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Comment by zakk | Hacker News Reader

Two or three big players in the credit card market can effectively shutdown a business.

Honest question: do we need better enforcement for the First Amendment rights in the current digital era? Shop owners cannot decide who enters in their shop, should digital service providers be allowed to discriminate?

The same happens when someone is banned from Facebook and Twitter: of course there are other options, but he won't be able to reach 95% of the Internet audience.

Edit: maybe should've spoken about a "different, active enforcement" rather than "better enforcement".

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Two or three big players in the credit card market can effectively shutdown a business.

Which is just the tip of the iceberg as to why the idea of a cashless society is so terrifying.

Shop owners cannot decide who enters in their shop, should digital service providers be allowed to discriminate?

Oddly enough, if you belong to a group or political faction that is highly reviled, they certainly can.

Remember when a Wal-Mart refused to provide a birthday cake for a child whose name was "Adolph Hitler Campbell"?

Cashless is fine as long as a decentralized, open alternative is available.

Re: right to refuse service http://www.legalmatch.com/law-library/article/restaurants-ri...

Businesses aren't allowed to discriminate against protected classes, but can discriminate against non-protected classes, and can apparently even impinge on protected classes in some ways when their restrictions aren't arbitrary (are tied to some reasonable business concern) and are applied universally.

These boundaries don't appear to have anything to do with the First Amendment.

> These boundaries don't appear to have anything to do with the First Amendment.

In my opinion they have a lot to do with the First Amendment.

When a few big players can effectively and arbitrarily put someone out of business, that's quite a problem in my opinion.

When a few big players can effectively silence a voice, that's a free speech problem, in my opinion.

As our lives move from physical places to the Internet, I would like to see the same liberties maintained.

> 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.

These boundaries have nothing to do with the first amendment.

You didn't get my point. I'll try to make it clearer.

Nowadays the right to free speech is enforced in a passive way, so-to-say: "Congress shall make no law [...] abridging the freedom of speech".

However the Constitution was written in a different era, when doing nothing to abridge the freedom of speech was effectively granting freedom of speech to everyone. Today on the Internet a few corporations can effectively abridge one's freedom of speech.

So, what I am asking is: do we need a stronger and active enforcement of the free speech rights? An active enforcement in which the Government mandates that all businesses must give equal voice to citizens?

Apparently that's not something new, see mfringel's comment above:

"#2 implies that, in the US, anyone who attempts to use overwhelming coercive power of any form to silence speech tends to get looked on poorly by the law."

Edit: guys, that's not Reddit, try not to downvote a civil debate.

You are proposing the creation of a new right entirely, not merely stronger enforcement of existing rights.

Note that I am not taking any position on whether such a new right would be a good or bad idea. I am merely pointing out that what you envision is in no way within the scope of the existing First Amendement.

Correct, I suppose that an active enforcement of free speech could be defined as a new right, maybe that wasn't clear.

Existing free speech rights restrict only the government itself from preventing free speech. They do not apply to private parties. For example, you have no obligation to permit religious or political proselytizing within your home or business.

You are proposing not merely the active enforcement of free speech as such, but removing the existing longstanding right of private entities to determine what forms of speech they permit within privately owned venues, simply because some such venues happen to be large and popular.

This same argument was made 200 years ago when newspapers were the dominant mode of mass information exchange. The country decided then that the government ought not to regulate what newspapers must and must not print, and enshrined this in a constitutional amendment.

How is your proposal to regulate what private sector social media companies are required to publish any different in substance than a (clearly unconstitutional) proposal to regulate what private sector newspapers can and cannot publish?

> How is your proposal to regulate what private sector social media companies are required to publish any different in substance than a (clearly unconstitutional) proposal to regulate what private sector newspapers can and cannot publish?

I am talking about service providers, not users.

Suppose there's only one printing house in town and within a 1000 km radius. This de facto monopoly means that if you are denied their services you cannot publish a book.

My proposal is: we should mandate that the service provider (i.e. the printing house) provides the same services for the same price to all customers.

Of course that would require a definition of who will be considered a service provider, but I think that the FetLife controversy clearly shows that some freedoms are being endangered: outside the Internet no monopoly/oligopoly is so strong that can send virtually anyone out of business in a matter of a week.

One novel way to think about the First Amendment is that it constrains two specific actors.

1) It explicitly constrains the US Government. 2) It implicitly constrains anyone who approximates the coercive power of the US government.

#1 is self-explanatory.

#2 implies that, in the US, anyone who attempts to use overwhelming coercive power of any form to silence speech tends to get looked on poorly by the law.

If Fetlife has a fraud rate that approaches normal and the banks cut them off anyway, it would be an interesting court fight.

That is indeed a novel way of looking at the First Amendment.

"Honest question: do we need better enforcement for the First Amendment rights in the current digital era?"

No. What we need is a bill of rights to protect us from corporations that would censor us and otherwise work with the government to oppress our rights.

Plain and simple, all big business needs to be regulated at this point. They've proven themselves unworthy of being given free-roam.

It's not lack of regulation that causes businesses to shut down accounts associated with "indecent" content. It's heavy handed regulation that means payment processing companies have to glance over their shoulder every minute in fear that some conservative regulator or lawmaker mounts an effort to attack their business.

Do you have any evidence that payment processing companies are dropping business customers because they fear lawsuits?

The main evidence is to take these companies at their word instead of assuming they're trying to cover something up. They're willing to allow payments for 90% of fetishes but exclude the other 10%. Are they really drawing the line based on the rates of fraud in each fetish?

Cases like the FetLife are illustrative. You can also look into f-list, a furry website which ultimately had to decide not to take any payments when every major processor rejected them. The key point is that companies are required to distinguish between "pornographic" and "obscene" content using a vague case-by-case smell test. So you sit down with a lawyer and kinda guess what's OK and what isn't and cross your fingers the credit card companies swallow it. That's exactly how this story was resolved. You can learn more about the law yourself by looking at an example ToS from Square and some guides to federal obscenity law.

https://squareup.com/legal/ua

https://www.justice.gov/criminal-ceos/citizens-guide-us-fede...

http://www.firstamendmentcenter.org/pornography-obscenity/

"You can also look into f-list, a furry website which ultimately had to decide not to take any payments when every major processor rejected them"

F-list/e621 was also a massive walking copyright violation (still is.)

> The main evidence is to take these companies at their word instead of assuming they're trying to cover something up.

I'm not implying that the are trying to cover something up, but it just seems absurd to me that a payment company may be liable for what its customer are doing, and I would like some clear, circumstantial evidence of that.

The laws you are referring to prosecute whoever detains, distributes, sells, imports, mails, transfers obscene material.

However I cannot see how payments providers can be liable, can you produce some evidence in this direction?

I am not a lawyer, but it seems to me that the payment provider is no more guilty that the electric company powering the servers.

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