I think that's the way the debate is framed, right?
Anyway, John Zmirak tweets his new article, David French Versus … the Civil Rights Act? which demonstrates the bankruptcy of NeverTrumpism and DavidFrenchism:
John Zmirak
@JZmirak
Anyone on the Right who tells you "Go found your own Facebook" ... would he have told black Americans "Go start your own chain of lunch counters and hotels!"?
8:39 AM - 10 Jun 2019
Here's how Zmirak begins:
"David French holds that the principles of classical liberalism are eternal and immutable, part of the natural law. So he has staked out firm positions on the freedom of contract and association. They must be virtually absolute. But this seems to conflict with his (presumed) commitment to the Civil Rights Act. Imagine reading the following by French:
Many of these racial discrimination controversies share a dreary sameness. A black patron appears at a public accommodation and faces consequences, while multiple white customers get served courteously.
The regularity of the controversies — combined with the persistence of the overt racial discrimination — is resulting in a demand that government “do something” to solve the problem. But the problem is far too complex and deep-seated for the government to solve. And if the government tries to step in with too heavy a hand, it’s going to violate the law. …
Let’s deal with the most serious issue first. American employers and consumer industries — especially in the South — exist in a largely common racial culture. While there of course exists some degree of overt discrimination against blacks, the reasons for the racial culture reach well beyond overt discrimination. …
The market in theory can rather easily correct the problem…. Persuasion, engagement, and market pressure are preferable to attempts to recruit the government to erode First Amendment protections that, in other contexts, stand as a firewall protecting black Americans. …
"Conservatives Didn’t Build Facebook
"Were you shocked to read that? Of course you should have been. French never wrote it. I adapted the above from French’s recent column at National Review. There he pooh-poohs the complaints of conservatives and Christians about social media censorship. I followed French almost word for word, just plugging in “blacks” for “Christians” and “public accommodations” for “social media platforms.”"
UPDATE 1: I'm reproducing here in an update what commenter Forbes provided (comment below). I knew I was missing something that I'd read previously, and Forbes, IMO hits the nail on the head: social media sites are, in essence, trying to have their cake and eat it too:
Social media platforms should be treated as common carriers--no different than any other communication network.
If they prefer to restrict access (censorship), then they are in fact publishers responsible and liable for their content.
The angle social media is playing is to censor content, restrict access, and have no liability as a common carrier.
A civil right for access is a sledge hammer for what closely exists under FCC 'must carry' regs. regarding cable operators. I.e. like Twitter, Facebook, cable operators don't produce content, they are aggregation platforms that monetize what others produce--subject to non-discrimination rules regarding "must carry" local original programming.
The US has ~50 years experience with cable networks and FCC regulations. No need to reinvent the wheel.
The SCOTUS has heard arguments in the case of Manhattan Community Access Corp. v. Halleck which was thought to have a possible bearing on social media sites, but the speculation--based on the oral arguments--is that the case will be decided narrowly--possibly with distinctions such as Forbes suggests in mind.
UPDATE 2: Takes up Forbes' distinctions:
Cliff Sims
@Cliff_Sims
This is scary. CEO of Google openly says they “as a company” are deciding what’s “hate speech,” what’s too controversial to be on YouTube. They’re not acting as a PLATFORM (allowing open access), they’re acting as a PUBLISHER (making editorial decisions)
Google CEO Sundar Pichai defends YouTube practices
6:13 AM - 11 Jun 2019
Although I'm still undecided whether this distinction addresses the monopolistic nature of the situation to the manipulation of search results on an ideological basis, etc., while receiving government contracts. Similar concerns re other companies.
I'd see the analysis in a different vein (I'm not taking up the French-ian argument), as between a common carrier for communications, or a publisher. The phone company doesn't unreasonably limit your access to the telephone network, nor censor your communications. On the other hand, a publisher doesn't grant you unrestricted access to their publication, and limits (and is responsible/liable) for what it publishes.
ReplyDeleteSo which business am I supposed to go start--a common carrier, or a publisher?
I'm not sure the analogy between a publisher and a social media site works.
DeleteFrom Zmirak's article, here's Will Chamberlain's argument:
Delete"In 2019, you don’t have meaningful free speech if you can’t speak on Facebook and Twitter. Sure, you could go to a public park and scream into the ether. And black people who were turned away from motels in the Jim Crow South? They could always sleep in their cars. …
"[W]e should focus on passing laws – at the state and federal level – that codify platform access as a civil right.
"You do that by creating a private right of action (a new type of lawsuit) for users who get banned for lawful speech."
Mr. Wauck,
ReplyDeleteGreat article! Will Chamberlain wrote an article at platform access is a civil right. I agree and blogged about it. I received so much blow-back. You can start your own blog, you have no right to the platform, etc.
First off, Facebook, YouTube, and Twitter are monopolies. The argument that you can start your own social media platform is absurd. (You can start a platform, I won't argue that point. But Google has something like 90% of all searches.)
As I stated to my readers who challenged me, I would not favor my own position of making Twitter, et al, accommodate all viewpoints if there were ten Twitters, Facebooks, etc. Basically these private businesses have as much power to censor me as the government does.
I think Big Social Media should be regulated as a monopoly or broken up. They can't have it both ways. To Forbes' comments, the phone company didn't censor my comments. I see Big Social Media exactly as I see the phone company.
The only limits that I would enforce are no threats of violence and whatever limits that the Supreme Court says can be banned. For example, maybe libel. (I don't know as I'm not a lawyer.)
I had the same thoughts about changing 'conservative' to 'black' and seeing how that looks. The big irony is that the same people who wanted to force Phillips to bake a wedding cake think that censorship of conservatives is okay. A huge difference, again, is the competitiveness of the marketplace. Jack does not control the cake business in the United States. The gay couple could go to any number of stores and get their wedding cake. Going wildly off topics, when a man wanted to put Scripture condemning the practice of homosexuality on a cake, a different bakery wouldn't do it. The Colorado Civil Rights Commission upheld the refusal.
In a nutshell, the monopolistic nature trumps the Big Social Media's right to limit access.
I forgot to cite Will Chamberlain. He has heavily influenced my thinking on this topic.
ReplyDeleteOne more thing. In a perfectly competitive marketplace, I would agree with French. If 99% of proprietors would serve blacks, gays, conservatives, Christians, etc., and one percent wouldn't, I'd agree that the marketplace should be left alone.
ReplyDeleteThat's not the world that we live in.
"The only limits that I would enforce ..."
DeleteYes, I don't see why basic 1st Amendment law couldn't handle this.
Re Forbes' analogy, I would argue that social media sites are different from publishers. Publishers are typically in the business of presenting their own viewpoints, and there's no lack of publishing platforms--factual circumstances matter. OTOH, social media sites are both monopolistic as well as demonstrably restrictive as to viewpoint--and possess tools to maintain that situation. As Chamberlain argues, in 2019 that means "you don’t have meaningful free speech if you can’t speak on Facebook and Twitter." Publishers themselves are being squeezed in that way, so that too changes things.
Social media platforms should be treated as common carriers--no different than any other communication network.
DeleteIf they prefer to restrict access (censorship), then they are in fact publishers responsible and liable for their content.
The angle social media is playing is to censor content, restrict access, and have no liability as a common carrier.
A civil right for access is a sledge hammer for what closely exists under FCC 'must carry' regs. regarding cable operators. I.e. like Twitter, Facebook, cable operators don't produce content, they are aggregation platforms that monetize what others produce--subject to non-discrimination rules regarding "must carry" local original programming.
The US has ~50 years experience with cable networks and FCC regulations. No need to reinvent the wheel.
Thanks for the informed comment. I used it above for an update.
DeleteThere are other factors that also come into play.
ReplyDelete1. Google, in its origins, received significant assistance from the USG.
2. Social media continues to benefit from the public sector in various ways.
3. Social media established their monopoly, drawing in all comers including conservatives, then with the monopoly in place changed--or fiddled with--the rules in an invidious way to exclude conservative opionion.
Mr. Wauck,
ReplyDeleteYou are making some of the same arguments that I have made regarding Google receiving USG assistance. I agree with all your points.
Also, speaking for me personally, if I operated a grass-cutting business, I would gladly serve gays. But if I closed my grass-cutting business and became a wedding photographer or a wedding cake baker, I could not participate if my old customers wanted to get married, as that would violate my conscience because Scripture prohibits such conduct and I can't be part of it.
I operate my own grass cutting service--for myself only--with my reel push mower. :-)
DeleteLOL -- Mark -- I'm a push reel guy, too...for the same reasons. There aren't too many of us left...last summer I had to go 25 miles to find somebody to sharpen my reel. :) I love the cardio and, at 69, I can't get enough cardio! Cheers, Cassander
Deleteheh, 69 too.
DeleteI do as well, with an electric push mower. I admire you for using the old reel mower and hope that you have a small lawn. And I love that you are using a reel mower. When I was a very small lad, my dad had one, too, and reading your comment made my smile at the pleasant flashback of Dad.
ReplyDeleteVeering way off topic, I have an Ego battery-operated mower. I love it. I liked my gas mowers of the past, but the big drawback was their finickiness in starting, at times.
The push mower gives me about the best exercise I can get these days. Low impact, good cardio.
DeleteI think Federal law could deal with by freeing Facebook, Twitter, and Google (and others) from being sued for libel- but to get this protection, they have to allow all users unfettered access to publication.
ReplyDeleteRight now, Twitter etal are hiding behind the claim that they are responsible for the content that appears on their services- and, to honest, they are legally responsible. However, their actual behavior is to claim they have no responsibility when it is the Left behaving badly, and to ban people on the Right at the drop of a hat. There is literally no doubt that conservatives are being discriminated against- I mean, it really is an open and shut case.
As I said, I think standard 1st Amendment law could deal with any real problems--no right to shout "fire" in a crowded theater, etc. But "our values"? Please.
Delete