So I don’t have to try to tweet all this, here are my various takes on the free speech controversies that have been welling up lately.

These are my personal (and provisional and subject to change) opinions and I don’t speak for my employer or any organization I belong to.

I am almost but not quite a free speech absolutist when it comes to the government: prior restraint is bad. Hate speech” is not an exception to the First Amendment. I think the ACLUs suit against WMATA is correct. If the government is going to sell advertising space (which it doesn’t have to do and probably shouldn’t) in public places then under current law it needs to sell ads to NAMBLA and Nazis, and in any circumstance must accept political” ads.

However, we already have laws that make some kinds of speech illegal per se, in all circumstances, regardless of context. When the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, … no process of case-by-case adjudication is required.”Thus child pornography is so amazingly illegal that there are specific safe harbors in the law that make it so that merely investigating and reporting it is not itself illegal. Direct incitement is also illegal (although it is much much narrower than people usually think), and it is also speech. (Attempts to justify banning some kinds of speech by simply labelling it not speech” are obviously fig leafs—instead I think of these restrictions as justified censorship that passes strict scrutiny.) So, I do not have any philosophical objection to creating new categories of speech that is illegal per se along those same lines–that is, it might or might not be a good idea but the Rubicon was crossed long ago, and if some kinds of speech restrictions can pass strict scrutiny there is no reason to think others can’t. The general approach to Nazi propaganda in Germany, for instance, may pass strict scrutiny. However such exceptions need to be very, very narrow, and written into law, leaving practically zero room for discretion by individual law enforcement, prosecutors, or judges. So, while simply banning hate speech” would be a terrible idea, since such laws would immediately be put to work attacking people who criticize white racism or the police, banning Use of symbols of the Nazi government of Germany or any organization or government associated or allied with the Nazi government of Germany to express support of the persecution of persons because of race, religion, national origin, or political opinion.” might be workable. (In practice this means that white supremacists would just start using Norse and Celtic symbols and Fred Perry shirts, which they do anyway.)

The settled law that viewpoint-neutral time, place, or manner restrictions on speech are legal is correct. This is true even though people will get tricky and try to characterize viewpoint discrimination as viewpoint-neutral. A rule that leads to fact-specific arguments in situations like and occasional abuses is better than doing away with time, place, or manner restrictions. Based on reading the briefs and looking at the facts as they were known and presented to the court I believe ACLU was wrong in challenging the right of Charlottesville to move the Nazi demonstration to a different public park, and the judge was wrong in his decision, and that the events bear that out.

Major online platforms should afford everyone due process. Whether something is a major” online platform depends on the specifics of the market and the availability of alternatives. They should be required to have clear content policies in advance, they should be required to give notice for any content that they wish to take down (unless it is per se illegal, see above), they should permit people and opportunity to export their content (again, unless it is per se illegal) and they should give people an opportunity to challenge the charges” against them before a neutral decision-maker and have their content reinstated if victorious. (Maybe something like Hal’s idea would work, though I don’t think it’s the right approach for ISPs.)

If a platform is an actual monopoly (probably whether a natural monopoly or otherwise) or more infrastructural” in nature, then it should be subject to common carrier rules of some kind. This is a heightened version of the above, and it does not require them to carry per se illegal speech, but it would put some restrictions on their ability to decline to carry content even for reasons that are delineated in advance, and limit their discretion in individual cases. Some kind of restrictions that go beyond what the government would be permitted to ban may be permitted for some, but not all common carriers of this kind—for example with infrastructure-type services common carriage should be strongest.

The best way to avoid the abuse of power is to prevent accumulations of power. To the greatest extent possible would should avoid having any single platform having the ability to remove someone from the internet, which might mean breaking up, or restricting the size or conduct of some companies, even if they’ve done nothing wrong” to achieve their position. Although if a natural monopoly exists we should deal with that fact instead of idly wishing for more competition. (Why not transform them into customer-owned co-ops?)

This is not really a platform” issue but one of to what extent businesses should have the right to decline to do business with someone for any reason. We already prevent discrimination based on protected categories (mostly immutable characteristics) but should we go further? Obviously I think in some cases the answer is yes. The reason to talk about platforms” is that they tend to be more closely speech-related so these issues are more salient than they would be, for instance, in the case of a gas station.

In general, unions are very good and the best way to protect workers from arbitrary management. But even non-unionized companies should afford due process rights to employees, who should be able to challenge terminations. Due process must always be available to avoid pretextual termination or ones depending on falsified or no evidence. Believing and advocating hateful things, even outside the workplace, should be grounds for termination, but those kinds of things need to be spelled out, in advance, though not to the same level of precision that First Amendment exceptions need to be spelled out. For example, it would be ok to fire someone for denying the Holocaust (or the Holodomor or similar events). It would be ok to fire someone for believing in racial supremacy or gender-related pseudoscience. It should not be ok to fire someone for being a libertarian or a socialist or a supporter of the divine right of kings. Believing in things that are just generally stupid should not be grounds for termination. However companies should have the ability to buy someone out in such a circumstance, again under some clear pre-set rules.


February 17, 2016