Alex Jones and the Communications Decency Act
Alex Jones of Info Wars has been banned from all social platforms except for Twitter in a single afternoon, showing that the tech giants are acting in concert for what are obviously political reasons, to suppress the speech of enemies of the Left.
In the myriad discussions surrounding this, one might hear the topic framed as a First Amendment issue, or an issue of whether private property owners may use their property as they like. I humbly suggest that neither of these grasps the basic legal issue involved.
It is not a First Amendment issue because the First Amendment is a constitutional restriction barring the Federal Government (and, by the legal fiction of the Doctrine of Incorporation, state and local governments) from passing laws and regulations restricting the natural right of freedom of speech. For obvious reasons, this analysis does not apply to private companies acting in concert.
Nor is this conspiracy in restraint of trade, so Antitrust Law, which this seems at first to violate, is also beside the point. The companies acted in collusion to prevent a widely-known public speaker from reaching his audience, because they objected to his anti-Left politics, which they call hate speech.
It is collusion, by the way, but not conspiracy. Technically, conspiracy requires an agreement to commit an unlawful act. An agreement secretly to commit a lawful but dishonorable act, such as stifling a man for his politics and pretending it is because he violated a vaguely-worded community guideline on courtesy, is collusion. It is wrong, and, in this case, may rise to the level of being sinister and threatening to the rest of us, but it is not illegal.
As to the actual content of Alex Jones’ speech, whether it is hate speech or not, is irrelevant to the legal question. Slander, libel, false advertising, or fighting words likely to provoke an immediate act of criminal violence, all these are types of speech whose legal stature is independent of their content. Please, let no one trouble himself to tell me how wise or foolish, fair or foul, uncouth, erroneous, paranoid, dangerous, or funny this speaker may or may not be. All that is irrelevant.
What is relevant is that he lives under the same laws we do. What is relevant is that what is sauce of the goose is sauce for the gander.
Legally, the argument centers around Section 230 of the Communication Decency Act.
Section 230 says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 U.S.C. § 230).
The significance of this passage is that a publisher is liable for carrying libels or slanders to an audience, precisely because the publisher of book or magazine, radio broadcast, television show, movie, and so on, has both the power and the duty to study the words of the writer whose words he publishes, check them for libelous matter, and prevent them from being printed if the matter is libelous.
The man who owns the printing press is liable for what his newspaper writers write in his newspaper. The man who runs the radio station can be sued for letting the disk jockey defame someone on the air. They are publishers.
But the telephone company is not. If you hear me over the telephone slander you with ruthless and outrageous slanders, clearly false and clearly harmful to your reputation and to your business, and I accuse you of having a loathsome disease, you simply cannot sue Ma Bell. The telephone operator does not have the authority or the ability to prevent my abuse of the telephone line when I spread defamatory falsehoods.
Section 230, in effect, says that YouTube and Facebook and Spotify an d so on are like the phone company.
They cannot monitor nor ban libelous speech, but in return they cannot be sued by an injured party claiming that their platform negligently allowed a slanderer to defame him. It is a quid pro quo.
The only other option is that the tech giants are like newspaper running a personal ad page: the newspaper can be sued for defamation, but in return has the power and ability to monitor, edit or ban libel in their personals.
Now, the interesting part from a legal point of view about the collusion of the rich and powerful leftwing high-tech giants to stifle the speech of Alex Jones is that the companies have arrogated to themselves the power of the publisher to edit and control the speech of the published, but not accepted the responsibility and liability that comes with it.
None of the colluders, as far as I have heard, claimed that their guidelines allow them to exclude anyone convicted of libel, slander, or publishing pornography, and that Alex Jones has been found guilty of a criminal breech of this kind. That stance would prevent the tech giants from the appearance of being publishers.
But if they assume the prerogative of editing and banning speech based on content, and have more power to control worldwide communication than all radio broadcasters, phone companies, and newspaper chains combined, then why should Section 230 render them immune from the temptation to abuse this power?
Does Ma Bell get to yank the phone out of your hand because she does not like your anti-Leftwing politics?
There are only two options under the law. The idea that the tech giants have the power and prerogatives of publishers, able to monitor and ban objectionable content found in their printing press, but are free of the liability of publishers, who will be punished by the law if they abuse that power, or even use it negligently, is not a stance that makes sense in law or logic.
About John C Wright
John C. Wright is a practicing philosopher, a retired attorney, newspaperman, and newspaper editor, and a published author of science fiction. Once a Houyhnhnm, he was expelled from the august ranks of purely rational beings when he fell in love; but retains an honorary title.
