There is a long-standing narrative from the right that Big Tech (which according to them is a nefarious monolith) is a left-wing behemoth, if not part of a conspiracy, acting in concert with the media, to oppress conservative voices and ideology. The “woke” (and I hope you can hear the air quotes I am putting around that) tech industry is actively conspiring against the Right to suppress their so-often maligned voices and characters so that the oppressive Left can maintain their stranglehold on the public imagination. They wouldn’t use this word, but basically the argument is that Progressivism is hegemonic, and Big Tech is working to perpetuate those systemic structures.
Those on the left, of course, find that laughable. If Big Tech were so progressive, they wonder, why is hate speech such a problem online? Why do women, People of Color, and the LGBTQ community find themselves in constant danger of being doxed and their lives being turned upside down by right-wing, online mobs? If Big Tech is so leftist, why can somebody get thrown in facebook jail for calling a Nazi a “silly goose” (actual real-life example), but a Nazi is fine if they threaten somebody’s life? If the tech industry is so leftist and censorial, they ask, why does it go out of its way to protect fascist, right-wing hate speech?
Obviously either way you answer that, a chunk of the population is going to be unhappy. Because they are going to claim you are biased. But somebody has to have a point, here.
The reason I bring this up is because there is a Supreme Court case that was argued just in the last couple of weeks about just this very thing. The SCOTUS heard a case about some Texas and Florida laws that they claim aim to curtail the leftist bent of Big Tech and give conservatives a fighting chance on social media platforms. I want to look at this case and talk about some of its assumptions and what that means for public discourse right now.
Here’s this summary from the Texas Tribune by Poojah Solhotra:
The lawsuits, which were brought by two tech trade groups, challenge whether Texas and Florida can legally prohibit large social media companies from banning certain political posts or users. Both states passed laws in 2021 to stop what Republican state leaders considered “censorship” of conservative viewpoints.
The laws came on the heels of the Jan. 6, 2021 attack on the U.S. Capitol, which led Facebook, Twitter and other social media platforms to suspend former president Donald Trump’s social media accounts because his posts were thought to glorify violence.
The Florida and Texas laws are similar in that they both limit social media companies’ content moderation. But they differ in their details. Texas’ law is broader in that it prohibits companies from removing content based on their authors’ viewpoint, whereas Florida’s law bars companies from removing politicians from their site.
NetChoice and the Computer & Communications Industry Association brought lawsuits in which they argued both laws are unconstitutional because they conflict with the First Amendment, which protects against government infringement of speech.
On Monday, attorneys for NetChoice argued that social media companies should be treated the same as newspapers or bookstores, which are free to choose what to publish or which books to sell without government interference. Paul Clemente, arguing on behalf of NetChoice, said social media companies are not “censoring” certain users but are exercising “editorial discretion.”
Texas Solicitor General Aaron Nielson meanwhile argued that internet platforms should be considered “common carriers” like telecommunications companies or mail services that are required to transmit everyone’s messages.
The Supreme Court Justices appeared conflicted. Most justices noted that the laws posed free speech challenges, but they seemed hesitant to strike down the laws entirely. They questioned both sides on whether the laws may be legal in some respects but unconstitutional in others. For example, some large social media companies, including Facebook, offer direct messaging. The justices indicated that the laws’ applications on direct messaging would not implicate free speech and therefore should not be struck down.
So, there’s a lot that’s going on, here.
First, there is a problematic relationship to “fact” that we have to address.
One of the reasons that Florida and Texas are so mad at social media is because fact-checkers very often flag, or even take down, right-wing posts or talking points. It is easy to see why – because a lot of it is, especially the farther right you do, conspiratorial nonsense. However, if you buy into it, it may seem like “my opinions are being silenced!”
No, that’s not it.
Your lies, or misinformation is being noted. What you said is objectively and verifiably false or problematic in some way, so a responsible publisher is saying, hey, be careful with this.
And you, as the liar, are mad about it.
Do you see the issue here?
Objectivity presents a real problem for one side of the political spectrum. The idea of a “fact” is such a tricky issue for those on the right, they’d just as soon we not talk about them.
Years ago, when Donal Trump was president, he talked one day about a shooting at Bowling Green. And this kind of spun out into what became known as the Massacre at Bowling Green. And this story was told as an example of the terrible violence in America.
The issue is that there has never been a shooting at Bowling Green.
When Kellyanne Conway was pressed on this, on the fact that Trump made this up wholecloth, just out of nowhere, she didn’t blink. She told the public it wasn’t that he lied, it’s that he was presenting the public with “alternative facts” to consider.
Friends, that’s when my rhetorician colleagues and I knew it was all over.
Facts were no longer something to agree or depend on. From that moment on it wasn’t just that Trump and his ilk were lying, it was that they were openly dishonest, they owned it, and that they were using it as a rhetorical tool. They were presenting their dishonesty as “fact” to an audience that wouldn’t care if they were lying, as long as it appealed to their anger or fear. Facts were part of a bygone era.
Ryan Neville-Sheperd writes about how Trump uses a kind of post-truth conspiracy rhetoric to advance his agenda, and while the conspiracy part is really important and interesting, the part that is important to us today, is the idea that “post-truth” can be a rhetorical tool.
The far-right doesn’t bend the truth. They use a tenuous relationship with the truth as a rhetorical tool to appeal to a population that is more interested in identification and scapegoating than rationality. If there was ever any indication that Aristotle lost the battle to define rhetoric and Burke, or even Nietzsche won, it is the current political climate. What is real, or even true, is not defined by facticity, or what can be verified, it is defined by what makes you FEEL the most. There is not even a pretense of a rational audience anymore. So, the idea of “post-truth” has to be seen not just as a description of where we are, but as a rhetorical tool. Those in power know the truth doesn’t matter, so they manipulate what is real or true to fit a narrative that will maintain their power. Truth isn’t a good or a fact – it is a rhetorical device.
In my propaganda class we talk about dishonesty or lying as a tool of control. Because when you lie, be it to an individual or to a large audience, what you are really doing is robbing them of their agency. Because when you lie you are taking away a person’s ability to make an informed, rational decision. A person can’t act completely knowledgeably and in their own interests when they don’t know the whole truth. When you lie, you are attempting to control the situation by controlling the flow of information or the context of the situation. Put bluntly, when you lie, you are trying to exact control over a situation, including the people involved. You are taking away their ability to fully partake in a situation. So, when you lie, you are robbing someone of their ability to act of their own self-will. You are making an effort to control them. The fact that we are talking about one whole portion of American politics weaponizing dishonesty as a rhetorical tool should scare the ever-living crap out of you.
But this tenuous relationship with the truth is not the only reason TX and FL are mad at social media.
Texas and Florida are mad that Facebook and YouTube were taking down posts about January 6th because they encouraged violence. Okay, let’s just leave aside that your whole political movement is apparently involved in a rhetorical groundswell of violent rhetoric according to some people, but let’s focus on some assumptions, here. The states say that this is censorship and denies people of their First Amendment rights.
Okay.
This assumes that social media spaces are beholden to the First Amendment, first and foremost.
That is SUCH a huge can of worms.
Facebook and YouTube are companies. Private companies that are beholden to stockholders – not taxpayers. By all intents and purposes, they do not have to protect speech the way the government does. The Constitution says “Congress shall make no law…” The government does not have the right to tell businesses what can and can’t be allowed in their “private” spaces.
That’s why your place of employment can ABSOLUTELY fire you for hate speech. The government can’t throw you in jail for it. Because that is protected speech. But you are not protected FROM YOUR EMPLOYER. If your employer thinks you are a detriment to the company, or to your clients, or just to morale in general, they can absolutely terminate you.
Facebook and YouTube aren’t even firing people. They are just saying, this is our business, and in our business we don’t promote, you know, treason.
But Florida and Texas have a problem with that.
In order for this problem to be seen as a legitimate issue, they have to argue that social media should be regulated like a public good.
Now, before you laugh, there IS precedent for something like this.
The Knight First Amendment Institute at Columbia explains,
On July 11, 2017, the Knight Institute filed a lawsuit in federal court against President Trump and his aides for blocking seven people from the @realDonaldTrump Twitter account based on their criticism of his presidency and policies.
The lawsuit maintains that the @realDonaldTrump account is a “public forum” under the First Amendment, from which the government may not exclude people based simply on their views. It also claims that the White House is violating the seven individual plaintiffs’ First Amendment right to petition their government, and that by purging critics from the @realDonaldTrump account, the White House is depriving those who remain in the public forum the opportunity to hear critical voices.
Decided on July 9, 2019, and petition for rehearing denied on March 23, 2020. In a 3–0 decision, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s holding that President Trump’s practice of blocking critics from his Twitter account violates the First Amendment. The court denied rehearing en banc by a vote of 7–2.
On July 31, 2020, the Knight Institute filed a second lawsuit in federal court against President Trump and his staff for continuing to block critics from the @realDonaldTrump Twitter account.
Status: On April 5, 2021, the Supreme Court vacated the judgment and instructed the United States Court of Appeals for the Second Circuit to dismiss the case as moot.
So, there is some argument out there for thinking of social media as a kind of public forum.
But I contend these are very different instances.
In the Knight case, the question wasn’t just a “social media” question, it was specifically “Donald Trump’s social media.” So, this was about the most public of public figures commenting on issues of public interest. That is quite different than a private citizen making a post for their friends to see. That may seem like hair splitting – but so is the law, in general.
But this distinction is actually really important. Does who is speaking matter, and who they have invited to listen? Donald Trump gets on social media and invites the world to listen, and, in his capacity as a public figure, comments on public issues. My cousin gets on their private account and rants to their friends about migrants. One of those seems much more reconcilable as a “public forum” or a “public good” than the other. If Donald Trump blocks somebody, it is like an arm of the state is telling them they can’t speak. If my cousin blocks somebody, it’s like their neighbor is avoiding them. These are radically different scenarios.
So what if Twitter tells somebody they can’t speak?
Well, you know what?
Capitalism is a right monster, isn’t it?
As far as I am concerned, this is the bed the right has made, and now they are mad it is working.
We have created this late-capitalist hellscape where corporations are more powerful than governments. Those corporations are flexing their discursive powers, and the people who put them in that position are freaking the hell out.
But when you’ve got multi-billion dollar companies that don’t answer to anyone, don’t pay taxes, and get to write their own tickets in any number of ways because of deregulation championed by the right, you can’t come sailing in and scream, “Oh, no, wait! Just kidding! We DO want regulation! Just the kind that bolsters right-wing speech!”
That, my friends, is not how the free-market works.
But they are not interested in the free-market. They are not interested in a consistent philosophy or propping up maligned voices.
They are interested in maintaining power and control.
And I know this because we have followed the arguments to get to this very point.
There has been a concerted attack on honesty and truth – which is a control tactic.
There is an attack on free-market principles – which is completely contrary to their own philosophy but allows for them to argue for control of the narrative.
There is an ongoing attempt to malign the very corporations that their economic principles have buoyed because those industries are following trends that American buyers prefer – and those are contrary to conservative philosophies.
Texas and Florida claim this is to defend the free speech of conservatives, but in actuality it is a bastardization of the First Amendment.
I know some would disagree with me because a) we should be concerned more about the spirit of the First Amendment and who gets to speak, and b) corporations shouldn’t have rights.
I understand wanting to focus on the spirit of the law rather than the letter of the law. But here is where I separate myself from some other free speech absolutists. I don’t think the state has any business telling you what to do, say, or think. But I think private organization, with their own rules and structures, have a right to establish and maintain their own culture. I recognize that can lead to straight up trashy organizations. As a church-going person I will be the first to admit that allowing groups like churches to operate completely on their own has led to some real crappy churches.
But I guess, when it comes down to it, people have the right to be crappy. And if that isn’t the spirit of the First Amendment, then I don’t know what is.
And in this instance what we have is organizations saying, here, in our spaces, our culture is that we don’t support treason. An organization has a right to do that. I don’t think that is necessarily bestowing the rights of a person onto an organization. Just because we grant organizations the right to maintain a certain set of standards, does not mean we are granting them Constitutional authority.
Ultimately, this wasn’t a First Amendment issue until Texas and Florida tried to make it a First Amendment issue.
And Texas and Florida are trying to argue that social media should be treated like a public utility like telecommunication. But they have not set up the infrastructure for that because, you know, deregulation.
This is, like so many other things, a control tactic. There has been almost 50 years of efforts to take government out of industry and now industry is running by its own rules. Lo, and behold, industry isn’t just a lap dog all the time. And now those that expected support and kick-backs are gone, they are freaking out.
And what’s ridiculous is the level of performance. Money will still exchange hands, lobbyists will still do their jobs.
This really comes down to what Karen O’Reilley McWhiteWoman says on her facebook wall for the likes. Which in the big picture, nobody cares about. But Greg Abbott and Ron DeSantis are going to pretend like they do, because VOTES.
Friends, It’s all about control.
Music in this episode is “Fearless First” by Kevin MacLeod at https://incompetech.filmmusic.io/song/3742-fearless-first.
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