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Defining Censorship Before Denouncing It

If the opinion editors at The New York Times decline to publish your cogent and insightful essay on a matter of great public importance, are they practicing censorship?

No. They are exercising editorial judgment, or maybe mere business judgment, depending on the pressures they feel nowadays to get audiences to engage with their content. It may be good judgment or bad judgment, but it is not censorship. Censorship occurs when the government restricts or compels expression under threat of penalties, which may be administrative, judicial or extrajudicial, such as directing a mob to your home. The New York Times is a privately owned, privately run platform, which its proprietors may offer to or withhold from contributors as they see fit. To demand they do otherwise would run afoul of the First Amendment’s press and speech freedom guarantees.

Suppose you offer your services as an analyst to CNN or Fox News, or to one of the national broadcast networks. The network politely declines to give you access to their microphones. Do you have recourse against them? No, you do not – with a limited exception if you happen to be a candidate for public office. In that case, the vestigial but still legally enforceable federal “equal time rule” might require broadcasters who use the public airwaves (that’s the traditional stations and networks, not cable or online-only outlets) to make time available to you on the same terms offered to your opposition. But today, this mainly applies in the context of selling paid advertising time. “Bona fide” news coverage and debates are not subject to the rule.

You might take your screed to Facebook, which – evidence suggests – will disseminate almost anything from almost anyone. But on this particular day, Facebook decides your post violates its terms of service. Or that some other posts associated with you are offensive. Or maybe CEO Mark Zuckerberg saw a photo of you and thinks anyone with your sense of fashion (say, a horned hat) deserves to be banned for life from his book of friendly faces. What right to Facebook access does the First Amendment offer you?

Absolutely none. Although it is publicly traded, Facebook is a private entity. It is neither an arm of the government nor under the government’s editorial control. It can publish, or decline to publish, what it chooses.

This is not to say you have no potential legal remedies. The normal rules of commerce, including the laws that govern contracts, apply to Facebook, Twitter, Alphabet Inc.’s YouTube and other social media platforms. Their terms of use are meant to create enforceable contracts. Enforceability applies to both sides, however. The courts ultimately determine which provisions are enforceable and how they can be applied. Although the big platforms’ terms are tightly drawn to protect them against claims, it is conceivable that, for example, an influencer who invested a lot of time and money to build a business could bring a successful claim under state or federal law for a ban that seems unreasonable or commercially abusive.

That is not what the recent accusations of censorship look like. Such accusations are being tossed around by people who should know better, such as former U.N. ambassador and South Carolina Gov. Nikki Haley, and by people who probably do know better but don't care, like Republican Sen. Ted Cruz of Texas. Their complaints – and those of many others, either uninformed or malevolent – are the backlash to the backlash that followed last week’s presidentially inspired attack on the Capitol.

Facebook has suspended President Donald Trump from its platform until some unspecified time after the inauguration of President-elect Joe Biden. Twitter announced a lifetime ban on @realDonaldTrump, one of its most prolific and widely followed users. YouTube stepped up enforcement against “election misinformation and voter fraud claims,” according to Axios.

Going considerably further, both Google and Apple pulled the Parler social media app from their app stores, and Amazon removed the platform from its cloud-hosting service, effectively shutting it down, at least temporarily. If, two weeks ago, you had never heard of Parler or used it, you likely either do not care about or actively support these moves against the Twitter-like service that had become a favorite gathering spot for those who believe Trump’s factually challenged claims that he won a landslide victory in November. But if you did use Parler, you probably are outraged at Amazon, and at the more mainstream social media platforms as well.

You are, of course, free to take your business and your eyeballs elsewhere. More than a few users have vowed to stay away from Facebook, Twitter and other platforms that they believe have unfairly blamed the president for the Capitol riot. I imagine many will want to do their shopping at venues other than Amazon. Parler’s users might want to boycott Amazon’s web hosting platform, but good luck with that – Amazon Web Services is the world’s largest cloud service. Boycotting it would essentially mean boycotting the internet altogether.

Founded in 2018, Parler was growing rapidly in the weeks following November’s election, before it came to a crashing halt this week. Now it may not survive at all. Founder John Matze, a 27-year-old software engineer from Las Vegas, has said virtually every vendor is refusing to conduct business with Parler. Even the company’s law firm has dropped it.

One thing everyone in America can count on (fortunately) is that some lawyer, somewhere, will take any plausible case, and many that are implausible, too. The Wall Street Journal reported Monday that Parler had sued Amazon over the suspension of hosting services. While details of the suit were not public at this writing, Parler may have breach of contract claims. The company could also have a litigable claim for anti-competitive behavior if it turns out that the various vendors were communicating among themselves, directly or indirectly, before blackballing the company. Or, as some of Matze’s comments have suggested, antitrust concerns may come into play if the tech giants have shut down Parler to stifle competition.

Freedom of the press means anyone has a right to publish almost anything they want. It does not mean that the manufacturer of a press must agree to sell you one.

Even America’s press freedoms, which are among the world’s most liberal, are not absolute. There is legitimate room for discussion over whether platforms like Facebook should continue to enjoy the broad protections against liability for defamatory speech and copyright infringement that they now have. There is a good case to be made that these platforms want things both ways: They enjoy the freedom to approve or remove their users or the material those users post, but they have very limited responsibility for the material they convey without challenge.

Their safe harbor is considerably bigger than what was traditionally afforded to other vendors, such as a telephone company. The phone company is not responsible for delivering a kidnapper’s ransom demand, for example, because it is deemed a common carrier that exercises no control over the content it transmits.

If Facebook is a common carrier – and I am not arguing that it is – then it has no business banning the president of the United States from delivering messages to those who want to receive them. If it isn’t, then it should enjoy no more and no less First Amendment protection than you or I do.

This column will appear first on my company’s website. It may draw some comments. We will moderate those comments before publication, eliminating any that are off-topic, that amount to personal attacks, or that are potentially false and defamatory. Like the editors at The New York Times, we must take responsibility for what we publish.

You might come across this blog post via Facebook or LinkedIn. We post on those venues because they permit us to do so; we have no absolute right to such distribution. In fact, they make their money by limiting distribution of posts like ours unless we pay them to reach a much larger slice of their audience.

President Trump is free to build his own website, host it on his own computers, and say anything he wishes to the followers who will doubtless find their way to him. Or is he? What if internet service providers refuse to connect his website to the network, or if your ISP or mine decides to block access to his site? Is there a difference between a cable operator banning him and a cellular service that licenses the public airwaves over which it operates doing so? The government, after all, subsidizes internet access as an essential service. Can private parties accept government-subsidized traffic and then decline to deliver it to willing consumers if they dislike the messages they are delivering?

Side note: We aren’t hearing as much right now from advocates of “internet neutrality” as we have in the past. Perhaps some lessons are being absorbed about the rights and responsibilities of private parties, even in the form of large corporations, to determine how their privately funded facilities are used.

Abhorrence of censorship is a fundamental part of the American character. We enshrined our freedom to share our thoughts with our fellow citizens as the first order of business in our Bill of Rights. But to fight censorship, we have to first define what it is, and acknowledge what it isn’t.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

The views expressed in this post are solely those of the author. We welcome additional perspectives in our comments section as long as they are on topic, civil in tone and signed with the writer's full name. All comments will be reviewed by our moderator prior to publication.

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One Response to "Defining Censorship Before Denouncing It"

  • Alexander Bunin
    January 12, 2021 - 2:47 pm

    As someone who grew up in Soviet Union I can assure you that this was exactly how the censorship was practiced in the USSR. It has always been backed up by a law and had never been appearing even a shade of governmental dictate.

    I have no doubts that all media companies acted within their current legal rights. Those rights, IMO, shall be examined and no longer granted. The regulations may be necessary, but must come from legislature, not from business owners. Those platforms aren’t a mom-n-pap shop on Main street, who can deny service based customer appearance.