Freedom of speech in the private domain

(Andrew Downing) #1

I want to pose this as quite an open question to explore and maybe find solutions.

When most freedom of speech laws, constitutional amendments or UN charters we’re written, there was a working assumption that the entities that we were defending our free speech against, were our governments, current and future. That is obviously still important, but by and large, we’ve got that covered in existing policy.

I think we understand that freedom of speech is more than just an individual right. It’s a foundational requirement of the democratic process. Not being able to say unpopular things breaks something fundamental about how we find our collective way forward.

In general, when we move into the private domain, we start from the position that you can censor your own home. If people come to your house and insist on saying things you don’t like, then you can tell them to fuck off, and for the most part, they are obliged to do so.

But it doesn’t stop there. Historically, we insisted on diversity of media ownership, because this brought diversity of opinion and prevented the imposition of a singular dominant narrative. Of course this has been weakened a lot over the past few decades, ostensibly on the premise that there has been a growing diversity of mediums to choose from, so maybe dominating one doesn’t count anymore(?). Incidentally, I don’t think we have media ownership policy.

But moving on, the medium (s) that we have regulated in the past were one-to-many or broadcast mediums ( radio, tv, newspaper etc.). We haven’t given much thought to the many-to-many mediums of the internet (think YouTube, Reddit, Farcebook, Twatter etc.)

Censorship in these spaces limit the grassroots communication of the whole community.

What should happen if private enterprises own monopolies over key communications mediums? What if our governments use them for censorship by proxy? What if the corporations just have their own political agenda while owning enough of the communications common gathering places?


(miles_w) #2

Social media is a pseudo public space. At what threshold of participation and daily immersion do we consider individual community websites to be de facto public spaces? I would consider Facebook, Twitter, Instagram, Tumblr, Reddit and Twitter all de facto public spaces. Any attempt to regulate them through enforced protection of free speech means we could also potentially be taking on the moral duty of shouldering any financial burden those companies could incur by our values legislation over their spaces. Also raises the spectre of crony capitalism.

This is an issue that’s been increasingly on my mind and something that has already blown up in international politics.

(Andrew Downing) #3

Maybe threshold criteria like that are not the way to go.

What if we extended the “common carrier” concept from the base communications provider level, up into the social media space?

We could take the position that as a company providing social media communications, if you curate the user content, censor it, etc, then you become at least partially liable for the content. If you do not, then you are immune from liability except for anything you or your staff write yourself.

Ponder the implications for a moment.

(Mark Ledwich) #4

I’m really interested in this issue. I haven’t heard of anyone talk about increased government involvement. My initial reaction is an extreme scepticism, but probably best to wait to hear an example?

This is a discussion between Rubin (libertarian podcaster) and CEO of Patreon on this topic. Youtube is de-monetizing content based on the incentives from ads. Patreon is trying to appeal to a certain customer base (but also trying to be fair and transparent about it). They talk through the real fear of censorship that independent political media has, and get some examples where you start to get a feel for how hard it is to moderate content well.


I think that limiting control of the private space is a bad idea.

If the users don’t like it, they can leave.

This is what happened when Reddit started taking a moral stance against some of the subreddits, and then they all moved to the more free-speech friendly voat.

It is a net win for both sides, because reddit has less shite, and those users get their safe spaces on voat.

(Andrew Downing) #6

This comes out a lot like “You can have your protest, but you have to do it ‘over there’ in that roped off free speech zone, where nobody will hear you.”

Can’t say I like that trend. It renders moot, the very purpose of free speech. It’s a mistake to think of free speech as just a right. It’s more important than that.


There are websites which cater to free speech market, and can get a say to anyone willing to listen. They can collaborate, and organise protests in different ways, online and offline.

Just because a private venue is popular doesn’t mean that it should automatically be a free speech zone, unless they allow themselves to be.

If everywhere became a free speech zone then it would quickly become overrun by trolls.

I for one am vehemently against free speech in my gaming crew. Why? Because the trolls come out to harass when most people there are just trying to have a good time with each other without dealing with that kind of shit. You can talk about stuff - you just can’t be offensive. It’s a community expectation. Once in awhile someone will cross that line and spill some racist bs, and we have decided that our gaming crew is not the right outlet for that, so they get banned. If we allowed it, it would destroy the crew.

I think it sets a dangerous precedent to commandeer private spaces for public purpose of free speech.

(Andrew Downing) #8

@Simon, I think you are ignoring what I suggested and arguing strongly against a straw-man position, when I’m trying to have a discussion about possibilities.

One possibility I did put out there, was:

Given that, your gaming crew can happily exist in a censored space. The game company just censors it and takes responsibility for the result.

The Patreon case that @Mark_Ledwich raised above, suggests another variation on the theme, where a company just censors to the extent that they only remove users & content that has “manifest observed behaviour” that violates a criminal law, for example. That could still be allowed without them becoming liable for content too.

Try being constructive. I’m trying to explore possible ways of addressing privately owned spaces being defacto public speech locations, while preserving what we care about in free speech and without suppressing private exploration of new communications medium structures.


Private Space should never become Public Space by law.

This is in the territory of Compulsory Acquisition, but in the virtual world.

Sure you could work out the issues surrounding liability to guarantee/protect the exact extent that the site owners are liable for 3rd party content, but to take away control for them to set their own terms (and allowing them to place stricter terms than they are legally “required” to) would be an utter disaster.

I don’t censor that stuff because the law requires me to, I do it because it goes against the interests of the community of this private group.

I run the gaming crew independently of any other party, we set our own terms which are not dictated by the game companies of the games we play. Currently we use Discord and Reddit, but if those services become unfavourable to our needs, we would change as we exist in our own right.

(Andrew Downing) #10

But that’s exactly the problem I’m trying to address. Private spaces that already are defacto public spaces, where the majority of public discourse is occurring.

What I’m seeing is exactly the sort of rigid in-group inclusion/exclusion behaviour that was originally the rationale for inventing the concept of free speech in the first place.

So what would you recommend?

(Mark Ledwich) #11

@AndrewDowning Pateon I like that policy that strictly relies on MOB but I don’t see how it applies broadly. It also is more nuanced. They also

  • Don’t allow porn because it means that they have a specific customer base that they want.
  • Are ok with elicit drugs on screen or things that are illegal in other countries. So it gets messy really quick. What they do well is having a clear policy and an honest attempt to be fair and transparent.

It makes sense to me have a variety of media with different allowable discourse. I don’t think it’s a “rights” issue of free speech but a more nuanced cultural one.

I do worry about the culture of intolerance by many of my peers (university educated gen X/Y). For better or worse, democratic nation states don’t have the power to affect the way people access and discuss information anymore. I think it would be more effective to convince the most powerful media platforms (e.g. Facebook, Google) to increase tolerance for speech, a commitment to political heterodoxy and truth (separate issue).

Facebook to its merit has made some attempts towards mitigating policial bias

(Mark Ledwich) #12

I think this is about identifying mutual interests and motivated parties towards shared goals such as improving discourse. I think large media platforms are interested in this as they want to be ubiquitous and not fragement.

Moisés Naím talks about the lack of power that nation states have in “The End of Power” (interestingly he even gives a mention to the European pirate parties). Highly recommend that book.

(Andrew Downing) #13

The problem there, is attempts to convince them to be tolerant will be set against the interests of advertisers in most instances, because $. Patreon is a nice counter example.

Are we OK with a corporatocracy?

(Mark Ledwich) #14

Yeah, advertising is a paowerfull perverse incentive for google and facebook. I wish people were more aware of how that works.I do much prefer the Patreon model for independent media.

I’m comfortable with the corporatocracy in this case. One aspect that makes me comfortable is that it is very heterogeneous and unlikely to be under any companies particular control.For example, Sam Harris, Rubin and others publish on youtube, sound cloud, stitcher and more, then get paid through PayPal and Patron. The situation is pretty good for the ability for individuals to self-publish. It’s a bit like ancient rome again.

(Andrew Downing) #15

I’m really quite anti-authoritarian, so none of these impositions on private enterprises sit particularly well with me, but it feels a bit like the anti-trust situations where a monopoly produces a locked in distortion of the market.

Still searching for a nicer answer.


Well I recommend an open internet itself so that everyone is free to find the right website/servers with policies which align to their values, and those websites/services could be under various governance structures, including completely decentralised where nobody is in charge at all (like Bitcoin).

(Frew) #17

I can certainly see the potential for abuse of social media companies control over virtual public spaces, but haven’t seen any egregious abuses of their positions to date. They have certainly tried it on and got smacked down by community backlash on a number of occasions.

What does free speech on social media platforms look like?

Twitter? It closes ISIS recruiting accounts etc… Are their rights to be protected? Can people block others? Block hashtags? Are threats of violence okay? Is organising mob violence okay?

Where would the line be drawn?

What exactly are we talking about?

Facebook is the most censorious platform I can think of, it has a bunch of algorithms that search out female nipples for e.g but even there most of the censorship comes through people flagging content and it then goes to moderators who have to judge if it should be banned or not. It seems to be about the worst job you could get. It also curates the content insanely heavily.

How would liability be implemented and enforced?

I think a good approach would be something like the Australianj privacy principles but for free speech complaints.

How much is the in-group bubbles forming a result of personal choices on the part of the users, and how much is by design of the social media companies themselves? You can’t force people to follow accounts they don’t want to hear from, even if it is good for them.

Was Google search specifically excluded? The power to censor by omission for them is as powerful as Facebook’s censoring content.

Questions, questions.

(Stuart Rutherford) #18

Just in case people think this is hypothetical.

(Andrew Downing) #19

After much pondering, I find myself agreeing with @Simon’s last point.
I think we have to rely on the free and open internet eventually routing around the censorship.

I see things like (which avoids the advertiser bias), that does censorship free general forums and that just provides video publication with no central point for censorship, and think to myself that maybe it will all be OK regardless.

Interestingly, in that last case, with dtube, identity is known so money can be thrown, that leaves people individually liable for what they say. May be a reasonable model.

(miles_w) #20

The free market is not a solution here. Large internet companies have formed monopolies over their respective niches (Google, Youtube, Facebook) or oligopolies (online sales and subscription video streaming). I had a discussion about this at Pirates in the Pub the other week. Even if we pulled out global subsidies, tax loopholes and regulatory support for large tech companies they will still likely retain market dominance due to consumer inertia which is why Google Plus failed, Voat is failing and the largest competitor to Youtube (Vimeo) has a miniscule consumer base in comparison despite being around for almost as long.

From Barry Lynn’s article in the Washington post:

Antimonopoly law, I learned, dates to the founding of our nation. It is, in essence, an extension of the concept of checks and balances into the political economy. One goal of antimonopoly law is to ensure that every American has liberty, to change jobs when they want, to create a small business or small farm if they want, to get access to the information they want. Another goal of antimonopoly is to ensure that our democratic institutions are not overwhelmed by wealth and power concentrated in the hands of the few.

Public forums were essential to democracy in ancient Greece, and there has since been nothing quite like them until the advent of the internet and BBS/IRC/mailing lists/webforums then finally social media. I think the solution is a combination of stronger antitrust legislation and some kind of social movement that recognises the importance of protected public discussion spaces on the internet.