Friday, May 17, 2019

Speech Or Silence: Will You Choose Or Will Big Tech?

We must acknowledge a simple truth: Free speech is not just a civil right, but a moral imperative. Free speech is not merely permission from government to give voice to our ideas, but the acknowledgment that our ideas--our beliefs, our hopes, our dreams--are the most important parts within any of us. We cannot have a free society, we cannot secure the blessings of liberty to ourselves and to our posterity, if we are not free to speak however we will. Free speech is the first freedom, from which all other freedoms flow.

In my last post, I called attention to the successful campaign by Canada's National Observer's Caroline Orr to arbitrarily have a Facebook page for "Summit News" banned simply for hosting content by Paul Joseph Watson, a journalist recently exiled from Facebook. This week, we see the unwisdom of that banning: That self-same Summit News appears to have been the principal news source to document the suspension of activist and commentator Candace Owens from Facebook for the Orwellian "crime" of stating empirical facts. As Paul Joseph Watson reported:
Owens was hit with a 7 day ban for posting, “Black America must wake up to the great liberal hoax. White supremacy is not a threat. Liberal supremacy is.”

She then included a screenshot of a tweet which pointed out that the poverty rate amongst married blacks is 7 per cent, compared to 22 per cent for blacks generally.

In true activist fashion, Ms. Owens did not take this suspension lightly.  Using her still-active social media presence on Twitter, Ms. Owens hit back--again by simply stating the facts:

Within a day of her being suspended for stating statistics, Facebook recanted, claimed a "mistake" had been made, and restored her access. Mark Zuckerberg's minions did not mean to censor her, it was just an accident of algorithm.  Seriously.

That is their story and they are sticking to it.

Consider: But for Ms Owens' own tenacity and the reporting on Summit News, would anyone have known that she was being silenced for posting simple facts? 

Her statements about married vs unmarried poverty rates are verifiable--here are the statistics for the poverty rates for married couplessingle mothers, and households in general among blacks. Facebook asserted--or tried to assert--that these facts violate their "Community Standards". Basic statistics are apparently now classified as objectionable content on Facebook. Cite facts that some Facebook censor dislikes, and you may be silenced. Dare to protest Facebook's decisions and you will be silenced.

Sadly, this is not an exaggeration. This is reality. This is what happened to Paul Joseph Watson, to Summit News, and now to Candace Owens. This has happened to you as well, and without your knowledge or your consent. Candace Owens right to be heard was violated, but so, too, was your right to hear. Your right to choose which content, which thoughts, which ideas you find meritorious was suppressed by the same action that suppressed Candace Owens' right to put forward her content, her thoughts, her ideas.

By what right does any corporation arrogate to itself the power to decide who may and may not speak in the public square? 

We must be clear on this point: Facebook, and the whole of social media, are the public square of the 21st century.  This reality was acknowledged and ensconced in case law in 2017's Packingham v North Carolina (582 U.S. ___ (2017)). As Justice Anthony Kennedy observed in writing for the court (and not merely the majority, as the decision was unanimous):
A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989) . Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.
While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, Reno v. American Civil Liberties Union, 521 U. S. 844, 868 (1997) , and social media in particular. Seven in ten American adults use at least one Internet social networking service. Brief for Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the population of North America.
Even Justice Alito's more nuanced concurrence acknowledges the First Amendment ramifications of restricting people from access to various social media platforms: 
Placing this set of websites categorically off limits from registered sex offenders prohibits them from receiving or engaging in speech that the First Amendment protects and does not appreciably advance the State’s goal of protecting children from recidivist sex offenders. I am therefore compelled to conclude that, while the law before us addresses a critical problem, it sweeps far too broadly to satisfy the demands of the Free Speech Clause.
Facebook is, in effect and in law, a "digital commons"--as is the whole of social media. 

As proof of the reach and relevance of social media, one merely need consider another set of empirical facts: Candace Owens has 1.3 million followers on Twitter and, as of this posting, another 1,040,812 followers on Facebook. When Facebook suspended her account, the rights of all her Facebook followers to view her content and absorb her ideas were summarily abrogated, despite not having violated any of Facebook's guidelines of "Community Standards".

By what "Community Standard" does Facebook justify suppressing simple--and in the context of public policy, highly relevant--statistics merely because of some distaste or disdain for them? By what "Community Standard" does Facebook arrogate unto itself the right to suppress Candace Owens' conclusions drawn from these statistics? 

There is no violation of Community Standard readily discernible to the objective reader. Certainly no violation that I am able to discern (if anyone out there can articulate one, I sincerely invite them to do so).

Moreover, how are they "Community Standards" when no sanction of any kind was meted out by Facebook to Pennsylvania state lawmaker Brian Sims as consequence for his video, now taken down, in which he offered money if people would "dox"--publish the personal information of--three adolescent women peacefully protesting outside an abortion clinic? 

If ever an example of speech automatically meets the "Brandenburg Test" for when speech crosses into criminal illegality, surely it is Brian Sims' threat to destroy the privacy of minor children for political disagreement. If there is any content on Facebook that clearly violates Facebook's "Community Standards", it is the clear, immediate, and unequivocal threat by Brian Sims against three minors. Yet Brian Sims has been given no suspension, no sanction at all other than the removal of the offending content--despite posting content that clearly violates Facebook's stated prohibition against "violence and incitement" (emphasis added):
We aim to prevent potential offline harm that may be related to content on Facebook. While we understand that people commonly express disdain or disagreement by threatening or calling for violence in non-serious ways, we remove language that incites or facilitates serious violence. We remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety. We also try to consider the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety. In determining whether a threat is credible, we may also consider additional information like a person's public visibility and vulnerability.
Candace Owens' account was disabled despite no such violation, and Brian Sims' account was left undisturbed despite clear violation.

The only extant standard at Facebook, apparently, is "Free Speech for Me but never for Thee"--a standard that practically begs for comparison to George Orwell's classic ending to Animal Farm: "All animals are equal, but some animals are more equal than others." That is not a standard at all, but the complete absence of standards. It is the displacement of standards by arbitrary whimsy and caprice.

Why does this matter? The answer was stated succinctly by Justice Kennedy in Packingham: social media ranks at the forefront of important places where views and ideas are exchanged. Facebook, by far the largest of the social media sites, has presumed to dictate to Candace Owens and her 1 million followers what ideas and views will be permitted, and which ideas and views will be condemned.

This is not right. This is not just. This certainly is not okay.

Far more important than Candace Owens' particular views on poverty in America is the importance of the broader discussion and debate about poverty in America. We cannot, not as individuals nor as a society, take meaningful steps to better the conditions of the less fortunate among us if we do not discuss the issue, contemplate its dimension, and assess courses of action.  We cannot perfect this Union if we do not first debate its defects and its challenges. Facebook tried to deny not just Candace Owens of her right to be heard, but of her one million Facebook followers to hear, and to think, and to decide for themselves what to make of her words. 

Facebook further decided that debate over that denial was also to be denied, by banning Summit News from its environs.

This is not right. This is not just. This certainly is not okay.

Mark Zuckerberg decided, unilaterally and in all arrogance, to decide for you whether the issue of poverty in America would enjoy speech or silence. Mark Zuckerberg also decided, unilaterally and in all arrogance, that there would be no debate on the elimination of poverty discussions as a topic for discussion by Facebook.

This is not right. This is not just. This certainly is not okay. This must not stand.

Hopefully, it will not stand.  In at least one state, my own state of Texas, a bill--Senate Bill 2373--has been introduced into the state legislature to preclude social media sites from censoring, silencing, or suppressing political or religious speech. This bill is still mired in committee, but it is at least a start, an attempt to push back against this Big Tech trend of groupthink and censorship. 

While as a rule I am skeptical of government interventions as a means of preserving civil liberties, where the Big Tech firms are concerned there is little meaningful alternative. We cannot trim the market power of Big Tech without prying them away from their patrons within Big Government, and that requires laws be passed.  As Will Chamberlain noted in Human Events, after the deplatforming of Paul Joseph Watson, et al:
Free Speech is more than the First Amendment, which only protects you from the government infringing on your rights. In 2019, that is woefully inadequate. Access to the large social media platforms – Facebook, Twitter, and Instagram – is a prerequisite to meaningful free speech in 2019.

Social media companies certainly will strenuously object to this formulation, but they can hardly complain, given that the federal government has underwritten and undergirded their development.

The vast majority of serious public debate takes place there. Thus, access to large social media platforms is a civil right.
When private companies violate civil rights, we pass laws to stop them from doing so.
That’s what we should do here
Chamberlain's argument is worth serious consideration: he proposes to extend the virtues of the First Amendment fully into the realm of social media, in recognition of their status as the "digital commons" of the 21st century. Moreover, he correctly points out that laws precluding the suppression of speech work in only one direction; a ban on suppressing religious and political speech intrinsically protects both liberal and conservative speech, Democrat and Republican speech--and this is the chief virtue of SB2373.

One law in one state will not stop the Big Tech giants from pursuing their censorious quest of thought policing. But one law in one state is enough to demonstrate that legislation can be brought to bear to constrain Big Tech, binding them to refrain from actions injurious to the body politic. 

Candace Owens' experience is all the proof needed--if indeed much proof were ever needed--that it is not merely a question of choosing speech or silence. Candace Owens' experience is the clear demonstration that, regardless of how we answer that question, whichever choice we desire will be overruled by the arrogance and smugness of Big Tech unless there is concerted effort within government to protect our capacity to choose. We accomplish little by championing free speech without also championing laws and mechanisms that defend free speech.

We not only face a binary choice of Speech or Silence. We face the equally binary reality that if we do not defend Speech right now, at every turn, in every circumstance, we will be left with the Silence sought by Big Tech.  If we do not demand from our legislatures the means to fight back against the thought policing of social media by its Big Tech stewards, we validate Big Tech's ambition to be the ultimate thought cop of the 21st century.

Speech or Silence--will you choose, or will Big Tech choose for you?


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