access to social media to tell the world about outbreaks behind bars. Governments will inevitably abuse any new powers to censor what they deems false information about the virus. When online platforms increase their reliance on automated content moderation, in part because human moderators cannot safely come to work, those moderation “decisions” must be temporary, transparent, and easily appealable…

Government transparency. Government decision-making about the virus must be transparent. When governments temporarily close the physical spaces where they make decisions, for purposes of social distancing, they must adopt new transparency accommodations, such as broadcasting their proceedings. While government responses to public records requests may be slower during this public health crisis, the outbreak is no excuse to shut them down altogether…(continues)

EFF: Big Tech’s Disingenuous Push for a Federal Privacy Law

Following the theme of the earlier article on The Meat Packing Myth is this article from the Electronic Frontier Foundation – an organization leading the fight for digital privacy and free speech — about a push by big tech companies for federal regulation of digital privacy and why this push is in the self-interest of these corporations rather than in support of your actual privacy.

Big Tech’s Disingenuous Push for a Federal Privacy Law

This week, the Internet Association launched a campaign asking the federal government to pass a new privacy law.

The Internet Association (IA) is a trade group funded by some of the largest tech companies in the world, including Google, Microsoft, Facebook, Amazon, and Uber. Many of its members keep their lights on by tracking users and monetizing their personal data. So why do they want a federal consumer privacy law?

Surprise! It’s not to protect your privacy. Rather, this campaign is a disingenuous ploy to undermine real progress on privacy being made around the country at the state level. IA member companies want to establish a national “privacy law” that undoes stronger state laws and lets them continue business as usual. Lawyers call this “preemption.” IA calls this “a unified, national standard” to avoid “a patchwork of state laws.” We call this a big step backwards for all of our privacy.

The question we should be asking is, “What are they afraid of?”

Stronger state laws

After years of privacy scandals, Americans across the political spectrum want better consumer privacy protections. So far, Congress has failed to act, but states have taken matters into their own hands. The Illinois Biometric Information Privacy Act (BIPA), passed in 2008, makes it illegal to collect biometric data from Illinois citizens without their express, informed, opt-in consent. Vermont requires data brokers to register with the state and report on their activities. And the California Consumer Privacy Act (CCPA), passed in 2018, gives users the right to access their personal data and opt out of its sale. In state legislatures across the country, consumer privacy bills are gaining momentum.

This terrifies big tech companies. Last quarter alone, the IA spent nearly $176,000 lobbying the California legislature, largely to weaken CCPA before it takes effect in January 2021. Thanks to the efforts of a coalition of privacy advocates, including EFF, it failed. The IA and its allies are losing the fight against state privacy laws. So, after years of fighting any kind of privacy legislation, they’re now looking to the federal government to save them from the states. The IA has joined Technet, a group of tech CEOs, and Business Roundtable, another industry lobbying organization, in calls for a weak national “privacy” law that will preempt stronger state laws. In other words, they want to roll back all the progress states like California have made, and prevent other states from protecting consumers in the future. We must not allow them to succeed.

A private right of action

Laws with a private right of action allow ordinary people to sue companies when they break the law. This is essential to make sure the law is properly enforced. Without a private right of action, it’s up to regulators like the Federal Trade Commission or the U.S. Department of Justice to go after misbehaving companies. Even in the best of times, regulatory bodies often don’t have the resources needed to police a multi-trillion dollar industry. And regulators can fall prey to regulatory capture. If all the power of enforcement is left in the hands of a single group, an industry can lobby the government to fill that group with its own people. Federal Communications Commission chair Ajit Pai is a former Verizon lawyer, and he’s overseen massive deregulation of the telecom industry his office is supposed to keep in check.

The strongest state privacy laws include private rights of action. Illinois BIPA allows users whose biometric data is illegally collected or handled to sue the companies responsible. And CCPA lets users sue when a company’s negligence results in a breach of personal information. The IA wants to erase these laws and reduce the penalties its member companies can face for their misconduct in legal proceedings brought by ordinary consumers…

Judge’s Unconstitutional Effort to Block Blueprints for 3D-Printed Guns

In news directly related to the recent announcement of a federal settlement with Defense Distributed, a Seattle federal judge has issued a restraining order to prevent Defense Distributed from posting the blueprint files.  From National Review:

If there’s a hall of fame for futile, symbolic, and ultimately unconstitutional federal court orders, the temporary restraining order just issued in Seattle blocking Defense Distributed and the Second Amendment Foundation from posting blueprints for 3D-printed guns deserves at least a plaque, if not a full display. The court’s order temporarily overturns a Trump administration legal settlement that reversed an Obama-era policy designed mainly to limit the spread of the relevant files abroad, not here at home. I love NPR’s sardonic Twitter response:

NPR gets it. Let’s be clear about what has just happened. A federal court has issued a prior restraint on speech (it’s attempting to block the spread of information; it is not blocking the lawful home manufacture of firearms) that is already thoroughly and completely moot. The files are out. They’re all over the internet. They’ve been copied and reproduced. The judge’s order can’t change that fact.

Moreover, Defense Distributed and the Second Amendment Foundation are hardly the only sources for online files or blueprints that enable a home manufacturer with a 3D printer to make a gun. I’m honestly unclear what the court is trying to accomplish here, aside from targeting the Trump administration and/or targeting a disfavored private company.

Earlier today I published a lengthy explainer of the factual and legal issues surrounding the 3D-printed gun controversy. I’d urge you to read the whole thing, but the bottom line is easy to understand. First, home manufacture of weapons is clearly lawful, and it has been common practice in the United States since before the founding of the nation. Second, it is thus just as lawful to “print” a gun as it is to assemble one with parts in your garage. Third, the plans to print guns are widely-available on the internet — and have been for some time.

Put another way, a gun that’s lawful to assemble is lawful to print. A gun that’s unlawful to assemble is unlawful to print, and that includes undetectable plastic guns that are either printed or assembled. It’s that simple.There is no new “threat” here. There is no crisis…

The files at issue can still be downloaded from http://codeisfreespeech.com/

Tonight, the organizations and individuals behind CodeIsFreeSpeech.com, a new Web site for the publication and sharing of firearm-related speech, including machine code, have issued the following statement:

Our Constitution’s First Amendment secures the right of all people to engage in truthful speech, including by sharing information contained in books, paintings, and files. Indeed, freedom of speech is a bedrock principle of our United States and a cornerstone of our democratic Republic. Through CodeIsFreeSpeech.com, we intend to encourage people to consider new and different aspects of our nation’s marketplace of ideas – even if some government officials disagree with our views or dislike our content – because information is code, code is free speech, and free speech is freedom.

Should any tyrants wish to chill or infringe the rights of the People, we would welcome the opportunity to defend freedom whenever, wherever, and however necessary. Hand-waving and hyperbole are not compelling government interests and censorship is not proper tailoring under the law.

There is no doubt that Cody Wilson and Defense Distributed have inspired countless Americans to exercise their fundamental, individual rights, including through home gunsmithing. Through CodeIsFreeSpeech.com, we hope to promote the collection and dissemination of truthful, non-misleading speech, new and evolving ideas, and the advancement of the Second Amendment right to keep and bear arms…

The Market Ticker: Editorial on Free Speech

Source: Kart Denninger at Market-ticker.com

To The Press, The Pols And The Rest

Let me say this just one more time:

That someone is a Neo-Nazi, a White Supremacist, KKK member or racist does not render them bereft of the First Amendment.  Just as being a member of BLM or the Antifa does not render them bereft of the First Amendment.

It is not acceptable, legal or excusable to meet speech by any such person with violence.

Period.

To suggest, state, or advocate that such is the case, or to promote the premise that violence is an appropriate remedy for speech you find vile and outrageous is to declare civil war, because there are others who will likely find your speech vile and outrageous and by your statement you have made the claim that just punishment for speech you deem vile is to be found at the hands of a mob.

The press and now lawmakers are openly advocating for the complete breakdown of civil society — they are stating by the droves that violence in response to mere speech that one finds offensive yet has the protection of the First Amendment is not only worthy of said violence the person uttering same is not worthy of having their assailants prosecuted or the protection and investigation of the police forces to interdict violence intended for or served upon them…

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