Category: Free Speech

On the Post Hoc Deplatforming of Trump

I guess this is the digital-age equivalent of defenestration:  rather than an authoritarian getting thrown out a window, he gets thrown off Twitter. And now that the major platforms have closed the proverbial barn door while the cows run amok on Pennsylvania Avenue, calling the decision to deplatform Trump too little too late is itself saying far too little, and way too late.

On December 31, 2016, I published a post asking whether Americans might begin to doubt the extravagant premise that the internet as we know it is a gift to democracy. To an extent, the answer to that question was yes. Over the past four years, we did see at least a new willingness to criticize Silicon Valley; and at the same time, that industry’s ability to thwart every policy initiative with the over-broad message that “the internet would break” proved as futile as it is fallacious. 

That it took a violent, seditious* assault on the Capitol to slap at least some of Trump’s enablers into reality is dismaying to say the least, and many of those enablers should not—and very possibly will not—be forgiven. But we should also not be quick to absolve the corporate enablers at Twitter, Facebook, et al, or their well-financed network of shills who so earnestly promoted the notions that all content online is tantamount to protected speech, that the free exchange of all views is inherently a net positive, and that the good will outweigh the bad as long as we remove all barriers to informative and cultural material.

Long before Trump announced his candidacy, the political landscape had been well-softened by the illusion that social platforms provide better transparency, and Trump’s incipient cult was not unique in believing that “new media” were providing access to a truth that the gatekeepers of the “old media” were hiding. At the same time, social platforms are uniquely designed to feed that egotist in us that craves the dopamine hit generally referred to as confirmation bias.  

The tech-utopians truly believed (and apparently still do) that a more enlightened, more civilized world is the inexorable outcome of more access to more information. When some of us countered that internet platforms seem to be highly effective at spreading disinformation and other toxic content, we were called luddites who hate progress and technology. We were told that we wanted to stop a new enlightenment in which “the whole store of human knowledge would be at everyone’s fingertips.”

It should not have been so easy for a president, or any individual, to insinuate that the entire intel community is a corrupt “deep state” or that election officials are liars or that over 60 courts, including the Supreme Court, willfully ignored fraud in the 2020 election. Those conclusions insist that not one of the tens of thousands of oath-taking public servants implicated can be trusted over the word of one man or the conspiratorial ravings of some profiteering opportunists on the internet.

We must acknowledge that Facebook, Twitter, Google, Amazon, Reddit et al have been the category killers in the business of that profiteering opportunism. If one feels suddenly inclined to straighten out a Trump defender on the First Amendment, remember that it was these corporations, with the assistance of the EFF, Techdirt, Public Knowledge, the ACLU and others, all asserting for many years that almost everything posted online should be treated with the deference of protected speech. Whether militance on this matter is ideological or simple greed, it is a premise that must be rejected as false for our own good. David Golumbia, associate professor of digital studies, wrote recently for the Boston Globe:

As a small group of scholars and activists are arguing with increasing force,…it is manifestly possible to protect free speech — and thus enhance the political and democratic values free speech is meant to promote — while suppressing, or at least not actively encouraging, the efforts of those who want to turn democracies against themselves.

And if we grasp that protections on speech really exist to enhance democratic participation, then it’s easier to see through the claims that digital products such as Bitcoin or Apple’s computer code count as speech. In other words, we’d see that a lot of cries for “freedom of speech” in the Internet era are really just demands for freedom from regulations that wouldn’t be challenged in the offline world.

So, by all means, Senators Hawley and Cruz, and any elected official who lent credence to the stolen election story, should be held accountable for feeding a fire that exploded on January 6,and is probably not done exploding. But Big Tech executives and the “digital rights” groups have much to answer for as well. To a very great extent, Donald Trump merely exploited the systemic and psychological vulnerabilities that the major platforms had been exacerbating and monetizing for years.

The leaders of the internet industry have consistently spoken to the public in the ebullient language of new horizons, where fresh ideas and opportunities converge. But that was only part of the picture. While raking in billions, these companies willfully ignored or scornfully dismissed the fact that their systems and business models made few distinctions among information, misinformation, and disinformation. Instead, they papered over those dichotomies by citing the First Amendment to which they owed no duty whatsoever. So, yes, Trump and his supporters are dead wrong to call the sudden deplatforming an infringement of the speech right, but it was the internet companies themselves who fed them that lie in the first place.

*CORRECTION: This was originally published as “treasonous,” which is the wrong word.

Section 230 and Trump’s Legislative Circus

Recently, the law called Section 230 of the Communications Decency Act (1996) has featured in a political cacophony that is becoming more ridiculous since the day Twitter first presumed to label Trump’s disinformation for what it was. Now, the noise has continued to exacerbate legislative dysfunction down to the final hours in this toxic year.

After vetoing the 2020 National Defense Authorization Act (NDAA) because the must-pass legislation did not contain a rider to repeal Section 230, Trump then pivoted to making the same proposal (along with another unfounded investigation into election fraud) a condition of passing a broader COVID relief package favored by Democrats, but less so by most Republicans. As long as those riders are part of the spending increase bill in the Senate, Democrats cannot vote for it, which will presumably suit Leader McConnell and several other Republican senators just fine.

What any of this means with regard to Americans getting the financial assistance they need, or to Trump’s continued influence over the Republican party remains to be seen. But for sure, the president’s very fragile ego has elevated an arcane cyber law to prominence by grossly distorting its intent and meaning, and by injecting divisive partisanship into a policy matter where lawmakers might otherwise reach consensus.

Real Section 230 Problems

The ill effects of Section 230 have nothing to do with political speech bias and everything to do with harmful conduct like harassment, libel, sexual extortion, etc. that has too-often been shielded by the statute. These unintended consequences, akin to the DMCA Section 512 problem, are largely the result of the courts’ over-broad interpretations of Section 230, resulting in dismissals, incompatible with justice, of various civil claims.

Nowhere in American life are parties that contribute to, or profit from, harmful conduct automatically immunized against civil liability, except for internet platforms. And automatic, wholesale immunity was never the intent of Section 230. As described in this post, 230 was written to encourage platform moderation, but over the years, the conditional immunity it was meant to provide was steadily asserted by platform owners as grounds to reject nearly all moderation altogether—even the basic courtesy of removing material that is known to be harmful.

So, whether a site intentionally or unintentionally hosts material that is harassing, libelous, nonconsensual pornography, or content that may be otherwise actionable in the real world, platforms have almost never been forced by court order to be so much as helpful to victims of these crimes. As attorney Carrie Goldberg can describe in detail, her client Matthew Herrick was unable enjoin the dating site Grindr simply to demand that it remove posts made by another user with the explicit intent to cause Herrick to be physically harassed and quite possibly raped. All Grindr had to do was remove the posts, but it refused to do so on claims of protecting speech—a constitutional fallacy that is only possible because the courts have held 230 to be too broadly immunizing.

Consequently, Trump’s rhetoric on Section 230—lashing out at platforms like Twitter for presuming to label disinformation for what it is—has muddied the waters on a legal framework that otherwise requires sensible and humane review. Although Trump likely could not explain 230 to save his life, his gibbering amplified one of the most popular misconceptions about it:  that “viewpoint neutrality” is either the aim of the statute or a condition for maintaining a platform’s liability shield.

Neither of those premises is true, but it is worth remembering that it was the platforms themselves who promoted this false neutrality narrative long before the Trump administration put them in a moral bind of their own making. Every Big Tech PR message for the last 20 years has been one in which it is presumed to be axiomatic that internet platforms are enhancements to and defenders of the speech right. Neutrality and speech were the public rationales for laissez-faire moderation policies that just so happened to enable the big platforms to monetize all activity. Only when disinformation became the official word of a sitting president, and hate speech spilled over more prominently into hate crimes, did any of Silicon Valley’s leaders begin to wonder if they had made egregious errors in their systems or management practices.

Meanwhile, the outgoing president’s vindictive assault on Section 230 has largely been a PR gift to the companies he would like to hobble and to those ardent believers in the failed maxim that “more speech is the antidote to bad speech.” The Electronic Frontier Foundation published a post on December 9 entitled It’s Not Section 230 President Trump Hates, It’s the First Amendment. Naturally, it seized upon the Trump tantrum as an opportunity to incorrectly reiterate that 1) maintaining the status quo of 230 is synonymous with protecting speech online; and 2) all critics of 230 are hellbent on repeal as an assault on the First Amendment, just like Trump.

Real Section 230 Reform

On the contrary, while some reformers have advocated apolitical reasons for a repeal of Section 230, others recommend restoring the original intent through legal reform—a reform that begins by recognizing that the bad conduct shielded by 230 means that speech is not exactly protected as universal right on the internet in the first place. As scholars Mary Anne Franks and Danielle Citron, two of the most important thought leaders working on the 230 issue, describe in a paper published in February with the Boston University School of Law [1]:

Marginalized groups in particular, including women and racial minorities, have long battled with private censorial forces as well as governmental ones. But the unregulated internet — or rather, the selectively regulated internet—is exacerbating, not ameliorating, this problem. The current state of Section 230 may ensure free speech for the privileged few; protecting free speech for all requires reform.

Franks and Citron have made major contributions to legislative reform, addressing harms like nonconsensual pornography, and to our understanding of how Section 230, combined with “speech fundamentalism,” results in conduct like online harassment without consequence for the perpetrators or the facilitators. So, the implication that the president, or any elected official, is having his speech chilled by means of fact-checking, is blatant, privileged hypocrisy in contrast to what really happens to people who do not sit in seats of power …

Failing to address online abuse does not just inflict economic, physical, and psychological harms on victims—it also jeopardizes their right to free speech. Online abuse silences victims. Targeted individuals often shut down social media profiles and e-mail accounts and withdraw from public discourse. Those with political ambitions are deterred from running for office. Journalists refrain from reporting on controversial topics. Sextortion victims are coerced into silence with threats of violence, insulating perpetrators from accountability.

Rather than a piecemeal approach to reforming Section 230, Franks and Citron propose two broad remedies—one statutory, the other judicial—to ameliorate the inadvertent shield the law presently provides to bad actors. The statutory remedy is to clarify that 230 only applies to protected speech and not to the broader term “information,” which is the word that currently animates the immunity enjoyed by platforms.

In theory, this focus on protected speech might rein in Big Tech’s rhetorical agenda to define everything posted online as “speech.” As Franks and Citron recommend, if the statute is more clearly defined, the courts can distinguish protected speech from tortious conduct posing as speech. In fact, most of us can make this commonsense distinction without law degrees; but having said that, the speech bar is not an easy one to overcome by amending the 230 statute accordingly. For better or worse, protected speech can encompass some very bad conduct, and the legal remedies tend to require narrowly tailored statutes, outside the scope of 230, to prohibit the conduct itself.

For instance, as I was writing this post, Dr. Franks happened to tweet the news that the Minnesota Supreme Court upheld that state’s nonconsensual pornography law as constitutional, but it is worth noting that the court rejected the state’s assertion that the conduct was a new form unprotected speech. Instead, it held that the law served a compelling interest and was narrowly tailored to serve that purpose (i.e. strict scrutiny). It is also worth mentioning that defenders of Section 230’s status quo have generally opposed statutes prohibiting nonconsensual pornography.

In addition to possible statutory amendment to Section 230, Franks and Citron’s paper describes a judicial approach that would apply precedent understanding of “reasonableness” on a case-by-case basis to examine whether a platform has taken “reasonable” steps to remove or mitigate unprotected, harmful content from its servers. In practical terms, then, Matthew Herrick’s conflict with Grindr would not arise because 1) the posts at issue were not protected speech;[2] and 2) because Grindr’s refusal to remove the posts would likely not meet a “reasonableness” standard familiar to any court in comparable areas of law.

On that second point, Franks and Citron cite judicial principles sounding in, for instance, copyright law, which begs the question whether “reasonableness” could be more effectively applied under Section 230 than “knowledge” of infringement has been under Section 512. But I shall leave that question open for consideration in a future post.

In general, I would argue that a very compelling reason to close the Section 230 loopholes that allow site operators to shirk responsibility is the premise that opportunity becomes motive. If we ask, for instance, why there has been an increase in nonconsensual pornography, often perpetrated by some idiot ex-boyfriend with a gripe, we can blame the weak morals of the individual, misogyny in general, or a bottle of tequila and a bad day; but a key factor that cannot be ignored is that it is just too damned easy. The opportunity to cause someone harm—potentially much greater harm than might be contemplated or intended—with the tap of a few buttons only exists because certain platforms trade in misery while others simply practice depraved indifference to it. And that is the psychosis which needs to be addressed by legitimate Section 230 reform.

[1] The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform. Link.

[2] Even worse, because the posts “spoofed” (i.e. pretended to be) Herrick, they were a form of coerced speech in addition to attempts to cause him physical harm.   

The Mask of Zuckerberg’s Zeal

Right after Mark Zuckerberg delivered his 40-minute address at Georgetown University on October 17, articulating his views on the speech right and the role of Facebook, several very good editorials appeared almost immediately. Most recognized the speech for what it was—PR for a corporation by a CEO who has no particular reason to be expounding on constitutional rights or history.  

Julia Carrie Wong, writing for The Guardian, rejected Zuckerberg’s arrogant presumption that he and his company “gave people voices,” … 

“Human beings have voices whether or not they are on Facebook. What Facebook has done for its 2.4bn users is not to give them a voice, but to give them access to an audience – and to manipulate and shape what this audience looks like through obscure algorithms that are tuned to maximize behaviors of Facebook’s choosing.”

Andrew Marantz, in The New Yorker, called out Zuckerberg’s lies of omission, taking credit for the benefits of Facebook while offering neither contrition for, nor even acknowledgement of, his platform’s uniquely catalytic role in causing political havoc on a global scale …

 “Now that the list of countries suffering under proto-autocratic leadership has grown to include India, the Philippines, Brazil, and the United States—and given that this is no random quirk of history but one attributable, in large part, to Facebook itself—it’s long past time for Zuckerberg to come up with a new ideology, or at least a new branding strategy.”

And after Facebook announced that it would knowingly host political ads that were patently spreading false information, Aaron Sorkin, screenwriter of The Social Network, penned a popular response to Zuckerberg explaining why Facebook’s policies have nothing to do with speech …

“…right now, on your website, is an ad claiming that Joe Biden gave the Ukrainian attorney general a billion dollars not to investigate his son. Every square inch of that is a lie and it’s under your logo. That’s not defending free speech, Mark, that’s assaulting truth.”

While it is certainly good to see that fewer people are willing to buy Zuckerberg’s bullshit, let alone his credentials for holding forth on political philosophy, his attempt to reboot the premise that created his (and our) problems in the first place seems to be more or less where the internet industry has landed over the last year or so.  After a brief period of navel-gazing and half-hearted promises to “do better” in 2016, Silicon Valley’s wizards seem to have come to the conclusion that they were right all along—a theme that could easily be the subtitle of Zuckerberg’s Georgetown speech. 

 “Throughout history,” he says, “we have seen that more people being able to share more experiences and more perspectives has always been necessary to build a more inclusive society.” This is not exactly true as a historic statement, and it has certainly not proven to be an axiom that can applied to the effects of social media.  Most importantly, what Zuckerberg is really doing there is reprising a theme that social media platforms sit on timeline that traces a smooth arc from the Gutenberg press to Facebook. 

File that under the general talking point that everything internet companies do is inherently progress by virtue of novelty alone; but more acutely, Zuckerberg misrepresents the tire-squealing hard turn into uncharted territory that social media really was.  Remember that Facebook’s mantra was “Move fast and break things.”  Well, they did.  Unfortunately, those things include the foundations of democracy, and it is in no way clear that those things can be repaired.  

That old cliché that says you are entitled to your own opinion but not to your own facts could not withstand the gale forces of the digital age.  It turns out you are entitled you your own facts, and Silicon Valley is only too happy to commoditize that dystopian disaster and call it “free speech.”  In Federalist 1, Hamilton warned the prospective new Americans against populists, writing …

 “…a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” 

But is there any way to eject from the paradox?  I suppose we could abandon the platforms, but only if we do so in at least millions if not tens of millions.  Otherwise, Zuckerberg can make all the dumb speeches he wants, mangle history almost as badly as Donald Trump, Jr., and adopt a company policy that openly monetizes disinformation.  Because where are we going to criticize him for his conduct?  Exactly. 

Zuck’s recycled promise that social media can only be a fillip to democracy is the trickle-down economics of the digital age.  It is Silicon Valley’s version of the worn-out theme that corporate giants are primarily in the business of investing in a new and improved world—for our sake.  

Except the techbros are not speaking in the familiar, aspirational hyperbole of advertising; their patter is a sincere and insane presumption that were right to reprogram the liberal world order.  Techno-utopianism is not an expression.  They are not kidding.  And what Zuckerberg’s Georgetown speech says most of all is that he and his buds were right all along—that it’s our fault for losing faith.  He concludes …

“I believe that more people’s voices will eventually help us work through these issues together and write a new chapter in our history — where from all of our individual voices and perspectives, we can bring the world closer together.”

Absolutely, Zuck.  More of the same will definitely make things better.  

Photo by mshmeljov