Censorship. Free Speech. First Amendment. Competition. Liberty.
These are the rally cries from erstwhile conservatives who have, over the past few years, increasingly become advocates for the First Amendment and free speech, especially on the internet. This wasn't always the case, of course. It was the Supreme Court's liberal wing in Cohen v. California that decriminalized the wearing of the now infamous "F*ck the Draft" jacket in a California courthouse. But then again, these "conservatives" aren't really conservatives, either.
The storming of the Capitol by an angry mob of Trump supporters last Wednesday, was the tipping point for tech giants Google, Apple, Amazon and Twitter. Each was a factor in Donald Trump's meteoric rise to become President, and each played a role in the violence in DC last week. Likely driven by concerns over their own culpability, by last night Twitter had suspended Trump for life, Facebook had removed Trump until the peaceful transfer of power on inauguration day, Google and Apple had removed access to the parler app from their app stores and Amazon web services had dismantled parler's internet backbone.
Parler is the increasingly popular site and app that serves as a Twitter clone and is favored by the far right for its promise of free speech. This promise is the basis for Google, Apple and Amazon's actions against parler. Facebook and Twitter both moderate their users' posts for a range of infractions ranging from copyright violations, hate speech, sex work-related material, and violations of federal criminal law. The ability to moderate content without liability is exactly what Section 230 of the Communications Decency Act protects, and what Donald Trump, amongst others, seeks to abolish.
Commentators have cried foul, citing censorship as an evil that must be eliminated from the internet. Most notions of improper censorship concern action primarily from a government or controlling body, not private actors. Here, the tech giants have stepped in to eliminate a voice (Donald Trump) and a channel (parler) from popular internet locations. Parler's 28 year old CEO, John Matze, in a post to his users on Sunday, suggested that tech giants had acted in concert to "kill competition in the market place" and "remove free speech off the internet."
Of course, Matze's youth likely explains his legal and technological folly. On the legal front, there is diminishing protection, even under the First Amendment, for speech as it turns to conduct and morphs further to violence. Napster, for example, once the darling of the internet, quickly learned that its free speech cape had a massive hole for speech that violated copyright laws. Here, parler and Matze attempted to build an unregulated mosh pit of speech, a watershed for wackos, upon an internet backplane subject to some, even if little, regulation. Matze could have built his free speech castle on firmer ground, avoiding the building blocks he chose, but then again who amongst us can avoid the lure of our favorite Dr. Evil doppelganger, Jeff Bezos?
While there will be free speech and technology situations which give rise to credible concerns of improper "censorship" even by private actors, this isn't one of them. Inciteful speech, especially that which actually results in violence, has long seen little protection under the law. Speech which leads to bodily injury or death, such as falsely yelling fire in a crowded theater, is understandably subject to criminal sanction. By assembling an angry mob, stoking their passions and effectively giving them marching orders, Trump and his enablers incited violence last Wednesday, in the first massive incursion on the Capitol since the British attack in 1814. For that act alone they have finally lost the technology cape that gave them such long and sustained flight.
Free speech has a heavy cost which society has decided to pay in the interest of liberty. Centuries of constitutional law has etched the contours of the delicate balance between freedom and responsibility. Without one, the other cannot survive, a lesson Messrs. Trump and Matze have yet to learn.
