SUING THE SOCIAL MEDIA FOR CENSORING
SPEECH
N. Rockwell – Freedom of
Speech
While some might
consider my expressed views[1] on what happened last year to Alex Jones
and www.InfoWars.com, namely, being “banned” [a term that reminds me of the evils of
Apartheid] by nearly all
the major social media during one 24 hour period, a conspiracy
theory, I assert that the evidence does support the theory that these
major corporate actors were acting in concert and that their actions
violated the Racketeer
Influenced and Corrupt Organizations Act (RICO)[2] and the 14th Amendment.[3]
The sordid story continues and gets worse. This past week Facebook imposed a "total ban" on even mentioning Alex Jones (and Rev. L. Farrakhan and others). Unless you preface your reference to the banned with the "compelled opinion" that you renounce the banned speakers, your reference to these 'Unpersons" will be likewise banned. Shades of the Soviet Encyclopedia with its repeated airbrushing of historic photos and policy of "banning" any mention of the victims of Stalinist repression.
Facebook hasn't hired any hit squads (yest) so I suppose American social media isn't quite Stalinesque, but I think anyone so “banned” by the Deep State Social Media Crony Corporations has good grounds to sue.
We
are told that the “bannings” were not unlawful
censorship since the banning entities are all “private companies”, not
subject to the First Amendment’s injunction, “Congress shall make no law …
abridging the freedom of speech…” I disagree.
The companies may be private enterprises, but they are public actors, acting “under color of
law” through their state corporate franchise and their use of the Internet Public Utility, or Public
Commons, for commercial profit.
The
First Point of Law to note is that the Supreme Court has applied the language of the
First Amendment to not just Acts of Congress, but to any actions of the
Federal Government, and, through the 14th Amendment, to the States as well[4].
The
Second Point of Law to note is that Internet Access is protected under the First
Amendment. In the 2017 case
of Packingham v North Carolina the Supreme Court held
that “a fundamental principle of the First Amendment is that all persons
have access to places where they can speak…”[5]
The Third Point of Law to note is that the
14th Amendment provides
that States may not make or enforce any law that abridges the rights of US
citizens. This includes, of course, the granting of
the corporate franchise to private companies such that they may act in
violation of our Fundamental Rights while using our Internet Public Utility.
The Internet was initially established by
the US Government for communication among scientists and remains a “public
utility” although used by private persons to communicate and by publicly
registered and traded companies to profit from our communications.
As a libertarian I
certainly have no objection that private companies profit from the Internet
commons. Everyone ought to be free to
seek profit on the Internet. But there is, I submit, a difference between being
a private company and being a private actor.
As an individual, when I communicate with business associates, relatives and
friends on the Internet my communications are private communications and my expectation
of privacy should be respected.
However, although he social
media corporations are private companies, they are not private
actors. They are, in law, “creatures of
the state” existing by virtue of the grant of the corporate franchise
which permits such entities privileges that are not applicable to purely
private persons, including the limited liability privilege and the
privilege of selling shares to the public as a joint stock company, to
profit from the use of the Internet Public Utility.
While these companies appear, to some
degree, as “private” businesses, they act over the Internet Public Utility.
They act “under color of law” and are therefore more akin to government
agencies than to private actors.
That these entities engage in substantial
commerce with the government, receiving tax funds for certain contracts
including the providing of data about users to government, and benefiting
from the use of the Internet Public Utility further substantiates
their status as agents of government power.
As such, they must be bound by the
restrictions of the First Amendment and cannot discriminate among their
users on the basis of the content of the Speech which the users express
over the Internet Public Utility.
When several of these quasi-private
companies act in apparent concert to ban the Speech of a particular user
over the Internet Public Utility they do so “under color of
law” and in violation of the Freedom of Speech of both the speaker and
those who seek to hear. Both Freedom of Speech and Freedom
of Association are restricted through the exercise of authority depending
on government. This is unlawful. The courts are surely not without power to
redress this grievance.
The effect of the unlawful actions of the
companies is to tortuously interfere with valuable commercial relationships,
between the attempting speaker and intended hearer, causing substantial
financial harm and damages. BTW, I note, currently, Facebook still accepts ads
from certain “banned” companies. But not from others, furthering their
discriminatory use of the Internet Public
Utility.
Such unlawful acts, and the unlawful
combination (“conspiracy”) to engage in such acts, may violate the
provisions of RICO. The companies that are among the most egregious
banners include PayPal, Google, Facebook, Twitter, Pinterest and
YouTube.
Some of these same companies are “making pacts
with the devil” by developing special government-censored versions of their
services for Communist-controlled China, enabling that tyrannical regime to
impose and maintain its social control system on the world’s most populous
country.
In the United States, the targeting
of individuals because of the content of the Speech they seek to express
over the Internet Public Utility can be seen as a type of
commercial extortion forbidden under RICO. Conspiracies to do so may
provide the second “act of racketeering activity” to invoke RICO.
It is therefore my professional opinion, to
a reasonable degree of professional certainty, that the “banned”
individuals and companies have valid grounds to sue the social media
companies that have “banned” them from the Internet Public Utility.
Such litigation could be started in the
Federal District Court wherein the headquarters of any of the corporate
actors might be located. But it is not just in America where Free Speech is
threatened.
Our Freedom of Speech is under a world wide
web of attack.
While various authoritarian states make no
effort to hide direct censorship of speech, the “advanced democracies” are
more subtle. Germany, with no absolute constitutional protection for Free
Speech, is contemplating empowering Internet Service Providers to refuse
service to “hate groups.” At the same time the large international corporate
controllers of the Internet, such as YouTube, Facebook and Google, are
already escalating content controls to enforce “political correctness” –
if you don’t follow the Party Line, you cannot be heard.
First they came for hate expressers and banned them
from Facebook. No one protested.
Then they came for Alex Jones and banned him from YouTube, Twitter and Facebook, all in a day. No one protested.
Then they came for… You know the rest… they came for you and me, and no one was left to protest.
Then they came for Alex Jones and banned him from YouTube, Twitter and Facebook, all in a day. No one protested.
Then they came for… You know the rest… they came for you and me, and no one was left to protest.
These supposed private Social Media
Companies are actually exercising government authority -- just as much as if
they had been the “private” Tax Farmers of Ancient Rome.
They are the privatized agents of Deep
State control and censorship. They exercise this control on several
levels. Each of these mega-corporations is, in fact and in law, “a creature of
the state.” It is created by registration with government that gives it
authorities (such as limited liability to third parties) which it could
not exercise as a truly private association. The law further protects these
Internet information carriers from liability for others’ information they
carry.[6]
If
the same Rule of Law that applies to truly private actors applied to
governments and their crony corporations, “content control” efforts would
be understood to be exactly what they are: censorship.
Real free market competition and technological
progress would rapidly make the near-monopoly power of Google and Facebook,
et al. irrelevant.
If
the same Rule of Law that ought to apply to Government Censorship –
that there can be no such law[7] – applied to the crony corporations, “private”
censorship could not continue.
19 May 2019
[3]
“No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States” – 14th Amendment
[4]
“Beginning with Gitlow v. New York (1925) the Supreme
Court applied the First Amendment to states—a process known
as incorporation—through the Due Process Clause of
the Fourteenth Amendment.”
[5]
Ibid. “In Packingham v.North Carolina (2017),
the Supreme Court held that a North Carolina law prohibiting
registered sex offenders from accessing various websites
impermissibly restricted lawful speech in violation of the First
Amendment. The Court held that ‘a fundamental principle of the First
Amendment is that all persons have access to places where they can
speak and listen, and then, after reflection, speak and listen once
more.’”
[6]
“Section 230 of the Communications Decency Act of 1996 (a
common name for Title V of the Telecommunications Act of 1996) is a piece of Internet legislation. It provides immunity from liability for providers and users of an
interactive computer service who publish information provided by others.” https://www.minclaw.com/legal-resource-center/what-is-section-230-of-the-communication-decency-act-cda/
[7]
“Congress
shall make no law ... abridging the freedom of speech...” https://constitution.findlaw.com/amendment1.html
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