Wednesday, February 24, 2016

Freedom of speech

In Twitter is a Business, Not the Government, Tod Kelly defends Twitter for suspending misogynist and general shit-disturber Robert Stacey McCain. According to Kelly, Twitter's decision is justified by the fact that Twitter is a business, McCain is toxic for their business, and while freedom of speech is an important right, just depriving someone of some specific platform does not seriously impair their freedom. It's not a bad argument, and I've used it myself: this blog and its comments, I've argued, are not a common carrier, and I get to decide arbitrarily what I do and do not publish. But I'm beginning to think this argument is very weak. It's probably sufficient for this tiny little blog, with its ones of daily readers, but Twitter is kind of a big deal, and what does or does not get published on Twitter has a real impact on the political landscape.

The general case is thus: to what extent do rights extend to private businesses? The position "not at all" seems to have already been dismissed, at least in the legal system. Private businesses may not, for example, arbitrarily discriminate on race and sex in both hiring and service. Rights of non-discrimination apply very deeply within civil society, and the government enforces those rights. Even more so with property: property rights do not only limit the government, they limit everyone. If you subscribe to natural rights (which I, of course, do not), a universal natural right should restrict not only the government, but everyone; otherwise the right is not universal.

Thus too with freedom of speech. If freedom of speech were a universal natural right, then the right should apply to civil and private society as well as government. Contrawise, that freedom of speech applies only to government means that the right is not universal, and we must socially construct its application. Furthermore, it's dodgy enough to argue for a universal natural right; arguing on the basis of nature for a limit of rights is that much more complicated: you have to argue not only for the right, but the foundations in nature for its limitations... which always (surprise, surprise) pretty much line up with the proponent's contingent interests.

Now, I definitely support (with presently limited information) Twitter's decision to suspend McCain. Not because I think that businesses are exempt from the principles of freedom of speech (as a communist, I will rarely endorse a propertarian justification for anything), but because I think we should actively and coercively prevent McCain and people like him from having such a large platform as Twitter: I believe McCain's actual freedom of speech should be limited. I don't think we should implement limitations on freedom of speech lightly (to say that some right is not absolute or universal is not to say that it is nonexistent), but I do think that after due consideration that some limitations are indeed justifiable.


  1. 1st Amendment cases always ask where the "state action" was, though. Now, because our system supposedly values free speech so deeply, there are probably instances where a private actor, as you say, might be found to have done something so egregious that it violates some sort of free speech rights. But without the state actor prong, it's going to have to be pretty creative.

    The irony of what I just said, of course, lies in the fact that in recent years, public employees are one of the few groups whose 1st Amendment rights the Supreme Court has specifically limited.

  2. There are freedom of speech limits all over the place. If you can show that the speech was done to do harm....false testament in court...or yelling something (FIRE) to cause a panic for no reason then it is totally illegal!!! And all that is private speech.
    If you are a royal ass and disrupting my business picture you will be cut off at my business. this does NOT stop your speech as you can go onto the public side walk and talk all you want!!! Speech is NOT the same as race or gender as you are born such and cannot change it and as a group we have decided that you can not discriminate! Speech is basically a voluntary choice to do it.
    When they pass a federal law forbidding discrimination based on speech then we may have some problems.

  3. It is interesting that so many people point to the 1st amendment when they feel their rights have been violated when the amendment itself simply prohibits Congress from infringing. Most state constitutions have similar guarantees but again, it is about government restrictions, not commercial restrictions.

    Twitter has an interesting problem from a business perspective, they don't want postings to drive people away but they don't want to bore people enough to leave their site by overly restrictive policies.

    I haven't read McCain and don't use Twitter so I really don't have dog in this fight ... just wanted to let you know I saw it, Larry.


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