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Reblogged:Speech, Property Rights in Trump's Crosshairs

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The Hill has published an editorial by Alan Dershowitz on Donald Trump's new lawsuit against several major social media companies. If I recall correctly, Dershowitz is widely regarded as an expert on freedom of speech.

If my memory has served me well, God help us.
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The Miami Herald precedent and those that followed it came long before a small number of social media behemoths assumed so much control over the marketplace of ideas. At least one justice -- Clarence Thomas -- has indicated a willingness to consider whether these media giants should be treated as common carriers that are subject to some governmental regulations. But media companies are different than buses. The product they sell is public speech and press, which are expressly protected from government regulation by the First Amendment.

The conflict between free speech and the First Amendment arises when these private companies use the First Amendment as both a shield and a sword selectively to censor [sic] free speech. The conflict becomes most acute when a small number of private companies are powerful enough to essentially shut down the marketplace of ideas -- which the First Amendment was designed to keep open -- to certain views. [links omitted, emphasis mine, format edits]
There are at least three things I can see wrong here, just off the top of my head. (1) The concept of censorship pertains only to government action. (See link above at sic.) (2) Forcing a private company to publish views its owners disagree with very much violates their right to freedom of speech. And (3) these companies are not selling speech, but providing a platform -- their platform -- for same in exchange for the ability to insert advertisements. So forcing these companies to provide a platform for some speech is not just a violation of the owners' right to free speech, it also violates their right to the use of their own property as they see fit.

(Before I go on, let me make clear that my recognition that the left-wing apparatchiks who run these platforms have the right to cherry-pick which politicians they will host is not in any way an expression of moral support for what they are doing or for their anti-American, "progressive" causes.)

Gus, you're a just some random -- albeit pretty sharp -- dude on the internet. Who cares what you say? Fine. Let's quote the widely respected philosopher, Tara Smith, who has been published in peer-reviewed law journals, on this matter:
People sometimes treat the ability to do something interchangeably with the freedom to do that thing. This is reflected in the complaints that because a person can no longer use Facebook or broadcast his political views at work, his rights are violated. On just a bit of reflection, it is easy to see that there are plenty of things that a person is unable to do that he remains free to do. I cannot speak Polish, as it happens, and I do not know how to juggle, yet no one has interfered with my freedom to do either. Had I wanted to learn, I have been free to do so. My inability results from factors other than others' coercion. Admittedly, other people play a more influential role in a person's inability to broadcast his beliefs through certain media (T-shirts at work, on Facebook, etc.). Yet those uncooperative people are not coercing him. His freedom is intact, although his desires may be frustrated. For freedom does not mean: "I get what I want." (Again, such a notion of freedom could only be fulfilled by trampling on others' freedom. It is thus not an internally coherent conception.) The larger point is simply that an inability does not entail a lack of freedom. [emphasis added]
This Smith specifically enumerates within an article titled The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech. I highly recommend anyone genuinely concerned with freedom of speech, our most important right, read it and recommend it widely: That right (not to mention property) is now under direct assault by a man once sworn to protect it, and under the cover of at least one person whose authority seems more dubious than that of the proverbial One-Eyed Man in the Land of the Blind.

-- CAV

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In The Prince, Machiavelli speaks of how a ruler who needs to do something unpopular can simply get one of his subordinates to do it for him, and then, if worst comes to worst, he can not only deny responsibility, but make a public spectacle of punishing the subordinate.

A government can not only use that to wield "unpopular" powers, but also powers that it is not supposed to have in the first place. In the United States, censorship is one of these powers -- and the subordinate in this case is the "privately owned" corporations, who "volunteer" to be subordinates because they have to, because the government wields various carrots and sticks. The government has figured out a way to get the practical effects of censorship while not doing it itself, thus having plausible deniability. This depends on allowing a few big corporations to have their hands in almost all speech -- and then the government "delegates" the power of censorship to them.

I think it's actually is proper to call this "censorship," because, when it comes down to it, it is the ruling regime doing it -- indirectly.

The corporations aren't really doing it of their own free will. If somebody puts a gun to your head and makes demands, then whether you agree with the demands or not doesn't really make any difference -- although the gunman might tell you that things will go better for you if it seems that you do agree. But it's a little different when the gunman is the government: people who really do agree might not mind the gun at their heads, because they figure, "the bullets in that gun are for other people, people who disagree... but I agree, I co-operate, so I don't have to worry about it."

When the corporations become unpopular, the government can make a big spectacle of "trust-busting," and the showmanship on this has actually already begun -- but you'll find in the end that, even if the government theatrically breaks these companies up, it won't make any practical difference. A few new rules will be announced, nobody will go to jail, and if you end up with two or three Facebooks or whatever, they will all toe the same line.

In a free market, companies would compete for people's business, and a company that started banning people for their political views would simply drive those people into the arms of the competition. A company in a free market wouldn't ban people for political reasons, because it's suicidal.** So why are companies doing it? Because they're confident that there is no competition for those people to go to. Why are they so confident? Because the government is guaranteeing it. We don't have a free market.

Trump has failed to grasp the nature of this problem and thus is proposing incorrect solutions.

However, once again we see some people claiming that there isn't really a problem at all, and that if people are being kicked out of the public sphere for their political views, it's just "the free market at work." That isn't true either.

(Some Republicans are doing one other thing wrong -- when they see the power being wielded, they don't want to eliminate that power, they want to take it over for their own use. That's not right, either: some powers cannot be used for good, at least, if good is defined as "promoting human survival.")

Over the decades, there have been a lot of people complaining, rightly, about smaller "public-private partnerships" than these, and how such partnerships somehow manage to wield government powers while simultaneously not being subject to any constitutional restrictions because "they aren't part of the government, they're privately owned."

Well, now we're coming to the culmination of the trend: companies and government are, for all practical purposes, just aspects of the same thing.

To save the free market we need to separate these things: the only ultimate solution to this censorship problem is a separation of state and economics, which would include the elimination of all of these powerful regulatory agencies, so that the regime has no way of compelling compliance with its censorship desires.

** This sentence isn't correct as worded. A magazine publisher, for example, is not "suicidal" if he only accepts certain kinds of articles for his magazine. A phone company, on the other hand, would be "suicidal" if it tapped in on people's calls and cancelled their service over their views.

Edited by necrovore
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3 hours ago, necrovore said:

and the subordinate in this case is the "privately owned" corporations, who "volunteer" to be subordinates because they have to, because the government wields various carrots and sticks.

Being incentivized by compared to being a subordinate of are quite different. Subordinate conveys some sort of ideological or practical commitment and alignment to the higher authority. Incentive conveys being offered value without any required commitment or alignment. All you said really was "the government figured out a way, trust me, even though I offered no evidence of how this is being done!"
 

3 hours ago, necrovore said:

If somebody puts a gun to your head and makes demands, then whether you agree with the demands or not doesn't really make any difference

What are the legal or forceful ramifications of failing to meet these unspecified demands? 

3 hours ago, necrovore said:

but you'll find in the end that, even if the government theatrically breaks these companies up, it won't make any practical difference.

History suggests otherwise. (You'll probably say that those trust busters hated capitalism, but that's my point: all trust busters hate capitalism)

3 hours ago, necrovore said:

A company in a free market wouldn't ban people for political reasons, because it's suicidal.**

I would, and I think it's rational. Besides, "it's a bad idea" doesn't really explain anything, and it makes no sense to explain behaviors have people based on only what sounds most rational given their values. You think I need a government guarantee of some kind for me to ban people for political reasons if I owned a social media company? Why can't I do it because I think certain political views are toxic and immoral, therefore bad for my platform? Why can't I plausibly just do something that is economically suicidal anyway because I felt like it and became like Howard Hughes?

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3 hours ago, tadmjones said:

So Coca-Cola could and should be allowed to ban the use of its product to homosexuals or whites ?

To be clear

If by "ban" you mean be allowed to refuse to sell to a certain group, the answer has to be yes. It's the right of any individual to refuse to do business with another (and suffer the consequences).

Otherwise, "ban" would have to mean: actively put a gun to the head of someone and say "don't drink it".

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I tried to edit post to include the phrase “ under current jurisprudence”

I do agree Coke can do as Coke pleases in a free market , as long as their actions do not violate individual rights.

Given the level of government influence in today’s ‘market’ , big tech , for lack of a better term, has been given the ability to operate with a  different hand . The idea of a public market has not been evenly followed. But such is the nature of political pull and why it is so toxic to the idea of a rational society.

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7 hours ago, necrovore said:

I think it's actually is proper to call this "censorship," because, when it comes down to it, it is the ruling regime doing it -- indirectly.

But censorship in Cuba is very different that what Twitter or Facebook are doing.

How are you going to differentiate it?

 

Edited by Easy Truth
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3 hours ago, tadmjones said:

So Coca-Cola could and should be allowed to ban the use of its product to homosexuals or whites ?

Technically, yes -- but context is everything.

If Coca-Cola does this of its own free will in a free market, that's one thing. Because in a free market people would probably switch to alternatives, and, more importantly, they'd be able to. (Even if Coca-Cola had the same bias as 99% of the population, in a free economy, a niche market would arise for the remaining 1%... because there is good money to be made serving niche markets... unless, like, that were prevented somehow...)

A semi-free or non-free market changes things considerably, though, because the idea that Coca-Cola is somehow just a private company making its own decision is merely a cover. This is not an independent, uncoerced decision, and you can tell because all companies are leaning the same way, and any time somebody wants to start a competitor that leans the other way, the effort is stymied by legal and regulatory issues.

The thing is, this is not about Coca-Cola at all. That's what I think DeSantis and Trump are missing when they target Twitter or Facebook. Yeah, the people who run these companies are jerks. But the government is pulling the strings here, and only that kind of jerk would be allowed to succeed under this government.

(Edit: When a guy has a gun to his head, the solution is not to put another gun on the other side of the guy's head, with an opposite set of demands -- but that seems to be what the Republicans are proposing...)

4 hours ago, Eiuol said:

What are the legal or forceful ramifications of failing to meet these unspecified demands?

Permits which you're required to apply for will mysteriously take longer to get -- any inspections or audits that have to be done will take longer and will find more little problems, and they'll dispute you whenever you claim to have corrected them -- you might get constantly harassed by law enforcement over crimes you can't control that are associated with your product or service -- whether you qualify for liability protections will be disputed -- your suppliers, employees, customers, investors, etc. will have similar problems.

On the other hand, a company that cooperates will get permits promptly, will breeze through inspections or audits (if there are any), will find that law enforcement doesn't blame them for the actions of miscreants who happen to use their property, will find that of course it qualifies for liability protections, and its business associates will have similar benefits.

This is how political machines in big cities have always worked -- e.g., try getting a permit in NYC or Chicago -- and now it has moved to the Federal level.

It can be many times more expensive to operate a company if it is disfavored by all these bureaucrats with discretionary powers. If the operating expense is too high, the company can't stay in business. Even if the company does stay in business, it is at a disadvantage. And yet, if a court asks the bureaucrats why they decided something the way they did, they can always come up with an answer that sounds "reasonable," and hey, the metal was rusty, so we did have to close the company until they had it replaced (never mind that the other company has metal that's about equally rusty but we decided it wasn't an issue there).

All this is only possible because the government is in a position to do this sort of thing.

4 hours ago, Eiuol said:

All you said really was "the government figured out a way, trust me, even though I offered no evidence of how this is being done!"

This is basic cause and effect, although in this case you see the effect and have to infer the cause, just like seeing the effect of X-rays and having to infer that there are X-rays (because you can't see them directly). There are also many historical examples of this sort of thing, including "machine politics" cities like Chicago and Detroit, where this has been going on for decades, although Ayn Rand also saw it in Russia, and it also existed in Wiemar and Nazi Germany and in other authoritarian states throughout history. What more evidence do you require? Ayn Rand herself recommended a separation of state and economics. Why do you think she recommended that? Was she wrong?

Edited by necrovore
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29 minutes ago, tadmjones said:
57 minutes ago, Easy Truth said:

But censorship in Cuba is very different that what Twitter or Facebook are doing.

How are you going to differentiate it?

 

Different in kind or degree?

Degree or by venue, as in where you say something?

If you go to someone's party at their house and you say something they don't like, when they ask you to leave and call the police, will you say that is a little bit of censorship?

If a company wants to hire and and in the contract they say you can't talk about such and such, is that censorship? (assuming the government is not involved)

If this forum has a terms of service that if you violate, you will be kicked out, is that censorship?

When you are sued for slander or libel, is that censorship since the government/judicial system will be involved?

When culturally, many people will insult you for saying something, are you being censored?

The fact is if one includes some or all of these as censorship, it will muddy the water when it comes to protecting freedom of speech. Suddenly anything and everything is censorship.

The other problem is that it normalizes censorship. Everyone does it, so it must be okay.

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2 hours ago, necrovore said:

On the other hand, a company that cooperates will get permits promptly, will breeze through inspections or audits (if there are any)

I don't think this part is true of any bureaucratic system. And even if a government might do such a thing, I'm not discussing in general what a government could do or the ways that government interference distorts economies. I'm asking for examples related to your claims about censorship in particular, in the US. 

Yes, it is apparent that government interference is terrible and distorts many things. I'm questioning the notion that social media "censorship" is caused by social media companies being subordinates to the government or acting as an arm of the government. You're talking with the US as if it is China.

2 hours ago, necrovore said:

There are also many historical examples of this sort of thing, including "machine politics" cities like Chicago and Detroit,

You need evidence that social media censorship is sufficiently similar to machine politics that we can infer similar effects or causes of their operation. I'm disputing the similarity because you have not offered evidence of similarity other than the possibility of a similarity. There may be a separate cause for the nature of social media censorship which has nothing to do with subordination to the government. Not that the government has no effect, but not to the same degree you seem to be claiming.

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The Cuban government censors speech that goes against the party line. 

How is that different from what Twitterbook does in the US?

Anti government -agenda , anti power structure speech is in both cases throttled , muzzled. 

I’d say they are of the same kind , but the reach , the degree varies given different internal conditions. The government in the US is making plans to further their reach by asking for regulation of SMS messaging. The only place a trajectory of this sort leads is a place where ‘everything’ is censorship.

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3 hours ago, tadmjones said:

The government in the US is making plans to further their reach by asking for regulation of SMS messaging.

I would agree that it's a bad trajectory.

The issue with the wording is if one said "I was murdered when he broke my nose", he could say "well, it's a degree of murdering". In a way it's true. But murder has it's own place in the hierarchy. Similarly censorship, has to have it's specific place.

If censorship, per the wider definition, should be banned, then an employer can't "muzzle" anyone and if the definition widens even more, eventually you won't be able to kick someone out of your house for what they said.

3 hours ago, tadmjones said:

The Cuban government censors speech that goes against the party line. 

How is that different from what Twitterbook does in the US?

Twitter's reason for existence is trying to make money for its share holders. A Cuban radio station is primarily a government function. That's a huge difference.

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5 hours ago, Eiuol said:

There may be a separate cause for the nature of social media censorship which has nothing to do with subordination to the government.

 

Like what?

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43 minutes ago, necrovore said:

Like what?

On the one hand, you are partly right to the degree that these large social media companies are involved in lobbying and want to be involved in the government regulatory process. But if there is anything distasteful about the way different users are banned, I don't think it has to do with these reasons. There are already really good reasons to disallow certain speech on a private platform, and I truly don't know any reasons a company would feel forcefully or legally compelled to disallow certain speech.

The distasteful reasons would be primarily be related to harmful cultural values, or bad ways of thinking about what counts as rational or appropriate speech, or individuals clamoring about feeling offended because of rampant low self-esteem in the culture.

 

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"That said, the companies should not attempt to act as arbiters of truth or “correct” views. That is immoral: it is bad for their business".

https://capitalismmagazine.us12.list-manage.com/track/click?u=e6daac5bbabca715ce33f553e&id=8f9d32ac32&e=1ce5f80967

Edited by whYNOT
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2 hours ago, whYNOT said:

"That said, the companies should not attempt to act as arbiters of truth or “correct” views. That is immoral: it is bad for their business".

If it's bad for business, the market will deliver their proper consequence.

Is your proposal to regulate how they attempt to act as arbiters of the truth?

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4 hours ago, Easy Truth said:

If it's bad for business, the market will deliver their proper consequence.

Is your proposal to regulate how they attempt to act as arbiters of the truth?

The author made a strong rationally self-interested case. Pretty much, "the moral is the practical" is the profitable. Did you not read it?

Edited by whYNOT
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21 hours ago, whYNOT said:

The author made a strong rationally self-interested case. Pretty much, "the moral is the practical" is the profitable. Did you not read it?

Gee, sorry, if you were just giving business advice.

But if we are going to propose regulating how to be or not be the arbiter of truth: Is the next mandate going to be that science journals should not endorse anything as true? After all, they might make mistakes and it will be bad for business.

The thread is about governmental involvement not practical business advice.

From a purely business perspective, some companies will want to muzzle and some won't and the real monetary consequences will determine if they satisfied their customers.

And as far as practical business advice, it's too early to say the actual business consequence.

These labels may simply be ignored by the public. 

Similar to labels on food and cigarettes by the surgeon general.
 

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7 hours ago, Easy Truth said:

But if we are going to propose regulating how to be or not be the arbiter of truth:

it's a pretty decent article, because it advocates for types of changes without any government regulations. 

 

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But the problem is in fact governmental.

The core problem is that these companies have liability protections that publishers don't have. Many of the recommendations in the article like using AI for this or that are already implemented with varied success. The bottom line is that a business should have the freedom to publish what it wants and be subject to proper libel and slander or child pornography laws. If it wants to be an arbiter of truth, it should be ready to face both the legal and business consequences. We have to keep in mind, these social media companies are providing something without getting anything for payment. There is no standard contract between the user and the provider which makes it even more complicated.

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On 7/15/2021 at 9:17 AM, Easy Truth said:

Gee, sorry, if you were just giving business advice.

But if we are going to propose regulating how to be or not be the arbiter of truth: Is the next mandate going to be that science journals should not endorse anything as true? After all, they might make mistakes and it will be bad for business.

The thread is about governmental involvement not practical business advice.

From a purely business perspective, some companies will want to muzzle and some won't and the real monetary consequences will determine if they satisfied their customers.

And as far as practical business advice, it's too early to say the actual business consequence.

These labels may simply be ignored by the public. 

Similar to labels on food and cigarettes by the surgeon general.
 

The article is far more extensive than, and hardly touches practical business advice. Among other true observations she makes a good moral case, too.

imo, the ¬right¬ to do something on one's property or platform does not ensure that it is morally right to do that thing. Rights do not provide one a moral code, they only limit what one's actions to and with others would be. 

As long as one only looks to government's interference in the market, losing sight of businessmen who take advantage of government regulation, the further will societal controls be consolidated.

This cuts two ways. Where some or most media owners espouse the same politics and ideology as the party in power, they will be tacitly or overtly supported by gvt.. And likewise. They then, in banning users and content, will be practicing actual censorship *on behalf of* the government. As its unofficial organs (or even lackeys).

It is not enough for freedom defenders to keep affirming - rightly - that 'You can do what you want on your property'; and: the only "censorship" is by Gvt (also rightly); or, these big media corporations only want to make a profit (true but not entirely) and should be praised. Etc.

Therefore, all the problem lies in government control. Etc.

Standard property rights fare, which will not change anything in favor of full liberty and render freedom defenders ineffectual, and worse, silent, on this matter.

But the pragmatism, or amorality or immorality of so-called 'capitalist businessmen' (cronies of state, one might say) are as much responsible for restricting Capitalist freedoms (here, of speech, thereby controlling minds) and should be called to task, morally.

 

Edited by whYNOT
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21 hours ago, Easy Truth said:

But the problem is in fact governmental.

The core problem is that these companies have liability protections that publishers don't have. Many of the recommendations in the article like using AI for this or that are already implemented with varied success. The bottom line is that a business should have the freedom to publish what it wants and be subject to proper libel and slander or child pornography laws. If it wants to be an arbiter of truth, it should be ready to face both the legal and business consequences. We have to keep in mind, these social media companies are providing something without getting anything for payment. There is no standard contract between the user and the provider which makes it even more complicated.

They make a simple mass product; for which they are handsomely recompensed by advertisers. The contract is implicit: One is allowed to partake in this media platform - IF- one sees the ads (which they know one can't help seeing), and then many of you will buy products from. Iow, each user is a potential or actual buying customer. Fine and good, but I would not worry about their profitability or providing something for nothing.

For them to additionally be in the business of promoting an ideology and politics and restricting other ones, while in the process of providing a 'free' service for millions and making huge profits, and sometimes claiming to be altruistically serving the common good, means they can rightly be criticized for hypocrisy and an ideological bias. Profit - or ideological power? Can't have your cake and eat it.

The implicit contract then further reads, "one is allowed to partake in our platform IF one submits to the ideas put forth without dissent. Else, you're canceled". 

Edited by whYNOT
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23 hours ago, Easy Truth said:

But the problem is in fact governmental.

I didn't say there is no government problem. I am saying it is not the essential problem of this so-called "censorship".

 

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