Yes, It’s Censorship

Stop picking that nit, it’ll never heal.

A man’s screaming, open mouth. The interior has been filled with a Matrix-style “code waterfall” effect.
conall/CC BY 2.0 (modified)

American political discourse is sticky. It gets all over the place and it’s damned hard to dislodge. People in handcuffs all over the world demand their Miranda rights, and people arguing about social media all over the world are prone to saying “it’s only censorship when the government does it.”

That’s a very American formulation! Unpacking it, it goes:

  • The First Amendment to the US Constitution is an anti-censorship rule;
  • It bans the government from ‘abridging the freedom of speech’;
  • If the government passed such a law, it would violate the First Amendment;
  • Since the First Amendment is an anti-censorship rule, then violating it is an act of censorship.

So far, so good.

But here’s where it gets slippery:

  • Therefore, anything that affects speech that is not a law passed by the government is not censorship.

That’s just wrong.

Free expression is a condition in which you are free to express yourself, and in which people who want to hear or read or see those expressive acts are likewise free to do so.

Back in 2020, I proposed a thought experiment in which two competing restaurants sit opposite one another: the Anything Goes Cafe and the No Politics At the Table Diner. At the former, you can talk about any subject you like with the people joining you at your table; at the latter, they sling your ass out if you try to talk about politics.

It’s pretty clear that Anything Goes is a more robust promoter of free expression than No Politics. It’s also clear that when a restaurant manager eavesdrops on your dinner-table conversation and then tells you to shut up because they don’t like your subject that they are abridging your free expression.

Now, I’m not saying that Twitter, Facebook, the Apple and Google App Stores and other content moderators are like a single restaurant where there’s a No Politics at the Table rule.

No, they’re a lot worse than that.

Imagine if the No Politics at the Table Diner raised a ton of money in the capital markets and opened restaurants on every corner, using a mix of predatory pricing, predatory acquisitions, and control over supply chains to become the place where 90 percent of the people in town ate.

Imagine if they expanded vertically: opening barber-shops and hair salons, taxi companies and bars, took over management of the city’s parks and school cafeterias, and became the sole supplier to all the city’s sports leagues and clubs.

Now imagine that the city had no public spaces. No sidewalks. No school gymnasiums. No publicly owned parks. No community centers.

Imagine that every place in the city was privately owned, and again, 90 percent of those places were managed by No Politics Holdings (International) Ltd, and they did not permit political discussion.

Now we’re getting closer to the scope of Big Tech moderation policies.

But wait, it gets worse.

Say you and your friends want to discuss politics at the table, so you work out a bunch of devilishly clever ways to defeat the speech police at the No Politics venues: knocking codes, covert hand-signs, under-the-table, thumb-typed messages.

Now, it would be bad enough for free expression for the restaurant to catch you and kick you out for doing this, but what if they got the city to pass ordinances making these into civil offenses, or even crimes?

What if they got laws passed making efforts to thwart their policies into a copyright violation or a violation of public safety laws or a violation of the “contract” that every diner “agreed” to when they entered the restaurant?

What if they got a law passed turned anyone who made a device designed to fool No Politics management into a felon subject to five-year prison sentences for “trafficking” in such a device?

Now we’re getting closer.

The internet is a space for the public with no publicly owned spaces. The 30 year old decision to fully privatize the internet without any public speech forums means that we live in a city without any sidewalks or parks or school auditoriums where the First Amendment applies.

The internet is a space where a vanishingly small number of firms control nearly all of our speech forums: “five giant websites filled with screenshots of the other four.” The companies that operate those services bought their way to dominance , using predatory pricing to destroy any new company that tried to compete with them and buying any company that managed to survive that treatment.

The internet is a space where the dominant firms have a vast arsenal of legal tools that let control who can compete with them and how — a doctrine Jay Freeman calls “felony contempt of business model.”

“It’s only ‘censorship’ when it violates the First Amendment” is a cramped and ineffectual vision of free expression. Under this regime, a place with no publicly owned spaces is definitionally free from censorship, since all acts of speech control will be undertaken by private actors, not the government.

The decision to make our “digital public square,” into a privatized, monopoly-friendly corporate shopping mall whose owners can wield the power of the state against rivals who dare to compete with them may not violate the First Amendment, but it sure as hell isn’t good for free expression.

This isn’t to say that there shouldn’t be any speech rules in private forums, or that private forums shouldn’t be allowed to have speech rules. It’s fine for your D&D club or Democratic Socialists meetup or knitting circle to make choices about what kind of expression is and is not permissible.

Likewise, these forums can make stupid decisions. The guy who hosts your board-game night can announce that he’s “banning pronouns” (whatever that means), and he will be censoring you, even if he’s not violating your First Amendment rights.

You can call him a censor.

Go ahead, it’s fine.

You can say, “Barry, you’re censoring me and I’m leaving. God, you’re such a dick” (sorry to any innocent Barrys implicated by this example, including my father in law, who is lovely).

Barry is a dick. He’s a dick because he’s got a stupid idea about pronouns. He’s a dick because he has a flimsy grasp of grammar. And he’s a dick because he wants to censor the rules of his board-game circle.

People like Barry are a problem for the people around them. Companies like Apple, Google, Meta, Microsoft, and Twitter are problems for billions of people. Sometimes they make good calls. Sometimes they make bad calls. The problem isn’t the calls they make — it’s the lack of an alternative when they get it wrong.