Beware Censorship by Proxy

Prodding private companies into self-censorship is a dangerous government tradition.

This article originally appeared in the Los Angeles Times.

YouTube is worried you might believe too much of what you see on its website. Amid the clamor for someone, somewhere to do something about "fake news," the company plans to attach "information cues"—excerpts from Wikipedia—to videos that touch on "a list of well-known internet conspiracies."

When YouTube, Facebook or Twitter cracks down on some form of expression—conspiracy theories, radical rants, terrorist propaganda—some of the targets inevitably complain that their freedom of speech is under attack. (This feeling of victimhood may be what sent Nasim Aghdam to YouTube headquarters, gun in hand.) There is a strong retort to this: These are private platforms with a right to decide what they publish. It is no more a violation of the First Amendment for YouTube to muzzle a channel it finds offensive than it is for this newspaper to refuse to run a column calling for Minnesota to invade Wisconsin.

But what if a private platform suppresses speech because it's afraid the government might otherwise step in?

Just as one effective end-run around the Fourth Amendment is to ask private companies for data they slurped up on their own, the First Amendment can be sidestepped when officials pressure the private sector into self-censorship. The end result can be rules more restrictive than the companies would impose on their own—and more intrusive than the government could get away with if it tried to impose them directly.

It's happened before.

The Supreme Court ruled in 1915 that free-speech protections did not apply to the movies, a decision rightly reversed in 1952. In the interim, the industry opted to stave off federal regulation by establishing a series of self-censorship systems. The most powerful of these was the Production Code, which was created in 1930 but didn't really grow teeth until 1934, when Congress was mulling several bipartisan bills to tone down motion picture content. Hollywood got the message. Under the code, seduction was "never the proper subject for a comedy," plots couldn't involve "sex relationships between the white and black races," and the drug trade "should not be brought to the attention of audiences," among other tight constraints.

Some filmmakers found ways to subtly subvert the restrictions. Many others threw up their hands and let their films be bowdlerized.

The Federal Communications Commission directly regulates much of what can and cannot be said over the "public" airwaves. But private radio and television networks also have created their own internal Standards and Practices departments that control content, sometimes at absurd levels of caution. (Early network censors objected to terms as mild as "bloody," "bollixed" and "the W.C.") Broadcasters are not eager to offend their audiences, so some version of Standards and Practices would probably exist even without the FCC. But the desire to stay on regulators' and legislators' good side has clearly been at work in those departments' decisions as well. You can tell because the self-imposed rules eased up when federal content controls were relaxed in the 1980s.

The comic book industry adopted a Comics Code after the Senate Subcommittee on Juvenile Delinquency held a hearing in 1954 on their products' alleged role in fostering crime. The immediate effect was to infantilize the industry, forcing a range of popular horror titles into the dustbin. The "parental advisory" labels affixed to CDs were invented following another Senate circus, the "porn rock" hearings of 1985. The stickers kept some records out of certain stores, and prompted some producers to edit songs or change album lineups to avoid the restrictions. In 1993, another set of Senate hearings inspired a comparable ratings system for video games.

Those moves haven't had as much force as the rules adopted by Hollywood and the broadcasters, but that's because the threat of direct federal censorship wasn't as strong. A sort of censorship by proxy was just as clearly in effect.

Now it's social media's turn. During last year's hearings on Russian-sponsored online speech, Sen. Dianne Feinstein (D-Calif.) was overt about it. "You created these platforms, and now they're being misused," she told representatives from Facebook, Google and Twitter. "And you have to be the ones who do something about it—or we will."

Consider the Fight Online Sex Trafficking Act, which has now passed both houses of Congress. By making internet platforms legally liable for the things users post on them, the law encourages sites to crack down indiscriminately on all sorts of sexual discussions—including, ironically, online spaces where sex workers share information that helps them protect themselves against abuse. Risk-averse companies will have every incentive to police their users' activities with a heavy hand, deploying algorithms that casually sweep up any posts that contain the wrong keywords. Or they'll just eliminate potentially dicey forums altogether, as Craigslist and Reddit did as soon as the bill passed.

And that's just what's happening in America. Stronger pressure is coming in countries whose legal protections aren't as robust as ours. In Germany, a law requires companies to remove hate speech from their platforms within 24 hours or face potentially crippling fines. Sites have subsequently squashed anything that could conceivably prompt such penalties, even if on closer examination the target turns out to be, say, a satirist who's attacking rather than espousing bigotry.

Sometimes the censorship pressure is strong enough to overwhelm countervailing pressure from another set of officials. In 1947, while the House Committee on Un-American Activities was pushing moviemakers to stop hiring Communists, the Department of Justice was prosecuting the same companies for antitrust violations. As the Brandeis-based historian Thomas Doherty notes in his upcoming book, Show Trial, that put the studios in a delicate position: "If the producers acted together to dismiss the Hollywood Ten, they were conceding that the studios were in cahoots, conducting a conspiracy in restraint of trade."

The studio heads stewed about it, but they risked handing ammunition to one wing of the government in order to placate the other. They acted together, and a blacklist was born.