Private Censorship: Weapon Against Bigotry or Tool of Oppression?
An issue faced in the United States in dealing with bigotry is the exceptionally broad application of freedom of speech granted by the First Amendment. Some have even attributed the resurgence of white supremacist organizations to the broad protections of the First Amendment.1 Following the displays of bigotry and violence of the Charlottesville rally of August 2017, white supremacist websites have faced struggles with staying online. Two prominent and notorious websites, “Daily Stormer” and “Stormfront,” have had an especially hard time staying online.2 In the aftermath of a fatal car attack, many domain name registrars have refused to do business with white supremacist websites citing violation of terms and conditions of use.3
At first glance this would appear to be an effective campaign by members of the private sector taking away a platform for bigotry, but beneath the surface there are deeper concerns. In the age of the Internet, social media platforms like Facebook, Twitter, and YouTube have become the new medium of exchange for information on a global scale. However, while these social media platforms do have facially neutral terms, the application of these terms and conditions has been uneven at best.4 Notably, Facebook has come under fire for “Zuccing” pages that do not seem to violate any terms and conditions, while allowing white supremacist pages to roam free.5 This oversight that is primarily managed algorithmically has taken center stage in recent political races, notably the 2016 presidential election. Professor Scott Galloway of NYU Stern School of Business has made his opinion clear that Facebook and platforms like it are simply too willing to embrace the profit margins of a media company with little to no oversight, public responsibility, or accountability.6
This uneven application and uneven platform is not a new phenomenon. As the Electronic Frontier Foundation (“EFF”) has made clear what they describe as platform censorship has long been an issue that disproportionately affects oppressed peoples.7 The EFF points out that policies, like Facebook’s, that require “real” names often do not affect people like Russian agents, but instead affect those in genuine need of anonymity, such as survivors of domestic and sexual violence, political dissidents, LGBTQ people, and more.8 What options remain then?
The EFF has proposed that censorship should only be used as a last line of defense, and that more straightforward and accountable policies be put into place in both the public and private sectors.9 Whether or not these proposals are put into place will have a dramatic effect on the future of the Internet. Will tools like the Foreign Agent Registration Act be successful tools or will we be forced to resort to having private companies regulate access to information through platform censorship?
Noah Berlatsky, Is the First Amendment too Broad? The Case for Regulating Hate Speech in America, NBC News: Think (Dec. 23, 2017), https://www.nbcnews.com/think/opinion/first-amendment-too-broad-case-regulating-hate-speech-america-ncna832246 [https://perma.cc/FN8U-YEBB].↩
John Biggs, Another Neo-Nazi Site, Stormfront, is Shut Down, Tech Crunch (Aug. 28, 2017), https://techcrunch.com/2017/08/28/another-neo-nazi-site-stormfront-is-shut-down/ [https://perma.cc/VN9N-DXDN]; Russell Brandom, The Daily Stormer has Returned Under a Russian Domain Name, The Verge (Aug. 16, 2017), https://www.theverge.com/2017/8/16/16156302/daily-stormer-neo-nazi-website-russian-hosting [https://perma.cc/4JKW-78FG].↩
See e.g. Katie Mettler & Avi Selk, GoDaddy – Then Google – Ban Neo-Nazi Site Daily Stormer for Disparaging Charlottesville Victim, Wash. Post (Aug. 14, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/08/14/godaddy-bans-neo-nazi-site-daily-stormer-for-disparaging-woman-killed-at-charlottesville-rally/?utm_term=.e5d867d74ef0 [https://perma.cc/9UED-GCJX].↩
Julia Angwin & Hannes Grassegger, Facebook’s Secret Censorship Rules Protect White Men From Hate Speech but not Black Children (Jun. 28, 2017), https://www.propublica.org/article/facebook-hate-speech-censorship-internal-documents-algorithms [https://perma.cc/SSD6-6QAL]; Jay Hathaway, Mark Zuckerberg Wants to Know What’s Up with the ‘Zucc’ Meme, Daily Dot (Oct. 12, 2016), https://www.dailydot.com/unclick/mark-zuckerberg-zucc-succ-meme/ [https://perma.cc/7VCT-96VT].↩
Julia Angwin & Hannes Grassegger, supra note 4.↩
See Graham Flanagan, Scott Galloway Says Amazon, Apple, Facebook, and Google Should be Broken Up, Business Insider (Nov. 30, 2017), http://www.businessinsider.com/amazon-apple-facebook-google-should-be-broken-up-scott-galloway-2017-11 [https://perma.cc/GE77-D45Z].↩
Corynne McSherry, Jillian C. York, & Cindy Cohn, Private Censorship is Not the Best Way to Fight Hate or Defend Democracy: Here Are Some Better Ideas, Electronic Frontier Foundation (Jan. 30, 2018), https://www.eff.org/deeplinks/2018/01/private-censorship-not-best-way-fight-hate-or-defend-democracy-here-are-some [https://perma.cc/8KH2-RLLW].↩