The First Amendment on Private Platforms

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  • #29592

    Monica Perez

    I have been particularly interested in First Amendment issues regarding private platforms since I was unfairly deplatformed by Wordpress and demonetized by YouTube for no given reason. (For my on-air account of the situation, listen here.) As a libertarian, I am a proponent of strict property rights so would not require private property owners to guarantee First Amendment rights, but there are two nuances to this question in regards to social media that must be considered.

    One is that some of the larger social media platforms cannot be considered strictly private. Since the inception of the Internet in the computer labs of DARPA, it has been used for surveillance and censorship and may actually have been created to transform the public square into precisely what it has become.  (This article is a good place to start down that road: Google’s true origin partly lies in CIA and NSA research grants for mass surveillance.)

    The other is that private property is not considered an absolute bar to First Amendment rights if the government facilitates the way the property is used, which could be relevant here based not only on the origins of google et al, but also because their patents, logos, etc, are protected by the government. (See Burton v Wilmington Parking Authority.) Beyond that, First Amendment protections are usually over-read rather than under-read and have even been protected from tort law (see Snyder v Phelps)—though in my opinion tort remedies are (and should be) the natural counterpoise to absolute freedom of speech.[*] In addition, the government, by its own admission, has intentionally and successfully co-opted various social media to control free speech for ends-justifies-the-means designs that must be heard to be believed: watch here, starting around 48:00.

    Am I missing anything? I know you fellow deep divers will help me plumb the depths!


    [*] For example, may you yell “Fire!” in a crowded theater? Yes you may, but if it is untrue, you are likely intentionally causing emotional distress, causing or exposing stampeding people to injury, costing the theater-owner refunds or reputation, and for these torts (and maybe even crimes) you should be held to account.

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    • #29596


      My own views on this topic are quite conflicted.  Therefore my responses will certainly contain internal contradictions.

      Before delving “deep dive style” into how I frame this topic, I’d like to ask some questions about your position.

      1. When you mention that Google and the internet itself have government origins.  Does that fact (which I agree/concede) provide free speech protection explicitly because of the origin itself or is it the implied original funding that you feel permanently creates a nexus with the government or makes them a de facto organ of the government?  In other words is the position that all entities of government origin remain organs of the government regardless or is it a subset that includes ones that received such a funding advantage that effectively created a government-sponsored unassailable monopoly?
      2. Regarding the “yelling fire” example, I would suspect that the “emotional distress” bar is a low one and that those engaging in censorship (let’s say “Google” as an example) could (and possibly do) hide behind a (stated or real) desire to shield themselves from perceived risk of emotional distress claims as justification for their censorship decisions.   Many private enterprises implement policies with the goal of avoiding litigation.  To the naked eye, might not commercially-motivated decisions/policies be indistinguishable from outright ideologically-motivated censorship if the stated goal is to avoid claims of emotional distress?


      An odd, but PURELY anecdotal observation of mine is that censorship mainly becomes an contentious issue when one side of the debate doesn’t believe (or admit to believing) claims made by another but thinks that “others” will/do.   Let’s take the moon landing for example.   There are media outlets who would suppress those who believe that the moon landing was faked.  The bar for the suppression is not explicitly because they believe that the claim is untrue, it’s because they think others might BELIEVE it (which COULD be a function of whether or not there is some truth to the claim—but I won’t go down that path for now).  The same media outlets probably wouldn’t actively suppress claims stating that, say, “the moon is made of Swiss cheese” despite that claim also being untrue since relatively few are likely to believe it.

      I acknowledge that I’m not explaining myself very well but, it SEEMS that a key component of censorship claims is a belief or expectation that certain information will be BELIEVED rather than being simply based on whether or not the information is believed (real or stated) to be false.   No conclusions/revelations from me on this aspect, just an observation which I haven’t heard discussed.

    • #29605

      Monica Perez

      You are definitely expressing yourself well!

      I wouldn’t say that something that was originally government sponsored then broke away is a government entity…trade protection could be construed as a government subsidy which might taint more industry than not over the centuries.

      I would say in this case, google was created by the government with the purpose of corralling people into a digitized public square then calling it private. (Read that quartz article I linked to – it’s mind-blowing. You can also see hints of this in Cass Sunstein’s Conspiracy Theory and the US Army War College report on Psychological Operations in the 21st Century.) It was a trap to neuter the first amendment and it worked IMO.

      This is a growing trend by the way – the refugee industry is another example: localities demand a certain amount of accountability from government entities settling refugees in their towns but less if any such requirements are applied to refugee placement NGOs even when they get almost all their money and mandates from governments. (This is one of many reasons I object to “public-private partnerships.”)

      Which brings me to the next point…”the bar for yelling fire would be low.” I agree…you shouldn’t yell fire and no one will allow it if they could preemptively stop it without driving away all their business…however, in a free market with plenty of competition and no one government-fostered entity having a tremendous first mover and tech advantage over all others, there would be lots of start-ups with different offerings and different levels of risk aversion. Perhaps a simple disclaimer such as “we are not responsible if you get hurt riding our rides” would do the trick.



    • #29613

      Monica Perez

      Oh and the point about the moon landing and the moon being made out of cheese is still cracking me up…I’m just envisioning Max Kellerman going apoplectic on Steph Curry for saying the moon is made out of cheese: “it’s dangerous and irresponsible to talk like that!!”

    • #29616


      Allow me to try and digest this by breaking it up into smaller pieces.   If my understanding of your point of discussion is accurate, then there are 2 possibilities:

      1. Google (and others) are creations and effectively organs of the government.  As such, US citizens utilizing these platforms should be afforded free speech protections as required by the Constitution.  This requirement supersedes the current nature/structure of their capitalization and/or commercial endeavors.


      2. Google (and others) are privately-owned companies and can lawfully “do whatever they want”, despite the governmental nexus to its origins.


      Is that accurate, so far?   Both cases take their government origins as fact, so that bridge has been crossed.

      In the case of #1, Google is allowed to present itself and function in a manner virtually (no pun intended) indistinguishable from #2.   In the case of #2, Google (and other corporations) are free to “censor” content for reasons that they deem (by way of speculation) to be “commercial”  (“…content that will cause us to lose customers/business…”).   Therefore, unless explicitly-stated, censorship decisions stemming from #1 (i.e. “…our CIA origins/connections don’t allow us to host that content…”) end up being indistinguishable from #2 (again “…lose business…”), if my understanding is correct.  Then, how does “little ol’ me” make that distinction in terms of attribution for their censorship decisions?

      Have I gone off the rails yet?

    • #29618

      Monica Perez

      I think the best way to solve the problem might still lie in free markets…perhaps there is a way to quantify the value added to google by the government since the beginning….given that the advantages were at the very start when google was worth almost nothing, the government would be like a seed investor and could own the vast majority of the current value…at one point they actually say they made it a private company to get the public to finance their surveillance operation -so i guess that makes the govt actual founders…

      so if the government owns the majority of the value, then google is a government owned company. But it’s not a normal government owned company like Fannie or Freddie were, it was created to conduct antiConstitutional activities (that’s my take anyway)…so it should be exposed completely…at the same time, perhaps nullify any patent protections they have on their technology so that competition can be restored, somewhat compensating for the networking and first mover advantage govt intervention gave these guys from the get-go as well as solving the problem of free speech–different platforms would sell themselves differently (safe spaces v buyer beware).

      Problem with these solutions is that the damages suffered by different parties, from the public losing its rights to would-be entrepreneurs who never were, is impossible to assess and assign…but if various governments can bankrupt law-abiding highly regulated drug manufacturers for their own failed policies, then by the same token there should be a way to try to right the wrong on a social level. Of course I am a free market girl all the way but we are dealing with an institution created by the pathocracy to further its ends against us in an environment where they control all and we control nothing–this is when people look to government for help–and that usually backfires. I predict no remedy is coming!

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