A TOS Doesn't Violate the 1st Amendment
Almost like some sort of algorithm running in real life, the moment that somebody or something is “deplatformed” (or merely held somewhat accountable), a subsection of the populace always comes out and screams, “Freedom of speech is dead!”
But it’s important to note a couple of things before I continue. First and foremost, we need to qualify what the 1st Amendment is and what the 1st Amendment isn’t.
This definition was ganked verbatim from the US Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
The 1st Amendment, quite simply, is protection from the *government* from limiting your speech. It doesn’t do anything to protect you from the *private sector* from “limiting your speech”.
If there’s nothing else you take away from this post, it’s the previous sentence.
But hey, you made it this far. You might as well read the whole thing.
The Government
About the closest you’ll get to the government “limiting your speech” are scenarios of “Fighting Words”, “time, place and manner restrictions”, and “Disturbing the Peace”.
In each of those scenarios, there’s an underlying theme. Some sort of “harm” done to *somebody else* because of your words. The government is trying to prevent those things. It ends up being an operationalized version of the age-old adage, “Your rights end the moment they infringe upon somebody else’s.” And we’re a better society with those restrictions.
After all, society cannot exist in a civilized manner without some form of rules and the enforcement of said rules. Sorry, Libertarians.
Digital Terms of Service
With all the hubbub about folks like Alex Jones and Joe Rogan, I wanted to address the history of digital platforms and their Terms of Service (TOS). It turns out we’ve been doing this digitally for, well, at least 3 decades.
If we go back to the mid 90s, there was a proliferation of the usage of the internet. It was around this time that more and more folks started to not just converse online - but also doing such in *mass numbers*. At its peak, AOL had more than 23 million *paying* users. AOL was an incredibly powerful chat tool. And you had to abide by its TOS otherwise you’d get warnings or be banned from using the platform.
Individual chat channels on AOL even went so far as to have moderators ensuring that users were behaving. They didn’t want people spamming the channels, posting indecent material, soliciting minors and a barrage of other problematic things in between. Don’t believe me? Well, look no further than the AOL Community Leader Program. A little snippet about the CLP:
Community Leaders had a wide variety of responsibilities, ranging from hosting chat rooms, monitoring message boards and file libraries, providing customer service, teaching online classes, and particularly creating and managing forum content. However, toward the end of the program, Community Leader duties were generally restricted to monitoring chat and message boards.In exchange for their services, AOL provided free service to their volunteers. Community Leaders also received special accounts (Price Index 77 or Overhead Accounts) that allowed them to restrict disruptive chat, hide inappropriate message board postings, and access private areas on the AOL service, such as the Community Leader Headquarters (CLHQ).
This was all done *mostly* manually. The algorithms platforms had at their disposal around this time were largely nothing more than profanity detection. Back in my early days as a developer, I recall creating a list of “profane” words and phrases at a company I worked for in the early 2000s. We built some basic functions on top of it and baked it into the communication channels to moderate speech. It was crude, mostly effective, but incredibly necessary (yes, some people got around it).
The first social media platform, believe it or not, was a company called “Six Degrees”. A play on the “six degrees of separation” theory. That definition, btw:
Six degrees of separation is the idea that all people are six or fewer social connections away from each other.
Which, you know, was also part of the whole “Six Degrees of Kevin Bacon” theory/law/whatever.
Anyways, back to Six Degrees, the social networking site. Coincidentally enough, the site is still up! And looks exactly out of the style of the 90s minimalist web. And apparently the company is still (legally) active. Whodathunkit.
Alas, their Terms of Service page has this humdinger of content:
I do promise, however, that they did have a real TOS (at some point).
Web 2.0 Cometh
This advent of Web 2.0 created a web where user generated content (UGC) was front and center. And this UGC had to be moderated. After all, people were uploading audio, video, image, and text. There were two things that needed to be moderated:
Proof of ownership (see: copyright violations)
Behavior (speech!)
Proof of ownership is pretty straightforward. The world already had Nickelback; it didn’t need impersonators claiming to also be Nickelback. So, platforms had to police content that was generated to ensure that creators not only had the rights to use some of the content, but also to make sure they weren’t copying it (and monetizing) outright!
But behavior - boy howdy. This is where we are today with the latest Alex Jon…I mean, Joe Rogan drama. It begs the question:
Are you entitled to any speech on private company’s platforms?
The answer is, of course, a resounding no! And rightfully so.
The internet is a scary place. In no short order, the internet has the following that is transacted digitally:
Pedophilia
Arson
Murder
Assault
Bullying
Election fraud
Drug selling
Misinformation
That list isn’t all encompassing, of course, but it paints a bleak picture. The internet is just as real as real life when it comes to the perils, but the users have a veil of anonymity. This anonymity isn’t something that people in real life enjoy.
But the more mature the internet became, the more prolific and enforced the various platforms’ Terms of Service became. What started out as largely manual moderation, gave way to both manual and automated moderation.
As an example, Facebook has *at least* 15,000 content moderators. And it’s a trying career. We don’t have an exact number, but we know YouTube has thousands. Twitter has about 1,500. And the list goes on.
BTW, it turns out people actually *want* content moderated. From Business Insider back in 2019:
If you believe some of the stats out there, over 200,000 pictures are uploaded on Facebook per minute. Over 500,000 comments are posted per minute. The scale is immense. The content moderation team can’t keep up. And that’s where automation comes into play.
Through the help of machine learning (ML), these platforms are able to flag - and even prevent - posts as they come in. They’re able to pattern match audio and video files to find copyright infringement. They’re able to detect nudity, profane language, and a host of other things. Not perfectly, but good enough.
I say all of this mainly to establish that the internet has been moving in the direction of more enforcement of its usage policies. And it’s necessary to protect the intellectual property of creators as well as to protect the well-being of its users - and society, writ large.
These platforms have a moral obligation to cut down on illicit content. And if this means deplatforming creators that infringe, then so be it. The internet cannot be a cesspool at every single turn. There needs to be a social obligation from both the private and public sector. Lead from the front.
I used to be a believer in the so called “marketplace of ideas”. But as I’ve gotten older and technology and social media has increased at a blazing pace, I’ve since walked back that belief.
Mark Twain said, “A lie can travel around the world and back again while the truth is lacing up its boots.” That quote is nearly 100 years old. It’s even more prudent today. We can combat misinformation with the truth, but that only gets us so far. We need to cut the head off the snake and keep preventing it from growing another one.
Citing Sources
One of the most valuable lessons we learned in grade school (as well as university) was to not just cite your sources - but they had to be reputable sources. Not every source is made equally.
But things have changed since I graduated from college (2005). We’ve seen a wild expansion of both fake news sites, as well as heavily propagandized sites and platforms. Part of this is the natural order of Web 2.0. More and more eyes gather on consolidated platforms which heavily incentivize these heavily biased sites to pay for clicks.
If you think about it, it makes sense how and why this happened. Most of what was accessible for learning was centralized at locations like libraries. People routinely referenced encyclopedias, physical books, reputable articles. Those days are long gone. Today it’s about getting information out fast - quality and reputation be damned.
As of the day of this post (February 8th, 2022), this is the Facebook Top 10 performing link posts:
Notice a theme? All heavily propagandized and/or biased “news” outlets. The only non-right-wing outlet in the Top 10 is CBS Sports, and well that’s only the case because of the Olympics. And this is usually the case. Don’t believe me? Simply look at the tweets from @FacebooksTop10.
This is a major problem. Why might you ask? Well, all of the individuals above (Hannity, Shapiro, Bongino, Adams, Graham) aren’t journalists. They’re opinion writers or cable news stars. They exist to enrage people and get views/clicks. They don’t exist in any meaningful journalistic fashion. No, screaming at people to “DEBATE ME!” isn’t indicative of quality writing or content.
So, if day in and day out, people keep getting heavily propagandized misinformation, is it any surprise just how much of a cesspool and polarizing Facebook can be? This wasn’t always the case.
When Facebook first launched, it was mainly for college students. But as it grew, and as it became more of a platform for advertising - i.e., the natural progression when you have billions upon billions of users - it incentivized the people mentioned prior.
I talked about earlier how these platforms have both content moderators and ML algorithms for flagging and moderating content, but that doesn’t do anything for these heavily biased opinion writers.
I use these examples not to intentionally highlight right-wingers. They just happen to be the stars that routinely make the Top 10. But I use them to call out how opinion has trumped fact. It also really puts a damper in any argument that Silicon Valley is trying to (intentionally) silence conservatives.
On the contrary.
This goes back to the quote from Mark Twain. Remember that?
“A lie can travel around the world and back again while the truth is lacing up its boots.” - Mark Twain
We’ve incentivized outrage and have long disincentivized facts and real reporting.
Gone are the days of people having integrity. The only folks citing and using reputable sources are exactly the folks we don’t need doing such. And that’s a shame.
I say all of this because it speaks volumes for the future of these platforms if they don’t have a social or moral obligation as a North Star. These platforms should be flagging misinformation in much the same way that web browsers flag sites that aren’t using HTTPS. They should be challenging misinformation. They should also be enforcing their TOS and not waiting until it’s convenient (see: Donald Trump and Twitter).
To my fellow people in the industry: we have a moral and social obligation to keep some semblance of sanity and order.
Which brings us back full circle to Alex Jones and Joe Rogan. These people aren’t entitled to YouTube, Spotify, Facebook, Twitter, or anything in between. These platforms have Terms of Service (a form of Personal Conduct Policy). Holding these people to that standard isn’t something to yell about. It certainly isn’t a violation of the 1st Amendment. No. It is a moral and social obligation of these platforms to hold each person to task, lest misinformation thrives.
And platforms have had these policies for decades. They just haven’t always enforced them. It’s high time they have higher standards. We are a better society with standards. After all, we have these standards at our place of employment.
Personal Conduct Policy
In much the same as digital platforms have TOS, companies have conduct policies. These conduct policies oftentimes dictate what is acceptable both while on/off company time and while on/off company property. The goal is very similar to a TOS: to ensure that every employee is held to a common standard. And this standard is typically (unless you’re Barstool Sports) aligned with societal and moral norms.
If we look at the private sector, an example of somebody that was fired due to their behaviour on Twitter, look no further than Justine Sacco. An unfortunate last name, sure. But she was fired because of an awful tweet while on the way to South Africa. I won’t post that tweet here (feel free to read about the incident here), but this incident happened in 2013. To the Communications Director of IAC. Nearly a decade ago.
A winning strategy to social media is pretty straight forward. And I’ll leave it to Erin Bury to summarize it wonderfully:
Now, that’s the private sector. They generally try to police their own, but there is a certain segment of the private sector that has been extremely lackadaisical when it comes to enforcing their Personal Conduct Policy. And that’s professional sports, especially the NFL.
Supposedly, the NFL has a highline North Star:
Everyone who is part of the league must refrain from “conduct detrimental to the integrity of and public confidence in” the NFL
Recently retired quarterback Ben Roethlisberger was accused twice of sexual assault. For the first accusation, he was suspended 6 games. That was then reduced to 4 games. And for the second accusation? No suspensions. No fines. He was awarded with a 4-year contract. More here.
Adrian Peterson beat his son. He received a 1-year suspension and was welcomed back with open arms by the Vikings, Saints, Redskins, Lions, Titans, and Seahawks over the course of 6ish seasons.
Tyreek Hill assaulted his pregnant girlfriend back when he was playing at Oklahoma State. And even though he was dismissed from the team after charges were levied against him, he’d go on to play for West Alabama…ultimately being drafted by the Kansas City Chiefs. 5 years after those assault charges, Hill allegedly broke his 3-year-old son’s arm and also threatened his fiancée. And while it was never determined that Hill was the one that broke his son’s arm, the fact that there were recordings of him threatening his fiancée and Hill’s history of domestic abuse clearly show that some sort of violation of the PCP had occurred. Did Hill miss a single game? Nope.
The list could go on. But one more: Aaron Rodgers lying about his vaccination status (no suspensions levied). The point of all of this is to say that companies and platforms selectively enforce their policies. And it usually comes down to the dollar.
Want to know why Joe Rogan is still on Spotify? His $100 million deal. Want to know why Tyreek Hill didn’t miss a single game? He’s a star wide receiver. Want to know why Aaron Rodgers never missed a game despite lying to the league, his team and his fans about his vaccination status in the middle of a pandemic? Because he’s a reigning MVP.
What it all comes down to is this: these digital platforms and various segments of the private (and public!) sector need to enforce their policies regardless of their celebrity.
And, for the love of God, it isn’t a violation of the 1st Amendment to do so!