Free speech experiences technical difficulties

When a group of pro-Trump rioters stormed the Capitol last week, the nation’s attention immediately turned to social media—and not just to find information or share opinions. Those who blame President Donald Trump for inciting the violence demanded an accounting from the industry credited for much of his political success. In response, Facebook, Twitter, and several smaller social media platforms suspended or banned the president. Before the conversation about the implications of such censorship, including condemnation from several democratic world leaders, could get seriously underway, a second and, arguably, much bigger Big Tech strike upped the stakes of the debate.

On Jan. 8, Google and Apple announced the removal of Twitter competitor Parler from their app stores. People who already downloaded the app would still have access to it, but new users would not. A day later, Amazon severed its contract to host Parler on its servers. The platform came down from the internet and would no longer function for anyone.

Since it launched in late 2018 with the promise of greater privacy and freer speech, Parler amassed 15 million users to become Apple’s No. 1 free app. It served as a living rejoinder to taunts such as this one tweeted in November 2017 by user Patriot J: “Twitter censoring conservatives? Cool build your own website. Freedom to tweet is not in the constitution.”

Conservatives and Trump supporters flocked to Parler in response to decisions by Facebook and Twitter such as suppressing a New York Post report about Hunter Biden’s business dealings in China and putting warning labels on Trump’s and other Republicans’ posts about alleged election fraud. CEO John Matze also encouraged the defections of religious users with his assurance, “No one should have the power or authority to tell anybody else what they can and cannot say based off their definition of the truth.”

Selective standards

Shortly after Parler went offline, the company filed an antitrust and breach-of-contract lawsuit against Amazon, saying political animus motivated the tech giant to silence a Twitter competitor. In the filing, Matze also claimed that, based on his discussion with Amazon executives, the move was designed to deny Trump access to any social media platforms. Parler requested an emergency restraining order against Amazon. A judge was scheduled to hear the case at 1 p.m. Eastern on Thursday.

Amazon claims it repeatedly warned Parler that if it didn’t do more to monitor “content that threatens the public safety, such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens,” it would terminate its contract.

In its response to Parler’s lawsuit, the internet company cited 15 examples of violent posts made since Nov. 17 such as this one: “On January 20th we need to start systematicly [sic] assassinating [sic] #liberal leaders, liberal activists, #blm leaders and supporters, members of the #nba #nfl #mlb #nhl #mainstreammedia anchors and correspondents and #antifa. I already have a news worthy event planned.” Other posts cited called for the formation of militias to fight a civil war, the bloody killing of Twitter CEO Jack Dorsey in his home, shooting police in the head if they protect U.S. senators, and killing black and Jewish people “like our forefathers did,” according to Amazon’s court filing.

Conservative commentator David French, editor of The Dispatch, characterized the deplatforming as a question of a private company’s right not to host speech it finds objectionable.

“[Parler] was a sewer,” tweeted French. “Americans aren’t required to host sewers.”

But others pointed out Amazon was following a double standard given that Twitter, too, is something of a sewer, frequently failing or refusing to remove violent, threatening content. Antifa used Twitter to stoke riots in Portland, Ore., Kenosha, Wis., and other cities over the summer, and still organizes on the site. Twitter has allowed violent hashtags like #KillDonaldTrump and #HangMikePence to trend. And when users complain of sexual harassment and threats, Twitter is sometimes slow to act, if it acts at all.

When seminary professor Katie McCoy tweeted support for Supreme Court Justice Amy Coney Barrett someone sent her this private message: “Glad to know you’d have your rapist’s baby. Here’s hoping you meet him soon.”

Twitter’s policy states, “You may not engage in the targeted harassment of someone, or incite other people to do so. This includes wishing or hoping that someone experiences physical harm.” Yet when McCoy reported the user, Twitter told her the message wasn’t in violation of its rules, according to a screenshot McCoy took of the communication. Pastor Gabriel Hughes received a similar judgment, also verified by a screenshot, when activists posted hardcore pornography to his Twitter account after he tweeted, “You are not gay. You are not trans. You are a sinner. Repent. Turn to Jesus Christ. He will wash you and make you new. 1 Cor. 6:9-11.”

Russian dissident Alexei Navalny, who survived an assassination-by-poisoning attempt this year, captured the inconsistency when he tweeted, following Trump’s exile from the platform, “I get death threats here every day for many years, and Twitter doesn’t ban anyone.”

A government-sponsored shield

For those who believe Congress should intervene to curb tech companies’ power over the flow of information, debate has mostly centered on Section 230 of the Communications Decency Act.

A bipartisan law enacted in 1996, it protects internet platforms from most lawsuits over user posts. Lawmakers designed the immunity shield to offer legal protection to technology companies for removing objectionable material, giving them an incentive to moderate content.

The provision gives platforms broad authority to censor content deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” as long as they act in “good faith.” But few users trust the moderators anymore. Conservatives say the platforms are biased against them, and liberals criticize the lack of moderation of hate speech and far-right groups. Courts have also contributed to the frustration, broadening the immunity to include virtually any action the companies take.

As private companies, Facebook and other tech giants are not subject to the First Amendment’s rule against restricting free speech. They have the freedom to flag or bar content or, as in the case of Trump and Parler, eject anyone or anything from the platform. But in a Wall Street Journal op-ed on Monday, lawyer and tech entrepreneur Vivek Ramaswamy and constitutional scholar Jed Rubenfeld argued Section 230 effectively deputizes tech companies to act on Congress’ behalf, which restricts the companies’ freedom to censor.

“Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution,” they wrote.

Ramaswamy and Rubenfeld cited several Supreme Court cases to bolster their point. In Norwood v. Harrison, 1973, the justices ruled the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” And in similar 1956 and 1989 cases the court held when the government offered immunity from lawsuits to encourage private companies to do certain things, the actions they took became governmental actions.

Efforts to solve the Section 230 dilemma have proceeded on two fronts. Last year, Senate Republicans introduced two bills to limit internet companies’ immunity under Section 230. The Justice Department and the Federal Communications Commission supported the move.

Additionally, the federal government has filed antitrust lawsuits against Google over its market-dominating search engine and against Facebook after its acquisitions of Instagram and WhatsApp.

Dan Darling, senior vice president of the National Religious Broadcasters, says he’s hearing from members worried about what the Parler incident might mean for them and wondering about the NRB’s position on Section 230.

Darling’s answer is, it’s complicated. He acknowledges that Big Tech largely controls the flow of information, but, more than that, they also frequently control the flow of commerce. “Think how platform-dependent all our ministries are,” he said. “Churches, Christian publishers, WORLD Magazine—we all have to have [internet service] providers, web services, email list providers, payment processors. You can’t function in business today without those things. … And you can see a day where [left-wing groups] like the Southern Poverty Law Center control the definition of what is safe speech. … So all of this is definitely raising a red flag for us.”

At the same time, Christians should welcome oversight and moderating in some situations: “You think of Pornhub being put out of business because credit card companies say, ‘we’re not going to service you.’ Or internet companies saying we’re not going to host your content on our servers. Well, we’re glad about that because they’re exploiting children.”

Darling said the NRB wants to see Section 230 reformed not repealed, to make the deplatforming or censorship process fairer and more transparent.

“If you get rid of 230 it could actually make things worse for ministries and Christian media because it opens us up to lawsuits,” he said, adding, “We should all be nervous about it, and I’m seeing an unease about [what Big Tech is doing] across the spectrum, even on the left.”

Stacking the deck

Conservative Christian commentator Erick Erickson has long agreed with French’s negative opinion of Donald Trump. But where French sees private action on the part of Apple, Amazon, and Google, Erickson sees collusion.

“A corporation is not the government and should be allowed to control access to its platform,” Erickson tweeted. “But when one does it and then others jump in and start blocking apps under the same, it becomes a coordinated corporate effort [to] shut down the speech of some.”

Even if Amazon prevails over Parler’s lawsuit and Google, Apple, and Twitter avoid a Roosevelt-style bust-up of their power, it may be too late for them to dispel the growing opinion they are cyberbullies running a rigged game. Twitter CEO Jack Dorsey only added to public perception that the tech giants coordinated when he posted a tweet of a heart emoji alongside a screenshot of Apple’s app store download chart with Parler conspicuously missing.

In an interview Wednesday morning, Apple CEO Tim Cook told CBS his company only suspended Parler, it didn’t ban it. He said Apple would welcome Parler back if it enacted measures to better police violent speech: “Our hope is that they do that and get back on the store."

But Matze seems to feel it may never get that chance. When Reuters asked him late Wednesday when the platform might return, he admitted, “It could be never.”