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Musk's incoherent stance aside, the author is afaik a lawyer, and has a habit of conflating the ideal of free speech, with the 1st amendment. Placing advertiser

Musk's incoherent stance aside, the author is afaik a lawyer, and has a habit of conflating the ideal of free speech, with the 1st amendment. Placing advertisers and billion-dollar corporations as arbiters of what may enter the public sphere is counter to the spirit of free speech, even if it complies with the 1st amendment. There may be no simple legal means to prevent it (to get ahead of the usual "oh so you want government to force people to do business with X" replies), but that doesn't make the problem go away. I suspect even the author would realize this if, e.g., speaking up for LGBT rights got you fired from 90% of all jobs. Which, ironically, is illegal, but I won't hold my breath on the author complaining what an unconstitutional imposition on the 1st amendment rights of free speech and free association the Civil Rights act is.

jmye 3y ago
The “ideal” of free speech would uphold everyone being able to speak in whatever manner they choose. If you’re an economic loser as a result, that is not a failure of free speech, that is a failure of society to protect you from free speech. You’ve inadvertently stumbled on the exact reason that “free speech absolutism” is absolutely asinine nonsense (Musk’s incoherent/idiotic implementation aside), and why some speech restrictions should at least be discussed, even outside of a US/First Amendment context.
- SenAnder 3y ago
  > If you’re an economic loser as a result, that is not a failure of free speech This neatly avoids the question of whether we should want advertisers and multi-billion dollar corporations to be gatekeepers of the public sphere. As usual, laissez-faire when things are going my way, anti-discrimination and disparate impact laws when they're not.
  - mcpackieh 3y ago
    Our "public spheres" are in fact not public, but rather are private property. Advertisers having control over them is a consequence of this. If you actually go into town IRL and talk in the public square, no advertiser will be able to silence you because the public square is actually public. Or if you use an actually public means of communication like the postal service, again you won't be cut out because some corporate advertisers consider your speech bad for business. This phenomenon of corporate advertisers being gatekeepers of the "public sphere" only exists in actually-not-public spaces.
    - SenAnder 3y ago
      Public sphere as in the places and platforms hosting most public conversations these days. I am aware they are privately owned.
      - defrost 3y ago
        That Rubicon was crossed long before mass general public internet forums - Mall Cops policing privately owned shopping malls were enforcing the control of the spaces where most of the public convened .. particularly in smaller population centres that had seen their local shopping areas razed to the ground by price cutting mega stores.
    - ytoawwhra92 3y ago
      > This phenomenon of corporate advertisers being gatekeepers of the "public sphere" only exists in actually-not-public spaces. I disagree with this. A very common example is a person saying a thing outside of work, that thing being brought to the attention of their employer, and their employer firing them. People know this happens, and it creates a chilling effect on what they say regardless of whether they're in a public or actually-not-public space.
    - carlosjobim 3y ago
      > Our "public spheres" are in fact not public, but rather are private property. You have misunderstood the meaning of the word "public", because it is often used for government provided things. Many private establishments are public spheres, the most common example are Pubs - short for Public Houses. So you have completely misunderstood the word and arguing from your mistaken assumption.
      - mcpackieh 3y ago
        I haven't misunderstood anything. In a "public house" you can be kicked out of the owner doesn't like what you're saying, because it's private property. In places which are actually public, like a town square, this isn't the case. I understand that it is conventional to speak of some places that are private property as being public, but they are not public in the sense that actually counts for the protection of free speech.
- lmm 3y ago
  > The “ideal” of free speech would uphold everyone being able to speak in whatever manner they choose. If you’re an economic loser as a result, that is not a failure of free speech, that is a failure of society to protect you from free speech. Not even the most repressive societies physically prevent people from speaking - they just impose distinctly unpleasant consequences on those who speak in undesirable things. The fact that we impose negative consequences for undesirable speech via different mechanisms than the direct actions of government agents does not make what we're doing fundamentally different. In some ways it's worse - a Thai accused of slandering the King at least gets their day in court and can make their case for exhoneration and/or plead for forgiveness, while someone who is passed around on a list of "terrible human beings" gets no such chance. "Economic loser" is excessively trivialising very real harm - potentially life threatening in a country that lacks public healthcare and similar basic social protections.
  - carlosjobim 3y ago
    > Not even the most repressive societies physically prevent people from speaking - they just impose distinctly unpleasant consequences on those who speak in undesirable things. Help me understand what you mean by this. To me it sounds like saying somebody was not shot, he just didn't step out of the way of the bullet. Do you mean people are not prevented from speaking because their mouths aren't literally sewn shut?
    - lmm 3y ago
      > To me it sounds like saying somebody was not shot, he just didn't step out of the way of the bullet. Do you mean people are not prevented from speaking because their mouths aren't literally sewn shut? Exactly. So "just because something bad happened to you after your speech doesn't mean you didn't have free speech" is thoroughly fallacious.
  - eapressoandcats 3y ago
    If you think people in oppressive regimes get due process in court then I have a bridge to sell you. I think trivializing harm is bad but at the end of the day I think you will concede that there is a speech line which can be crossed beyond which you will be fired. Otherwise people could just be cruel and mean to everyone around them and face no consequences. Once you believe that then really all we are doing is haggling about where the line should be… which is something we’ve been doing for generations. Even if we’re not talking about official action and are talking about group vigilantism, I think we’d agree that if someone had well documented nazi and racist activities outside of work that it would be ok for people to ostracize that person? That just leads back to haggling about boundaries and that’s very hard to sort out without being very specific.
sgnelson 3y ago
Yeah, no. You can say a lot of things about Ken White, but saying that he conflates the 1st Amendment and Free Speech is one thing he does not do. There's a ton of evidence out there where he is very specific about the differences between the 1st amendment and free speech. A 10 second google found: https://popehat.substack.com/p/our-fundamental-right-to-shame-and https://popehat.substack.com/p/our-fundamental-right-to-sham...
- SenAnder 3y ago
  Let me be more precise then: he shows little concern for free speech outside a legalistic understanding. From https://popehat.substack.com/p/my-free-speech-means-you-have-to https://popehat.substack.com/p/my-free-speech-means-you-have... People who are sincerely concerned about free expression, people I admire and respect, argue that we must avoid “manipulative” and “ad hominem” criticism to protect speech — without really engaging the problem that both the critic and the criticized are people with free speech rights and interests. Where others see a problem (e.g. cherry-picking content from Twitter and framing it as the norm, or any other dishonest, manipulative framing, or complaining about the general culture of shaming), he throws his hands up with "technically not libel I guess". He wants a precise definition that could be written into a law or contract, before acknowledging any complaint as valid.
  - eapressoandcats 3y ago
    I think he is merely pointing out that you can’t just say “someone is doing something that harms me as a result of my speech” and call that censorship. Otherwise literally no one could ever make any decision based on someone’s speech, which is insane. The reason he is asking for precision is because ultimately it is helpful to actually engage with the question of how do we allow debate without turning things into a mess, and that likely requires making some normative statement about what should and should not be ok to do in response to speech.
  - jcranmer 3y ago
    The fundamental paradox of free speech is that protection of speakers from consequences of their free speech necessarily imposes on others' free speech, while not providing that protection also imposes on the speaker's free speech. No matter how you want to draw that line, you end up hurting somebody. SCOTUS has essentially "solved" the problem by deciding that the government just can't ever decide how to draw the line. If you look at the history of free speech cases, SCOTUS almost invariably decides to permit the speech, pushing the bar for illegality further and further back. Private parties suing each other for violating free speech is essentially non-justiciable (okay, there's defamation, but the grounds for defamation are very extreme in the US so as to be almost never applicable, as Twitter will find out multiple times in the next few months). If you're running a social media site, well, you similarly have to face these conundrums. But if you're reliant on advertisers for your income, you'll also find that you can't just nope out of it. Mike Masnick has a good guide on just how difficult it is for these companies (https://www.techdirt.com/2022/11/02/hey-elon-let-me-help-you-speed-run-the-content-moderation-learning-curve/ https://www.techdirt.com/2022/11/02/hey-elon-let-me-help-you...), which I'm sure Popehat would endorse. At the end of the day, you can't win. You have to piss off somebody. And, personally, I'm not going to side with the faction that wants to deny my right to existence.
kmeisthax 3y ago
1A might not be the end-all, be-all of freedom of speech, but what Musk is trying to push here is not anywhere close to freedom of speech. At all[0]. He wants to censor his critics, and has figured the easiest way to do so is to co-opt legitimate concerns about advertiser control over the Internet and use it as evidence of him being "censored". It's a very transparent attempt to do so, and Musk's commitment to freedom of speech is laughable, so we don't need to argue where the line between advertisers' freedom of association and Musk's freedom of speech actually lies. But if you do want to argue where that line should be, fine. I'll bite. Advertisers absolutely have too much control over speech online. 404 Media recently published an article about how brand safety filtering has more or less defunded a lot of news coverage relating to the loss of reproductive healthcare and women's rights in America. So I can empathize with what you're saying. However, I can't think of a coherent legal argument as to what the advertisers are doing wrong. In telecom law, we have the concept of common carrier regulation, which applies to middlemen that connect two parties together. e.g. your phone company cannot bill extra for the same phone call because it happens to be valuable to you[0]. We took a look at the balance of harms and decided that a phone network that cuts off businesses to extort money out of them is worse than the burden placed on phone networks to serve all customers, even the awful ones. How would this apply to a situation in which the edge of the network decides they don't want to associate with you? We're not talking about ad exchanges cutting off Twitter, mind. These are individual ad buyers all looking at Musk's behavior and deciding "we don't want to give this person money because it makes us look bad if we do that". Do we force ad buyers to blind-buy ad inventory to get around this? Can that even be done? How do they deal with the potential brand damage of being forced to give money to someone that people think is a censorious antisemite? Do companies just eat the loss of goodwill or do we force people to buy from companies they hate to "maximize free speech"? At some point we have to cut the chain of logic off, before the cure is worse than the disease. [0] More generally, my personal opinion is that free speech should have a self-defense clause: i.e. that it should not afford speech protections to acts that are contrary to freedom of speech. I think advocating Nazi ideology would count as such an act; certainly most of not all of their ideology is a blatant middle finger to the 1st Amendment. Why protect that which wants desperately to kill you?
JoshTriplett 3y ago
Your right to freedom of speech does not invalidate other people's right to freedom of association. That isn't a problem, it's a feature. We have very narrow exceptions to freedom of association, to prevent discrimination. Outside of those exceptions, people always have the right to say "I want nothing to do with you", and that's a very powerful right. That isn't a problem that needs solving, it's a feature to be cherished.

jmye 3y ago

The “ideal” of free speech would uphold everyone being able to speak in whatever manner they choose. If you’re an economic loser as a result, that is not a failure of free speech, that is a failure of society to protect you from free speech. You’ve inadvertently stumbled on the exact reason that “free speech absolutism” is absolutely asinine nonsense (Musk’s incoherent/idiotic implementation aside), and why some speech restrictions should at least be discussed, even outside of a US/First Amendment context.

SenAnder 3y ago
> If you’re an economic loser as a result, that is not a failure of free speech This neatly avoids the question of whether we should want advertisers and multi-billion dollar corporations to be gatekeepers of the public sphere. As usual, laissez-faire when things are going my way, anti-discrimination and disparate impact laws when they're not.
- mcpackieh 3y ago
  Our "public spheres" are in fact not public, but rather are private property. Advertisers having control over them is a consequence of this. If you actually go into town IRL and talk in the public square, no advertiser will be able to silence you because the public square is actually public. Or if you use an actually public means of communication like the postal service, again you won't be cut out because some corporate advertisers consider your speech bad for business. This phenomenon of corporate advertisers being gatekeepers of the "public sphere" only exists in actually-not-public spaces.
  - SenAnder 3y ago
    Public sphere as in the places and platforms hosting most public conversations these days. I am aware they are privately owned.
    - defrost 3y ago
      That Rubicon was crossed long before mass general public internet forums - Mall Cops policing privately owned shopping malls were enforcing the control of the spaces where most of the public convened .. particularly in smaller population centres that had seen their local shopping areas razed to the ground by price cutting mega stores.
  - ytoawwhra92 3y ago
    > This phenomenon of corporate advertisers being gatekeepers of the "public sphere" only exists in actually-not-public spaces. I disagree with this. A very common example is a person saying a thing outside of work, that thing being brought to the attention of their employer, and their employer firing them. People know this happens, and it creates a chilling effect on what they say regardless of whether they're in a public or actually-not-public space.
  - carlosjobim 3y ago
    > Our "public spheres" are in fact not public, but rather are private property. You have misunderstood the meaning of the word "public", because it is often used for government provided things. Many private establishments are public spheres, the most common example are Pubs - short for Public Houses. So you have completely misunderstood the word and arguing from your mistaken assumption.
    - mcpackieh 3y ago
      I haven't misunderstood anything. In a "public house" you can be kicked out of the owner doesn't like what you're saying, because it's private property. In places which are actually public, like a town square, this isn't the case. I understand that it is conventional to speak of some places that are private property as being public, but they are not public in the sense that actually counts for the protection of free speech.
lmm 3y ago
> The “ideal” of free speech would uphold everyone being able to speak in whatever manner they choose. If you’re an economic loser as a result, that is not a failure of free speech, that is a failure of society to protect you from free speech. Not even the most repressive societies physically prevent people from speaking - they just impose distinctly unpleasant consequences on those who speak in undesirable things. The fact that we impose negative consequences for undesirable speech via different mechanisms than the direct actions of government agents does not make what we're doing fundamentally different. In some ways it's worse - a Thai accused of slandering the King at least gets their day in court and can make their case for exhoneration and/or plead for forgiveness, while someone who is passed around on a list of "terrible human beings" gets no such chance. "Economic loser" is excessively trivialising very real harm - potentially life threatening in a country that lacks public healthcare and similar basic social protections.
- carlosjobim 3y ago
  > Not even the most repressive societies physically prevent people from speaking - they just impose distinctly unpleasant consequences on those who speak in undesirable things. Help me understand what you mean by this. To me it sounds like saying somebody was not shot, he just didn't step out of the way of the bullet. Do you mean people are not prevented from speaking because their mouths aren't literally sewn shut?
  - lmm 3y ago
    > To me it sounds like saying somebody was not shot, he just didn't step out of the way of the bullet. Do you mean people are not prevented from speaking because their mouths aren't literally sewn shut? Exactly. So "just because something bad happened to you after your speech doesn't mean you didn't have free speech" is thoroughly fallacious.
- eapressoandcats 3y ago
  If you think people in oppressive regimes get due process in court then I have a bridge to sell you. I think trivializing harm is bad but at the end of the day I think you will concede that there is a speech line which can be crossed beyond which you will be fired. Otherwise people could just be cruel and mean to everyone around them and face no consequences. Once you believe that then really all we are doing is haggling about where the line should be… which is something we’ve been doing for generations. Even if we’re not talking about official action and are talking about group vigilantism, I think we’d agree that if someone had well documented nazi and racist activities outside of work that it would be ok for people to ostracize that person? That just leads back to haggling about boundaries and that’s very hard to sort out without being very specific.

sgnelson 3y ago

Yeah, no. You can say a lot of things about Ken White, but saying that he conflates the 1st Amendment and Free Speech is one thing he does not do. There's a ton of evidence out there where he is very specific about the differences between the 1st amendment and free speech. A 10 second google found: https://popehat.substack.com/p/our-fundamental-right-to-shame-and https://popehat.substack.com/p/our-fundamental-right-to-sham...

SenAnder 3y ago
Let me be more precise then: he shows little concern for free speech outside a legalistic understanding. From https://popehat.substack.com/p/my-free-speech-means-you-have-to https://popehat.substack.com/p/my-free-speech-means-you-have... People who are sincerely concerned about free expression, people I admire and respect, argue that we must avoid “manipulative” and “ad hominem” criticism to protect speech — without really engaging the problem that both the critic and the criticized are people with free speech rights and interests. Where others see a problem (e.g. cherry-picking content from Twitter and framing it as the norm, or any other dishonest, manipulative framing, or complaining about the general culture of shaming), he throws his hands up with "technically not libel I guess". He wants a precise definition that could be written into a law or contract, before acknowledging any complaint as valid.
- eapressoandcats 3y ago
  I think he is merely pointing out that you can’t just say “someone is doing something that harms me as a result of my speech” and call that censorship. Otherwise literally no one could ever make any decision based on someone’s speech, which is insane. The reason he is asking for precision is because ultimately it is helpful to actually engage with the question of how do we allow debate without turning things into a mess, and that likely requires making some normative statement about what should and should not be ok to do in response to speech.
- jcranmer 3y ago
  The fundamental paradox of free speech is that protection of speakers from consequences of their free speech necessarily imposes on others' free speech, while not providing that protection also imposes on the speaker's free speech. No matter how you want to draw that line, you end up hurting somebody. SCOTUS has essentially "solved" the problem by deciding that the government just can't ever decide how to draw the line. If you look at the history of free speech cases, SCOTUS almost invariably decides to permit the speech, pushing the bar for illegality further and further back. Private parties suing each other for violating free speech is essentially non-justiciable (okay, there's defamation, but the grounds for defamation are very extreme in the US so as to be almost never applicable, as Twitter will find out multiple times in the next few months). If you're running a social media site, well, you similarly have to face these conundrums. But if you're reliant on advertisers for your income, you'll also find that you can't just nope out of it. Mike Masnick has a good guide on just how difficult it is for these companies (https://www.techdirt.com/2022/11/02/hey-elon-let-me-help-you-speed-run-the-content-moderation-learning-curve/ https://www.techdirt.com/2022/11/02/hey-elon-let-me-help-you...), which I'm sure Popehat would endorse. At the end of the day, you can't win. You have to piss off somebody. And, personally, I'm not going to side with the faction that wants to deny my right to existence.

kmeisthax 3y ago

1A might not be the end-all, be-all of freedom of speech, but what Musk is trying to push here is not anywhere close to freedom of speech. At all[0]. He wants to censor his critics, and has figured the easiest way to do so is to co-opt legitimate concerns about advertiser control over the Internet and use it as evidence of him being "censored". It's a very transparent attempt to do so, and Musk's commitment to freedom of speech is laughable, so we don't need to argue where the line between advertisers' freedom of association and Musk's freedom of speech actually lies. But if you do want to argue where that line should be, fine. I'll bite. Advertisers absolutely have too much control over speech online. 404 Media recently published an article about how brand safety filtering has more or less defunded a lot of news coverage relating to the loss of reproductive healthcare and women's rights in America. So I can empathize with what you're saying. However, I can't think of a coherent legal argument as to what the advertisers are doing wrong. In telecom law, we have the concept of common carrier regulation, which applies to middlemen that connect two parties together. e.g. your phone company cannot bill extra for the same phone call because it happens to be valuable to you[0]. We took a look at the balance of harms and decided that a phone network that cuts off businesses to extort money out of them is worse than the burden placed on phone networks to serve all customers, even the awful ones. How would this apply to a situation in which the edge of the network decides they don't want to associate with you? We're not talking about ad exchanges cutting off Twitter, mind. These are individual ad buyers all looking at Musk's behavior and deciding "we don't want to give this person money because it makes us look bad if we do that". Do we force ad buyers to blind-buy ad inventory to get around this? Can that even be done? How do they deal with the potential brand damage of being forced to give money to someone that people think is a censorious antisemite? Do companies just eat the loss of goodwill or do we force people to buy from companies they hate to "maximize free speech"? At some point we have to cut the chain of logic off, before the cure is worse than the disease. [0] More generally, my personal opinion is that free speech should have a self-defense clause: i.e. that it should not afford speech protections to acts that are contrary to freedom of speech. I think advocating Nazi ideology would count as such an act; certainly most of not all of their ideology is a blatant middle finger to the 1st Amendment. Why protect that which wants desperately to kill you?

JoshTriplett 3y ago

Your right to freedom of speech does not invalidate other people's right to freedom of association. That isn't a problem, it's a feature. We have very narrow exceptions to freedom of association, to prevent discrimination. Outside of those exceptions, people always have the right to say "I want nothing to do with you", and that's a very powerful right. That isn't a problem that needs solving, it's a feature to be cherished.