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Requiring private parties to convey speech they disagree with is, itself, a violation of their freedom of speech. EDIT: Otherwise, please explain to me how com

by rosser 7y ago

Requiring private parties to convey speech they disagree with is, itself, a violation of their freedom of speech. EDIT: Otherwise, please explain to me how compelled speech is "less bad" than its restraint.

deogeo 7y ago
You skipped a step, jumping straight to a possible solution. But that may not be the only solution, and even if it were, it shouldn't prevent us from acknowledging the problem. And it gets blurry when the private parties are ISPs or phone companies. Edit: Alright, taking the hypothetical that the solution is compelled speech, I'll try to explain how it's less bad. First is that there's a distinction between original speech and conveying the speech of others. E.g. it would be pretty awful if ISPs or phone companies started interfering with what they'll transfer through their networks. I frankly disagree with calling what a telecommunications provider does 'speech' - they're paid to move bits, like a moving service is paid to move furniture. And second, if you don't look at it through such an abstract "free speech vs. compelled speech" lens, but through a pragmatic "who can speak and what can they say" one, you'll see that almost no-one has effective free speech. Online, almost all of the audience is on (a small handful of) private platforms, carried by private ISPs, hosted on private servers. Offline, people spend much of their time in privately-owned spaces, such as airports. If you cut all those away, how much speech does the great 1st Amendment buy you? You can yell on a street corner (not Wall street though - those streets are private!), or in the woods, and send a few paper letters through the government-ran post office. You'll reach maybe a handful of people. Meanwhile speech blessed by the platform owners will reach millions. Difference from complete censorship is negligible. That's why you shouldn't legislate in a vacuum divorced from reality, where only platonic ideals of free or compelled speech exist. You'll choose an ideal free speech law, and the effect will be that a handful of corporations will get to decide what can be said.
- rosser 7y ago
  > And it gets blurry when the private parties are ISPs or phone companies. Not really. That's pretty much exactly what the changes to the verbiage in Title II of the Telecommunications Act of 1996, and the FCC's 2015 classification of ISPs as Common Carriers were for.
  - deogeo 7y ago
    Laws that are literally "Requiring private parties to convey speech they disagree with"?
- rosser 7y ago
  Re: your edit: The First Amendment doesn't guarantee you an audience. It only guarantees you that the State can't constrain your speech without a damned good reason. It is utterly orthogonal to conduct between private parties, and it's specious as hell to bring it up in that context. For example, even in the case where it effectively limits your ability to sue people for speech you don't like, the actual constraint is on the ability of the State, in the form of the court system, to be leveraged against an individual's speech, not on your ability to sue.
  - deogeo 7y ago
    I know very well the 1st Amendment applies only to the State - my whole series of posts is about the problems that arise due to that. Free speech as a concept is not limited to the 1st Amendment.
    - rosser 7y ago
      Your right to make noise with your pie hole in no way obligates anyone else to listen to, or even hear you, let alone broadcast that noise to a larger audience than you would have had without their help. Full stop. There is absolutely a legitimate, and very, very important conversation to be had around whether, e.g., online censorship or moderation or "deplatforming", or whatever, might constitute something functionally akin to prior restraint, where the edge cases are in those questions, and what to do about all that. That said, having those discussions about private behavior using terms that are — and historically have more or less always been — used in the specific context of the State only confuses things. My point being: if we're going to have that discussion, which we for reals should be doing, let's try to do it in a way that doesn't make it harder to have, let alone have productively. The attempt to expand the specifically and narrowly constrained notion of "Free Speech" (note the capitalization) to domains other than a constraint upon the State is a specious conflation, and ultimately yields more heat than light. EDIT: I mean, really, how productively can that conversation be had if it's using terminology that enables randos who don't meaningfully understand this distinction to pile on, all, "But the Twitters violated my 1st Amendmentses!"?
rndgermandude 7y ago
That is only if you agree that companies should be able to entertain the same rights as actual people.
- rosser 7y ago
  That's not up to me; corporate personhood is, however consequentially or however much I might disagree with it, a settled matter.
  - rndgermandude 7y ago
    It is up to you, you being part of the society and possibly the electorate. "Marriage is between a man and a woman" was a settled matter and so was "Separate but equal" and "three fifth" before that. Until it wasn't.
    - rosser 7y ago
      I think you're reading my position rather uncharitably, and genuinely don't enjoy being likened to a bigot. I absolutely disagree with the notion that the social fictions we call "corporations" are people, but I'm talking within the established legal framework, because that's the context. If you want to have a discussion about how shit should be done, I'm happy to; I'd just have appreciated being told that's the one we were having before being called out or dinged for wrongthink, thanks...
      - rndgermandude 7y ago
        Just to clarify, I didn't accuse you of wrongthink or tried to frame you as supporting the "personhood" of corporations. I just think you're wrong about it "not being up to you" and it being a "settled matter".
Bartweiss 7y ago
This seems like it ignores "despite an ever larger portion of public speech being conducted through corporate platforms." Compelled speech is (rightly) illegal in pretty much all cases, and while "both or neither" is not quite the same as directly compelling a specific statement, it's still not a free-speech-respecting stance. The thorny question is how to handle public speech conducted through private platforms - for instance the suit over whether President Trump can block people on Twitter. Twitter is obviously a private platform, but it's being used by a public figure to make policy announcements, and blocking restricts the ability of certain people to see and respond to those announcements. "Public forum" doctrine is controversial, but it's far from new. More broadly, it's the First Amendment application of a larger question: how far can the government go in using private intermediaries to bypass constitutional protections? On the Fourth, police are allowed to use private tips with origins that would be "unreasonable search", but can't proactively request or pay for such searches. On the Fifth, a non-government party might prompt admissible hearsay by means not available to the police, but that doesn't free the police to hand off interrogations to private parties. That sort of constitutionality-laundering is an increasingly pressing issue, everywhere from warrantless lookups of mobile phone locations to public speech conducted on Twitter. And this is quite clearly the claim laid out in the article (though it's not a US case): that airports are so closely linked to the government that their ability to control speech (especially speech related to government behavior in airports) is restricted. It's a matter open to dispute, but it's very much not as simple as compelling speech from a private party.
- rosser 7y ago
  I think it's, for example, eminently possible to reconcile Twitter's right not to be obligated to carry "hate speech" (aside: please don't derail this discussion with an unnecessary diversion into whether that's a thing, or where its boundaries are; this is meta-level) with the President's not being able to block people. If he's using the platform to conduct "official" business (which, IMO, he is), blocking is pretty obviously not kosher. That's an utterly different case than whether they should have to promulgate Joe Bigot's shitty opinions. We already have structurally similar legal doctrines in place in the case of libel against public figures, for example. Looking for blanket solutions is the wrong idea, out the gate, however much more difficult and nuanced that will ultimately make handling the thorniness of the issue, taken large, and I think you actually already appreciate that, with your takes on the 4th and 5th Amendment questions.

by rosser 7y ago

deogeo 7y ago

You skipped a step, jumping straight to a possible solution. But that may not be the only solution, and even if it were, it shouldn't prevent us from acknowledging the problem. And it gets blurry when the private parties are ISPs or phone companies. Edit: Alright, taking the hypothetical that the solution is compelled speech, I'll try to explain how it's less bad. First is that there's a distinction between original speech and conveying the speech of others. E.g. it would be pretty awful if ISPs or phone companies started interfering with what they'll transfer through their networks. I frankly disagree with calling what a telecommunications provider does 'speech' - they're paid to move bits, like a moving service is paid to move furniture. And second, if you don't look at it through such an abstract "free speech vs. compelled speech" lens, but through a pragmatic "who can speak and what can they say" one, you'll see that almost no-one has effective free speech. Online, almost all of the audience is on (a small handful of) private platforms, carried by private ISPs, hosted on private servers. Offline, people spend much of their time in privately-owned spaces, such as airports. If you cut all those away, how much speech does the great 1st Amendment buy you? You can yell on a street corner (not Wall street though - those streets are private!), or in the woods, and send a few paper letters through the government-ran post office. You'll reach maybe a handful of people. Meanwhile speech blessed by the platform owners will reach millions. Difference from complete censorship is negligible. That's why you shouldn't legislate in a vacuum divorced from reality, where only platonic ideals of free or compelled speech exist. You'll choose an ideal free speech law, and the effect will be that a handful of corporations will get to decide what can be said.

rosser 7y ago
> And it gets blurry when the private parties are ISPs or phone companies. Not really. That's pretty much exactly what the changes to the verbiage in Title II of the Telecommunications Act of 1996, and the FCC's 2015 classification of ISPs as Common Carriers were for.
- deogeo 7y ago
  Laws that are literally "Requiring private parties to convey speech they disagree with"?
rosser 7y ago
Re: your edit: The First Amendment doesn't guarantee you an audience. It only guarantees you that the State can't constrain your speech without a damned good reason. It is utterly orthogonal to conduct between private parties, and it's specious as hell to bring it up in that context. For example, even in the case where it effectively limits your ability to sue people for speech you don't like, the actual constraint is on the ability of the State, in the form of the court system, to be leveraged against an individual's speech, not on your ability to sue.
- deogeo 7y ago
  I know very well the 1st Amendment applies only to the State - my whole series of posts is about the problems that arise due to that. Free speech as a concept is not limited to the 1st Amendment.
  - rosser 7y ago
    Your right to make noise with your pie hole in no way obligates anyone else to listen to, or even hear you, let alone broadcast that noise to a larger audience than you would have had without their help. Full stop. There is absolutely a legitimate, and very, very important conversation to be had around whether, e.g., online censorship or moderation or "deplatforming", or whatever, might constitute something functionally akin to prior restraint, where the edge cases are in those questions, and what to do about all that. That said, having those discussions about private behavior using terms that are — and historically have more or less always been — used in the specific context of the State only confuses things. My point being: if we're going to have that discussion, which we for reals should be doing, let's try to do it in a way that doesn't make it harder to have, let alone have productively. The attempt to expand the specifically and narrowly constrained notion of "Free Speech" (note the capitalization) to domains other than a constraint upon the State is a specious conflation, and ultimately yields more heat than light. EDIT: I mean, really, how productively can that conversation be had if it's using terminology that enables randos who don't meaningfully understand this distinction to pile on, all, "But the Twitters violated my 1st Amendmentses!"?

rndgermandude 7y ago

That is only if you agree that companies should be able to entertain the same rights as actual people.

rosser 7y ago
That's not up to me; corporate personhood is, however consequentially or however much I might disagree with it, a settled matter.
- rndgermandude 7y ago
  It is up to you, you being part of the society and possibly the electorate. "Marriage is between a man and a woman" was a settled matter and so was "Separate but equal" and "three fifth" before that. Until it wasn't.
  - rosser 7y ago
    I think you're reading my position rather uncharitably, and genuinely don't enjoy being likened to a bigot. I absolutely disagree with the notion that the social fictions we call "corporations" are people, but I'm talking within the established legal framework, because that's the context. If you want to have a discussion about how shit should be done, I'm happy to; I'd just have appreciated being told that's the one we were having before being called out or dinged for wrongthink, thanks...
    - rndgermandude 7y ago
      Just to clarify, I didn't accuse you of wrongthink or tried to frame you as supporting the "personhood" of corporations. I just think you're wrong about it "not being up to you" and it being a "settled matter".

Bartweiss 7y ago

This seems like it ignores "despite an ever larger portion of public speech being conducted through corporate platforms." Compelled speech is (rightly) illegal in pretty much all cases, and while "both or neither" is not quite the same as directly compelling a specific statement, it's still not a free-speech-respecting stance. The thorny question is how to handle public speech conducted through private platforms - for instance the suit over whether President Trump can block people on Twitter. Twitter is obviously a private platform, but it's being used by a public figure to make policy announcements, and blocking restricts the ability of certain people to see and respond to those announcements. "Public forum" doctrine is controversial, but it's far from new. More broadly, it's the First Amendment application of a larger question: how far can the government go in using private intermediaries to bypass constitutional protections? On the Fourth, police are allowed to use private tips with origins that would be "unreasonable search", but can't proactively request or pay for such searches. On the Fifth, a non-government party might prompt admissible hearsay by means not available to the police, but that doesn't free the police to hand off interrogations to private parties. That sort of constitutionality-laundering is an increasingly pressing issue, everywhere from warrantless lookups of mobile phone locations to public speech conducted on Twitter. And this is quite clearly the claim laid out in the article (though it's not a US case): that airports are so closely linked to the government that their ability to control speech (especially speech related to government behavior in airports) is restricted. It's a matter open to dispute, but it's very much not as simple as compelling speech from a private party.

rosser 7y ago
I think it's, for example, eminently possible to reconcile Twitter's right not to be obligated to carry "hate speech" (aside: please don't derail this discussion with an unnecessary diversion into whether that's a thing, or where its boundaries are; this is meta-level) with the President's not being able to block people. If he's using the platform to conduct "official" business (which, IMO, he is), blocking is pretty obviously not kosher. That's an utterly different case than whether they should have to promulgate Joe Bigot's shitty opinions. We already have structurally similar legal doctrines in place in the case of libel against public figures, for example. Looking for blanket solutions is the wrong idea, out the gate, however much more difficult and nuanced that will ultimately make handling the thorniness of the issue, taken large, and I think you actually already appreciate that, with your takes on the 4th and 5th Amendment questions.