26 June 2019

Speech Or Silence: Google Says You Should Just Shut Up

I will say it again: Free speech is not just a civil right, but a moral imperative. It is both our great privilege and our great duty. If we are to have a free society, we must speak out on matters we hold dear, and we must defend our capacity to speak out. If we are to have a free society, we must be able to listen to a diversity of opinions, so we must be free to listen to others, and we must defend our ability to hear those diverse voices.

Without the freedom of speech, there is no freedom at all.

We should be alarmed, therefore, when we hear senior executives at search and social-media giant Google cavalierly discussing how to prevent people either from speaking or listening. Yet, in the latest investigative journalism piece from James O'Keefe and Project Veritas, that is exactly what happened.

How should we react when we hear Jen Gennai, Google's Head of Responsible Innovation, talk about preventing a specific outcome in an American election?
We all got screwed over in 2016, again it wasn’t just us, it was, the people got screwed over, the news media got screwed over, like, everybody got screwed over so we’re rapidly been like, what happened there and how do we prevent it from happening again.
One can only presume that Ms. Gennai, in saying "people got screwed over", meant that it was a tragedy Donald Trump was elected President.  Yet what "people" got "screwed over" in 2016? 

Was it the people who voted for Hillary Clinton? 

Was it the people who voted for Donald Trump, despite voting for Donald Trump? 

This question, of course, raises an even more important question: How is it either Google's right or Google's responsibility to do anything about this? By what right does Google arrogate to itself the capacity to decide who wins an election?

No less disturbing is what appears to be the prevailing attitude at Google regarding the people and politics they dislike. Among the other nuggets uncovered by Project Veritas are documents where noted conservative commentators such as Ben Shapiro and Jordan Peterson are referred to as "Nazis" (Note: Ben Shapiro is Jewish, which makes such characterization particularly obnoxious).

Also troubling is Google's response to the story. When James O' Keefe uploaded the video presentation where they broke this story to YouTube (owned by Google), Google deleted it. Faced with criticism of their policies and censorious business practices, Google doubled down on censorship and attempted to silence Project Veritas:
In an ironic development, when a Google executive was questioned by Senator Ted Cruz over the Project Veritas report and its implications, while she had heard of the report she had not viewed it herself (because it had already been deleted?). However, when pressed, not only did she affirm that Google does indeed view itself as a "neutral public forum" but she explicitly disagreed with Ms. Gennai's sentiments about "preventing the next 'Trump situation'".

Yet how can Google pretend it is neutral when it deletes YouTube content it does not like? How can it pretend not to be working to influence political dialog when the whistleblower within the Project Veritas report speaks of Google using its search algorithms to steer search queries away from conservative content and towards legacy media sites such as CNN and MSNBC? Whatever else such maneuvers might be, "neutral" is definitely not one of the apt descriptors.

Sadly, and perhaps scarily, it is quite possible that Google views such conduct as "neutral" because it has become commonplace. As I have commented on before, Facebook unapologetically banned a number of commentators, including Paul Joseph Watson and Laura Loomer, claiming they were "dangerous". Last fall, Twitter CEO Jack Dorsey admitted that conservatively inclined employees were reluctant to express opinions at Twitter:
....we have a lot of conservative-leaning folks in the company as well, and to be honest, they don’t feel safe to express their opinions at the company.
Tim Pool's response on Twitter to the Project Veritas report sums up the blase attitudes regarding the trend of suppressing politically conservative ideas and opinions:
Not only has tech censorship become commonplace, but significant portions of the legacy media appear to be just find with it. Charlie Warzel of the New York Times seemed singularly nonplussed by the story:
The rest of the legacy media had nothing to say at all about it. As of the time of this writing, I could find not one single piece on CNN, The Washington Post, CNBC, The Huffington Post, The New York Times, Newsweek, Politico, nor The Daily Beast.  

One of the largest of the Big Tech companies, the dominant force in Internet search engines as well as a major social media entity thanks to YouTube stands accused of suppressing political speech from one side of the political spectrum but not the other, and the legacy media has managed barely a casual, dis-interested yawn. A seeming clear-cut case of political bias, censorship, and the suppression of dissident voices is occurring within social media, and the legacy media has no interest whatsoever. Either censorship is so commonplace and accepted by the legacy media or the legacy media is choosing to ignore the story in hopes that it will go away. I leave the reader to form his or her own conclusions on that score.

Let us be clear on the key issue here: Google executives are implicated in a general pattern of behavior at the Big Tech company to not only suppress particular political content based solely on political ideology, but are actively interested in working to control the outcome of the upcoming 2020 Presidential elections. Google is alleged to be using the online search results generated by its algorithms to "program" people with specific attitudes and outlooks--arguably to control how people think, if the logic is extended to its ultimate conclusion.

For such behavior there can be no defense. No single entity should ever possess such capability within our society, and absolutely no single entity should ever seek to possess such capability. No social media platform should have leave to silence and suppress particular political content, opinions, and ideas, while simultaneously enjoying the shield from liability granted such companies under Section 230 the Communications Decency Act (47 USC 230(c)). As Congressmen Louis Gohmert stated in response to the Project Veritas report:
This video shows Google’s biases are now a threat to a free and fair election, all while they hide behind the immunity given by Congress years ago when they were supposed to be a simple ‘town square’ where everyone’s voice could be heard without biased results. In fact, Google references a significant role they see themselves fulfilling in the 2020 elections. This discovery should set off alarm bells throughout the country. It is no secret that Google has a political agenda. Multiple brave tech insiders have stepped forward and exposed Google’s censorship of content and specialized algorithms. This media giant’s ‘social justice narrative’ should distress all Americans who value a free and open society. Google should not be deciding whether content is important or trivial and they most assuredly should not be meddling in our election process. They need their immunity stripped and to be properly pursued by class action lawsuits by those they have knowingly harmed.
As I have argued previously, Section 230 of the CDA is an unconstitutional abridgment of the freedom of speech, and Project Veritas has now demonstrated the consequences of that abridgment. Thanks to the aegis extended by government, ostensibly to curtail obscene and profane speech reaching minor children and being used to harm minor children, companies such as Google are now emboldened to curtail any speech of any kind, based on no other criteria than their own private opinion and judgment.

The classical libertarian arguments that social media platforms such as YouTube are private property, and that Google, as the owners of that property, are at liberty to allow or disallow almost any speech or activity as they see fit, simply cannot prevail, given the breadth and scope of social media within modern society. The argument is immediately contradicted by the general provisions of the CDA, which apply criminal sanctions to the distribution of particular speech even on social media, thus overriding the presumed sovereignty of Google. Moreover, the Supreme Court has already acknowledged, in Packingham v North Carolina (2017, 582 US ___), that social media and the Internet in general are a "digital commons", the public square of the 21st century. The right of individuals to access the public square, both to speak and to listen, and to have access to a diversity of thought and ideas, must prevail over any assertion of private property control by Google, Facebook, or any social media company.

Indeed, the stated purpose of the Section 230 shield is a compromise with platform providers, granting them immunity from liability in return for a policy of content neutrality--a policy Google's representative before the Senate affirmed to be Google's policy when questioned directly on the matter by Senator Cruz. If Section 230 confined itself to simply establishing that compromise in law, this issue might never even have arisen. Alas, Section 230 does not confine itself thus, but extends to the Googles of the world an unconstitutional (not to mention unconscionable) right of censorship. 47 USC 230 (c)(2) is the devilish detail that causes all this mischief (emphasis added):

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
230(c)(1) was sufficient to guarantee platform neutrality. By establishing in law the premise that merely providing a platform is distinct from publishing content on that platform, and that providing a platform does not equate to endorsement of or agreement with any such content, 230(c)(1) arguably performs a valuable function, allowing the platforms provided by companies such as Google to continue to be our "digital commons". Shielding them from liability for the inevitable bad actor who uses the public square of social media to harm others relieves them of any interest in regulating any speech that might be published on social media. There is no requirement to then extend that same shield into the very acts of speech regulation 230(c)(1) seeks to render unnecessary. 

In fact, there has been some legal argument suggesting that the presumed platform neutrality shield does not exist at all, that the shield is rather connected to efforts by a platform provider to block the objectionable materials that are at the core of the CDA itself. In Doe  v.  GTE  Corporation,  (347  F.3d  655,  660  (7th  Cir.  2003)), Judge Frank Easterbrook described 230(c)(1) as definition and not a grant of immunity (again, emphasis is mine):
The district court held that subsection (c)(1), though phrased as a definition rather than as an immunity, also blocks civil liability when web hosts and other Internet service providers (ISPs) refrain from filtering or censoring the information on their sites. 
Easterbrook goes on to explore how to harmoniously apply 230(c)(1) and 230(c)(2):
True, a statute's caption must yield to its text when the two conflict, but whether there is a conflict is the question on the table.   Why not read § 230(c)(1) as a definitional clause rather than as an immunity from liability, and thus harmonize the text with the caption? On this reading, an entity would remain a “provider or user”-and thus be eligible for the immunity under § 230(c)(2)-as long as the information came from someone else;  but it would become a “publisher or speaker” and lose the benefit of § 230(c)(2) if it created the objectionable information.   The difference between this reading and the district court's is that § 230(c)(2) never requires ISPs to filter offensive content, and thus § 230(e)(3) would not preempt state laws or common-law doctrines that induce or require ISPs to protect the interests of third parties, such as the spied-on plaintiffs, for such laws would not be “inconsistent with” this understanding of § 230(c)(1).   There is yet another possibility:  perhaps § 230(c)(1) forecloses any liability that depends on deeming the ISP a “publisher”-defamation law would be a good example of such liability-while permitting the states to regulate ISPs in their capacity as intermediaries.
Earlier in his ruling, Easterbrook in fact acknowledged the potential for constitutional conflict, stating that "Congress is free to oblige web hosts to withhold services from criminals (to the extent legally required screening for content may be consistent with the first amendment)..." While 230(c)(2) does not mandate any such screening or policing of content, if one applies Easterbrook's harmonious interpretation of 230(c)(1) with 230(c)(2) the clear consequence of Section 230 is to encourage such policing, and by the text of the section extends that policing even into constitutionally protected speech. One does not even need to argue the literal language of the First Amendment, which is a simple and categorical prohibition of Congress making any law which abridges the freedom of speech to see that this construction of Section 230 leads into Constitutional conflict, for the Section explicitly mentions "constitutionally protected" speech--thus however First Amendment speech protections are understood to exist, Section 230 at a minimum encourages social media platform providers to violate those protections, thereby abridging speech, which is expressly prohibited by the First Amendment.

It is not a great distance from the immunity and inducement to censor with impunity to the outrages of Google uncovered by Project Veritas. It is not a reach to describe Googles conduct and corporate attitudes as outrages--how else to describe the presumption by any person or any company to determine how people should think, to control how how people discourse and over what, and, ultimately, to "program" people to support whatever Google deems socially proper? It is scandalous to realize that what Project Veritas has uncovered at Google is but the latest in a string of usurpations and abuses by the social media giants against the civil liberties of regular individuals. Yet outrage and scandal is exactly where we are, and is exactly with which we must contend.

As I stated at the outset, without the freedom of speech, there is no freedom at all. When Google, or Facebook, or Twitter, seeks dominion over online speech in this fashion, Google, or Facebook, or Twitter is seeking dominion over people. These entities are seeking--deliberately, at least in the case of Google--to end our civil liberties. It is hardly an exaggeration to state--as others besides myself have stated--that the tech giants aim to reduce the mass of people to the status of "tech serfs", existing merely to service the goals of the tech elite. In light of Project Veritas' investigations of Google, we would appear to have rather damning evidence that such is the explicit goal of the social media companies.

The first step in defending civil liberties against such incursions is to call these companies out, to make public all their malevolent designs. This first step has been performed admirably by James O'Keefe and Project Veritas.  

The next step is the challenge that is put before us all: what shall we do? Certainly we should act to reduce the power of entities such as Google and Facebook. We should use search engines besides Google, engines such as DuckDuckGo. We should explore social media sites besides Facebook and Twitter, sites such as MeWe, Minds, Parler, and Gab. Diversity is a strength to the individual chiefly by preventing the accretions of power Big Tech now enjoys. Ultimately, companies such as Google only have the market power we cede to them, and what we have given we can also take away, if we have the will to do so.

Some will argue that government regulation is needed. I will confess I am not sanguine about this approach, because Big Government can scarcely be said to be any better than Big Tech where defense of civil liberties is involved. Both Big Tech and Big Government have a demonstrated desire to act as Big Brother, with all the Orwellian connotations of dystopian dictatorship that implies. However, at a minimum Congress could at least do the good service of repealing Section 230 and eliminating Big Tech's unconstitutional authority to censor and regulate online speech. I encourage everyone to reach out to their Senators and Congressmen, and ask them to craft such legislation.

The growing furor over the Project Veritas report is also certain to add to the public appetite for anti-trust action by the government. There is no denying that the case for breaking up Google just got that much stronger.

Regardless of which path one prefers, the way to defend the freedom of speech, the way to defend freedom itself, is to speak out.  The more people speak, the more people seek to be heard, the less powerful Google and the rest of Big Tech becomes. The United States Constitution assures us we have a right to free speech. We will only continue to have that right if we embrace the corresponding duty to speak freely.

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