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Comment by tchaffee | Hacker News Reader

In other discussions about this action, I've seen lots of confusion about what the 1st Amendment guarantees. Too many people think it guarantees an outcome: that the government must protect your right to free speech and make sure you have a platform for free speech. When in fact it's almost the opposite: it prevents the government from interfering with free speech, specifically Congress can not pass any laws that interfere with free speech. Keeping in mind that free speech includes the right to not say things you disagree with.

I'd be curious if any legal experts know of other laws that might apply in this case.

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There is something else to keep in mind which is that the government can evade the 1st amendment by pressuring companies to take action against speech it doesn’t like.

“Hostile environment” laws around workplace conduct are a good example of this; the strict interpretation of the first amendment might not allow the government to directly regulate such speech by employees, but the threat of EEOC lawsuits can compel companies to fire or discipline employees. I’m not sure how much this truly happens but I’ve seen some legal people on twitter talk about it. E.g. http://www2.law.ucla.edu/volokh/hostile.htm

There is something else to keep in mind which is that the government can evade the 1st amendment by pressuring companies to take action against speech it doesn’t like.

No, what you have described is a free speech violation and US courts have already addressed this point many times.

And you clearly misunderstand why hostile environment laws have survived First Amendment lawsuits. The government cannot interfere with the content of what someone says. But saying (or doing) something isn't just a form of communication--it can also be an act with non-communicative results. The government can regulate behavior, so long as it is agnostic to the communicative content accompanying that behavior.

I linked to an article by a law professor explaining the issues.

Courts cannot always address such issues anyway due to the doctrine of “standing”. For instance, government in the 90s pressured the video game industry to self regulate by establishing a rating system and prohibiting the sale of M rated games to minors in various chain stores. If the government themselves had passed such a law it would have been subject to lawsuit under the 1A, but because it was a voluntary action by the industry there is no one to sue (after all, by suing the industry who put these standards in place, one could say that you’re now violating their right to free speech and association!)

But to summarize it simply, the government cannot outlaw using a racial slur under common 1st amendment doctrine. However it can outlaw a company allowing an employee to use a racial slur in the workplace. While this is a good result (I don’t want to work somewhere where my coworkers use such slurs) it’s an interesting example of how the power of government is less limited by 1A than one might think at first.

Similarly, YouTube, Facebook, etc have been getting a lot of flack from the government lately over Russian bots, trolls, etc. Moves like these to boot InfoWars could be smart business to placate the Democrats who may soon be in power. Infowars has been awful trash for years, and plenty of awful stuff remains on their platforms after all.

However it can outlaw a company allowing an employee to use a racial slur in the workplace.

Nope, you're still not understanding. The government can't do that either, because that law would target the content of a communication. However, the law can prohibit companies from allowing employees to create hostile environments, however such environments arise, such as by making racial slurs or by trying to lynch their coworkers. The content isn't what matters--the behavior of creating the hostile workplace is what matters and what the government can regulate.

As I said--speech can be both speech and an action. Government can't regulate speech, but it can regulate the action part of the speech. This is, simply put, the concept of whether you can ban people from yelling "FIRE" in a crowded theater. (There are no laws against yelling fire in a crowded theater because that is of course illegal. There are laws against causing public panic, which is content-neutral, so it doesn't matter whether you yell FIRE, BOMB, or CARROTTOP.)

“Nope, you're still not understanding. The government can't do that either, because that law would target the content of a communication”

It can, because that communication would be considered to create a hostile work environment. The most recent nominee to the SCOTUS has noted he’d consider a single use of a particularly evil racial slur to qualify for the creation of said hostile environment. (“a single verbal (or visual) incident can likewise be sufficiently severe to justify a finding of a hostile work environment”)

Your response equates slurs (words) with lynching (an incredibly violent crime). Lynching is something the government can and does prohibit with laws directly, because it’s a violent action not covered by any interpretation of the 1A. Your example of “fire in a crowded theater” is another - a word directly designed to create violence and immediate physical damage to other people. Slurs, on the other hand, the government does not prohibit directly: judges would block jail or fines for speaking such as 1A violations. Instead, they order your company to take care of it by firing you under hostile environment laws.

If your argument equating hostile environments with behavior/action, not speech, were legally correct, then the government would be permitted by judges to regulate hostile environments directly by jailing citizens who create them by doing things like e.g. watching porn, speaking a racial slur, or discussing their sex lives. I doubt that a law doing such would pass constitutional muster in today’s courts (rightly or wrongly). Nevertheless the government has had success stamping out those behaviors by having the employer do it for them.

In general I’m wondering if we are simply speaking past each other. I thought I clearly recognized that hostile environment laws are considered OK by judges despite the 1A. My main point was to show that the government, when it can find such a legal justification, can generally exert more power than a naive understanding of the 1A might suggest.

The first amendment represents an ideal. An ideal the country is walking back from as it discovers a large faction does not share the same morals. The decision to silence instead of engage will lead to disintegration of the country if its not dealt with.

First Amendment is about government action, not self-motivated private/corporation action.

Facebook, Spotify, and Apple realized that continuing to allow Alex Jones to remain on their platforms would result in substantial harm to the commercial viability of their platforms, as a result of boycotts, lawsuits, etc. by the 99% of people that Alex Jones spends his life spewing lies about.

It was an easy financial decision. Hell, they could have faced absolutely massive shareholder lawsuits if they hadn't kicked him off their platforms.

The only rational solution is to make political affiliation a protected class. It is the only way to ensure democracy in this age of corporations which exert national control over what we see and hear. Radio waves had FCC protection, no such system exists for the internet which is rapidly replacing these systems.

If in the days of the first amendment paper producers conspired en mass to censor we would have seen it dealt with then. Alas its a modern problem which is ours to solve.

In the days of the First Amendment...newspapers did actively censor their opposition. Hell, the First Congress, most of whom participated in the drafting of the Bill of Rights and its ratification by the States, passed the Sedition Act, clamping down on free speech in a way not seen since outside of WWII.

As for making political affiliation a protected class...that wouldn't shield Jones. He's being kicked off for slander, lies, and acts of incitement, not his claim to be a conservative.

I speak of paper mills not newspapers. This is analogue to DNS providers and other internet infrastructure providers participating in censorship. It would be a clear breach of first amendment rights to force someone with editorial control to print something.

Horrible analogy. YouTube, Facebook, and Twitter are nothing like DNS and other internet infrastructure, nor are they like paper mills.

Alex Jones runs a website using DNS and internet infrastructure and gets 10 million monthly visitors. Where's the censorship?

The ideal is very clear: "Congress shall make no law... abridging the freedom of speech, or of the press".

That's it. It forbids Congress from making laws. Any ideal beyond that is fully imagined and does not exist as part of the Constitution.

And we've been doing fine for well over 200 years with that simple ideal alone. With the internet and the ability to easily create a website or blog, people have more means of expressing their opinion than at any time in history. Alex Jones still runs his own website last I checked. He hasn't been silenced. Not even close. Fifty years ago he would have been the kooky guy living at the end of your street and no one would know who he is.

> Fifty years ago he would have been the kooky guy living at the end of your street and no one would know who he is.

Are you suggesting guys like him weren't famous, wealthy, and had popular speaking tours across the country? If so, you're sadly mistaken about the reach of even wrong ideas.

Quackery and supernatural stuff was extremely popular among the middle class America in the 1800s and well into the 1970s. The internet has given individuals a wider platform, but it hasn't changed the amount of individuals (ie, audience size) willing to consume this stuff...

We can't ban our way out of this problem. The risks/costs of doing so (false positives of anyone pushing what is considered 'fringe' at the moment) is far too high to go down this path. And if anything it increases the audience of these people who become martyrs and victims of the very 'conspiracies' they are pushing. It's far better to ignore them or fight them than to ban them.

> Are you suggesting guys like him weren't famous, wealthy, and had popular speaking tours across the country?

Yes. I'm suggesting that far fewer of them had access to the potential to be heard. Every nut job and his brother now has a blog, website, YouTube channel, etc.

> The internet has given individuals a wider platform,

Yes. What I said above. A much wider platform. Instead of an obscure book hidden away on a bookshelf, these guys have a potential audience of the much of the globe. With cheap mobile that reach even extends to very poor countries with little access to education or even books.

> but it hasn't changed the amount of individuals (ie, audience size) willing to consume this stuff...

I'm not convinced that's true and to be convinced I'd have to see some actual numbers. There are LOADS of people these days willing to participate in confirmation bias and the internet makes that far easier. The very few conspiracy theorists I knew 30 years ago had to work hard at their research and I kind of respected the dedication. These days if you want to believe in chem trails it's just a simple search term, click, and copypasta away. We've automated the production of conspiracy theorists.

> We can't ban our way out of this problem.

We aren't. Alex Jones still has a website with 10 million monthly visitors. He has a radio show and publishes books. I'm assuming that if Facebook, YouTube, or even I wanted to publish something on Alex Jones' website, he would "censor" us.

I'm not even suggesting that we should try to "solve" the problem of conspiracy theorists. I'm suggesting that companies should have the right to free speech. If YouTube doesn't want to host the garbage ideas of Alex Jones, they should go right ahead and ban him. If Alex Jones' doesn't want to host Facebook's content or my content on his website, he should feel free to ban us. Where is the actual problem?

And besides the legal definition, the principle of free speech is about being able to express speech without systematic repurcussions. Censorship by an individual (or corp-as-individual) is tool used by businesses on their platforms and doesn't violate principles of free speech. Systematic censorship that violates this principle is only really wieldable by governments: Making the expression of an idea anywhere have consequences for you, your friends, and your family's ability to go on living (in a threat-of-violence life-or-death sense, not a $ sense).

Free speech zealots tend to slyly try equating systemic censorship with an individual's ability to censor others, thus taking events like this and pretending it is an offense against the principle. It is not, and don't be fooled.

Even if this is the case for the US constitution written centuries ago, why can't the principle (today) expand beyond government to all centralized systems... without being dismissed because it doesn't fit into the constitutional grounds? Does the fundamental idea still not have grounds?

The larger concern here isn't the laws of the US. It's the power that internet giants have to shape the opinions that flow through the media.

That power cannot be underestimated. Consider how the leaders of both China and Russia have overwhelming popular support and poll better than any democratic leaders in the world. Google doesn't have anywhere near the influence over media that the CCP does, but its influence is considerable and its reach is nearly global.

I agree people are often confused by what the 1st Amendment guarantees, however government isn't the only threat to free speech, especially on the internet where large platforms yield more power than many smaller countries.

I'm not saying private entities should be subject to the 1st Amendment, but we shouldn't give them a free pass to censor just because we happen to agree with their decision this time.

Free speech does not guarantee a platform for your speech, nor does it guarantee that you are able to say the things you want to. Even setting aside "private vs government", it doesn't even guarantee that the government won't censor you. It guarantees that you will not be arrested (by the government providing you with this right) for things that you do say. Even this has a few exceptions, e.g. incitements to violence etc.

Perhaps you feel that it should guarantee more than it does, and perhaps you may be right, but as it stands it does not.

Did you miss the part where I said "I'm not saying private entities should be subject to the 1st Amendment"?

My point was "free speech" is not synonymous with "The 1st Amendment". The former is a general concept and the latter is one way we protect it in the United States.

I didn't. I was merely pointing out that "free speech" (as we know it) has nothing to do with what you are able to say, while you seem to be operating off of a different definition.

We're not giving Facebook a free pass. We're discussing it, in detail, and 99% of people are okay with it after examining the particular context of the situation, namely, that a private company is exercising its own free speech rights to exclude hate speech from its platform.

Jones is free to create his own Facebook clone or jump to Twitter.

The major risk is the FEC.

This push is coming from a desire to prevent Jones from being active in the 2018 midterms.

If a Republican files a complaint with the FEC and there are employee messages talking about how they have to ban Jones to stop Trump, then the tech companies could have a situation on their hands.

What situation? What law would a company or individual be breaking by working to stop getting Trump elected again?

Electoral laws.

Could you please stop creating new accounts for every few comments you post? We ban accounts that do this, and it's in the site guidelines: https://news.ycombinator.com/newsguidelines.html.

HN is a community. Obviously you don't have to use your real name, but if users don't have some consistent identity for others to relate to, we may as well have no usernames and no community at all. That would be a different kind of forum. Anonymity is fine, and throwaways for a specific purpose are ok—just not routinely.

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