Moderating the Town Square in the Name of Comfort and Profit

Some woke twitterite writing in the UK Feminist Guardian pronounced that Elon Musk "doesn't understand free speech... at all."

"He has declared that Twitter is a 'town square' in which speech should be unfettered by concerns about the propriety or consequences of that speech," the author says, before going on to pronounce that "Twitter is in no way a 'town square.' Only town squares are town squares. They are public for a reason. And they are local. They have no rules of decorum. ...."

Actually, the United States Supreme Court thinks otherwise.

"A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U.S. 781, 796, ... (1989). Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

"While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the "vast democratic forums of the Internet" in general, Reno v. American Civil Liberties Union, 521 U.S. 844, 868, ... (1997), and social media in particular

"On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose.

“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, ” -- Packingham v. North Carolina (2017) 137 S. Ct. 1730, 1735-1736

In short, the case in Packingham proceeded on the assumption that social media *were* town squares fulfilling the function of a public commmons. Town squares are not only town squares.

This is so typical of the ipse-dixit nature of the “reasoning” that infuses wokism. It is sufficient simply to pronounce with sufficient determination and outrage. So quess what? Another dismissive absolutist on the pages of the Guardian turns out to be wrong, at least if the highest legal authority in the land has any say in the matter.

It must be said that the issue in Packingham was fairly narrow and concerned whether the State could categorically prohibit, as a condition of probation, a convicted sex offender from accessing Facebook. The Court held that it could not, no more than it could prohibit him from going to public parks or shopping malls.

This did not mean, however, that no regulation or restriction could be made. Probation conditions for sex offenders that prohibit access to parks where children may be present are routinely upheld. But, given the First Amendment interests at stake, the State could not do precisely what the Woke Twitterites desire to do: completely ban someone on account of his (and it is usually a “his”) status as an undesireable person.

"Twitter, like every Starbucks, McDonalds, shopping center, and radio station," says our wokist twitterite, "has other obligations and interests. Those spaces must maintain order, decorum, cleanliness, and comfort to keep revenue flowing and customers or audiences happy. That’s why the US constitution protects us only from the censorious power of government, not the needs of private entities to restrict expression that might harm their core missions" which in Twitter's case, she reminds us, is to raise advertising revenue.

In saying that the U.S. Constitution protects Twitter (“us”) “only from ... not the needs of private entites to restrict expression...” the author evidently is trying to say that the Constitution does not limit the needs of private entities to limit free speech.

But this appeal to private property rights and decorum doesn't wash. In Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, the Court struck down an ordinance prohibiting any "First Amendment activities" at Los Angeles International Airport, in the name of decorum, comfort and order.

In Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), the Court held that a California rule protecting free speech in the "common areas" of private shopping centres did not constitute an impermissible "taking" of property under the Fifth Amendment.

Read together, what these three cases hold out is the proposition that social media web sites are analogous to public common spaces, whether privately or publicly owned; and that, blanket denial of access to or free speech in those spaces is impermissible.

The Guardian's columnist is patenty wrong to assert that publicly owned common spaces "have no interest in maintaining order to keep advertisers happy or their users comfortable." No publicly owned public spaces are free from usage rules. Anyone who has been to a beach or park knows that.

The author, acknowledges the free speech interests involved but she blandly asserts that Twitter's rules are "built to consider both the commercial and expressive desires of advertisers and users." And what are these "expressive desires"? The author doesn't say much except Twitter's content moderation seeks to protect users from,

"vast arrays of distracting, destructive, and dehumanizing expression able to flow freely to their targets. For years, women who have expressed themselves freely on Twitter have done so expecting and experiencing threats, the exposure of private information, and constant harassment. This phenomenon – one caused by the proliferation of expression – impedes the ability of millions of Twitter users to express themselves confidently and have their ideas taken seriously."

THAT is a word salad of vague, open ended, arbitarty and partial rules. Any law drafted in such terms would be struck down.

What are the "vast arrays" of distracting expressions? If I make a comment that someone thinks is irrelevant to the issue at hand, is that prohibited? Who determines what is "irrelvant"?

What is "destructive" speech? If I destroy a person's argument by pointing out its flaws, or by ridiculing its ultimate logical conclusions (a reductio ad absurdum) have I "dehumanized" the author?

The Guardian's expositor explains little except to say that” for years women on Twitter have experienced threats, exposure of private information and constant harassment.” But once again the devil (or the absence of him) is in the details. If Taylor Lorenz is any indicator, mere disagreement is deemed a threat. Aside from the sheer vagueness of what is allegedly involved, the problem with this sort of parade of horribles is that it avoids what Twitter and Facebook have actually used their "moderating" power to censor.

And indeed, despite all the back-handed insults directed at Musk's "juvenile" and "dorm-room" understanding of the law and his "mini-essay" on free speech, the woke twitterite gives away her game, stating that Twitter has an interest in keeping its "users comfortable" by which she evidently means keeping herself and think-alike clones "comfortable" and unassailed in anyway. "Free speech" in the cosmos of her cranium means the right to Bow, Bow to the Daughter in Law Elect.

Trump was not banned from Twitter because he disclosed some self-expressing woman's personal information. He was banned because Twitter did not like what he was saying and labelled it "misinformation" -- the woke liberal's term for what used to be called "heresy."

"Trolling is expression that crushes expression," says the author, "It undermines the ability of groups of people to think collectively and productively about serious issues. "

Ah soooo. The purpose of the First Amendment, and free expression, is to enable us to THINK COLLECTIVELY about issues that someone deems "serious" and in a manner that someone qualifies as "productive."

The insousciance with which our Woke Liberal Twitterite averts to a rule which would bring a smile to Xi Jinping's face is breath-taking.

I just can't wait to particpate in collective thought. It is what has been lacking from my life all these years.

Obviously the U.S. Supreme Court has yet to rule definitively on the core issue presented by cyber space, but if its past jurisprudence is any indicator, it will not be persuaded by the appeal to private ownership -- “My Facebook, my living room” --- where my decorum shall prevail. Nor does is it certain that the “needs of investors” to reap a profit by insuring inoffensive and inocuous content will decide the issue. The problem here is that internet operatives have decided to make money by providing a public square, and the question that arises whether the demands of profit limit the product or whether the demands of the product (a public square) limit the profit.

If Elon Musk opts for the latter that is (1) his choice and (2) nothing at all so a priori unreasonable as the Guardian's net decency guardian seems to assume. Musk's reference to the law of the land makes sense.

By and large, American courts have done a pretty decent job in mapping out the permissible regulations of free speech in the public sphere. Libel is allowed, but subject to legal action and, if proven, damages. Stalking or threats of physical harm by word and/or deed which are calculated to intimidate, coerce, or simply frighten are not allowed, although the alleged threats are objectively measured, and are not proved by the says-so of some passive aggressive neurotic or some overly sensitive soul. Incitement to action is allowed, as are expressions of hate, provided that neither directly and imminently trigger criminal acts (e.g., arson, rape, murder, insurrection).

Woke liberal despots consistently miss the point of these restrictions. They are not meant to be used as a spring-board for metaphors or stretched causalities (such as is clover-to-roll in for sociologists). They are meant to anchor and tether limitations to some actual imminent and concrete harm. In the case of verbal threats, the multiple pre-requisites of proof are designed to insure that mere hurt, humiliation, dismay, embarrassment, offense and anger are not used to stifle free speech.

The matter was summarized trenchently by Justice Brandeis in Whitney v. California 274 U.S. 357(1927)

"Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. -- (Id. at p. 375.)

As is always the case with despots, the "dangers" of "false facts" and "misinformation" are raised as a spectre to justify "remedial"" and "prophylactic" measures. But this is nothing new and nothing peculiar to the recently invented internet. Thomas Jefferson had the answer for these would-be Torquemada's and Vishinksi's

"We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge."

(Or some hyper sensitive woke moderator with a deeply held agenda).