Monday, August 27, 2018

Defending the Digital Commons: A Left-Libertarian Critique of Speech and Censorship in the Virtual Public Square


By Andrew Austin

Is it now progressive to argue that essential liberties and rights should yield to private corporate power? I ask because the notion that the freedom to transmit and receive information is properly limited on the grounds that businesses profit from the control of ideas has always struck me as a rightwing position: liberty exists beyond the government—or in spite of it. In the rightwing view, the government is not something that should necessarily defend the civil rights of individuals in all circumstances, but something that, in its neutrality, perpetuates the privileges of elites as a class. Yet an argument has emerged on the left appealing to the supposed right of private corporations to legally censor speech as justification for suppressing objectionable expressions and opinions.

The case that prompts this essay is the suppression of Alex Jones and InfoWars (its podcasts, webcasts, etc.), a fringe media outfit with a rightwing bent and an aggressive edge, by several large social media platforms—including Facebook, YouTube, Apple, and Spotify—for violating their policies against “glorifying violence” and “hate speech.” Jones is notorious for promoting what are popularly called “conspiracy theories,” such as the claim that the terrorist attack on the United States on September 11, 2001 was a false flag operation designed to bring the population under greater government control. Although Facebook, for example, has been aggressively censoring pages and posts for more than a decade, Jones’ infamy has drawn attention to the practice. “Glorifying violence,” Facebook explains in a statement released to the media, “violates our graphic violence policy.” “Hate speech” is evidenced by “dehumanizing language to describe people who are transgender, Muslims and immigrants.”

Echoing the gist of Herbert Marcuse’s 1965 essay “Repressive Tolerance,” many on the left are justifying the censorship of Jones as politically necessary and ethically reasonable on the grounds that certain forms of speech are harmful and, furthermore, that there is no right to racist and offensive speech. Marcuse argues for “liberating tolerance” from the liberal values of equality and neutrality, condemning “what is proclaimed and practiced as tolerance” of a diversity of opinion as a framework “serving the cause of oppression.” He proposes a “discriminating tolerance,” which “would include the withdrawal of toleration of speech and assembly from groups and movement which promote,” for example, “discriminating on the grounds of race and religion.” We can see this in practice today on college campuses where students organize to disrupt speakers and events. Marcuse reads John Stuart Mill as something of a communitarian, as believing that “liberty must be defined and confined by truth,” which Marcuse assumes is on the left’s side. Marcuse argues for a dialectic that differentiates truth from falsehood, then suppresses the latter for the sake of emancipation from the administered, effectively totalitarian world of monopoly capitalism. The only tolerable tolerance is one that works towards liberation as Marcuse understands it, i.e. freedom from repression—and that work should exclude or curtail repressive speech.

Accusing Facebook CEO Mark Zuckerberg of making money from the “persistent undermining of democracy’s foundations,” Eric Alterman of The Nation, writing before Zuckerberg took action against Jones, complained that “Facebook has finally sought to scrub itself of phony profiles, but it continues to insist that it bears no responsibility for policing its content for lies.” Facebook should police Jones for what Alterman describes as “the horrific slander of so many people.” Writing for the Huffington Post, Anoa Changa of the Progressive Army quips, “Jones is not the hill any free speech advocate should want to die on.” “Defending Alex Jones’ right to exist on commercial platforms is about protecting white fragility,” she writes. “It has nothing to do with supporting the masses and our freedoms that may be compromised.” Sleeping Giants, “an organization dedicated to stopping racist, sexist, homophobic, xenophobic and anti-Semitic news sites,” tweeted “Massive kudos” to Apple for removing Jones’ podcasts. And Steve Redmond tweeted to his large following: “Apple, Facebook or any other private company has no legal responsibility to provide you a platform to spout whatever dumbass idea you want to sell. Do newspapers HAVE to offer editorial space for nazis? Answer: No.” 

The Left-Libertarian Tradition

The censorious attitude, however dressed up as strategy, is generally borne of an urge to control behavior and thought; it is a desire to substitute the judgment of one person or group for the judgment of others. It is essentially an authoritarian impulse, not in keeping with the spirit of the left—at least not the left as I know it: the libertarian left that came of age during the Sixties with the Free Speech Movement (1966-1970), a decade enjoying landmark Supreme Court rulings on the matter, including New York Times Co. v. Sullivan (1964), which sharply restricted libel, and Brandenburg v. Ohio (1969), which limited the government’s ability to censor inflammatory speech. That left rebelled against the notion that private tyrannies should censor arguments and images—arguments for equality and liberation, images of war and racism—or exclude people on the basis of color or creed. That left welcomed the opening of culture and society.

That left flowed from the Enlightenment tradition expressed in the work of Karl Marx, the father of modern class politics. To be sure, Marx was critical of the type of liberty that finds a right in individual control over capital, but he believed that censorship did more to further that type of liberty than undermine it. Marx is critical of the property right because of the class interests underpinning it; free speech, when protected, provides access to persuasion for those who do not command the machinery of prevailing ideology. Many on the left see free speech as an oppressive instrument of capitalism (and of racism, sexism, etc.). Those who call for censorship have the substance of their demand precisely backwards: rather than limiting the power of property to interfere with the free exchange of opinion and expression, they support subordinating speech to the property right.

The spirit of the left I pine for was on display at the 1963 March on Washington. A core demand of those who gathered at the Lincoln Memorial was equal access to public accommodations. The Civil Rights Act of 1964 was a response to their pleas. Title II of the Act prohibited discrimination on the basis of race at hotels, motels, restaurants, and other public places. Opponents maintained—and some still do—that prohibiting private businesses from excluding classes of customers, for whatever reason, violates the liberty of the business owners who have a right to do what they will with their property; a man’s business is an extension of the man’s castle (which, of course, is itself not really immune from government action). This was the position of the segregationist, who depended on government to uphold America’s version of apartheid by staying out of their affairs. My left wasn’t prepared to cede individual liberty (and dignity) to the interests of property owners who believed they had a right to pick and choose who they would let into their businesses.

Today, an iteration of this problem is playing out with respect to the struggles of homosexuals who seek equal treatment in public accommodations. Evangelical Christian Jack Phillips, of Masterpiece Cakeshop, refused to sell Charlie Craig and David Mullins a wedding cake because he objected to their lifestyle. For this, he was found liable for sexual-orientation discrimination by Colorado’s Civil Rights Commission (the Supreme Court overturned the CCRC’s ruling on the grounds that the state showed “hostility to a religion”). Phillips’ defenders contended that punishing bakers who do not wish to express ideas with which they disagree is an act of compelling speech. Others argued that a cake shop is a place of public accommodations and that homosexuals are, or at least should be seen as, members of a protected status in the same way blacks are. According to this view, the law should be concerned with protecting the right of a couple to express their sentiments, not with defending the notion that the owner of Masterpiece Cakeshop has the authority to censor them. That’s the spirit of the political and moral left I know. It hasn’t yet disappeared!

The Civil Rights Act of 1964 was helpful in clarifying a liberty because the right of black people to sit at lunch counters with white people is not explicitly stated in the US Bill of Rights. Perhaps a new federal law is needed to clarify the situation for homosexuals (given the limited character of the Supreme Court ruling, it would seem so). But do we really need a new civil rights act recognizing the right of people to express opinions on Facebook or YouTube? Doesn’t the First Amendment provide a standard for speech in America, one which the Supreme Court periodically clarifies—so far, by removing barriers to speech, not erecting them? 

Our First Civil Right

In light of recent events, we have to ask: Who is in charge of protecting our rights? As Vera Eidelman put it in July of this year, on the ACLU’s national page (“Facebook Shouldn’t Censor Offensive Speech”): “What‘s at stake here is the ability of one platform that serves as a forum for the speech of billions of people to use its enormous power to censor speech on the basis of its own determinations of what is true, what is hateful, and what is offensive.” What retiring Supreme Court Justice Anthony Kennedy described in 2017 as “a modern public square,” appears to be operating beyond the scope of the First Amendment, our first civil right, and many on the left seem unconcerned about this, believing, perhaps, their media and opinions are immune from corporate censorship. They are, instead, more interested in controlling political and cultural discourse through censorship, and less interested in changing minds through persuasion.

Make no mistake, this is a civil rights issue. Indeed, it is a human rights issue. When, in 2016, seventy plus advocacy groups — including the American Civil Liberties Union (full disclosure: I sit on the board of the Northeast Wisconsin chapter) and the Center for Media Justice — signed a letter addressed to Zuckerberg urging him to clarify his company’s policy regarding content removal, they emphasized how critical it is “that Facebook be a platform that supports the protection of human rights above all else and does not discriminately apply its policies on the basis of race, creed, national origin, gender, and/or sexual orientation.” Yet missing from the letter was any reference to Article 19 of the Universal Declaration of Human Rights (UDHR), which states: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” This spirit appears again in Article 10 of the European Convention on Human Rights (ECHR), where an individual’s right to freedom of expression is protected, as well as the right to “hold opinions and to receive and impart information and ideas without interference by public authority.” Not only is speech the means for reporting human rights abuses but is per se a human right.

The capitalist class is in a bind. If it wishes to present capitalist society as a free society, then it has to maintain (at least the appearance of) the free speech right; illiberalism is the mark of the totalitarian state, of absolutism, fascism, and theocracy. And illiberalism is at its most blatant when exchange of opinions is sharply limited. The capitalist class risks rebellion if it abandons the republicanism that is the fig leaf of its rule. The position of the left should be to exploit the hegemonic utility of an open society in order to pursue a democratic politics that puts at its center the liberation of the worker from class oppression. Yet, many on the left have abandoned the politics of class for the politics of identity and find themselves appealing to the property right as a reason for curtailing the scope of the dialectic, a rhetoric testifying to the regressive character of identity politics. An effective coalition has formed between the capitalist elite and members of the working class in which some members of the latter beseech the former for restrictions on speech and expression. Although the logic of the argument from the left seeking such restrictions flows from Marcuse’s observation that capitalist power produces a subjectivity that fosters support for the objectives of racist imperialist power, censorship in practice functions to deepen that subjectivity by agreeing with capital that power is right to control information and opinion. 

A Right to Censor?

The notion that private companies have a right to censor has become so commonplace that social media suppression is usually portrayed as unextraordinary, an exercise in throat clearing. On August 7, Robby Soave, associate editor of Reason, a magazine of “free minds and free markets,” asserted that “[p]rivate companies are under no obligation to provide a platform to Sandy Hook conspiracy theorizing, 9/11 trutherism, or any of the other insane ideas Jones has propagated,” as if this were plain fact. Numerous times over the last several years debating this subject I have been asked (always rhetorically), “Are publishers compelled to publish everything that comes to them?” Steve Redmond is right: the answer is “No.” But not for the reasons Redmond and others think. 

The New York Times and The Washington Post are news organizations (ideally) operating with journalistic standards and an editorial policy. Academic journals have peer-review and a mission to search for the truth. But casting Facebook as a publisher with editorial control over content or peer review by a community of scientists misidentifies its character and function. The New York Times employs journalists or contracts with free-lancers to provide content with the understanding that it retains editorial control over the topics and substance of the work (this is not to say that editors for news organizations do not in effect censor the work of their employees—or that their employees do not self-censor in order to publish for that organization). Editorial choices reflect the audience the news organization wishes to appeal to. But, in the case of Facebook, it publishes no real content of its own; it is the users of the service who provide that, and their pages in effect represent a universe of opinions, appealing to a myriad of audiences. Content providers are not paid for what they provide; instead, they pay for the opportunity to share opinions, images, music, etc., by giving other businesses data about their preferences and insecurities. Facebook is a service where publications like InfoWars and Truthout share their articles and op-eds. It’s not a service like InfoWars or Truthout. The former situation is open. The latter comes with editorial control. 

A reasonable analogy would look something like a person reading a newspaper story at the City Café and then discussing what she learned or how it makes her feel with her friends who have joined her for breakfast. It’s not for the City Café to decide what she can read or discuss. Having a conversation at the City Café is not analogous to writing a column for a daily newspaper. Each table at the café is a forum. One can sit at the table if invited (“friended”) or sit nearby and eavesdrop (“lurking”). And, on Facebook, one doesn’t have to worry about somebody being so loud that she would interfere with the conversations of others. Indeed, Kennedy’s modern public square has theoretically as many rooms as there are people on the planet, plus groups and multiple accounts. Nobody can force anybody to hear or see anything. If one objects to content, they don’t have to be that person’s friend or follow the user. Would today’s left support City Café ejecting me on the grounds that I read and discussed the Communist Manifesto with a comrade at lunch? Should City Café boot me for my Che Guevara T-shirt?

I often wonder why Facebook monitors pages or, moreover, responds to complaints over content at all. My opinions expressed in a telephone call or a conference call or over email, etc., are none of AT&T’s business. Why should my page and its content be any of Facebook’s? Its algorithms can chug along collecting data about my preferences and insecurities without human intervention. It would be outrageous for AT&T to deny me service on the grounds that an employee objected to the content of my speech. If they don’t like what I am saying over their phone lines, then they can stop listening in on my conversations. If the people that I’m talking to don’t like the content of the conversation, then they can hang up on me. Likewise, nobody forces Facebook users to watch Alex Jones. If people don’t like Jones’ claim that scientists are putting chemicals in the water to turn “the friggin’ frogs gay,” or his rants about “interdimensional demons” accessing the brains of politicians, then they have a practically unlimited number of channels from which to choose (or they can choose no channel at all). 

One of the demands of that 2016 letter advocacy groups sent to Zuckerberg was for greater transparency from the social media giants. What are, for example, the rules Facebook uses in taking down pages and censoring content? (I will leave to the side the controversy surrounding security of user data and Cambridge Analytica.) It took until this spring for Facebook to reveal their censorship guide, what the company calls “community standards.” The big reveal was by Monika Bickert, Facebook’s head of Global Policy Management, who assured the public that the guidelines were designed to “strike the line between safety and giving people the ability to really express themselves.” What is it that Facebook is protecting people from? Among other things, according to the guide, graphic violence, hate speech, female nipples, misrepresentation, propaganda, and misinformation. “People need to feel safe in order to build community,” Facebook tells its users. “We are committed to removing content that encourages real-world harm, including (but not limited to) physical, financial, and emotional injury.” How one measures the subjective experience of emotional injury is not explained.

The guidelines instruct thousands of human censors whom Facebook calls “content moderators.” Who are they? What qualifies them to judge what is often complex politically, historically, and culturally-situated content? How do they operationalize the standards? What rubric do they use to distinguish parody from authentic assertions of truth? What is the underlying and emergent ideology that the censors use to target and excise content and remove content providers?

Part of the answer to some of these questions lies in grasping Facebook’s association with the power elite of the transatlantic order. On May 17, 2018, Katie Harbath, Facebook’s Director of Global Politics and Government Outreach, announced a partnership with the Atlantic Council, a NATO-backed D.C.-based think tank and part of the Atlantic Treaty Association. The Council’s Digital Forensic Research Lab will help Facebook rein in “fake news.” Led by Jon Huntsman, Jr., the current US ambassador to Russia, the Atlantic Council is made up of elites from a wide range of industries, including the arms industry, as well as ex-CIA and Homeland Security officials and operatives. As Glenn Greenwald of The Intercept reported in December of last year, Facebook has already admitted that it has been deleting accounts at the direction of the US and Israeli governments. What is emerging is a story of the digital commons, controlled by Silicon Valley, merging with components of the transatlantic security apparatus, using fear of “Russian meddling” in the US political system to render more true Julian Assange’s characterization of Facebook as the “most appalling spy machine” ever devised.

People Get Things Wrong

Contrary to Zuckerberg’s recent claim in an interview with Kara Swisher of Recode that Facebook doesn’t remove Holocaust denier or revisionist content (“I don’t believe that our platform should take that down because I think there are things that different people get wrong,” Zuckerberg said), one of the early targets of Facebook censorship, according to the Los Angeles Times in a story published this past April, was indeed Holocaust deniers and revisionists. Maybe Zuckerberg isn’t aware of that. However, the horror of the Holocaust and how to study this history is an area that troubles even experts in the field. Perhaps no other subject of debate is portrayed as so obviously deserving of gatekeeping as the Holocaust.

While Deborah Lipstadt feels comfortable drawing clear lines (Holocaust denial can only be antisemitism—scratch a historical revisionist and he bleeds denialism), other historians, such as Yehudah Bauer, are more skeptical. Who is correct in the debate over whether Hitler set out to murder Jews (the “intentionalists”) or hatched the “Final Solution” only after the Germans began to lose the war (the “functionalists”)? Is the Holocaust a species in a historical genre to be subjected to comparative analysis? Or is the Holocaust a singular, transcendent event, conceptually incomparable to any other moment in history? Is it a species of Holocaust denial to argue, as Peter Novick and Norman Finkelstein have, that the memory of the Judeocide functions to some degree as a commodity? How are historians to correct the record of the past if deviation from an official narrative is a punishable offense?

The best—at least the most democratic—way to settle disputes is to allow questions to be asked and researched, which may involve challenging “settled” questions, and then freely disseminating the findings—even if those findings contradict ideological projects based on particular narratives. Government or corporate endorsed or mandated accounts may interfere with the historian’s work. However, mindful of the authority of expertise, on the plane of human rights, the non-historian is the equal of the historian; the historian cannot enjoy freedoms the non-historian is denied. More than this, the non-historian did not subscribe to standards of reputation that would draw punishment for misrepresenting sources (i.e. academic misconduct). Awkward as his words were, Zuckerberg seemed to be appealing to the virtue of unencumbered truth-seeking, seeing Holocaust deniers as those who get history wrong while expressing reluctance to assume their intent. Some would say Zuckerberg is being too charitable. But perhaps he is somewhat reticence to substitute his judgment for the judgment of others. Unfortunately, Facebook is not.

Of course, the Holocaust happened, and denying it in its totality is absurd, but how are censors who are not trained in history, and specializing in this field, to differentiate between historical study and debate, anti-Semitic propaganda, and defending ideological positions from challenge by name-calling? Given guidelines, white supremacist pages may be banned for advancing white nationalism and referencing fascist and Nazi doctrine on the grounds of emotional injury. Nazism’s offensive character makes that leap easy. Peddling Hitler’s Mein Kampf would likely draw a censor’s attention. One would have to have a particular reputation to safely discuss the book and its contents. Thus, the censor proceeds on the basis of identity, a quick read of good or bad intention, a move involving the imposition of ideology. I am an ardent opponent of authoritarianism and fascism, but I am more than uncomfortable with Facebook determining the legitimacy of various points of view, to put its thumb on the scales of weighty historical matters, as if I cannot judge such things for myself. As if Facebook is up to that task. I am reminded of Noam Chomsky’s powerful sentiment, made in the context of his own free speech struggle on this very issue, that it is a disservice “to the memory of the victims of the Holocaust to adopt a central doctrine of their murderers.” 

One of the reasons discourse on the Holocaust is so carefully guarded is what it might inspire. It doesn’t appear that Facebook recognizes the imminent lawless action test established by Brandenburg v Ohio, in which speech is an incitement to violence when violence is both imminent and likely. Very little could be censored on Facebook (obscenity excluded) if this were the standard. Instead, it appears Facebook may be using a standard more in the spirit of Article 20 of the International Covenant on Civil and Political Rights (ICCPR), which states: “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” This is a difficult standard to apply in law, let alone to speech on social media platforms. Indeed, it even runs up against the ICCPR’s own Article 19 concerning free speech (which has caused the United Nations Human Rights Committee to admonish governments for criminalizing defamation). 

The anti-Semitic hoax The Protocols of the Elders of Zion likely played a role in inciting pogroms against Jews. The Pizzagate conspiracy theory, promoted by Alex Jones (although it did not originate with him and he later apologized for disseminating it), was associated with a shooting at Comet Ping Pong restaurant. Antiabortion politics may motivate attacks on reproductive health services. Texas Senator Ted Cruz pressed Zuckerberg during his congressional testimony concerning Facebook’s actions in pulling Christian-based antigay and antiabortion pages for “bullying” and “hate speech.” However, many of the censored pages did not contain language indicating incitement, but rather presented ideas that perhaps could provide material for violent motives. But this can be said of a lot of speech and expression (recall the satanic ritual abuse scare in the 1980s in which heavy metal music was blamed for inspiring murder and suicide). There is a problem with determining responsibility here.

Defamation, a concept originating in the English common law, spread far and wide through British imperialism, also bears on this debate. Families or students and teachers of the Sandy Hook massacre, in which twenty children and six staff members were gunned down by 20-year old Adam Lanza, are suing Alex Jones and some of his associates for claiming that the mass shooting was a hoax (Jones’ legal defense is asking the court to dismiss the suit on the grounds of press freedom). Although Facebook and others are not appealing to the defamation suit as the reason for their action, the corporate media rarely fails to mention it in its indictments of Jones and, for some in the debate, the existence of the suit is sufficient to justify suppressing Jones and InfoWars, the presumption of responsibility notwithstanding. 

This argument is dangerous, both in its alchemy—it turns allegation into guilt—and by assuming the legitimacy of the concept of defamation, now being contested on a planetary scale as different cultural standards clash in the context of globalization. Indeed, the concept of defamation has experienced such severe inflation in Europe that engaging in irreligious criticism, a courageous practice we can thank for the secularism the West enjoys, risks a criminal complaint, a development starkly at odds with the tradition of the United States, where speech is enshrined in its Bill of Rights. We should be very concerned about such an expansive concept of defamation in operation in a public square that lacks the democratic machinery to seek a redress of grievances. Such capacious notions of defamation (as well as incitement, another legacy of English common law) are being socialized globally, contradicting hard fought human rights established by international conventions, a development that hardly fazes a left increasingly willing to sacrifice free expression on the altar of political correctness.

Making a Whip for Your Back

Corporate suppression of speech may feel fine when it’s Alex Jones or Warriors for Christ who are being censored. But what happens when Facebook suppresses speech with which the left identifies? Leftwing news and opinion outlet Truthout routinely publishes stories critical of police officers (I’ve published a couple of them). Suppose Blue Lives Matter, a countermovement seeking to protect police officers by defining threats to their safety and reputation as “hate speech,” convinces Facebook that Truthout is peddling hate and Facebook removes Truthout for violating its “community standards”? What if Black Lives Matter is deemed as, in the words of Donald Trump’s attorney and former mayor of New York City Rudolph Giuliani, “inherently racist”? Will the left argue, as it has in the Alex Jones case, that, as a private commercial firm, Facebook should have the right to determine what constitutes hate speech and de-platform leftwing publishers who post stories critical of police officers? 

In fact, Facebook doesn’t just censor rightwing pages. That 2016 letter to Zuckerberg I earlier referenced cites several acts of censorship that affect the left: the deactivation of Korryn Gaines’ account, which included the removal of the video documenting the police slaying of Philando Castile; the removal of reports of suppression of indigenous resistance, for example the Dakota Access pipeline protests; the removal of black activist sites, such as Black Lives Matter, and even reports of Black activists’ content being removed; the disabling of Palestinian journalists’ accounts (which, the letter notes, followed Zuckerberg’s meeting with the Israeli Prime Minister). Many more examples could be provided, one of the more notable instances occurring just this month when Facebook took down teleSUR’s English language page (a media group rightwing outlet Breitbart labels “communist propaganda”), claiming, without further explanation, the left-leaning Latin American news network violated the social media platform’s terms of service (Facebook restored the page a few days later).

Don’t Enclose the Commons

Excepting relevance (which, in case of social media, is irrelevant given theoretically infinite fora and the freedom to choose among them), freedom of the mind depends on an ability to share ideas through media that is neutral on the matter of content. As with InfoWars, nobody forces people to read Truthout. Free speech must come with machinery than does not work to limit ideas but instead operates to limit those who would limit ideas. Just as we cannot allow a student to disrupt a lecture or take a classroom discussion off topic, or a heckler or mob to shut down a political discussion, or an antifa to punch a Nazi in the nose, or spammers or hackers to shut down a website, we must object to Mark Zuckerberg or Susan Wojcicki (of YouTube) substituting their judgment for ours by limiting the exchange of ideas. They invite us, using infrastructure we make possible, to provide content for their service in a way that allows the proliferation of fora (pages and channels) that cater to a myriad of tastes. If they can’t administer this public service without trampling on the Bill of Rights or rational international conventions, then perhaps society needs to make different arrangements.

The argument that Facebook is not censoring Jones but following its rules (which the corporate media pressures social media platforms into doing, thereby limiting competition) presupposes the rules are not censorious. We hear this qualification: it is not legal censorship. But the argument that Facebook cannot “technically” censor Jones because Facebook is a private company and therefore cannot actually censor begs the question. If the argument adds that only the government can censor, then it adds a tautology—it substitutes a definition for an argument. The problem is with the idea that the First Amendment only protects citizens against restrictions on their speech by the government and government actors: it treats government action only in terms of commission, not omission; that is, it leaves out the government’s duty to respond when private entities deny civil rights. This returns us to the question of what the left’s position should be on the question of speech. Should the left support the power of private capital that functions as a utility to censor images and opinions? Or should the left demand that the government defend the civil rights of individuals over the economic privileges of corporations? 

As noted earlier, the Civil Rights Act of 1964 made it illegal for a business owner of public accommodations to deny service on the basis of race. For the government to turn its back on the individual and allow a business to discriminate on that basis would be an act of omission on the part of a government that has a legal duty to respond to discrimination in the private sphere. Likewise, free speech is a universally recognized human right. Facebook is a functional utility, a virtual town square. Government is obliged to be (with rare exception) neutral with respect to speech so as not to oppress people by favoring some expressions and opinions over others. But a primary function of government is to protect its people from non-governmental oppression, and that must include the actions of corporations. 

The practical outcome of allowing monopolies to censor speech is this: in a world run by private    corporations, that is, corporations acting as de facto government authorities, there is no legal      guarantee of free speech. Governments upholding free speech values must concern themselves with this problem. Just as the government is in principle obliged to remain neutral with respect to the color of a person’s skin or the content of his speech, so should public accommodations maintain ideologically neutral spaces for people who patronize their businesses. The social media giants must therefore be brought under the standards of free speech enshrined in the US Bill of Rights, the ECHR, the UDHR, and the ICCPR. Governments must recognize them more as their analogs, namely public utilities and places of accommodations, open and public services or spaces operated by private entities with a legal obligation to respect the established rules of civil authority. Indeed, because of their enormous power, governments have a responsibility to hold social media platforms to democratic account. 

Marcuse also wrote in that controversial 1965 essay: “Under the rule of monopolistic media—themselves the mere instruments of economic and political power—a mentality is created for which right and wrong, true and false are predefined wherever they affect the vital interests of the society.” In a free society, if one has nothing else at all, she at least enjoys the right to receive and transmit ideas. Without this freedom she cannot develop her own mind or persuade others to adopt her attitude or opinion. As Marcuse himself observed, in a society where power limits speech, “persuasion to the opposite is all but precluded.” Without contrary notions, no genuine consensus is possible; without antitheses, the dialectic founders. Art, music, opinion, knowledge—all of these are in jeopardy when control over content is given to corporate entities, public or private. The antidote to the poison of property is to guarantee as a right to all unfettered access to the digital commons. Don’t let it be enclosed. 

Andrew Austin is on the faculty of Democracy and Justice Studies at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, journals, and newspapers. His scholarship has appeared in such journals as Capitalism Nature Socialism, Crime, Law and Social Change, Journal of Black Studies, Journal of Poverty, and Nature, Society, and Thought. In 2018, he penned the preface to the Skyhorse edition of The Communist Manifesto.

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