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Congress Escalates Pressure on Tech Giants to Censor,Threatening First Amendment

51 points by garraeth 6y ago

ratsmack 6y ago
>For the same reasons that the Constitution prohibits the government from dictating what information we can see and read (outside narrow limits), it also prohibits the government from using its immense authority to coerce private actors into censoring on its behalf. That is an interesting take which I never considered.
- mpalmer 6y ago
  Does the first amendment guarantee the freedom to profit from speech?
  - djoldman 6y ago
    I don't believe that it does. However, I do think that knowingly lying to obtain something of value is in many instances fraud. I am not a lawyer.
  - dabbledash 6y ago
    I think a law preventing you from profiting from speech on the basis of the content would still be a constitutional issue. E.g., a law saying you can distribute pornography but can’t sell it for a profit would be unconstitutional. “You don’t have a right to profit from speech” would be a convenient pretext to, for instance, shut down the New York Times.
    - mpalmer 6y ago
      Makes sense. I was coming at it from a taxation perspective rather than the "we're shutting you down" angle. We tax plenty of things that have societal harm - cigarettes, alcohol, etc. Speech is definitely too slippery a concept though. But what about reach? Could we theoretically tax businesses based on the volume of people their content reaches, thus bringing in public revenue and/or disincentivizing: - virality for the sake of ad impressions - too-large (social) media networks I'm sure it'd be phenomenally difficult to measure, but easier to pin down than arbitrary speech.
      - dabbledash 6y ago
        I don’t know enough to say confidently. Personally, I’d be suspicious of a rule like that. In the end, it has to be enforced by the executive and it sounds a lot like “all speech will be tolerated except speech that spreads widely enough to be a threat to existing power.”
      - Dracophoenix 6y ago
        That sounds suspiciously like an Internet tax. Congress already passed a law banning such taxes.
- SllX 6y ago
  It’s a bad take, or an aspirational one at best. I would love if that were the case, but it is not. First five words of the First Amendment: “Congress shall make no law...” It’s pretty unambiguous. The United States doesn’t make laws without Congress[1], and if Congress can’t make a law, the President’s Office can’t enforce it. That however is not as big a limit on Congress as it seems. Congress can make other difficult and tedious laws, and difficult and tedious describes most of the body of Federal law. Congressmen can also threaten to remove statutes which shield people and organizations from liability as a coercive tactic, e.g. Section 230, or write into law that they will withhold Federal funds to States that don’t pass certain laws. Why can they do this? Two reasons really. A legal body like SCOTUS is in no position to tell a political body like Congress that they cannot. If Congress passes a law that violates the Constitution, Article III courts can strike it down or gut it in court proceedings, but with no law in play and no harmed party there is nothing for the courts to do. Nor can an Article III court stop Congress from passing a law nor remedy a harm by forcing Congress to reinstate a repealed law. The process of lawmaking is impervious to the Courts. Also, and more importantly: Article I. The House and Senate make their own rules and are charged with enforcing them on their members. The First Amendment prohibits Congress from making certain laws, laws they arguably didn’t have the power to make in Article I in the first place. It doesn’t say a damn thing about the political process of lawmaking, or the conduct of House members and Senators nor prohibit them from using hardball tactics for their own interests or the perceived interests of their constituents and political allies. There are people that would actually like to see Section 230 burn, and if that’s the case, gutting and removing it makes it fair game for politicking. If the House and Senate as a body are making an attempt to coerce large companies to political ends, there is no one to tell them “No.” except voters, and only through elections. If they had any inkling at all that they were going to receive sufficient pushback from voters as to threaten their seats, these meetings wouldn’t be happening. The Federal government is the most powerful organization in the United States by far and second place ain’t even close. Congress legally sits atop the governmental hierarchy even when politically they like to play second fiddle to the President. Congress can coerce a lot of people with little to no pushback so long as the targets of coercion are also unpopular, or at the very least, voters are ambivalent towards them. [1] Another important point. A State is not the United States. Congress is the legislative branch of the United States. Don’t comment to incorrect me on this point.
- MilnerRoute 6y ago
  Then how does he explain the existence of the FCC? Their whole job is to set limits on what can and can't be broadcast. (Just for example, there was George Carlin's famous monologue about the seven words you can never say on television...) Greenwald may be opposed to censorship on principle, and doesn't think the government should be interfering in any way with Facebook's operations. But it seems like he's let that color his understanding of how government actually works.
  - chrismcb 6y ago
    Fcc exists to protect public airwaves. The broadcast spectrum is a limited public resource. Apparently they also regulate "wire" and "cable" which I don't believe they should be able to. But regulating the airwaves isn't quite the same as censoring free speech.
    - Dracophoenix 6y ago
      Pardon my ignorance, but what sources do you have claiming the latter two are under the control of the FCC?
- Veserv 6y ago
  I happen to agree with that point of view, so just to elaborate from my perspective to head off a likely point of confusion, government censorship is not inherently bad. There are clearly cases where society in the US has determined, and I agree, that it is in the interest of society as a whole to sacrifice some of our freedom as the harms outweigh the benefits such as for speech that advocates "imminent lawless action". Even in the current case, although I personally disagree that censorship is the right answer, if we as a society lucidly determine that the societal harm outweighs our freedom then I will stand by that outcome even though I would hope it would be overturned in the future via future legal action. What I find truly concerning about the present circumstances is that there are attempts to frame it is something other than government censorship and should thus undergo less or even no scrutiny. And on the other side that these organizations should be compelled to carry speech as if that were "protecting freedom" rather than just another form of government abridgement of speech and thus should undergo less or even no scrutiny. In my opinion, it is our duty as a society to not be wishy-washy about this and recognize that any attempts by the government to influence speech, either directly or indirectly, are government censorship and we must tackle this head on and come to decision whether we think the harm to society is worse than the sacrifice of our freedoms.
zero_deg_kevin 6y ago
Glenn sure is good at getting people riled up. I got a heart rate alert reading this bit, so it’s working. It looks like life after editors, fact checkers, and company lawyers is treating him well.
Ellahn 6y ago
So let's just allow people to lie and promote violence or even committing crimes 'cuz there's an ammendment that protects that. BTW does anyone in Amerikka even understand what the heck "ammending" even means...? If it's not working, change it. Not that I expect people who think Texas' electricity bills aren't fucked up to understand that "maaaaybe you're not actually right"... But yeah. To be plain, maybe you're wrong. Probably. Most likely.
- yowlingcat 6y ago
  > So let's just allow people to lie and promote violence or even committing crimes There's a difference between a demagogue and an individual who threatens or assaults another. Nobody is arguing the latter is not a criminal. But for the former, what I've often observed is that demagogues are very good at dog-whistling; they're adept at finding the razor's edge between dog-whistling and outright calls to violence. They're also great at spinning any perceived censorship into proof of their righteous "dissent" which plays right into their hand. So to come back to the statement you made, presumably in exaggeration -- yes, we do have to allow people to lie if we want free speech. The destructive viral effect of such lies can only be addressed scalably with some kind of an immune system. You cannot solve societal or cultural problems with legislation. Then you will have two problems. Solving the root of America's problem with demagoguery requires solving the root. That is very tricky considering America's history as the world's police force. These aren't problems that can be fixed in a generation even when there is a common desire to fix them.
- nitsky 6y ago
  There are many Americans who understand that the first amendment protects bad behavior, but support it nonetheless. Their support usually boils down to: 1. The alternative, censorship, is worse when it inevitably is turned against you. 2. Even if censorship is better, it violates individual rights, which are sacred and cannot be abridged except in a narrow range of cases. It is possible that people with viewpoints that differ from your own are not “wrong”, they just have different values.
- mpalmer 6y ago
  You are sorely mistaken if you think society would be better off with laws against lying. Crimes are already illegal. There is already an accepted legal definition for inciting violence.
underseacables 6y ago
I was listening to a discussion on Clubhouse about censorship and social media, and all I think Facebook and Twitter should not censor anyone, it’s still a private company. They can make the rules. If you don’t like the rules, the answer is not “go make your own social media“ it’s that don’t use the product at all. If you want to use Facebook and Twitter, you’re going to have to submit to their version of what speech is. It’s not right, but that’s the way it is, and it seems disingenuous for someone to say the government should be the one to step in and force a private company to let them use a private service to say whatever they want. I guess I just don’t want the government telling a private company what it can and cannot do, and what speech it must allow or disallow. Ever. That pathway does not have a happy ending regardless of who is in power
- ratsmack 6y ago
  Twitter, Google and Facebook are all publicly held/traded companies. Should they be held to a slightly different set of rules regarding the 1st Amendment vs a privately held company?
  - smaccona 6y ago
    The 1st Amendment only limits what Congress can do, it doesn’t say anything about what public or private companies have to do with respect to freedom of speech: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” IANAL, but I guess if Congress makes a law forcing Twitter or Facebook to abridge US citizens’ freedom of speech, then Congress would be violating the 1st amendment. Is that what you meant?
- nitsky 6y ago
  > I guess I just don’t want the government telling a private company what it can and cannot do, and what speech it must allow or disallow. Ever. I think you may have overstated your case, because I doubt you are opposed to anti-discrimination laws that require companies to employ people regardless of their religious views. For example, companies are forced to allow Muslims to wear head coverings at work. I doubt you are opposed to that. An interesting question in America now is whether political views should be protected as civil rights just like religious views. That would protect people from being fired from their jobs or banned from private places because of their political views. For those who oppose that idea: how is religion so different from politics?
mark_l_watson 6y ago
Congress services the elites/corporations who abhor free speech where people can complain publicly about bad products, talk the truth about our brutalizing small countries around the world "spreading democracy" (because this impacts the extremely profitable defense industry), etc. Since this is a Greenwald post, I will chime in on how both he and Matt Taibbi spread the truth about our duopoly democrat/republican political party (I purposely chose the singular, not plural "parties").
djoldman 6y ago
Doesn't congress "investigate" all kinds of stuff where the investigations go nowhere? Aren't most congressional investigations just opportunities for congresspeople to read statements directed at their supporters? I'm just confused by all of these investigations. I want to hear about the proportion of investigations that elicited information that subsequently induced congress to write and pass new laws. Can anyone point me in that direction?

51 points by garraeth 6y ago

>For the same reasons that the Constitution prohibits the government from dictating what information we can see and read (outside narrow limits), it also prohibits the government from using its immense authority to coerce private actors into censoring on its behalf. That is an interesting take which I never considered.

mpalmer 6y ago
Does the first amendment guarantee the freedom to profit from speech?
- djoldman 6y ago
  I don't believe that it does. However, I do think that knowingly lying to obtain something of value is in many instances fraud. I am not a lawyer.
- dabbledash 6y ago
  I think a law preventing you from profiting from speech on the basis of the content would still be a constitutional issue. E.g., a law saying you can distribute pornography but can’t sell it for a profit would be unconstitutional. “You don’t have a right to profit from speech” would be a convenient pretext to, for instance, shut down the New York Times.
  - mpalmer 6y ago
    Makes sense. I was coming at it from a taxation perspective rather than the "we're shutting you down" angle. We tax plenty of things that have societal harm - cigarettes, alcohol, etc. Speech is definitely too slippery a concept though. But what about reach? Could we theoretically tax businesses based on the volume of people their content reaches, thus bringing in public revenue and/or disincentivizing: - virality for the sake of ad impressions - too-large (social) media networks I'm sure it'd be phenomenally difficult to measure, but easier to pin down than arbitrary speech.
    - dabbledash 6y ago
      I don’t know enough to say confidently. Personally, I’d be suspicious of a rule like that. In the end, it has to be enforced by the executive and it sounds a lot like “all speech will be tolerated except speech that spreads widely enough to be a threat to existing power.”
    - Dracophoenix 6y ago
      That sounds suspiciously like an Internet tax. Congress already passed a law banning such taxes.
SllX 6y ago
It’s a bad take, or an aspirational one at best. I would love if that were the case, but it is not. First five words of the First Amendment: “Congress shall make no law...” It’s pretty unambiguous. The United States doesn’t make laws without Congress[1], and if Congress can’t make a law, the President’s Office can’t enforce it. That however is not as big a limit on Congress as it seems. Congress can make other difficult and tedious laws, and difficult and tedious describes most of the body of Federal law. Congressmen can also threaten to remove statutes which shield people and organizations from liability as a coercive tactic, e.g. Section 230, or write into law that they will withhold Federal funds to States that don’t pass certain laws. Why can they do this? Two reasons really. A legal body like SCOTUS is in no position to tell a political body like Congress that they cannot. If Congress passes a law that violates the Constitution, Article III courts can strike it down or gut it in court proceedings, but with no law in play and no harmed party there is nothing for the courts to do. Nor can an Article III court stop Congress from passing a law nor remedy a harm by forcing Congress to reinstate a repealed law. The process of lawmaking is impervious to the Courts. Also, and more importantly: Article I. The House and Senate make their own rules and are charged with enforcing them on their members. The First Amendment prohibits Congress from making certain laws, laws they arguably didn’t have the power to make in Article I in the first place. It doesn’t say a damn thing about the political process of lawmaking, or the conduct of House members and Senators nor prohibit them from using hardball tactics for their own interests or the perceived interests of their constituents and political allies. There are people that would actually like to see Section 230 burn, and if that’s the case, gutting and removing it makes it fair game for politicking. If the House and Senate as a body are making an attempt to coerce large companies to political ends, there is no one to tell them “No.” except voters, and only through elections. If they had any inkling at all that they were going to receive sufficient pushback from voters as to threaten their seats, these meetings wouldn’t be happening. The Federal government is the most powerful organization in the United States by far and second place ain’t even close. Congress legally sits atop the governmental hierarchy even when politically they like to play second fiddle to the President. Congress can coerce a lot of people with little to no pushback so long as the targets of coercion are also unpopular, or at the very least, voters are ambivalent towards them. [1] Another important point. A State is not the United States. Congress is the legislative branch of the United States. Don’t comment to incorrect me on this point.
MilnerRoute 6y ago
Then how does he explain the existence of the FCC? Their whole job is to set limits on what can and can't be broadcast. (Just for example, there was George Carlin's famous monologue about the seven words you can never say on television...) Greenwald may be opposed to censorship on principle, and doesn't think the government should be interfering in any way with Facebook's operations. But it seems like he's let that color his understanding of how government actually works.
- chrismcb 6y ago
  Fcc exists to protect public airwaves. The broadcast spectrum is a limited public resource. Apparently they also regulate "wire" and "cable" which I don't believe they should be able to. But regulating the airwaves isn't quite the same as censoring free speech.
  - Dracophoenix 6y ago
    Pardon my ignorance, but what sources do you have claiming the latter two are under the control of the FCC?
Veserv 6y ago
I happen to agree with that point of view, so just to elaborate from my perspective to head off a likely point of confusion, government censorship is not inherently bad. There are clearly cases where society in the US has determined, and I agree, that it is in the interest of society as a whole to sacrifice some of our freedom as the harms outweigh the benefits such as for speech that advocates "imminent lawless action". Even in the current case, although I personally disagree that censorship is the right answer, if we as a society lucidly determine that the societal harm outweighs our freedom then I will stand by that outcome even though I would hope it would be overturned in the future via future legal action. What I find truly concerning about the present circumstances is that there are attempts to frame it is something other than government censorship and should thus undergo less or even no scrutiny. And on the other side that these organizations should be compelled to carry speech as if that were "protecting freedom" rather than just another form of government abridgement of speech and thus should undergo less or even no scrutiny. In my opinion, it is our duty as a society to not be wishy-washy about this and recognize that any attempts by the government to influence speech, either directly or indirectly, are government censorship and we must tackle this head on and come to decision whether we think the harm to society is worse than the sacrifice of our freedoms.

zero_deg_kevin 6y ago

Glenn sure is good at getting people riled up. I got a heart rate alert reading this bit, so it’s working. It looks like life after editors, fact checkers, and company lawyers is treating him well.

Ellahn 6y ago

So let's just allow people to lie and promote violence or even committing crimes 'cuz there's an ammendment that protects that. BTW does anyone in Amerikka even understand what the heck "ammending" even means...? If it's not working, change it. Not that I expect people who think Texas' electricity bills aren't fucked up to understand that "maaaaybe you're not actually right"... But yeah. To be plain, maybe you're wrong. Probably. Most likely.

yowlingcat 6y ago
> So let's just allow people to lie and promote violence or even committing crimes There's a difference between a demagogue and an individual who threatens or assaults another. Nobody is arguing the latter is not a criminal. But for the former, what I've often observed is that demagogues are very good at dog-whistling; they're adept at finding the razor's edge between dog-whistling and outright calls to violence. They're also great at spinning any perceived censorship into proof of their righteous "dissent" which plays right into their hand. So to come back to the statement you made, presumably in exaggeration -- yes, we do have to allow people to lie if we want free speech. The destructive viral effect of such lies can only be addressed scalably with some kind of an immune system. You cannot solve societal or cultural problems with legislation. Then you will have two problems. Solving the root of America's problem with demagoguery requires solving the root. That is very tricky considering America's history as the world's police force. These aren't problems that can be fixed in a generation even when there is a common desire to fix them.
nitsky 6y ago
There are many Americans who understand that the first amendment protects bad behavior, but support it nonetheless. Their support usually boils down to: 1. The alternative, censorship, is worse when it inevitably is turned against you. 2. Even if censorship is better, it violates individual rights, which are sacred and cannot be abridged except in a narrow range of cases. It is possible that people with viewpoints that differ from your own are not “wrong”, they just have different values.
mpalmer 6y ago
You are sorely mistaken if you think society would be better off with laws against lying. Crimes are already illegal. There is already an accepted legal definition for inciting violence.

underseacables 6y ago

I was listening to a discussion on Clubhouse about censorship and social media, and all I think Facebook and Twitter should not censor anyone, it’s still a private company. They can make the rules. If you don’t like the rules, the answer is not “go make your own social media“ it’s that don’t use the product at all. If you want to use Facebook and Twitter, you’re going to have to submit to their version of what speech is. It’s not right, but that’s the way it is, and it seems disingenuous for someone to say the government should be the one to step in and force a private company to let them use a private service to say whatever they want. I guess I just don’t want the government telling a private company what it can and cannot do, and what speech it must allow or disallow. Ever. That pathway does not have a happy ending regardless of who is in power

ratsmack 6y ago
Twitter, Google and Facebook are all publicly held/traded companies. Should they be held to a slightly different set of rules regarding the 1st Amendment vs a privately held company?
- smaccona 6y ago
  The 1st Amendment only limits what Congress can do, it doesn’t say anything about what public or private companies have to do with respect to freedom of speech: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” IANAL, but I guess if Congress makes a law forcing Twitter or Facebook to abridge US citizens’ freedom of speech, then Congress would be violating the 1st amendment. Is that what you meant?
nitsky 6y ago
> I guess I just don’t want the government telling a private company what it can and cannot do, and what speech it must allow or disallow. Ever. I think you may have overstated your case, because I doubt you are opposed to anti-discrimination laws that require companies to employ people regardless of their religious views. For example, companies are forced to allow Muslims to wear head coverings at work. I doubt you are opposed to that. An interesting question in America now is whether political views should be protected as civil rights just like religious views. That would protect people from being fired from their jobs or banned from private places because of their political views. For those who oppose that idea: how is religion so different from politics?

mark_l_watson 6y ago

Congress services the elites/corporations who abhor free speech where people can complain publicly about bad products, talk the truth about our brutalizing small countries around the world "spreading democracy" (because this impacts the extremely profitable defense industry), etc. Since this is a Greenwald post, I will chime in on how both he and Matt Taibbi spread the truth about our duopoly democrat/republican political party (I purposely chose the singular, not plural "parties").

djoldman 6y ago

Doesn't congress "investigate" all kinds of stuff where the investigations go nowhere? Aren't most congressional investigations just opportunities for congresspeople to read statements directed at their supporters? I'm just confused by all of these investigations. I want to hear about the proportion of investigations that elicited information that subsequently induced congress to write and pass new laws. Can anyone point me in that direction?