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We'd have to make that law if we wanted to put that constraint on corporate speech, yes. The fact government can't kick you out of the public square for questio

We'd have to make that law if we wanted to put that constraint on corporate speech, yes. The fact government can't kick you out of the public square for questioning government doesn't mean I, a homeowner, can't kick you out of my living room for questioning my taste in home decoration (or that Altria, a cigarette company, can't remove you from their property for yelling to all and sundry in their lobby that cigarettes cause cancer, even if it's true). It's not clear such a law is wise. ¿Cui bono? for tying private forum's hands against kicking Nazis, white supremacists, nation of Islam, Patriot Front, Proud Boys, etc. off their website?

mindslight 3y ago
The fundamental problem is the US's negative framing of rights. A negative framing that is only in terms of the de jure government, to avoid logical contradiction. This leads to the perverse winner-take-all argument that corporate censorship is itself protected corporate speech. A positive framing of the right to free speech would allow for a logically-imperfect yet equitable balance between the interests of individuals' speech and corporate speech.
- shadowgovt 3y ago
  In general, the corporate liberty to choose who to signal boost and what signal to drop isn't even a speech question; it's a freedom-of-the-press or freedom-of-association question. The fact someone said something to me (or to a company) compels neither of us to repeat it like a parrot. Similarly, the things I post here are not my own and dang can decide to drop this whole post (or the whole thread) if he wants; the fact I run a Mastodon node doesn't imply I have to peer to anyone, de-peer from anyone, or allow anyone's scribblings to traverse my node, &c. The Internet is a network; communication on a network implies (at least) bipartite agreement. Either side of the conversation has veto over the signal.
  - mindslight 3y ago
    Your comment is just describing the winner-take-all negative framing environment in a more colorful manner, while willfully ignoring where the abstraction falls apart. For example leaning on the idea that communication requires a "bipartite" agreement is a bit rich when the sheer majority of web communication involves at least three parties. FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well.
    - shadowgovt 3y ago
      > at least three parties That's just two bipartite agreements end-to-end. I could technically have said an n-ary agreement, with the freedom to select multiple paths, for more accuracy; I figured "bipartite" encompassed all the relevant nuance. > FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well. Yes and. ISPs generally do have that liberty and do employ it when they deem it necessary (see Hurricane Electric cutting ties with IncogNET for doing business with KiwiFarms, various ISPs cutting user accounts for piracy, AUP, or TOS violations, etc.). The backstop against that behavior is generally that they're leaving money on the table if they don't provide as many people as much service as their system capacity permits. But in general, legally or morally, nobody is entitled to more access than showing up at the public library to use a community kiosk (and if you do that and look at porn, they can ban you too).
      - mindslight 3y ago
        "Bipartite" most certainly does not encompass all the nuance, and actually functions to confuse. In a scenario of two parties, one wanting to communicate and the other one wanting to not listen, it's quite clear that the second party is not obliged to listen. Whereas these three (or more) party situations are exactly what we're discussing here - where two endpoint parties are trying to communicate yet there is a third party in the middle playing the position of censor. This is the entire crux of the matter. When you say that ISPs do have the liberty to censor, are you speaking positively or purely descriptively? Because what I see is a description of our traditional values that had been previously serving to foster an open society, but have now fallen apart with companies scaling to own much larger portions of markets, prying into what should be the business of their customers, and colluding with each other to create unavoidable de facto governmentesque power. If you really don't see the problem with an ISP censoring, then how about the electric company? Also the idea of companies being incentivized to not unjustly deny service because they'd be leaving business on the table is blatantly fallacious.
  - solardev 3y ago
    I think the ambiguity of having speech, religion, and press all rolled into one short paragraph is part of why we've historically struggled so much with the 1A. I wish we could just scrap the Constitution and start over with a version controlled and annotated wiki of rules written in everyday language. Our legal framework is so undemocratic (maybe even anti-democratic) and unable to address any of the major challenges of modern society... sigh. End rant.
- solardev 3y ago
  How would a similar situation play out in other countries? My understanding is that the US already has some of the strongest free speech protections despite this (compared to the UK and EU especially). Are there countries, at least ones with strong rule of law, that do this differently and grant individuals rights inalienable by anyone?
  - mindslight 3y ago
    I don't know that there is an existing country with stronger protections for free speech than the US, and it is true we do take that for granted. My point is that the negative framing in terms of the de jure government has reached its limits, with those seeking control essentially reinventing governance through "private" entities with "voluntary" agreements that in reality aren't so private or voluntary. It's quite tempting to cheer for autocratic corporate power when it appears to be doing things that you find favorable, but the wind can shift on a dime.
- bcrosby95 3y ago
  Note that the negative framing does not necessarily limit other laws to have an affirmative framing, for example see the Pruneyard case: https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R... > This holding was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech. This distinction was significant because the U.S. Supreme Court had already held that under the federal First Amendment, there was no implied right of free speech within a private shopping center.[4] The Pruneyard case, therefore, raised the question of whether an implied right of free speech could arise under a state constitution without conflicting with the federal Constitution. In answering yes to that question, the Court rejected the shopping center's argument that California's broader free speech right amounted to a "taking" of the shopping center under federal constitutional law. I generally believe that companies that enter spaces that previously afforded "users" first amendment protection should have similar laws to protect the free speech of users in said privately owned "spaces". But that would require new laws.
  - shadowgovt 3y ago
    > I generally believe that companies that enter spaces that previously afforded "users" first amendment protection should have similar laws to protect the free speech of users in said privately owned "spaces". What spaces are those? From where I sit, we went from BBSes (where the admin controlled the signal) to self-hosting (where the user controlled the signal, unless it was so onerous that an ISP cut service) to cloud-hosting (where a company controls the signal). The ideal free speech world where people just spoke their minds online is a fantasy borne more out of lack of interest to regulate than power to regulate. Remember, the original network was a "network of peers" where most users were not pseudonymous; their academic or military sponsors could cut their access. The network has never had anything like absolute free speech. Communication over the network has always been an affair involving at least two parties who must agree on the transmission of signal.
    - bcrosby95 3y ago

mindslight 3y ago

The fundamental problem is the US's negative framing of rights. A negative framing that is only in terms of the de jure government, to avoid logical contradiction. This leads to the perverse winner-take-all argument that corporate censorship is itself protected corporate speech. A positive framing of the right to free speech would allow for a logically-imperfect yet equitable balance between the interests of individuals' speech and corporate speech.

shadowgovt 3y ago
In general, the corporate liberty to choose who to signal boost and what signal to drop isn't even a speech question; it's a freedom-of-the-press or freedom-of-association question. The fact someone said something to me (or to a company) compels neither of us to repeat it like a parrot. Similarly, the things I post here are not my own and dang can decide to drop this whole post (or the whole thread) if he wants; the fact I run a Mastodon node doesn't imply I have to peer to anyone, de-peer from anyone, or allow anyone's scribblings to traverse my node, &c. The Internet is a network; communication on a network implies (at least) bipartite agreement. Either side of the conversation has veto over the signal.
- mindslight 3y ago
  Your comment is just describing the winner-take-all negative framing environment in a more colorful manner, while willfully ignoring where the abstraction falls apart. For example leaning on the idea that communication requires a "bipartite" agreement is a bit rich when the sheer majority of web communication involves at least three parties. FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well.
  - shadowgovt 3y ago
    > at least three parties That's just two bipartite agreements end-to-end. I could technically have said an n-ary agreement, with the freedom to select multiple paths, for more accuracy; I figured "bipartite" encompassed all the relevant nuance. > FWIW you can apply your argument to an ISP to make the argument that it's right for them to arbitrarily censor as well. Yes and. ISPs generally do have that liberty and do employ it when they deem it necessary (see Hurricane Electric cutting ties with IncogNET for doing business with KiwiFarms, various ISPs cutting user accounts for piracy, AUP, or TOS violations, etc.). The backstop against that behavior is generally that they're leaving money on the table if they don't provide as many people as much service as their system capacity permits. But in general, legally or morally, nobody is entitled to more access than showing up at the public library to use a community kiosk (and if you do that and look at porn, they can ban you too).
    - mindslight 3y ago
      "Bipartite" most certainly does not encompass all the nuance, and actually functions to confuse. In a scenario of two parties, one wanting to communicate and the other one wanting to not listen, it's quite clear that the second party is not obliged to listen. Whereas these three (or more) party situations are exactly what we're discussing here - where two endpoint parties are trying to communicate yet there is a third party in the middle playing the position of censor. This is the entire crux of the matter. When you say that ISPs do have the liberty to censor, are you speaking positively or purely descriptively? Because what I see is a description of our traditional values that had been previously serving to foster an open society, but have now fallen apart with companies scaling to own much larger portions of markets, prying into what should be the business of their customers, and colluding with each other to create unavoidable de facto governmentesque power. If you really don't see the problem with an ISP censoring, then how about the electric company? Also the idea of companies being incentivized to not unjustly deny service because they'd be leaving business on the table is blatantly fallacious.
- solardev 3y ago
  I think the ambiguity of having speech, religion, and press all rolled into one short paragraph is part of why we've historically struggled so much with the 1A. I wish we could just scrap the Constitution and start over with a version controlled and annotated wiki of rules written in everyday language. Our legal framework is so undemocratic (maybe even anti-democratic) and unable to address any of the major challenges of modern society... sigh. End rant.
solardev 3y ago
How would a similar situation play out in other countries? My understanding is that the US already has some of the strongest free speech protections despite this (compared to the UK and EU especially). Are there countries, at least ones with strong rule of law, that do this differently and grant individuals rights inalienable by anyone?
- mindslight 3y ago
  I don't know that there is an existing country with stronger protections for free speech than the US, and it is true we do take that for granted. My point is that the negative framing in terms of the de jure government has reached its limits, with those seeking control essentially reinventing governance through "private" entities with "voluntary" agreements that in reality aren't so private or voluntary. It's quite tempting to cheer for autocratic corporate power when it appears to be doing things that you find favorable, but the wind can shift on a dime.
bcrosby95 3y ago
Note that the negative framing does not necessarily limit other laws to have an affirmative framing, for example see the Pruneyard case: https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R... > This holding was possible because California's constitution contains an affirmative right of free speech which has been liberally construed by the Supreme Court of California, while the federal constitution's First Amendment contains only a negative command to Congress to not abridge the freedom of speech. This distinction was significant because the U.S. Supreme Court had already held that under the federal First Amendment, there was no implied right of free speech within a private shopping center.[4] The Pruneyard case, therefore, raised the question of whether an implied right of free speech could arise under a state constitution without conflicting with the federal Constitution. In answering yes to that question, the Court rejected the shopping center's argument that California's broader free speech right amounted to a "taking" of the shopping center under federal constitutional law. I generally believe that companies that enter spaces that previously afforded "users" first amendment protection should have similar laws to protect the free speech of users in said privately owned "spaces". But that would require new laws.
- shadowgovt 3y ago
  > I generally believe that companies that enter spaces that previously afforded "users" first amendment protection should have similar laws to protect the free speech of users in said privately owned "spaces". What spaces are those? From where I sit, we went from BBSes (where the admin controlled the signal) to self-hosting (where the user controlled the signal, unless it was so onerous that an ISP cut service) to cloud-hosting (where a company controls the signal). The ideal free speech world where people just spoke their minds online is a fantasy borne more out of lack of interest to regulate than power to regulate. Remember, the original network was a "network of peers" where most users were not pseudonymous; their academic or military sponsors could cut their access. The network has never had anything like absolute free speech. Communication over the network has always been an affair involving at least two parties who must agree on the transmission of signal.
  - bcrosby95 3y ago