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| -Land of the Free |
| ‘They’re a Private Company.‘ |
| 2021-03-13 |
| This is a problem we've dealt with since Boris, our first troll. He was banned not for his opinions, which he assumed were laws discovered by Newton or Bohr or somebody, but for A - Picking fights and B - Vandalism; he was in the habit of trying to deface the site, with enormous pictures or 500 letters in a row with no spaces or hyphens. Except for him, the rest mostly bothered other mods more than they did me, mostly for fighting. I draw the line at brainlessness - racial epithets, pernography, spam, that sort of thing. [thewriterinblack] When people complain about censorship by FaceBook, Demonetizing or outright deleting content by YouTube, or ranking shenanigans by Google, the people who benefit from these things (by having their opponents silenced or at least throttled) always say it’s not "really" censorship and not a First Amendment Violation because they’re not government. "They’re private companies," it is said. "They can do what they want." My attitude: I built the site, from the ground up. I can manage it as I please. I can shut it down anytime I want. Except, I guess, refuse to bake a cake. I'm on the baker's side. I’m going to ramble a bit on several topics here, but they do come together at the end. If you cross my (perhaps subjective) fine line between disagreeing with me and being a dipshit, don't trip over the ban button on the way out. Some years back Cleveland defense attorney Bob Ingersoll had a column, "The Law is a Ass" printed first in a magazine for comic book fans then repeated elsewhere. In this column he discussed the ways law is used, and misused—the ways they rarely got it right, and the ways they usually got it wrong—in comic books and other media. Among the things he discussed were exclusionary rules and exceptions thereto. One of those rules is if the police perform a search without meeting the legal requirements for probable cause and warrants and what not then the evidence could be excluded from trial. The electric company can't not sell you electricity because you call the lineman names. They can if you try to sabotage his cherry picker. Fedex can't not delivery your Nazi memorabilia to you, but they can if you throw rocks at their truck. Now, some people might think that this exclusionary rule would apply to someone like Batman making an illegal search so that any evidence thus found must be excluded because of coming from an illegal search. And the answer is...maybe. Yesterday we had the story of a Georgetown law profession whose Zoom conversation lamenting the performance of her black students was recorded (by whom? legally?). She was fired after a howling mob of Georgetown (black) students showed up with a figurative rope... You see, a private citizen could turn up evidence of a crime, even turn it up illegally, and the evidence is entirely admissible. ... unless otherwise prohibited by law, as in Maryland and Taxachussetts... It’s admissible because the reason for exclusionary rules is to provide an incentive against police misconduct. By not allowing the police to benefit from police misconduct it is meant to ensure the police don’t violate suspect (that whole"presumption of innocence" thing) rights. When a private citizen does it, however, there’s no police misconduct and, so, no real justification for excluding the evidence (although the citizen can be charged with crimes related to collecting that evidence—breaking and entering, theft, that sort of thing). And so, evidence collected by Batman is perfectly admissible. Or is it? You see, depending on the era of Batman stories you’re talking about, Batman could have the unofficial, or even downright official (there is at least one rather risible reference in the late-silver to early bronze-age Batman being "officially deputized" by "every law enforcement office in the world". Totally ridiculous, of course, even by comic book standards) status with the Gotham City Police. They permit him to function. They even work in cooperation with him. Other times they treat him as just another criminal...just one that’s harder to catch than even Two-Face and the JokerBut it’s these periods where the police work with Batman that I want to talk about here, where the police turn a blind eye to his illegal activities. These are the cases where the police turn a blind eye to, or at most give no more than lip service of, his illegal activities. These are the cases where the police talk to him about crimes, give him information, or actually call. him. in. to help deal with criminals. A Batman that has that relationship with law enforcement is acting as an agent of government. It doesn’t matter that he’s not a sworn officer. It doesn’t matter that he doesn’t draw a government paycheck. He is acting as an officer of the law through his actions and, most especially, through the way law enforcement by their actions approves his. The courts might still allow illegally obtained evidence provided by Batman to be accepted (and, indeed, in the comics generally did) but the courts would be (and were) wrong to do so. It wouldn’t be the first time the courts made wrong decisions. Now, let’s look at another topic (trust me, these will tie together). "Section 230". Section 230 is a law that protects public platforms from being held liable for user content. A public platform doesn’t exercise control over content and, therefore, is not liable for it. When you speak to someone on your phone, the carrier, whether ATT or Verizon or someone else, is not legally responsible for anything you say. You can make the most vile statement, even legally actionable statements, and the carrier is protected because they have no control over what you say. Fair enough, but what happens when a "platform" starts controlling content—limiting some voices, promoting others, endorsing one, disputing another? At that point the rationale for Section 230 protection breaks down. Instead of being a platform, they are now acting as a publisher. They are picking and choosing what content will be allowed. And this means that they are now responsible for everything that they do allow on what they aretrying to call a platform. After all, since they are removing things, if they don’t remove that, then it must be because they approve of it. And so, if, among the billions of posts on a social media site that controls content there is one that includes something actionable, then the people running the social media site are also legally liable for that content. Or they would be if the rationale behind Section 230 were consistently applied. For a large site with millions, or even billions, of users, it would be far, far better for the folk running it to throw up their hands and say "Oh, no. We’re not even going to try to control content. If you don’t like it, scroll past." After all, how could any automatic algorithm, or any reasonably sized group of moderators, ensure that no posts contained something actionable that would leave them liable. They would be best advised to stay safely behind Section 230 provisions. That is if the rationale behind Section 230 were consistently applied. Side note: There can be laws that require even a platform to remove certain types of content as soon as they become aware of it. But note that such laws then are the action of government and, at least in the United States, are a First Amendment issue. Next topic: Anti-Trust laws. In the US there are laws that are intended to "protect" American consumers from the problems of monopolies. We can discuss the value—good or bad—of such laws and whether their good outweighs their harm and maybe I’ll do that in another post. Not going to get into that here. Suffice to say that such laws do exist. Furthermore, then are often applied "proactively". I.e. they sanction businesses long before they become an actual monopoly. One argument that has been used for sanctioning a company is that it "controls" (which is an odd way of saying "successfully sells to") a "significant" percentage of the market). A company simply "controlling" some rather modest proportions of theirmarket has been enough to trigger anti-trust action. (Note: Thomas Sowell goes into this a bit in his book Basic Economics.) Facebook "Controls" 69% of the social media market. About 70% of all searches on Desktop computers use Google. About 90% of all mobile device searches. And yet, neither has seriously been challenged on an anti-trust basis. And so we have these online versions of Batman, "private" but being given tacit sanction by government bureaucrats. They are shielded from laws that we peons have to abide by. And thus, they are not entirely "private" businesses, regardless of what their corporate structures might say. Their actions to silence or throttle certain views while promoting others, then, are First Amendment issues. And if the courts say otherwise, just like with the courts of Gotham City allowing illegally obtained evidence provided by Batman, then so much the worse for the courts. |
| Posted by:746 |
| #18 Rantburg is the Finest publication on the Internet. CURSE anyone that comes after US. Thank you Fred and 786 for the Only safe haven anywhere! |
| Posted by: newc 2021-03-13 17:37 |
| #17 It has become increasingly obvious and annoying over the past twenty years or so that the left actually believes in "capitalism" for themselves but no "capitalism" for anyone else. |
| Posted by: Thing From Snowy Mountain 2021-03-13 16:36 |
| #16 Speech and the right to self defense both transcend market power. Corrupt politicians and oligarchs may move to deny that, but the truth remains whole. |
| Posted by: M. Murcek 2021-03-13 14:35 |
| #15 "Should not be" -- sure. But aren't. When it comes to the flow of information, market dominance brings political power. |
| Posted by: Jeremiah Prince of the Esquimeaux5557 2021-03-13 14:29 |
| #14 The channels of communication should not be subject to some "percentage" litmus test. You should be free to speak your mind at any level. Witness "celebrities" using their megaphones. |
| Posted by: M. Murcek 2021-03-13 13:20 |
| #13 The fundamental issue is size. R'burg doesn't shape elections; If you've reached the level of more than 20-30% of internet traffic to your site, you're not just a tech company or a blogger anymore. You're now an information gatekeeper-- a political player with the ability to shape election outcomes in a democracy. R'burg or whatever blog you like -- Substack or Slate, Townhall or Jacobin, doesn't matter which way the little site leans-- these don't shape elections. But Google, FB and Twitter absolutely positively swung the last election to their candidate by suppressing the extraordinarily vast amount of evidence, testimony, and witnesses who established that Biden is a lying POS and compromisedby the CCP. Most voters had no idea that Biden's family has been selling access to Biden for Chinese, Russian, Ukrainian illicit money. If CNN, NPR, NYT WaPo etc suppress this, that's a problem, but these companies have a small market share. They compete with the NY Post and Tucker Carlson in a fragmented market. But GOOG FB and Twitter have no serious rivals in their respective markets. Their political power is immense, and not tolerable in a democracy. They need to be broken up. |
| Posted by: Jeremiah the Slender9785 2021-03-13 13:16 |
| #12 I'm "just straight enough" to be a danger to mass media's "anything goes" version of society. There's no meeting in the middle on that and I'm not moving in their desired direction. |
| Posted by: M. Murcek 2021-03-13 12:16 |
| #11 Big Tech buys politicians all over the place. They have unprecedented power. And if they don't like you, they ban you. Good luck getting your message out when you can't use the world's defacto platforms for communication like Facebook and Twitter. Anyone here hear of the SuperStraight movement? No? Yeah, that's because it got censored real fast. Now it's gone, and a powerful weapon against the trans crazies is gone and probably won't resurface. It's been banished to web forums with 2000 users instead of 200 million. |
| Posted by: Sheger Thromotch7944 2021-03-13 11:36 |
| #10 Economic in One Lesson by Henry Hazlitt is a classic, if not THE book to read. Thomas Sowell is an incredible author with an incredible mind. |
| Posted by: Clem 2021-03-13 10:08 |
| #9 Big Tech and the legacy media companies suppressed news and facts that undoubtedly would have sunk Biden well before last November. They threw an election for their candidate. If we still want to be a Republic, we must eliminate any risk of this crime of the century happening again. Enforce 230 and also break them up. |
| Posted by: Solomon Pheremble2579 2021-03-13 09:42 |
| #8 The beloved (by many, but not all) internet blogster who banned me some time back for "being a jerk" (calling some Elon Musk fans cultists) says his blog is "like his living room" and he can decide who gets in there. I don't know how he runs his house, but getting in my living room is not something you can do via the internet. However that may be, it seems blogs and social media straddle that goopy grey area where "private business" meets "public accommodation." Note that the requirement for the baker to bake the ghey cake was rooted in the court's determination that the bakery is a "public accommodation," that is to say, anyone can walk in off the street. What that amounts to is, if I require people to register to interact in my site, am I now a private club as opposed to a "public accommodation?" Or is it just whatever the court decides, devil may care? |
| Posted by: M. Murcek 2021-03-13 09:10 |
| #7 One reason the GIVERnment encourages large centralized companies is to more easily manipulate them for social justice. Recent examples include manipulating and controlling social media companies to censor citizens that would clearly be against the law if the GIVERnment did it directly. Federal bank regulators do the same with big banks in lending with payday lenders, gun & ammo manufacturers.... |
| Posted by: Airandee 2021-03-13 07:33 |
| #6 Fine. Tie this in with the discussions of firearms bans. The gun grabbers operate on the principle that "because a nut got ahold of a gun, anyone who gets ahold of a gun may well be a nut." They want to punish the innocent for the actions of criminals. They want to put firearms manufacturers out of business because a lawfully made and sold product was intentionally misused. By that logic, all the social networks should be shut down and every person who has ever participated in any forum where icky speech has occurred should have their fingers cut off and tongues ripped out. But that would be absurd and unjust, of course. |
| Posted by: M. Murcek 2021-03-13 07:13 |
| #5 ...sorry did I need to put a /sarc on that? |
| Posted by: Procopius2k 2021-03-13 07:01 |
| #4 Woolworth's in Greensboro, NC is a private company. Who they allow to eat at their lunch counter is their call. |
| Posted by: Procopius2k 2021-03-13 07:00 |
| #3 I'd forgotten about Boris...unlike Aris, or JUSTICE, or... |
| Posted by: Frank G 2021-03-13 06:50 |
| #2 /\ Yes, it was eventually broken up, divided into smaller companies. Standard Oil's owner was permitted to retain small, partial ownerships in the newly established firms. Those firms grew and prospered, making Standard Oil's founder even wealthier. |
| Posted by: Besoeker 2021-03-13 04:14 |
| #1 Standard Oil was a private company. |
| Posted by: g(r)omgoru 2021-03-13 04:05 |