There’s a simple constitutional solution to the
problem of Internet tyranny which does not involve the government controlling
the Internet.
Right now, the tech giants are having their
cake and eating it too. They say that they are content-neutral platforms
which do not control what information appears on their sites, when they in fact
control the content of their sites by censoring voices they don’t like.
The reason that it’s critical, from a
financial perspective, for Facebook, Twitter, YouTube etc. to be considered
platforms is that platforms can’t be sued for libelous content.
But publishers can be sued for the simple reason that a
publisher controls the information that is present on their site while a
platform doesn’t.
It’s
a good thing that platforms can’t be sued for content because that allows
people to exercise their First Amendment rights and to communicate; that’s why
the social media sites have been such a good thing for society up till now.
However,
now that those sites have decided to silence voices they don’t like, they have
become tools of tyranny; it’s not surprising that Google dropped
its “Don’t be evil” motto. We need to take action to prevent them
from achieving their goal of “deplatforming” all voices they don’t like.
Deplatforming
is the current left-wing euphemism for censorship and it is universally applied
only to conservative voices. It means censoring any speech by a group
solely based on its legal content.
The
simple technique that can be used to end the censorship is to have DoJ
interpret existing law, or for Congress to pass a law, stating that any
Internet site that controls its content for any reason other than criminal
activity is a publisher, not a platform.
For
example if a site removes only criminal posts -- advocating violence, terrorist
recruiting, child porn, etc. -- then they would be considered a platform.
But if they removed content based on First Amendment protected speech --
removing Antifa is violent posts vs removing posts that call for killing
members of Antifa -- they would be considered a publisher.
This
is consistent with the common and legal understanding of publishers and
platforms. You can’t sue AT&T if someone calls you up and libels you
because AT&T doesn’t control what’s said over its phone lines. But if
AT&T suddenly started censoring certain calls then you would be able to sue
them because they would be controlling, and hence responsible for, their
content.
Given
the amoral sharklike nature of lawyers, the idea of being able to sue amazingly
deep-pocketed companies like Facebook would bring about a legal feeding frenzy
that would cost social-media companies a fortune and generate a great deal of
bad publicity.
While
libel is hard to show against public figures, it’s much easier to show against
non-public figures. Hence if someone calls Trump a Nazi, it’s essentially
impossible for Trump to sue for libel. But if some drugged-up Antifa
calls a conservative black person a Klan member, the fact that the black person
is not a public figure means that there is a good chance that he could win a
libel suit. That’s why lawyers would love this; what’s more likely to
convince some jury to award huge amounts of money than a simple housewife, a
gay man, or a black pastor being viciously libeled by an amazingly rich
company?
Contrary
to the concerns of the “let’s surrender now rather than wait for later”
conservatives who declare that Facebook et al have the right to control
their content -- apparently unlike bakers in Colorado -- demanding that sites
that control their content be held responsible for their content is not an attack
on the First Amendment but rather simply stating that a publisher is legally
responsible for what they publish. If a book publisher published a book
that lied about a non-public person it would be sued in an instant.
That’s why publishers employ fact checkers and require sourcing for claims.
Unless one wishes to argue
that libel and slander laws are attacks on the First Amendment,
asserting that sites that control their content -- which is what
censoring conservative voices is -- are responsible for that content is
not an assault on the First Amendment.
This
leaves the job of enforcing neutrality on the people, not the government. The
government doesn’t have to decide what should or shouldn’t be on the
internet. The definition of what comprises criminal posts is already
contained in the law so no new action would be required.
The
problem with censorship by left-wing social media platforms is due solely to
the fact that we’ve let those sites become publishers without having to accept
the responsibility that entails. The “let’s surrender today”
conservatives are right that as private companies Facebook et al can choose
what they publish, but that doesn’t mean that those sites should get a pass on
the same libel and slander laws that every other publisher has to worry about.
You can read more of Tom's rants at his blog, Conversations about the obvious,
and feel free to follow him on Twitter.
