Denounced by some as censorship and supported by others as a reasonable enforcement of company policies, the move has again raised questions about the control a small handful of social media companies have over what constitutes acceptable speech online.
Citing user complaints and violations of company policies prohibiting hate speech, bullying and the glorification of violence, Apple, Facebook, Spotify and Youtube removed Jones’ podcasts,
Infowars argued that the tech giants did not provide evidence of violations before removing content and denounced the move as censorship. “This sets a chilling precedent for free speech,” Infowars editor Paul Joseph Watson tweeted. “To all other conservative news outlets – you are next. The great censorship purge has truly begun.”
Twitter and Periscope are the only major social media platforms still hosting Alex Jones’ content, which is also still accessible on the Infowars site. Google and Apple are also still hosting the Infowars app and in a somewhat ironic twist, it soared to the fourth most popular app in the news category on Tuesday.
Authorities in constitutional law and free speech were conflicted by the social media giants’ concerted action against Infowars, but acknowledged that the First Amendment does not extend to private companies.
“Speaking legalistically, it is undebateable that Google and Facebook and the like are not legally obliged to behave as the government is with respect to the First Amendment,” said Floyd Abrams, a venerated scholar and lawyer who argued several First Amendment cases before the U.S. Supreme Court.
As with the entirety of the Bill of Rights, freedom of speech is protected against the government and only the government. Companies set their own rules, typically aimed at limiting threatening speech, hate speech, pornography, violence and other types of content. These companies are often expected to do so by users, stakeholders. The government has also come to expect cooperation from social media giants in stopping the spread of terrorist content, removing fake accounts and to some extent curbing “fake news.”
With billions of users worldwide and hundreds of millions of users in the United States, social media companies should make the effort to carry the widest range of views, even if they are unpopular, Abrams asserted, but they are not obligated to host speech they consider intolerable. In that sense, he noted, the social media giants were “well within the appropriate norms” when they decided not to carry Alex Jones content.
The real debate, Abrams continued, is to what extent “these large, terribly powerful institutions” should hold themselves or be held accountable to First Amendment standards and norms.
SHOULD SOCIAL MEDIA UPHOLD 1ST AMENDMENT NORMS?
Nadine Strossen, the author of “HATE: Why We Should Resist I With Free Speech, Not Censorship,” noted at least two pervasive myths about social media and free speech.
First, is the popular idea that the First Amendment applies to social media companies. “Another myth that has continued to be perpetrated by these companies is when they say we’re not making content-based distinctions.”
Strossen, who was also the first female president of the American Civil Liberties Union, said the assertion of viewpoint neutrality “on its face is inaccurate.”
In its own mission statement, YouTube defines itself by “four freedoms” including the freedom of expression and freedom of information. However, the company has faced numerous accusations of “filtering” content for ideological reasons, particularly by conservative users. Google, Youtube’s parent company, was sued by a conservative radio host alleging First Amendment violations. The case was dismissed earlier this year.
Facebook, which purports to be a platform “for all ideas,” has been plagued by claims of manipulating users’ news feeds, promoting fake content and using algorithms to enforce its “community standards” that has led to complaints from conservatives and liberals about content censorship. In addition to its vocal critics on the right, liberal and progressive groups associated with the Black Lives Matter movement or anti-government protesters have also spoken out about their pages being removed arbitrarily.
The fact that these complaints of censorship are not limited to opinions on the left or the right should be a cause for concern for all proponents of free speech, said Strossen, who
“If you’re a left you’re a left-winger and you’re taking comfort in Alex Jones or others being taken down by Facebook, you’re giving yourself false comfort,” Strossen warned. “Because the very same arbitrary, subjective, discretionary power that is being used to single out those ideas can be used, has been and is being used to single out ideas that you like as well.”
WHEN PRIVATE INTERESTS CONTROL A PUBLIC FORUM
As one of the most famous sources of conspiracy theories, it came as no surprise when Infowars claimed to be the victim of “a coordinated war” led by a “monopoly” of the top tech platforms trying to silence Alex Jones. Regardless of one’s opinions about Jones, he and his followers are not the first to raise concerns about the exclusion of certain voices from online forums.
In 2017, the U.S. Supreme Court ruled on a seemingly controversial case about a state’s attempt to ban a convicted sex offender from using social media sites. In a unanimous decision, the court upheld the principle that social media is “the modern public square.” As such, the justices acknowledged that social media was a “quintessential forum for the exercise of First Amendment rights” and the most important space for the exchange of views.
Yet, that public square is largely regulated by private company’s “community standards” or “guidelines.” Even as the companies express their support for free speech as an ideal, when their practices fall short it evokes further questions about the degree to which social media companies should be held to First Amendment standards.
After Alex Jones was banned from numerous platforms, critics questioned why other users, who arguably expressed even more hateful, threatening speech were not removed as well. In part, it’s somewhat arbitrary. Each platform is increasingly responsive to users flagging inappropriate content that would otherwise be protected speech if weighed against the First Amendment. In part, the platforms are answerable to market pressures that also come into play in deciding whether to restrict one user or another.
“For all the reasons we did not want the government, when it controlled the traditional public forum, to discriminate on the basis of ideas, we should not want these powerful private sector entities to do the same thing,” Strossen stressed
In recent years, there has been a push by some members of Congress to enforce stricter First Amendment standards on big tech companies. While some worry about excessive federal government regulation, others note the steps taken by Congress at the start of the internet age that arguably shored up the success of the world wide web.
Under the 1996 Communications Decency Act, online third parties—like the social media giant of the day, AOL—were completely shielded from legal liability for the content that appeared on their sites. That encouraged more participation and disincentivized platforms from blocking or regulating content.
Some lawmakers, like Sen. Ted Cruz, R-Texas, has proposed rolling back that legal immunity for companies that cannot prove they are “neutral public forums,” the standard for protection under the Communications Decency Act.
During a speech in Austin over the weekend, Cruz warned that whether or not they are acting as information curators or neutral public forums “is a question that has the tech companies very, very nervous.”
In the meantime, the American public has not yet reconciled the role of social media, which is neither held to the high standards of protecting free speech as the government or the low standards of a telephone carrier, which has no responsibility for the content traveling over the wires.
Abrams explained that the American public has not yet reconciled the role of social media, which is not held to the high standards of protecting free speech as the government or the low standards of a telephone carrier, which has no responsibility for the content traveling over the wires.
“It’s difficult for them and it will be more difficult as time passes to make these independent policy decisions about what not to carry,” said Abrams, particularly in an environment where the manner of speech is more heated, unrestrained and vulgar than previous forms of communications.
“All that affects our society and I think most of it is irreversible,” he continued. “It’s a wholly new world of mass communication by the public itself to the public. It’s extraordinarily democratic in nature, but it’s also not without danger.”
