Americans Need Social Media Guided by the Rights Enshrined in the U.S. Constitution

Guest Post by Mike Krieger

Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime.

– Potter Stewart, Associate Justice of the Supreme Court of the United States.

This past Friday, Alex Jones was de-platformed from the last couple of third party tools he had been using to publicly communicate his message after Twitter and Apple permanently banned him and his website Infowars. This means an American citizen with a very large audience who played a meaningful role in the 2016 election, has been banned from all of the most widely used products of communication of our age: Twitter, Facebook, Google’s YouTube and Apple’s iTunes.

You can point out he still has his radio show and website, and this is unquestionably true, but when it comes to the everyday tools most people interact with to receive information and communicate in 2018, Alex Jones has been thrown down the memory hole. Not because he was convicted of a crime or broke any laws, but because corporate executives decided he crossed an arbitrary line of their own creation.

To prove the point that tech oligarchs are acting in a completely arbitrary and subjective manner, let me highlight the following tweet.

It’s not against the law to be crazy or say crazy things in this country. It’s also not against the law to say hateful things. It’s pretty obvious the main reason Alex Jones was deleted from public discourse by Silicon Valley executives relates to his impact and popularity. As highlighted in the tweet above, unabashed bigots like David Duke and Louis Farrakhan continue to have active presences across social media, and rightly so. The difference is neither David Duke nor Louis Farrakhan played a major role in the election of Donald Trump, whereas Alex Jones did. Jones and Infowars were having an outsized impact on the U.S. political discourse in a manner tech giant executives found threatening and offensive, so they collectively found excuses to silence him.

When the outrage mob consisting of politicians, corporate media outlets like CNN, and even his own employees, complained to Twitter’s Jack Dorsey on the issue of Alex Jones, he couldn’t hold the line on free speech because his company’s own policies are junk. Twitter, Facebook and YouTube should have a clear policy when it comes to speech, and it should be this:  If it isn’t breaking the law — in other words, if it’s protected speech under the First Amendment — it stays up. Period. When you have corporate rules against “hate speech,” you’re relying on a concept that doesn’t really have any sort of legal standing when it comes to free speech in this country. There is no “hate speech” exception to the First Amendment of the U.S Constitution.

As such, when Twitter, Facebook or Google executives throw someone off their platforms for hateful speech, this isn’t because someone broke the law, but because the individuals in charge of these platforms decided such speech wasn’t something they wanted on their products. If these products are the primary ones used for communication in this country, then we lose our speech rights in practice, even though they remain protected under the law.

Americans like to talk a big game about how proud they are of their country and how exceptional it is, but what in fact are we so proud of? Is it GDP growth, a booming stock market, or is it something else? For me, it’s the Bill of Rights. The civil liberties enshrined in the U.S. Constitution are non-negotiable as far as I’m concerned, but we as a people have been dangerously complacent as these rights have been systematically eroded since the post 9/11 power grab. Despite all the anti-freedom trends that have transpired in 21st century America, free speech rights remain quite expansive and very much in place. In theory that is.

I say in theory because in practice we’re learning how easily speech can be marginalized to the point of becoming erased from public discourse. We’ve allowed the digital public square to be dominated by corporations focused on profit maximization and whose policies quite explicitly do not reflect the law of the land and values that we supposedly hold dear.

If you’re like me and you think the civil liberties enshrined in the U.S. Constitution are fundamental to who we are as a people, it must necessarily be unacceptable that a handful of private technology corporations that do not adhere to these principles have dominated the rails of public communication to the point a handful of executives get to decide what acceptable speech is.

This has ushered in suppression of free speech by other means, and reminds me of a 1975 quote by Henry Kissinger:

Kissinger: Before the Freedom of Information Act, I used to say at meetings, “The illegal we do immediately; the unconstitutional takes a little longer.” [laughter] But since the Freedom of Information Act, I’m afraid to say things like that. 

As such, we now find ourselves in a situation where we as Americans continue to have expansive free speech rights under the law, but face subjectively minimized free speech rights in practice. So what are we supposed to do about it?

First, we need to recognize and accept that this problem exists, and then admit that it will only get worse the longer we rely on these tech giants to provide the rails of public communication. Second, we need to understand that creating digital public squares that adhere to constitutional principles is not a luxury, but a necessity at this point if we want to actually flex our civil liberties in the digital world. Third, we need to think about why the tech giants are so vulnerable to pressure when push comes to shove on free speech. It’s this last point I want to discuss further.

If we’re going to create and embrace communications platforms for both video and text dedicated to protecting the civil liberties defined by the constitution, I don’t think they can be structured as for-profit corporate entities focused on making shareholders happy. Facebook, Twitter and Google rely on advertisers for their revenue, so if big business starts to get uncomfortable with certain types of speech they can effectively pressure these entities to censor. Likewise, if these companies become concerned that “hate speech” could affect expansion into lucrative overseas markets that have laws against such behavior, they will typically make the best business decision as opposed to the best civil liberties decision. As such, in order to create successful, anti-fragile communications platforms guided by constitutional civil liberties, such platforms must be driven by principle instead of profit. Profit focused entities are far more likely to quickly fold under pressure.

The other fundamental problem with our current suite of social media companies is their use of proprietary algorithms. Hidden code can conceal all sorts of practices you wouldn’t want at work in a genuine free speech focused platform. Corporations can use such algos to suppress content from certain people, while promoting that of others. When code is secret, users can only guess what’s going on behind the scenes, while the companies can just brush off concerns as conspiracy theory and claim the code must stay hidden for proprietary business purposes. Speech and human communication is too important to leave in the hands of profit-focused tech oligarchs. Code must be open source.

Let me wrap up by sharing an interesting video on the dangers of our growing acceptance of censorship, by Canadian organic farmer Curtis Stone. While the points he brings up aren’t anything we haven’t discussed before, I find it meaningful when people not hyper-focused on politics begin to get seriously concerned about the existential dangers of allowing tech oligarchs to control the public square of human communication.

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