“They’re a Private Company.”

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.

33 thoughts on ““They’re a Private Company.””

  1. Ironically, the legal environment we face today, where there are “two sets of books”, is the very environment that makes a Batman inevitable.

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  2. I am slowly leaning from “opposed to all anti-trust laws” to ” maybe we should be talking about how they work and when they work”. After all, Microsoft was successfully prosecuted for providing free software (IE) with it’s operating system. No requirement at all that anyone ever even use it for anything, they just couldn’t delete it if they wanted the OS.

    I have been quite frustrated with the hysteria over Section 230. I have heard otherwise rational people argue that repealing 230 would be a disaster for the internet when nobody serious was talking about “repealing” Section 230 other than in the most general terms. There were plenty of “modify” 230 discussions but those were completely ignored, I suspect intentionally, because the media wanted everyone to understand that even talking about the flaws of Section 230 was verboten. That being said, and as your article makes clear, the problem isn’t Section 230, it’s the unequal application. It would have been very easy for the Justice Department or some other branch of the Federal Government, to have moved forward with an action which pointed out that these platforms were no longer acting as platforms. Your telephone service is a great example. Can you imagine if Verizon were to install voice recognition software in their system which would scan for certain key phrases and topics, and then use that information to cancel people’s phone service? Would there be outrage or are they “a private company”? I’m starting to suspect the latter.

    I’ll add one more point. If you can’t communicate over the internet, and you can’t have a bank account or a payment processor, what responsibility does the government have to step in and ensure that you have access to the basics needed to exist in a modern technological society? The idea that you can do what you want, but only if you sell your product by word of mouth and only for cash is a bit ridiculous. Not saying that some people don’t, but it does limit your options rather severely when your only choice of careers is “Amish farmer”. It also highlights the dangers to a free society (which have been routinely scoffed at by the elites) of eliminating cash.

    Unrelated note: Seems like you’ve fixed the WP login. Nice.

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    1. only if you sell your product by word of mouth and only for cash
      Hmmm… That sounds familiar. I think some trippin’ dude named John wrote something like that waaaay back when….

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    1. “she could have set up her own bus company”

      Given that the buses were Montgomery CITY buses – ie the State, not private individuals – your comparison is not valid. That said, say you referenced “lunch counters” instead. THAT would be an apt comparison.

      Of course, since no one has a right to someone ELSE’S life and effort, she would have NO right to anyone else’s lunch counter or service. Put simply, the fact one is a BIGOT doesn’t magically make one’s rights disappear. And the idea that you have a RIGHT to someone else’s life or effort (their property and their service) is the claim they are YOUR PROPERTY.

      They ain’t.

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      1. The main problem with “Jim Crow Laws” is held right there in the word “Laws” and that included things like lunch counters that were segregated by law. Under most circumstances, a business choosing to reject business from a group is simply another term for “business opportunity” for someone else. (There were plenty of bakers who would have been perfectly happy to take that couple’s money and bake and decorate that cake.) It’s only when those other competitors, who might choose to go for the business being rejected, are prevented from doing so (law is the most common, although not the only, way) that you have a real, persistent problem.

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        1. And “public accommodation” laws are a weasel way around those private rights – by turning a private business into some sort of no-longer-really-private enterprise. (The flip side of the Jim Crow laws, really, both interfering with private rights to achieve some sort of political end result.)

          Liked by 1 person

        2. I like to remind people today that the citizens in Jim Crow areas were ripped from a legal milieu in which they were FORCED to discriminate, and plunged into a legal milieu in which they were FORBIDDEN to discriminate, without ever passing through any milieu in which their individual freedom of associated was honored in any way whatsoever.

          Liked by 1 person

  3. I think that the whole public/private divide is a false one. In our consensual society our small-c constitution would seem to require reciprocal respect for the rights of the people. If an entity — individual or corporate — desires that its property rights be respected, it is incumbent upon it to respect the free speech rights of others. The question of the enforcement of rights against the government does not enter into the matter.

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    1. [waggles hand] A publisher gets to choose what they publish. That’s not a free speech or free press issue. Likewise, if I were to harangue customers on politics (or any other subject) on company time, costing our company business, I would be fired and rightfully so. If I was so obnoxious in public in ways that made a direct association with the company, even not on company time, and that cost the company business, it’s not quite as clear cut but that, too, would likely be legitimate cause for firing. However, if a bunch of people, not our customers got together and started haranguing our customers because they (not our customers) didn’t like my politics and said customers, not wanting the hassle, stopped doing business with us? That’s harder. We’re still losing business because of my politics but granting “heckler’s veto” is dangerous territory to venture into. Is my boss required to take the hit to the bottom line because of my free speech rights? If he lets me go in an effort to preserve the business’ ability to generate revenue, has he violated my rights? Where, exactly, is that line to be drawn?

      Anyone reading this blog to any extent should know that I favor freedom but sometimes, how freedom is best served is not always so obvious although people often think it is. As the saying goes “to any problem there’s an answer: clear, obvious, and wrong.”

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  4. I still flinch from approving of these regulations. However, I’ve encountered enough self-proclaimed free-market purists who rejected free-market remedies for the problem that I can’t blame people who pursue other options:

    “The thing to keep in mind is that YouTube, FaceBook, and Instagram are allowed to curate their communities, just as you’re allowed to decide who you talk to or do business with.”

    So, are you going to look for alternatives that don’t reject conservatives?

    “Mmm, no.”

    Well, you’ll at least point out that they aren’t content-neutral to moderates who haven’t noticed, leftists who insist the opposite, and those companies themselves, right?

    “Nah.”

    Well, at least you won’t mock us when we point out that they’re biased.

    “Yeah, about that…”

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    1. I simply figure they should not get to have it both ways. They don’t get to be shielded from liability for content granted to platforms that don’t control content and get to control content. Either they don’t control content (outside the specific cases of Section 230) or they do (in which case they’re legally liable when said content is actionable). One or the other. Not both.

      Likewise, I see no reason why they should be treated as having special immunity to anti-trust laws. One can argue that the anti-trust laws are themselves a bad idea, doing more harm than the monopolies they are supposed to constrain, but until such a case is made and they are repealed they are the law and should be applied equally.

      That those in power use these laws selectively as a weapon is a large part of the problem.

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      1. “until such a case is made and they are repealed they are the law and should be applied equally”

        Yes. Until slavery laws are repealed, they are the law and should be applied equally. NO black man should be allowed to be free. They should ALL be treated the SAME. They should ALL be slaves. That’s only fair!

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        1. [clap][clap][clap]
          This is truly the most exceptional combination of Straw Man and False Equivalence that I’ve seen this week. Did you, sir, just try to compare anti-Trust laws with a version of slavery laws that never existed?

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          1. And I’ll note again, for those who didn’t get it the first time, and put it in small words, that the point is not that the laws are good or bad–and, indeed, an argument can be made against them but that’s not my point here–but that folk like FaceBook and Google are being given a pass on them. This pass amounts to government endorsement of their actions.

            So we can add “Red Herring” as a descriptor to your comment as well or, as Larry Correia put it in his Internet Arguing Checklist “Justify the Moon Ferrets.”

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            1. “the point is not that the laws are good or bad”

              Which is why I referenced a “bad” law, since you declare the existence of the law is all that matters to you here. So, unless you are claiming that the rightness or wrongness of a law DOES matter, pointing to a “bad” law is NOT , as you fallacious your claim, a “Red Herring”.

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              1. And once again you get it exactly backward. A law could be good or a law could be bad but specifically using it as a weapon against one’s enemies and not against one’s favored is bad in either case. It’s a violation of the very concept of rule of law. It throws away any pretense of equal protection under the law.

                Indeed, a bad law can very well be made worse by uneven application. At least when it’s applied evenly you know what to expect. Yes, yes, I know you can come up with examples where the law is so egregious that any exceptions, even if only for a little while (with those making the exceptions changing their mind later) is better than applying it to everyone but that’s diversion from the point, and topic, at hand.

                And your example continues to be bad as there. was. no. law. that said “black people must be slaves” which was enforced against ones enemies but not against ones friends. It is not parallel. It has really nothing to do with the issue at hand and the laws in question–about which strong arguments can be made both for and against. AGain, it’s just an attempt at an emotion-laden redirect, the very definition of “Red Herring.”

                Oh, and for your information “fallacious” refers to the structure of an argument, not its truth or falsity . An argument can be fallacious and true (bad arguments in support of a proposition that is, nevertheless true although not because of the arguments made) or non-fallacious and false (argument well constructed but starting from incorrect premises).

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          2. “Did you, sir, just try to compare anti-Trust laws with a version of slavery that never existed?”

            I simply practiced the principle that *you* put forth that a law should be UNIFORMLY applied. In regard to slavery laws, that principle would require that ALL blacks be treated as property, not just SOME blacks.

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            1. Is English not your native language that you can draw such a conclusion? Equal application of the law would require all persons in bound servitude to be treated the same. Your “interpretation” might as well be “all men should be sent to prison for rape.”

              If it looks like a troll and smells like a troll it’s got one chance remaining to convince me that it’s not a troll.

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              1. “Is English not your native language that you can draw such a conclusion”
                “specifically using [Anti-trust] as a weapon against one’s enemies and not against one’s favored is bad in either case”

                This claim makes even LESS sense than what I *thought* you were trying to claim. Neither the Left NOR the Right have used Anti-Trust as a “weapon” against their “enemies”. Nor did the Right seek to use it against these companies when they had the political power to do so and when the percentages you cite were the same.

                So the ONLY one seeking to use Anti-Trust as a “weapon” against their “enemies” here is YOU.

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              2. Damn, you’re dense. The “weapon” aspect–as I spelled out–has been in not using it in places where it would be entirely applicable but where not using it was politically useful to them. By the same standards that have been used multiple times to shut down other potential monopolies (as the regulating bodies so named them), then both FB and Google should be likewise disvested or regulated. However not even a peep has been raised toward that end.

                The lesson is clear: if you serve Leftist ends, you can ignore much in the way of little things like laws that the rest of us have to follow.

                Attempted reflection noted. You had your chance to demonstrate “not a troll”. You blew it.

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      2. One set of rules, and severe limits on executive and prosecutorial discretion and qualified immunity.

        The President shall take care that the Laws be faithfully executed.

        And if he does not, then Congress can impeach.

        And if Congress declines to impeach because they don’t want enforcement of these old laws – passed by previous Congresses – but they also don’t want to take the public relations hit of repealing the old laws, then the people elect new Congressmen to do the job correctly.

        So Congress changes election law so that they cannot be removed from office.

        And here we are. Within sight of the point where patience ends.

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        1. It’s not that Congress doesn’t want the laws on the books. It’s that they do want them on the books so that they can be used as a club against anyone of which they do not approve. I have my problems with Rand but she nailed it with the “you think we want these laws obeyed?” bit.

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  5. I still flinch from approving these regulations. However, I’ve seen enough self-proclaimed free-market defenders oppose free-market correctives that I can’t work up the strength to oppose:

    “The thing to keep in mind is that YouTube, FaceBook, and Instagram are allowed to curate their communities, just as you’re allowed to decide who you talk to or do business with.”

    So, are you going to look for alternatives that don’t reject conservatives?

    “Mmm, no.”

    Well, you’ll at least point out that they aren’t content-neutral to moderates who haven’t noticed, leftists who insist the opposite, and those companies themselves, right?

    “Nah.”

    Well, at least you won’t mock us when we point out that they’re biased.

    “Yeah, about that…”

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  6. A good explanation. It’s something I’ve been trying to get my head around explaining, and you nailed it – with Batman, no less.

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  7. ” 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. ”

    This is patently false. s230 does NOT limit its protection to “public platforms” or anyone else who “doesn’t exercise control over content”. It specifically and explicitly protects your so-called “public platforms” AND “publishers” (as numerous court cases have upheld) and anyone else who allows THIRD PARTY postings. That includes your own site here – ie you are not liable for the content of our comments, despite your moderation. In other words, contrary to your claim, s230 does apply to “we peons”.

    Since I see in this thread you allow html links, here is an article by the Foundation for Economic Education (hardly a Left wing group which considers conservatives their “enemies”). FEE presents the facts about s230, including the facts about the “myth” of “platform vs publisher”:

    https://fee.OrG/articles/what-is-section-230-and-why-do-trump-and-his-allies-want-to-repeal-it/

    Like

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