This past Sunday the web host and domain name registrar GoDaddy bowed to months of pressure from activists and told their longtime customer, The Daily Stormer, to go find another host for their website. On Monday, Google similarly denied a home to the white supremacist, Nazi-aligned website. A denigrating post about a young activist killed by an apparent neo-Nazi at a white nationalist rally in Charlottesville was the final straw that forced GoDaddy’s hand and, presumably, that of Google. In related news, The Los Angeles Times reported over the weekend that other Silicon Valley service providers, such as the short-term rental company Airbnb and the crowdfunding site Patreon, were blocking the use of their services by various “far-right” groups, forcing them to find other providers and, in some cases, to create their own. We should be proud to see Silicon Valley coming to the rescue and fighting on the right side of the culture war, right?
If only it were so simple.
There are several hard questions that should be asked about banning or allowing white nationalists and a whole range of other haters to use the internet to spread their messages, including those messages that strike fear into the hearts of many other users. There are also many important questions—or demands—that should be posed to Silicon Valley firms and our elected leaders to define what should and should not be construed as free expression and to place the burden on policing that in the right sets of hands.
The legal basics involved here are the U.S. Constitution and the “safe harbor” provision of the Communications Decency Act. The free expression guarantees of the First Amendment are frequently cited by white nationalist types as the legitimizing bases for their demonstrations and published hate speech, but they do not apply to services operated by non-governmental entities. In other words, the popular services of the internet, such as Airbnb, Twitter, YouTube, etc. have virtually no obligations under the U.S. Constitution. This means that internet platforms can basically block or allow nearly any type of expression, unless such expression is specifically addressed by a specific law. Section 230 of the Communications Decency Act, which is otherwise known as the “safe harbor” provision, basically absolves providers of internet services, including ISPs, web hosts, media streaming services, and others, of liability for how their customers use those services. If a customer contributes content, it’s on the customer; the internet service is not to be construed as the “publisher” of the content. The CDA’s Section 230 has exceptions of course, but hate speech isn’t one of them.
In the wake of the violence in Charlottesville, many social media commentators were rightly upset at the various enablers of sites like The Daily Stormer and the many other services that provide any sort of comfort to white nationalists. However, as a legal matter, the sites have no constitutional or statutory obligation to do anything, and for the most part, they haven’t. A search on Facebook for “white pride” or similar terms will reveal lists of pages dedicated to white nationalists and the people who love them (really – there’s a white pride dating group). Google has come under fire for failing to police its search auto-complete algorithms from completing sentences like “Muslims are…” with “terrorists” and “the holocaust is” with “a hoax,” and similarly unhelpful constructions (which they’ve improved). Twitter and Facebook have both come under fire from users and commentators who loudly complain that the platforms do far too little to prevent some of their users from engaging in relentless harassment, even when it includes threats. GoDaddy had been under pressure for months to distance itself from The Daily Stormer but chose to do nothing until some magic line was crossed this past weekend.
Silicon Valley’s failure to embody the role of stewardship for civil society should not be surprising, however. For one thing, it is not exactly clear whether it actually makes sense to empower corporations to carry the water of a society’s moral duties. Of course we want corporations to act morally, but as the power of corporations increases—particularly the corporations that are most visible in the internet/mobile sector—the power of non-commercial society seems to be decreasing. (The American companies Alphabet and Apple Computer are worth, together, over $1.4 trillion). The key questions to consider here include: Are we comfortable leaving the decisions about who gets to speak and who does not to enormous institutions that are generally unaccountable to society? How can we be sure that such choices will be made in the best interests of the public rather than to meet narrow, short-term business objectives? Given the increasing importance of the major internet platforms, such as Facebook and YouTube, as accessible and powerful venues for expression of all kinds, it seems obvious that the platform operators must bear some responsibility for what that expression does regardless of how the law and regulatory environment is currently arranged. Yet it is sadly unclear how to make the execution of that responsibility align with the cherished values of electoral democracy and civil society. What is clear to me is that “the market” is not a sufficient incentive structure to ensure that socially beneficial speech and other forms of expression are adequately nurtured and protected.
In a democracy, elected officials such as mayors and governors have the power to determine what constitutes protected expression on the streets of our towns and cities. They will do this imperfectly of course, as seems to be the case in Charlottesville where the city was warned repeatedly about the risk of violence. What is key here is that elected officials serve at the pleasure of their constituents and, in a functioning democracy, such constituents choose those officials and play at least a supporting role in the decisions they make. This process is by no means unproblematic, but the process is well-established and can be influenced by the moral intuitions of voters and activists. Meanwhile, you and me and everyone we know have zero say about what GoDaddy does. Whoever guides the decisions there is far less likely to do so out of moral compunction or the fear of losing political power. Sure, we can get a Twitter gang together to shame them into taking an action against some hate publication, but that is not democracy. For one thing, GoDaddy is only likely to respond when they see money on the line. They didn’t see that until The Daily Stormer did something so vile in the wake of an attention-grabbing murder that they figured they couldn’t pretend they were “neutral” anymore without paying some price. And even though the end result was positive in my view, it wasn’t a democratic action and it will have no impact on what anyone else does. GoDaddy, Google, and Amazon Web Services probably host many hundreds of other websites that promote hatred and will continue to do so.
This should not be surprising because this is the reality of what Silicon Valley does, and particularly what it does when it is enabled by a mix of free-market utopians and free-speech maximalists: It enables bullies. The information industry is built on a winner-take-all model that relentlessly removes revenue from communities and traditional capitalist activities, such as media distribution and street level retail, and redistributes it into increasingly fewer (and richer) hands. In the service of this business model Silicon Valley oracles celebrate ego-driven entrepreneurialism and denigrate steady jobs, equality, wealth-sharing, any sort of collective action. The type of freedom that Silicon Valley celebrates is freedom for the strong, freedom for the already got some, and includes a full-throated claim that only a pure meritocracy that denies the inequities of history is fair or legitimate. Oddly enough, as revealed by the infamous memo by James Damore, Silicon Valley has no problem promoting discredited stereotypes about women and other “less-thans” who aren’t genetically wired to live up to the narrow standards of the engineering elite. All of this taken together is important to note because when Silicon Valley boosters throw around bromides about the value of a free and open internet, what they mean might not be what you think it means.
Don’t get me wrong: I support a free and open internet, but I have my own definition of what that is. For one thing, when I think about free speech, I don’t think about it as completely unfettered, louder-is-freer free speech. Constitutional free speech isn’t wholly free and neither should it be online. For me, free speech is only effective when it doesn’t silence another legitimate speaker. When a cruel or threatening Twitter troll chases an LGBT activist or a game developer off of the platform (or out of their home), that is not an exercise in free speech, that is simply intolerable bullshit. It is vile and immoral behavior that deserves condemnation and little to no protection from the authorities. Now before you go and accuse me of hypocrisy by citing the acts of anti-fascists whose stated aims include silencing neo-Nazi types, note that I wrote that sentence about my view of free expression with care. I have some very specific ideas about what makes a speaker “legitimate.” Just as I claim that free speech is not speech that silences others, I also hold that a legitimate speaker is one who does not aim to deny basic human rights to others. White nationalists fail that test, as do speakers who denigrate women or describe others as inhuman and unworthy to live. Despite whatever non-violent benevolence some white supremacists may claim to espouse, history shows that the end goal of white supremacy is the exclusion, enslavement, or annihilation of non-Whites, including many categories of people with light skin who are otherwise deemed undesirable (Muslims, Jews, LGBT folks, etc.). This is not debatable. Nazi Germany happened. Hundreds of years of African slave trade happened. While we might group hardcore leftists in with other historical rights-deniers like Stalin’s Soviet Union, there is zero evidence that anti-fascists have gulags in mind as the end goal of their activism. Driving racial hatred back into the margins would probably suffice.
This leaves us with a conundrum. We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk. This is not the formulation for achieving a civil society. Extremist speech that is permitted to eddy and coalesce in seemingly ungovernable online spaces builds momentum and eventually spills out onto the streets and potentially into violence, as we have witnessed in Charlottesville, in Kansas, and in Portland. Free expression hasn’t lost its value or importance, but we can no longer allow for governments to leave the management of free expression in the hands of the least qualified to handle it—internet platform providers. Broad and generous interpretations of the CDA safe harbor provisions and a misplaced application of constitutional principles on venues that bear no constitutional obligations—or really any obligations to anyone—has pushed society to the brink of chaos. It’s time we focused not only on how to keep the internet “free and open” but also on how to make it fair and inclusive, and ultimately, just.
Who is actually made safer or freer by safe harbors? Do you feel safer? I, for one, do not.