The continuing drama around 8chan and 4chan and other networks – and whether Cloudflare was right to kick off 8chan less than 24 hours after defending them as necessary to the cause of free speech – has only reinforced my thinking that ultimately social media will do for the 1st Amendment what the NRA did for the 2nd. I mean, think about it, and follow the bouncing ball:
1) Truth is a defense to libel, but libel is still a crime. Therefore, there is already a legal standard against deliberate lies.
2) The “fire in a crowded theater” argument already weighs against the absolute guarantee of free speech. Speech that is intended to do harm is expressly not protected.
3) If you combine 1 and 2, you can make a clear-cut case that a private company has no First Amendment obligations that force it to deliberately propagate malicious falsehood. And yet, here’s Twitter out here blithely selling itself as “the free speech wing of the free speech party” and Cloudflare defending its need to keep offering services to extremists even after the Christchurch shooting and Facebook doing…well, whatever the fuck it is Facebook does besides masturbate in a pile of money all day.
We’re in the middle of a war. Liberal democracy as we have idealized it for decades – flawed, imperfect, still struggling to include everyone, but trying – versus the open embrace of oligarchy, of dictatorship, of kleptocracy. William Gibson nailed it yet again: the klept is real and it isn’t funny at all. Russia. China. And now, a pretty clear case that Brazil, and India, and even the United States and Israel are on that track with the UK hurrying behind. We’re looking at a very real chance that the EU, a handful of Pacific Rim nations, and maybe a few others will be the bulwark of liberal democracy when the world’s largest and emerging economies are deciding that democratic values are an impediment to getting rich – or to the kind of conduct that you need to inflame the hayseeds into supporting the rich.
And the arguments are the same. Free speech was one thing when it was speech and printing, just as the right to bear arms was one thing when a militia of muzzle-loaders was the local military. Now, when foreign powers can whip up tens of thousands of bots to individually target a single person’s online presence as easily as an AR-15 can empty a clip on semi-auto, absoulute guarantees of protection don’t fly anymore.
What this means is that personal liability has to be a thing. If Mark Zuckerberg is going to control over 50% of Facebook stock, then it’s on him when another Cambridge Analytica comes down the pike. If Cloudflare is going to sell air cover to racist websites, that needs to be known and documented to their other customers, who need to act appropriately. The solution to these issues isn’t technological, it’s cultural. Things that are wrong have to be shunned, have to be abjured, and those who facilitate them have to face consequences. Otherwise, we don’t have a society.