For years, American conservatives have taken solace in the First Amendment. While free speech is under relentless attack, the First Amendment and decades of court rulings upholding it offer a robust bulwark against any efforts to categorically restrict speech.
But no longer. Judges from the nation’s cocktail class have erected a legal regime where the First Amendment is interpreted to help Big Tech monopolies suppress the speech of commoners. Meanwhile, in Europe — the land of hate speech laws with no First Amendment — dissidents are battling against tech discrimination with more success than in America.
Last week, in Germany, a court actually ordered Facebook to put back up several posts that had been taken down for allegedly containing racist content:
A top German court has ruled that Facebook acted illegally in taking down racist posts and blocking the account of their author because the social network failed to inform the user or give a reason for shutting them down.
Thursday’s judgment by the Federal Court of Justice further complicates a fraught debate over toxic discourse on social networks as Germany girds for a general election in September that polls show may not deliver a stable government.
It is all the more striking because the comments made by the unnamed plaintiff evidently violated Facebook’s community standards governing so-called hate speech, which is banned under German law if it threatens the peace or incites violence against minority groups.
In its three-page summary, the Karlsruhe-based court stated that Facebook’s terms of service regarding the deletion of posts and blocking accounts for violating its community standards were “null and void”.
This, it added, is because Facebook does not undertake to inform the user about the removal of an offensive post at least retrospectively, to advise that it is blocking an account, to give a reason for doing so, or to offer the right of appeal. [Reuters]
This despite the fact that Germany’s national laws restricting speech are far more oppressive than America’s. In the U.S. criminal incitement is restricted to fomenting specific imminent illegal acts (such as whipping up a mob to burn someone’s house down). But in Germany, the ban on so-called Volksverhetzung is far broader, covering any statements that supposedly undermine public order by “inciting hatred” against national, ethnic, or religious groups (this is how Germany prosecutes Holocaust denial, for instance). Germany expanded its hate speech law in 2018, with new requirements compelling online companies to delete offensive posts or face large fines.
Germany is set to start enforcing a law that demands social media sites move quickly to remove hate speech, fake news and illegal material.
Sites that do not remove “obviously illegal” posts could face fines of up to 50m euro (£44.3m).
The law gives the networks 24 hours to act after they have been told about law-breaking material.
Social networks and media sites with more than two million members will fall under the law’s provisions. [BBC]
Obviously, Germany’s speech codes are onerous and draconian. And yet last week’s ruling against Facebook makes clear that the German system is in some ways less oppressive than the new system being imposed on America. In Germany, the government wants censorship decisions to be made by a government that is at least nominally accountable to the citizenry, not by informal corporate oligarchs with obvious ideological motives. In Germany, giant tech oligarchs are constrained by the law. They are expected to follow clear and fairly-applied policies, explain themselves, and grant a chance to appeal. But in the U.S., these tech oligarchs have essentially unlimited authority to hide, throttle, or delete content on their platforms, with zero transparency.
Contrast the European ruling with this ruling in June from an American court:
A federal judge has temporarily prevented Florida Gov. Ron DeSantis from implementing legislation allowing state residents to sue the country’s largest technology companies over their content moderation policies.
The law was scheduled to go into effect on Thursday.
In a preliminary injunction issued on Wednesday, the judge sided with two trade associations that argued parts of the law may violate the First Amendment by requiring social media sites to host speech they otherwise would not and by interfering with their editorial judgment.
The plaintiffs also took issue with the fact that legislation targets large technology companies and not smaller companies that operate in similar – if not identical – ways. [Fox Business]
Yes, you read that right. A federal judge declared that preventing Facebook, Twitter, or Google from engaging in mass censorship of the public violates the companies’ First Amendment rights.
What is the basis for such a bizarre interpretation of the First Amendment?
The root of this problem lies with the way the courts are treating major social media platforms like Twitter and Facebook, a lawyer with expertise on the topic told Revolver.
“Nobody thinks Twitter or Facebook are expressively curating or publishing your memes, but this is how the law and judges are treating them,” the lawyer said. To the courts, Twitter is essentially a giant newspaper, and it can choose what stays up on the site in the same way that The New York Times can decide what articles run in its pages, or Simon and Schuster can choose which books to publish.
Of course, this conception doesn’t accord at all with the actual nature of social media giants. Exactly zero people operate under the belief that anything appearing on a major social media network is “endorsed” by the company or indicative of their viewpoint. Twitter, Facebook, and YouTube are simply platforms, open to everybody. But the courts have instead constructed a silly and fake reality, in order to create an affirmative right to censor by America’s most powerful companies.
While Florida’s bill to regulate Big Tech wasn’t perfect, it at least included the major contours of a model law that freedom-loving Americans should aspire to enact nationwide. Florida’s law doesn’t prohibit tech companies from moderating comments. Instead, it requires them to be fair, transparent, and consistent in their practices, and gives users the right to sue if treated unfairly. It expressly protects the ability for politicians to communicate with the public before an election. And lastly, the law is limited only to large social media websites which are true “public forums,” while small upstart websites that have fewer resources or cater to specific communities are spared.
Florida’s law was a good law, that protected the liberty of ordinary people and curbed the oppressive power of tech monopolists. And for now, America’s courts have crushed it. Our courts are creating a hellish reality where private citizens have no First Amendment protection against the Big Tech cartel censoring and deplatforming them. And yet, the Big Tech cartel has First Amendment protections against private citizens voting for the right to simply speak to each other. Don’t like it? Just build your own Facebook, and your own web hosting service for when Amazon bans you, and your own credit card for when MasterCard cuts you off, and your own bank for when Citi closes your account.
For decades, the conservative attitude toward the courts has focused narrowly on guns and abortion. The Trump years highlighted the importance of immigration as well. But because freedom of speech seemed safe, the matter was largely ignored. Now, even many conservative appointees are ideologically beholden to an interpretation of the First Amendment that lets it be used, not to protect the words of the powerless, but to silence them. In the years and decades to come, the courts will now be a key battleground in the realm of speech. Right now, conservative legal thinkers need to formulate legal doctrines that will protect speech rather than suffocate it, and they must elevate judges who will put these doctrines into action.
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