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Whose Speech Is It, Anyway?

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necrovore
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Free speech is being debated in the news again and is about to be taken up by the Supreme Court.

The question being ignored in all this is, whose speech is it, anyway? The way I see it, there's my speech, and then there's, say, Facebook's speech, which is separate. It's a pretty fundamental question, but it's being ignored.

If I ask Facebook, or Twitter, or a phone company, or whatever, to relay a message, then it's my speech. That's why it's an infringement of my rights if the message is modified in transit, or deliberately not delivered, or the like.

This is not the same as Facebook's own speech, like if Facebook has a blog or press releases.

I can't just sign away this right, either. It's inalienable. If somebody receives a message from me, whether it's directly or by phone or via Facebook, then I have the right to control its content, and the recipient has a right to expect that I have controlled its content. if Facebook modifies the message and then tries to pass it off as being from me, that's fraud. (The only way it wouldn't be fraud is if they had an agreement both from the purported sender and from the receiver. If the receiver knows the message isn't really from the sender, then the sender might not be needed at all, like in a comedy show where the audience knows the comedian impersonating a celebrity isn't really that celebrity.)

If a person receives a message from me, that is not the same thing as if they receive a message directly from Facebook. You do not interpret every phone call as if the phone company itself is the one calling, and this is part of the reason the phone company itself is not liable if you don't like the contents of the call -- and it would be fraud if the phone company modified the call to make it sound like the caller was saying something they weren't. (It would also be fraud if I called someone and claimed to be from the phone company.)

There are rules for when multiple people cooperate to produce a message; the purpose of these rules is to make sure that if your name is attached to a message, it's your message, or at least, something you have agreed to. This kind of thing has great importance in the movie industry, for example, because many people work together to make a movie. This is a separate question from who owns the copyright, too! Sometimes this leads to movies directed by the pseudonym Alan Smithee because the director didn't think the movie was consistent with what he wanted to say, but the movie company would have owned the copyright in either case. There can also be people who work on a film even though they don't agree with all of it, and they might even be okay with having their name in the credits, because even if they worked on part of it, it is still clear they are not responsible for the whole movie.

Whose message is it, is also a separate question from who is paying for the delivery of the message. It's important not to force some people to pay for the delivery of other people's messages. Ayn Rand has pointed out that your free speech doesn't entitle you to a radio station or even a megaphone paid for by others. Contracts can exist where a publisher agrees to pay for the production or publication of something only if it fits some general description. An editor of a magazine usually has general guidelines which you know about before you submit, and if you do submit something, they usually tell you if they are going to use it or not.

Edited by necrovore
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There are nuances of course but the fundamental question is "does freedom of speech also include freedom of transmission of speech"?

Freedom to say your piece and not be killed for it is obvious. But a freedom at the expense of the labor of another is sacrificing someone. Now if there is a contract, then the transmission has to go through unaltered. Unless the contract includes the "possible" alteration of the message.

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55 minutes ago, dream_weaver said:

Free speech does not mean that a microphone (or internet format, etc., ...) be provided.

I sort of addressed that in the last paragraph, briefly, although this paragraph didn't appear in earlier versions of the post (which I edited after initially posting). Nobody should be forced to pay for anybody else's speech.

However, if you have already agreed to distribute someone else's speech, and it turns out to have different content than you expected, then there are rules. There may be a contract which can modify the rules if everybody agrees to it, but there are also probably default rules if there is no contract.

55 minutes ago, dream_weaver said:

Endangering those around you by yelling "Fire" in a crowded theater has, thus far, provided a concrete example used as a counter-example.

If I recall, the Supreme Court Justice who originated the "fire in a crowded theater" example was using it to justify government censorship of the opinion that the military draft violated the 13th amendment (against slavery).

My point though is that a lot of the controversy about the alleged "conflict" between Facebook's freedom of speech and the freedom of speech of the people posting on Facebook can be resolved by looking at whose speech it is.

Edited by necrovore
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Part of the controversy concerns the "public square." I should say this: social media companies ought to be able to decide for themselves whether they want to be a "public square" or not. Nobody should be able to force them one way or the other. They can be a "public square" by allowing all voices (to the maximum extent the law allows, which would be the maximum extent the First Amendment allows), or they can have an editorial slant like a magazine (which is not a public square).

In the latter case you'd expect to see multiple social media companies with different slants, just like you see multiple magazines with different slants, because there's no reason for the law to favor one slant over another.

What the social media companies cannot do however is pretend to be a public square while actually not being one -- but that seems to be what they want. They seem to want to have an editorial slant while claiming that their slant represents the whole public, when it doesn't. That's a kind of fraud -- but it agrees with certain people in the government who want public discussion to have only a certain particular slant.

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4 hours ago, necrovore said:

If somebody receives a message from me, whether it's directly or by phone or via Facebook, then I have the right to control its content, and the recipient has a right to expect that I have controlled its content.

Why? I mean, I do expect that content will be controlled, precisely because messages must be altered so that they can be transmitted. A message has to be converted into binary and then an electric signal, then re-translated back. This isn't a mere expression of the message, but the very content of it. Details must be abstracted away, or otherwise altered. The telecommunications company must decide for themselves how best to alter the message so that you will be a satisfied customer, and even decide whether content should be modified on the linguistic level. This way, the system works as intended. 

Since we are talking about human communication, it makes sense to say that content cannot be modified in such a way that the telecommunications company cannot fabricate messages an individual never sent, or to mark the creator as a completely different person. Laws about parody can deal with this, and libel law. But you aren't talking about this. You are talking about a right to modify or control content to any degree. In the process, you've neglected to mention anything about how messages are made and transmitted. 

That's why this statement is fine:

4 hours ago, necrovore said:

There are rules for when multiple people cooperate to produce a message; the purpose of these rules is to make sure that if your name is attached to a message, it's your message, or at least, something you have agreed to.

The problem is, the motivating issue for you isn't false representation, or that companies modify content in such a way that nobody knows what another person actually said. No one is doing this. You are talking about deleting posts or suspending accounts, things like that. In other words, your argument is a total red herring. 

What you've done is talk about a topic that no one is disputing. Figuring out whose speech it is only really applies to false representation. Banning you from Twitter isn't even changing the content of a message. So even if you were right about not modifying content (you aren't), that's not what people are upset about in the first place and it isn't what's happening. People who make it a free speech issue want to say that their account cannot be suspended when the speech is not on its own illegal (calls to violence and so on), and for large companies that have essentially created a public square. The idea from them is that even clearly presented moderation rules are illegitimate and should be eliminated. 

 

Edited by Eiuol
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1 hour ago, tadmjones said:

The media companies/sites that have the largest market share are colluding with the government to limit their 'customerss' ' 'product', they are by definition practicing censorship , the govt kind.

You have to find an example. The twitter file stuff isn't, because either the FBI is coercing companies to cooperate (I doubt it) or Twitter was cooperating with ongoing investigations that you aren't privy to (seems more likely). There is no smoking gun of an email saying "yes daddy Biden, your wish is my command". But at least if that were the case, or such evidence did appear, the companies and the government should get in big trouble. It's not a question of content moderation by private companies.

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57 minutes ago, Eiuol said:

You have to find an example. The twitter file stuff isn't, because either the FBI is coercing companies to cooperate (I doubt it) or Twitter was cooperating with ongoing investigations that you aren't privy to (seems more likely). There is no smoking gun of an email saying "yes daddy Biden, your wish is my command". But at least if that were the case, or such evidence did appear, the companies and the government should get in big trouble. It's not a question of content moderation by private companies.

Lol Biden is in charge.

The companies are censoring individuals named by the government. They are not hunting neo Nazis , they’re in Kherson.

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1 hour ago, Eiuol said:

Why? I mean, I do expect that content will be controlled, precisely because messages must be altered so that they can be transmitted. A message has to be converted into binary and then an electric signal, then re-translated back. This isn't a mere expression of the message, but the very content of it. Details must be abstracted away, or otherwise altered. The telecommunications company must decide for themselves how best to alter the message so that you will be a satisfied customer, and even decide whether content should be modified on the linguistic level. This way, the system works as intended.

You're talking about the encoding of the message, like deciding whether to use UTF-8 or UTF-16. That is a separate issue.

Some lower-level mechanisms might encode bits into analog pulses using QAM constellations and things like that. There's also the use of error-correcting codes and compression. For text, lossless compression is probably best, but for audio or video it's also possible to employ various "lossy" compression mechanisms, like converting speech into low bit rates for cellular phone systems, which is done using a model of the kinds of sounds that commonly occur in speech. (It's also possible to use a model of the kinds of sounds the human ear can distinguish, which leads to MP3 and other similar codecs.)

However, you've already noted that "the system works as intended" only as long as the content of the message is preserved, and that is precisely what I am arguing in favor of. There was a scandal a while ago about certain copiers which used a lossy compression algorithm and which would replace numbers on architectural drawings with other numbers -- thereby producing invalid copies of originally valid drawings. This was a scandal for precisely that reason.

If Stephen King wrote a novel and somebody used a text predictor such as GPT-3 to lossily compress it, and then expand it, and the result was more or less like the original novel but with some of the words and sentences changed, this would upset Stephen King, because he has the right to decide what goes under his byline, and it might upset his readers, too, who have the right to expect that something "by Stephen King" was actually written by him. Unless somebody checks, there's no way to know whether the machine made a substitution that actually changed the meaning. (Even though the algorithm would get even better compression if it could do things like eliminating that janitor in chapter 32 who doesn't really do anything important to the plot, things like that.)

An "AI" algorithm making judgments about what to allow through and what to block would resemble "lossy" compression. Both kinds of systems are capable of error, too; in compression this gives rise to "compression artifacts."

1 hour ago, Eiuol said:

The problem is, the motivating issue for you isn't false representation, or that companies modify content in such a way that nobody knows what another person actually said. No one is doing this. You are talking about deleting posts or suspending accounts, things like that. In other words, your argument is a total red herring. 

There's this thing called "shadow banning" where the company purports to have delivered your message but really hasn't. So you might think that someone received your message when this is not the case.

That can mess things up if you tell your friend that you'll pay for the pizza, but your friend never receives this message and so wonders why you are so rude... but it can have other implications, too. If there's a controversial court ruling, one might ask, why hasn't {favorite political commentator} commented about this yet? Does {commentator} agree with the ruling or not? Why the stony silence? Is {commentator} simply too shocked to say anything?

It's possible for a social media company to "quote you out of context" by banning messages.

This is easiest if they can delete some posts but allow others through, such as by turning shadow banning on and off. Consider if a publisher was able to omit about half the words from a book; they could make the book say completely different things with the other half of the words, although it would be a shorter book.

It is also possible to misrepresent someone's speech by preventing them from speaking further. (Like if a publisher deleted the last few chapters of a book).

For example, if you write a post in the heat of the moment, which may have errors, and someone declares it objectionable on some basis or other, and you scratch your head about this, but decide that maybe you should post a follow-up and clarify with further statements that you are not talking about that objectionable thing -- but you now can't, because you've been banned. So if you made a mistake you cannot correct it, and if they made a mistake you cannot point it out. In either case, your actual point of view is not properly represented, and if you were about to say that someone making mistakes while they write "in the heat of the moment" is blaming others for their own mistakes, that's only partially true, since a person might write differently if he knows that a post is going to be his last. Context is important in a matter like that.

I suppose I have slipped from the idea of a self-contained "message" to something more like a "conversation," which is an ordered collection of messages, and has context. But the main idea -- preserving the integrity of the message (or conversation) itself -- still holds.

----

There's also an issue with the separation of state and economics. This separation does not have force of law in any country that I'm aware of, but it should.

Whenever two parties enter into a contract, there is a question of what court has jurisdiction over it -- and there should always be some court that has jurisdiction, so that in the event of a dispute, the matter can be resolved.

I think the US Supreme Court erred by allowing companies to write binding arbitration into contracts instead of using the courts, because binding arbitration is doing the job of a court system without making the same guarantees about the rights of the accused and so forth that a real court would be obliged to make. It violates the separation of state and economics. (Binding arbitration is used to solve a problem that should have been solved by other means.)

An even worse violation of the separation of state and economics is when a court upholds a contract clause like "XYZ corporation shall be the sole determiner of whether the user is in breach of this contract or not." That would mean that XYZ corporation is setting itself up to replace the court's judgment and to simply instruct the court to impose damages. The court should strike down clauses like that.

Further, you have the right to a public trial, and that means that the evidence against you is a matter of public record. That means the opposite of what the censorship people want: if you write a "bad" post, the post should be preserved, because it is evidence. (Of course if it violates someone's privacy, or has other genuinely dangerous properties, such as telling terrorists how to disable the fire suppression system in a particular building, a judge could order it redacted accordingly).

Generally, however, court actions are public record, and this enables people to read rulings and decide for themselves if the rulings were fair.

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3 hours ago, necrovore said:

For text, lossless compression is probably best, but for audio or video it's also possible to employ various "lossy" compression mechanisms, like converting speech into low bit rates for cellular phone systems, which is done using a model of the kinds of sounds that commonly occur in speech.

The content of the message is modified then! And this is my point. To talk about the illegitimacy of altering content means you need to include how to alter the form of the message. I'm going as far to say there is nothing fraudulent about altering content, because that's how transferring messages works. It's not inherently fraudulent. The size of the company doesn't change that.

But yeah, lossy and lossless compression is a valid concern about the quality of the product. Not really relevant for twitter, but the principle is the same. It isn't a violation of your rights to alter the content of message, and the size of the company doesn't change this. You could argue that Twitter in the past violated its own stated policies, but it is quite reasonable to expect someone will alter a message as necessary to get it to the right place. 

3 hours ago, necrovore said:

There's this thing called "shadow banning" where the company purports to have delivered your message but really hasn't. So you might think that someone received your message when this is not the case.

This might be one area where you have a point, I grant that. 

3 hours ago, necrovore said:

It's possible for a social media company to "quote you out of context" by banning messages.

Not really, not when the banned messages were for violations of terms of service. That seems like an issue for the quality of the product, not an issue of rights. If the rules are in the open, and you violate them, it would be up to you to set the record straight. 

3 hours ago, necrovore said:

An even worse violation of the separation of state and economics is when a court upholds a contract clause like "XYZ corporation shall be the sole determiner of whether the user is in breach of this contract or not."

This is true, I don't think that a contract makes it so that anything goes as long as it is signed. There is a such thing as unenforceable contracts and contracts that should be considered illegitimate (a contract to enslave yourself is not legitimate). I'm just not seeing the issue in terms of freedom of speech. 

Edited by Eiuol
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The concept of “free speech” has been obscured in the modern world because of the question “whose speech?”. If I make a speech in front of my house, it’s my speech, and I must shoulder the moral and legal consequences of what I say. If I make a speech in front of your house with your forbearance, you too must shoulder the consequences, thanks to the law. It’s conceptually a bit confusing because you would share the blame but not the credit – speech-sharing is asymmetrically loaded in favor of negative consequences. As far as the courts are concerned, any speech made OO would probably be deemed to have been made by the author and by OO, under the doctrine of vicarious liability.

This then brings us to the “free” part of “free speech”: should Congress really make no laws regarding what you say? Should death threats, fraud, copyright infringement and defamation be legal? We discussed the last point some years ago, not satisfactorily in my opinion. The legal solution to this confusion is to distinguish viewpoints expressed from actions performed – the proper prohibition is against the act of initiating force etc. and not against expressing a viewpoint. Just as it is proper for the government to prohibit initiation of force using guns, it is proper for the government to prohibit initiation of force using words.

A publisher thus also bears liability for initiation of force when they publish your death threat against me, or when they aid you in illegally infringing my property right to my writings. But why? Because a different line of government action has made publishers responsible for the wrong-doings of their authors. Is this proper law? Well, is it proper to prosecute a person who helps a thief steal your property but does not himself steal? I think most Objectivists agree that aiding a rights-violator in their wrongful act is itself a wrongful, punishable act.

The murky area regarding media platforms is “Section 230”, which does not disturb the traditional conclusion that publishers share legal liability with authors for the consequences of speech, instead, it declares by fiat that Facebook et al. are not publishers. An analogous situation is that the guy who runs a copy shop does not gain liability for wrongful actions arising from the fact that a customer printed off death threats using his copy machine, nor does the phone company become liable because its machinery mindlessly transmitted your death threat to your victim. The copy-shop owner is not a publisher. The Facebook problem reduces to one simple question: what does it mean to “publish”? Control over content is an essential aspect of “publishing”, from the legal perspective. Facebook wants to have its cake while eating it – they want newspaper-style control, but copy-shop style immunity against consequences.

I would be surprised if SCOTUS decides this matter correctly in the upcoming term.

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20 hours ago, necrovore said:

If I recall, the Supreme Court Justice who originated the "fire in a crowded theater" example was using it to justify government censorship of the opinion that the military draft violated the 13th amendment (against slavery).

My point though is that a lot of the controversy about the alleged "conflict" between Facebook's freedom of speech and the freedom of speech of the people posting on Facebook can be resolved by looking at whose speech it is.

Your recollection took me to the wikipedia page supporting that "fire/theater" - "draft/slavery" connection.

The people posting on Facebook are demanding a microphone, if Facebook makes has an EULA in place implicitly agreed to up applying for an account and their 'censored' posts run counter to the EULA.

 

Edited by dream_weaver
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56 minutes ago, dream_weaver said:

The people posting on Facebook are demanding a microphone,

Suppose I agree to provide you with a microphone. I don't know ahead of time what you are going to say with it. I could put terms and conditions on my provision of the microphone, and take the microphone back if you violate those terms. Everybody could agree up front that those were the rules. It's my microphone. Facebook has the same rights that I have in that regard. I don't dispute this (although some politicians dispute it and they shouldn't).

However, suppose my terms are ambiguous. I might say that I don't want you saying anything "racist" but it's possible that people may dispute whether a certain particular statement is "racist." And in fact, it might be a political hot topic right now, whether a statement (or a historical figure, or a politician, or a political party) is "racist" or not. Some people claim that the Constitution is "racist" or that the whole Republican party is "racist" or things like that. In such a case, a dispute may legitimately arise as to whether you actually violated my terms or not. Further, if it's a subject of political discourse, then I can actually manipulate the political discourse when I choose to interpret the rules one way as opposed to another way -- in order to ban "racist" statements, I have to take sides on whether the Republican party is "racist" or not. (I can also make people appear more "racist" by banning their speech for "racism." In some cases, this could even be actionable as libel.)

In this case, perhaps the interpretation of the rules shouldn't be up to me alone. But that's the way Facebook has it. They can deem something "racist" even if it isn't racist at all, and the poster has no recourse, not even to a court of law.

(A more expensive example would be, if I offered millions of dollars for Steven Speilberg to make a movie. I might describe the movie in vague terms, but the movie I get might be different from what I expected, and in that case there might be a dispute about whether I have to pay him the money -- but a court could resolve that dispute.)

Why does this situation exist?

Part of it, I'm sure, is that Facebook is afraid that, if they allow "racist" posts, they can be accused of being "racist" themselves. That is not the case, and that is where it matters whose speech it is. If somebody makes a "racist" post on Facebook, it is the poster who is "racist," not Facebook itself. That's where "common carrier" status is supposed to come into play. "Common carrier" is really just the notion of "don't shoot the messenger," it's the notion that the originator of the message is the one responsible for its content, not the conveyor of the message.

(All this goes out the window, though, if the "conveyor" of the message alters its meaning in transit. As Eiuol has pointed out, "lossy" compression may change the content of the message due to errors. Automatic translation between human languages can also cause this -- and it may be the case that, for example, my message is not "racist," but a program translating it from English into French has a bug which causes the French translation to come out "racist." That is not my fault. If everyone is properly informed that the translation program may have such bugs, this may not be a problem at all, though. Bilingual people can look at the original English and translate it properly.)

Facebook can choose whether they want to be a "common carrier" or not. But there has to be honesty about that choice, both from Facebook and from the government. If you're providing a "public square" you shouldn't be liable for the speech of everybody in it, even if you are conveying it.

It is part of the problem that even people in government seem to be insinuating that if you convey someone else's "racist" message that you are somehow responsible for it. This is not necessarily the case, and is not the case at all for common carriers.

Edited by necrovore
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2 minutes ago, Craig24 said:

Are you asking if the govt should regulate the degree of ambiguity in a TOS contract on a social media site?

No, but in the event of a dispute, a court may have to rule on whether something is objectively "racist" or not.

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On 12/28/2022 at 2:37 PM, dream_weaver said:

Free speech does not mean that a microphone (or internet format, etc., ...) be provided. Endangering those around you by yelling "Fire" in a crowded theater has, thus far, provided a concrete example used as a counter-example.

... Unless, of course, there actually IS a fire in the crowded theatre.  :P  A lot of these issues have an implicit element of whether the speech is truthful or fraudulent.

 

On 12/28/2022 at 5:18 PM, Eiuol said:

There is no smoking gun of an email saying "yes daddy Biden, your wish is my command". But at least if that were the case, or such evidence did appear, the companies and the government should get in big trouble. It's not a question of content moderation by private companies.

Yes, I agree that the content moderation of private companies (when uncoerced and fully separate from the government) is a private issue.  But I'd just like to make a little note that you also agree that everyone involved should get in big trouble if the government is puppeteering such actions from behind the scenes.

On 12/28/2022 at 6:18 PM, tadmjones said:

Lol Biden is in charge.

The companies are censoring individuals named by the government. They are not hunting neo Nazis , they’re in Kherson.

A lot of the FBI collusion exposed in the Twitter Files long predates Biden; I think it goes as far back as 2017.  So it's possible that Trump could've been pulling those levers to deplatform leftists - I personally doubt it but by all available evidence it is possible.  The guys reporting on the Twitter Files claimed that both sides made censorship requests during the 2020 campaign.

 

On 12/30/2022 at 1:22 PM, Doug Morris said:

This raises the question of how harmful misinformation should be handled.

Thought crime.  Let's get the terminology straight.  "Misinformation" means thought crime and it should be handled by open opposition and debate; not by the government.

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2 hours ago, Harrison Danneskjold said:

... Unless, of course, there actually IS a fire in the crowded theatre.  :P  A lot of these issues have an implicit element of whether the speech is truthful or fraudulent.

Do I want Facebook, Twitter, etc., creating algorithms to filter what can be posted or redacted to my feed? Ultimately I want to be the one determining if said speech is truthful or not, not delegating it to a third party saying "trust us to filter it for you."

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