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Free Speech vs. Censorship & Section 230.

Updated: Dec 10, 2020

In opposition to what some on both the left & right believe, censorship in America has not disappeared. It has been subcontracted.


A History Of Censorship:


During WWII, a highly publicized lawsuit regarding freedom of speech did not involve the global war; socialism; or communism. Instead, it involved scantily clad women. Robert Hannegan, the postmaster general, sought to revoke the discount second-class postage rate given to Esquire magazine. While the postmaster general did not officially claim that Esquire was obscene, he believed it to be “morally improper and not for the public welfare and the public good.” And thus started the first of many future instances of a public figure deciding what was proper for the public to consume.


Justice William O. Douglas wrote that it was “abhorrent to our traditions” to think that the postmaster general had the power to decide on whether the contents of a magazine were “good” or “bad.” He found no such power under the original act from 1794 that granted special rates to periodicals or in the amended Classification Act of 1879. To grant the postmaster such power would be to grant him the power of censorship. Douglas argued that “Under our system of government there is an accommodation for the widest varieties of tastes and ideas.” He further said that “What seems to one to be trash may have for others fleeting or even enduring values.” In the Court’s view, the power to determine whether a periodical contained information of a public character did not also give the postmaster the “power to determine whether the contents meet some standard of the public good or welfare.”


In 1884, The Adventures of Huckleberry Finn was published by Mark Twain, one of histories greatest novels. A 19th century classic that is a rollicking adventure story that poses moral question for the reader as well as its narrator to ponder. It was banned for the first time by librarians in Concord (only a month after its United States publication), the reason being that it was “not suitable for trash.” Over the years books banning became more and more prevalent. Especially during the twentieth century as modernist and progressive writers such as James Joyce, Theodore Dreiser, Ernest Hemingway, F. Scott Fitzgerald, and John Steinbeck began their literary careers. Censorship over ideas, conversations and speech is nothing new, but the arena in which speech and ideology has been censored is changing.


Before we go into this, lets take a look at our constitutionally protected right to free speech. The First Amendment protects us against government limits on our freedom of expression, but it doesn’t prevent a private employer from setting its own rules. It is arguable however that the intent behind the First Amendment was to allow an individual to allow themselves freedom of expression, and at the time of the Amendment, (and up until not that long ago) only governments were powerful enough to engage in censorship. The rise of the major social media and tech companies have changed that.


The right to Freedom Of Speech was never intended to be an absolute and unequivocal right.


The most famous example is a case where Justice Oliver Wendell Holmes, Jr said: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”


The case never involved fires, theaters or even any sort of panic. It instead related to a man’s conviction for protesting WWI’s military draft. Charles Schenck, had printed 15,000 fliers that encouraged readers to resist conscription. The Espionage Act of 1917 and the Sedition Act of 1918 criminalized such an offense, said prosecutors.


The Defense argued that the Constitution allowed his expression, but the Court disagreed. According to courts ruling, Schnenck’s fliers created a “clear and present danger” namely a clear and present danger to the government’s recruiting efforts. He didn’t endangered life, as falsely shouting "fire" in a crowded theater that would lead to a stampede would have, but the court ruled that was enough.


This "clear and present danger" standard stood for half a century. Further rulings even expanded it, criminalizing additional speech.


Modern Day Censorship:


As we have already established, the First Amendment protects individuals from government censorship. Social media and tech platforms are private companies, and can censor what people post on their websites as they see fit. But given their growing role in public use, and general importance in the way news is consumed we have to examine the ways our speech is censored. These days Facebook, Instagram, Twitter, Youtube, TikTok and other channels can limit, ban, control, and censor speech MUCH more than any governmental entity. The Supreme Court has even recognized, social media channels have become important venues for users to exercise free speech rights.


Banning certain speech is probably a good idea. Banning hate speech or racist content or the sexual exploitation of minors is something that almost everyone regardless of political side can agree that we should strive to get rid of. The issue however stems from when the people who staff and manage the social media & tech companies are overwhelmingly adherents of a single political party. They label the views of their opponents as bigotry or “misinformation.” YouTube, which is owned by Google, has a policy of deleting “anything that would go against World Health Organization recommendations.”


FCC Commissioner Brendan Carr denounced Big Tech for censoring users who tried to share a New York Post article about Hunter Biden. “By silencing core political speech on this important story, I think Big Tech has crossed a line,” Carr said. Twitter also locked several accounts including those belonging to White House Press Secretary Kayleigh after they shared the article. Facebook also limited the distribution of the story, claiming the need for fact checking first.


Section 230:


Section 230 is a governing legislation in the US in regards to the Internet. Section 230 allows for immunity for website publishers from third-party content.


No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.


This essentially, protects websites from lawsuits if a end-user posts something illegal, although there are some exceptions where the site must take action, example: for copyright violations, sexual work-related material, and violations of federal criminal law. Section 230 has many times been referred to as "the twenty-six words that created the Internet".


President Trump in April 2018, signed into law the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA), a bill that was intended to reduce sex trafficking by getting rid of the legal protections for online platforms under section 230. FOSTA brings a new exception to Section 230, saying that 230 will not apply to “civil and criminal charges of sex trafficking” or to conduct that “promotes or facilitates prostitution.” The bill was strengthened by applying its laws retroactively to sites that were already in existence as well.


In August 2019, President Donald Trump reportedly had an executive order drafted that would require the FCC to develop rules that limited Section 230 protections. President Trump has seen his Tweets constantly censored by Twitter. He responded by saying


“Section 230 was not intended to allow a handful of companies to grow into titans controlling vital avenues for our national discourse under the guise of promoting open forums for debate, and then to provide those behemoths blanket immunity when they use their power to censor.”


President Trump argues that when social media platforms make decisions to silence select views, they become publishers and as such should lose the protection Section 230 provides.


We as a people have to demand more from our platforms and tech companies, preventing the spread of hateful and despicable content should not be equivocated with the sharing of ideology that does not exactly meet with the moderators point of view, until we accomplish this, we will never have the full constitutional Freedom of Speech that the framers intended.

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