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.”
Except, I guess, refuse to bake a cake.
I’m going to ramble a bit on several topics here, but they do come together at the end.
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.
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.
You see, a private citizen could turn up evidence of a crime, even turn it up illegally, and the evidence is entirely admissible. 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 Joker.
But 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 are trying 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 their market 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.