Complexity Of The Underlying Question
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2024-02-12 07:00 by Karl Denninger
in Technology , 270 references Ignore this thread
Complexity Of The Underlying Question
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The Supremes have been asked to "peel back" content moderation by so-called "big tech":

Next month (ed: now "this month") the high court will hear a set of cases that question whether state laws that limit Big Tech companies’ ability to moderate content on their platforms curbs the companies’ First Amendment liberties.

Missouri Attorney General Andrew Bailey – one of the Republican AGs leading the lawsuit against the Biden administration, alleging it engaged in a "vast censorship enterprise" – on Monday filed an amicus brief along with 19 of his colleagues in the cases, asking the Supreme Court to rule in favor of the laws meant to limit internet platform’s ability to moderate content. 

At the core of the argument appears to be a fairly-easily-resolved circumstance: The evidence is quite-clear that the Biden Administration colluded to censor political speech it disagreed with.

Since the First Amendment forbids the government from doing this directly for it to go "around the door" via such a mechanism appears to be at its core a mere pretext and thus should fall.  The suing parties note that telephone and telegraph companies in fact have a "must-carry" requirement that was imposed on them Congressionally in the late 1800s and that has not been successfully challenged as unconstitutional.

There are several important differences here, however.  Among them are that it is not disputed that the government in fact colluded in these efforts, particularly when it came to the pandemic.  But any attempt to claim that this was "justified" due to a public health emergency falls flat when one looks at the broader view -- the government also did so in regard to the Hunter laptop data -- an event that had nothing to do with public health -- and which agencies claimed was "Russian disinformation" as justification yet at the time the claim was made there were agencies in the government that knew, factually, it was authentic because they were in possession of unaltered and authenticated copies of the data itself.

The context of political speech is quite-different than many others; free speech rights are at their highest protective level in that context, even if the speech turns out to be false or intentionally misleading.  You can't sue a candidate over making a political promise in the form of such speech they never intended to carry out and don't.  There are more examples can you can count in this regard with one of the most-egregious of modern times being the three planks of Trump's platform to put a stop to medical monopolists that disappeared without a trace on election night in 2016.  You have no cause of action in such a circumstance nor can you, even if you identify the falsity right up front, demand successfully that a media outlet or other conduit not run said speech.  You can speak in opposition and point out the lie, but you can't force said lie off the air -- even if you can objectively prove it is a lie.

On the other extreme commercial speech that is intentionally misleading and results in harm to consumers can in fact be enjoined.  The FTC, for example, has regulations on the books in this regard and those have been upheld as Constitutional.

But in this case the bigger problem, and one that I will find quite interesting when the decision is finally handed up, is whether or not the various brief-filing parties bring up the fact that these platforms all are driven not just by ideology as "charged" but also by commercial interest twisted around samein that they embed their fortunes into ad sales which they claim gives them a capacity to remain out of whatever they view as "wrong-think" because their advertisers want it that way.

That position, however, is also a Gordian Knot and you need look no further than Media Matters and "X" to see it.  Said pressure group, it is alleged, fabricated through deliberate manipulation a claim that X was advancing "abhorrent" viewpoints that advertisers would not want their ads displayed against and then turned that into a "news story" which led advertisers to actually pull back from the platform.  It appears, upon investigation (and this is yet to be proved through due process, but you can bet it will be as X has filed suit) that in fact Media Matters deliberately manufactured the circumstance under which the claim was made and it would not have otherwise occurred and in fact did not occur with any actual human person.  This is rather similar to a company that makes lawn mowers being sued because someone got their foot cut off -- but the entity bringing the suit first deliberately tampered with all the safety mechanisms on the mower so they would not work and then cut their own foot off on purpose, knowing they had defeated the safeties in advance and an actual human mowing an actual lawn would not have it happen to them.  That has occurred before -- NBC infamously admitted it rigged a crash to cause a fire that would not otherwise occur after they got caught and settled the resulting defamation lawsuit GM brought.

This leads to the bigger question, which hopefully the Supremes will digest and decide if they actually have the argument presented before them: The entire premise of "targeted advertising" is that the advertiser gets to pick and choose what content they wish to run ads against.  Does that in turn eviscerate the tech company argument of "reputational damage by association" in that to rule otherwise means a commercial entity or group of entities can in fact effectively ban distribution of viewpoints they disagree with even though there is no actual forced association with said speech as they can target around it; that is, the "forced association" isn't against specific speech it is the mere presence of it on the platform, not against their advertising specifically, that they claim a right of control.

That's a sticky question indeed as it gets into a balancing act.  It is clear that if I run a company and I do not wish to do business with, for example, the ACLU because I disagree with their political positions I can do that -- this is entirely legal in that I simply choose to refuse association with them.  MCSNet did this in a few instances where public positions were taken by the customer desiring service that were antithetical to our core mission: Provision of internet service to all with money to pay for it on non-discriminatory terms for buyers of like kind and quantity, irrespective of their political or social views, which flows from the protections of the US Constitution in its entirety.

Where the question arises is "where is the line" between freedom of association and effective cartel behaviorwhich implicates 15 USC Chapter 1 forbidding such conduct.

This is not as simple as it might appear at first and as such I'll be watching it closely.