Protect Internet Companies' Freedom to Refuse to Host Racists, or Anyone Else They Don't Like
If government censorship is the fear, then we must protect private free association.
When I edited a small-town newspaper, I eventually ended up rejecting letters to the editor from an elderly gentleman who had many interesting things to say about the issues of the day. He was, in some ways, a boon to the op-ed page—online commenting has completely demolished the number letters sent to many news outlets.
But he was also a bigot, and this became obvious and more overt once Barack Obama was elected president. The final straw was a letter explaining how he could tell walking into a house that black people lived there based on the way the house smelled. I would run no more letters from him. I informed my publisher and he agreed.
We deprived him from a platform of communication and we didn't regret it one bit. The impact in this case was small—the growth of the Internet means that there are plenty of other ways to get your message out when the local media tell you no. But that didn't used to be the case. Go back 30 years, and the average American's ability to communicate ideas to the larger public was much more limited. Yet newspaper editors regularly censored or refused to run letters to the editor they felt were in bad taste.
There was never any question that newspapers had the authority to make those calls. The First Amendment is very clear here.
Now that mass communication has moved online, a whole new crop of companies have the power to decide whether to host controversial content. They don't see themselves as "media outlets." They're just hosts and service providers. Traditionally they have not cared what people are saying.
But in the wake of the violence in Charlottesville, Virginia, some of these companies are making the same decisions that old-fashioned media outlets have made in the past. They have decided that they do not want to provide their services to neo-Nazi outlets like The Daily Stormer. Earlier in the week GoDaddy and Google booted the white supremacist site as customers. The CEO of CloudFlare, a service that helps protect sites from cyberattacks, subsequently decided abruptly to dump Daily Stormer as a customer.
Now the CEO, Matthew Prince, has some regrets. He's concerned about betraying his neutrality as a service provider, about the potential consequences of taking sides in a highly charged political debate, and about his own power, saying at one point: "Literally, I woke up in a bad mood and decided someone shouldn't be allowed on the Internet. No one should have that power."
Fortunately, Prince doesn't actually have that power. CloudFlare is a major player, but it does have competition, and it's competition that should resolve this fear. Going back to the newspaper example: When enough people in a community felt like their local newspaper didn't serve them well enough, it created the environment for rival newspapers to pop up and thrive. The entire alternative newsweekly industry exists because traditional dailies were not meeting a younger, more liberal readership's needs.
If Prince were to get so drunk on his power that he starts cutting ties with customers willy-nilly, that wouldn't just be bad for the customers. It would be bad for CloudFlare, because it would lose business to its competitors. There's a subtext to Prince's statements, one that suggests that what he really wants is not to be seen as responsible for controversial corporate decisions.
The idea that a handful of companies have complete control over whether or not you can communicate your beliefs online creates a significant tension around the issue of censorship. The Electronic Frontier Foundation (EFF) is worried that careless censorship by companies will bolster the efforts by governments to turn these decisions into demands.
It is true that we should be very, very concerned about government censorship. Germany, for example, would be happy to force every online service to reject Daily Stormer as a customer. And if these neo-Nazis had been writing in Germany, cops would have been busting down their doors and arresting them.
But a lengthy blog post expressing EFF's concerns hits an odd spot very early on:
Protecting free speech is not something we do because we agree with all of the speech that gets protected. We do it because we believe that no one—not the government and not private commercial enterprises—should decide who gets to speak and who doesn't.
There's a big problem with this argument. There is no outcome to a speech conflict (or really any conflict that involves liberty) that doesn't involve either the government or a private enterprise making a decision. A newspaper (a private commercial enterprise) decides what letters to run, what news stories to run, which quotes to use, and even who writes for them. The government determines when speech crosses over into incitement, libel, or another form of unprotected expression.
There are few decisions about the transmission of speech to a broader audience that are not subject to either private or government participation. Post a note on a bulletin board at a laundromat? The shop's owner gets to decide if it stays. Yell on a public street corner about how we're all going to hell? The government will protect that speech. Probably.
Further into the post, EFF takes a more nuanced position: What they really want is a more transparent process open to appeals before an internet service cuts off a customer's ability to communicate.
That would certainly be a better business practice than how Prince decided to approach The Daily Stormer. But it is still CloudFlare's decision. Prince and his colleagues can put a new process in place, but it's still their process. They are still deciding who gets a platform. They are not surrendering the right to freedom of association, and they absolutely shouldn't surrender that right.
Embedded within EFF's argument is the idea that if companies involved in domain registering and hosting start making decisions about customers based on politics, then governments will follow suit and invoke the authority to do the same. And indeed, we're seeing that play out in Europe. YouTube and Google announced a crackdown on extremist content in order to satisfy government demands, and we're already seeing the censorship of journalism and research as a consequence.
But that's precisely why organizations like EFF should be defending Prince's right to make these decisions. If the point of free speech is to defend controversial speech, the point of freedom of association is to defend controversial associations. If people with a financial stake in CloudFlare don't like Prince's choices, they are the ones who should make him change them or dump him.
Freedom cannot merely mean that companies must follow a certain process before dumping customers. That's not freedom. I might not have made the same decision Prince made, but he was well within his rights as the CEO of CloudFlare to do so.