Free Speech and Censorship Online
Making Sense of the Confusion and Obfuscation In the Twitter Controversy
My Personal Experience With Online Censorship
Elon Musk’s purchase of Twitter has ignited a controversy about free speech and censorship. Opponents of Musk’s takeover claim that adopting algorithms that censor fewer users will only create a cesspool of hate and allow cranks to promote lies and conspiracies. Musk’s opponents claim that he will soon learn that the current algorithms and rules that censor Trump and other Conservative commentators are essential to ensuring that Twitter can attract quality users and advertising revenue to earn a profit.
I have a particular interest in this controversy. On April 29, 2022 I composed my first tweet. Later, a good friend opened up my tweet and she received a warning message that my account was restricted. Twitter never sent me any kind of a notification that my account was restricted. Today when I tried to reply to tweets sent by others, I was blocked. Below is a screen shot of my tweets:
Hardly a case of misleading political extremism poisoning the public discussion. I am actually correcting a very misleading and trending meme that Republicans boxed themselves into a corner that will inevitably lead to a significant increase in the taxes of Floridians. Then I replied to several others who had posted tweets on this topic about Reedy Creek:
This tweet was in response to Governor Newsom of California:
I posted additional replies to nine other misinformed commentors making the same points. Therefore, free speech and censorship on Twitter, YouTube, Facebook, Instagram, Tik Tok and other popular social media sites is more than just an academic interest for me. I’ve actually felt the impersonal and unaccountable suppression of my speech on this platform.
The Incorrect and Misleading Framing of This Problem
Many commentators claim that the social media companies are free to do whatever they wish, and that I have no legal recourse to challenge their exercise of their rights under the First Amendment. That would be true if social media companies were regulated like newspapers and television programmers who edit and curate their content before publishing it. However, social media companies got special legal treatment in Section 230 of the Communications Decency Act of 1996. This law applies to “interactive computer services.”
The idea is that if I slander someone over the phone, the injured party should not be able to sue the phone company to recover damages. The phone carrier is providing a neutral, technical service, and it cannot control the content of speech over the phone.
Likewise, YouTube and Facebook should not be held liable for libelous statements on their platforms, otherwise, they would be subject to too much legal liability to ever offer the service.
Everyone agrees that these platforms should censor any media that violates the law (copyright, trademark, child pornography) or offers advice and training for committing crimes, or terrorism.
In the interest of not alienating users, these social media companies don’t allow pornography. Most people would agree that the use of obscenities (F**k, C**t, Sh*t, B*tch, Bas***d, A**hole, etc.) could be excluded, as long as the list is specified. Furthermore, ethnic and racial slurs are widely accepted as prohibited speech, as long as the terms are listed for all to see and avoid.
But then the lines begin to blur when they censor “offensive” and “misleading” speech. Censoring the NY Post’s expose of Hunter Biden’s Laptop has been revealed as a colossal blunder because now we know the Post’s revelations have been authenticated by Federal authorities investigating Hunter Biden. Twitter rationalized their censorship of the story as proper because the laptop was “stolen.” (In fact, it was abandoned, not stolen.)
What occurred with the Hunter Biden Laptop fiasco was not an exercise of neutral rules. The blatant hypocrisy was exposed when Pro Publica’s publication of tax returns of the richest Americans used stolen documents, and Twitter did not censor the links to their website.
Which brings us to the fact that Twitter, Facebook, and YouTube are acting like publishers who have a political bias against Conservative voices. Nothing wrong with that as long as you cannot hide behind Section 230 protections. Everyone knows that the NY Times and the Washington Post are left-wing newspapers, but at least they are accountable to anyone whom they libel. In contrast, these social media companies are not accountable. They receive special privileges granted by the government. Therefore, they are proper targets for legal reform.
A Proper Law For Regulating Online Media
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information-content provider. A safe harbor for this exemption applies if the provider of the service only excludes users engaged in activities prohibited by law.
Whenever the interactive computer service excludes or restricts content not prohibited by law, then it may only discriminate in the display of user content or its offer of services or compensation based upon rules of exclusion, restriction, manner of display, and compensation based upon the age and residency of the consumer; use of enumerated profane words; mutilation, physical battery or assault upon persons or animals; or nudity. Otherwise, it shall be considered as the publisher of the information and liable for any claims for damages.
Federal Courts shall adjudicate claims of violations by an interactive computer service provider. Only legal residents, Citizens, and legal persons domiciled in the United States have standing to file suit. The prevailing party in any lawsuit may recover reasonable attorney fees in addition to any damages awarded. Minimum damages for a first offense against a consumer by an interactive service provider shall be one one-hundredth of the compensation of a Member of the House. Successive violations shall double the amount of the previous award of damages to the consumer.
The interactive service provider must contact any user who has violated these guidelines with an explanation of which guidelines were violated, and the remedy for reinstatement or lifting of restrictions. This message must be posted for public viewing on the service provider’s platform, in accordance with law, for no less than sixty days and archived in the format prescribed by law.
Why This Law Solves the Problem
It is easy to be neutral and censor obscenities and slurs because those words can be placed in a list for public viewing. It is easy to prohibit content that violates the law. However, censoring content that is offensive and misleading is very subjective and prone to abuse. To remedy this, then the second paragraph provides a fair rule to follow while the third paragraph provides an effective enforcement mechanism to deter violations.
If you wish to censor persons who post misleading and offensive content, then the service provider may not discriminate in the application of the rules for censorship. For example, Twitter could have have complied with this law if it prohibited both the Hunter Biden Laptop content and the ProPublica Taxpayers Disclosure content.
As a further guarantee, the computer service provider would have to publicly post all incidents of denial or restriction of service. This allows someone to see if there is a pattern of abuse and bias.
This publication of information and its ability to be retrieved and analyzed by the public should provide the transparency that would improve the fairness and equal treatment under the law that Americans expect.
If this is too onerous, then these social media platforms can operate like newspapers. It’s only fair.