The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Managing Supply Chain Political Blacklist Risk?
Recent events made me wonder: What good things have been written about how people and organizations—especially ideologically minded organizations—can protect against their suppliers' blacklisting them because of what they say, or because of what they allow others to say?
The Amazon Web Services shutdown of Parler (for insufficiently policing user posts) is the most obvious recent example; while that was temporary, perhaps it wouldn't have been if Parler didn't have deep-pocketed investors. Discord has reportedly shown a similar willingness to cut off organizations for "allowing hate speech." Visa and Mastercard have apparently at times blocked payments to groups they view as "hate groups" (and had earlier blocked payments to Wikileaks).
Of course, if a supplier is just one of many in a competitive market, blacklisted users can easily switch to a competitor. But sometimes there might be only a few such suppliers in a field, and they might follow parallel ideological paths, whether because they share the same politics or just because they are subject to the same political pressures. (The clearest example of a "blacklist" is if indeed many competitors are going along with each other, formally or informally, so that if a company is dropped by one supplier, other suppliers are likely to follow suit.) Or sometimes transitioning from one supplier to another might be a massive and time-consuming undertaking.
Somewhere in pretty much any organization's supply chain, I suspect, are companies on which the organization relies, and which (1) can hurt it badly if they cut it off, or (2) can pressure it to change its content by threatening to cut it off. And while many of us may assume that of course these companies won't go after us, how can we be so sure? We've seen how just in the last few years things that were formerly seen as at most controversial have become grounds for firing or boycotts or deplatforming.
If five years ago, someone had said that Parler would be deplatformed by Amazon Web Services for following a say-what-you-like policy of the sort that had been pretty common online until recently, I think many of us would have been surprised. If people had said that some Dr. Seuss books would be pushed out of print for supposedly racist content, I think we'd have been surprised, too. If people had said that Amazon would stop selling books that take one side of the debate about gender identity (the formerly utterly orthodox side), I think we'd likewise have been surprised. And while some such examples don't involve suppliers, their point is that what content is beyond the pale has been changing quickly. What will be the basis for blacklisting five years from now?
Now these are private companies, and they generally have the legal right to terminate relations with people who say things (or who allow others to say things) that the companies dislike. Perhaps some such decisions by those companies are even on balance good; I'm not focusing on that now.
Rather, my question is this: Are there some thought-through, detailed analyses of how organizations can manage the risk that their suppliers (rightly or wrongly) will turn on them, whether for their views on race or affirmative action or sexual orientation or gender identity or illegal immigration or guns or climate change or vaccination or masks or whatever else?
For instance, one obvious possible answer is to insist on binding long-term contracts without any content limitations (except perhaps for outright illegal content), terminable by the supplier only for specific reasons, such as nonpayment. The University of California Academic Freedom Committee, for instance, has asked the UC administration to negotiate a contract with Zoom that omits Zoom's standard content limitations (though there doesn't seem to be a plan to insist on a binding long-term commitment). Are there suppliers of various services (hosting, payment, communications, order fulfillment, etc.) who are known for offering such binding and unrestrictive contracts, while of course still providing high-quality, affordable services?
Or in fields where binding contracts aren't viable, are there suppliers that are known for standing by their customers even in the face of public pressure? If in some relationships, there has to be some mechanism for termination for non-content-based business reasons, are there arbitral bodies that can quickly and reliably (without ideological spin of their own) resolve disputes about whether the termination was indeed justified?
Are there well-worked-out emergency transition mechanisms, for instance if one has to go without a long-term contract and an entity like Amazon Web Services or Microsoft or whoever else cuts one off? (Obviously, the transition mechanisms would differ depending on the kind of product that's being supplied.)
One seeming advantage of relying on common carriers, such as phone companies or delivery companies (such as UPS or FedEx) is that their common carrier status generally bars them from blocking customers based on the customers' ideology (or based on many other reasons). Has that proved reliable, or are the customers' legal protections more limited than they at first appear?
Are there particular other supplier sectors that so far have taken a hands-off approach to content (at least content that isn't illegal) but that seem likely to shift to more policing of what their users (or their users' users) say? For instance, should be worried about Google or Microsoft cutting off e-mail services for entities that they come to view as "extremists" or "hateful"?
I'm sure that savvy techies have already thought through all this; I'm not at all claiming these questions are new. But I suspect that some organizations haven't focused on this enough, at least yet. I'd love to know whether there are some solid, practical, helpful instructions out there that people can use.
