I'm a smart, mathematically-trained person (Princeton cum laude, Stanford Ph.D., Bell Telephone Laboratories) trying to apply that intelligence to some legal issues we face in the United States of America in 2020. I'm concerned with the Big-Tech companies excising conservative viewpoints and amused it's the liberals who are citing private property this time.
Let's start off with some scenarios where we know what we want the law to do and work backwards to what kind of law will do that. It's the same as designing a product, we get a big picture of the product, we figure out what we want the product to do, and then design the product to work that way.
I'd like to start our journey with some examples where we know the final answer, or maybe we think we know the final answer, but we may have some doubts about the legal structure that will get us there. We start by looking at what we believe is morally right and we're ultimately looking for a set of rules to our game of life interacting with other lives that will get those morally-right results.
The idea here is to come up with a set of rules, that gets the right answer in the examples below. More generally, in my ever-so-humble opinion, the object of legal thought is to come up with a legal framework that follows a moral compass in actual, real-life situations. More important, from both a political and mathematical point of view, the object is to come up with the minimum legal structure that gets the morally-right answers. In subsequent essays I plan to explore legal thinking and the creation of good law based on America's founding values going back to 1215 from my own mathematical point of view. (We'll see how well I make good on that promise.)
A. A black family on vacation driving on the turnpike stops at a roadside restaurant. The owner doesn't want to serve black diners. (The owners may have used a different word to describe black people.)
B. A Las Vegas Casino asks a group of blackjack players they suspect of counting cards to leave their property. The casino management cites the Nevada Trespass Statute NRS 207.200.
C. A Christian bakery refuses to bake a "gay" wedding cake with two men on the top. They don't refuse to serve the gay couple ordering the cake, but the bakery refuses to make the cake the way the couple wants.
D. A members-only private club behind a locked door on the second floor of a building has a rule against Irish members.
E. The owners of a shopping center refuse to allow a protest group to set up a campaign for a cause inside the mall.
F. The biggest and best Internet communications companies censor conservative causes, both the content and the members posting that content. They even went so far as refusing to allow the President of the United States to post their political messages.
Give yourself a moment to think of what you think are the morally-right answers to these conflicts and why you think so. Then I'm going to do two things here: First, I'm going to tell what I think the right answers are and, second, I'm going to give a framework of law that gets there.
Don't scroll down until you have had a moment to think about these.
Okay, here are my answers.
A. A black family on vacation driving on the turnpike stops at a roadside restaurant. The owner doesn't want to serve black diners. (They may have used a different word to describe black people.) The restaurant should allow any diner meeting its standard of dress and decorum to buy their meal and to enjoy it. I would argue it isn't enough to let the black family in, they should treat that family with full-service respect.
B. A Las Vegas Casino asks a group of blackjack players they suspect of counting cards to leave their property. The casino management cites the Nevada Trespass Statute NRS 207.200. The casino states up front that card counting is prohibited and they can eject any patron just because they suspect card-counting, even without proof. So long as there is no pattern of discrimination on the basis of race, religion, et cetera, they are within their rights.
C. A Christian bakery refuses to bake a "gay" wedding cake with two men on the top. They don't refuse to serve the gay couple ordering the cake, but the bakery refuses to make the cake the way the couple wants. The bakery should treat all customers with respect no matter what their sexual orientation may be, but they are well within their rights to limit the products they sell not to include a gay wedding cake. If two men holding hands come in to buy a cake with a man and a woman on top, then the bakery should sell it to them. Similarly, that bakery should refuse to sell a two-men-on-top gay cake to a man and a woman.
D. A members-only private club behind a locked door on the second floor of a building has a rule against Irish members. I'm comfortable that a private club can decide its own membership, even if it discriminates on the basis of ethnicity, race, sex, or sexual orientation.
E. The owners of a shopping center refuse to allow a protest group to set up a campaign for their cause inside their mall. I'm siding with the mall owner on this one and against the American Civil Liberties Union (ACLU) who used this example in their literature. The protest group members are perfectly welcome to shop in the mall like any other mall visitors, but not to engage in behavior and decorum the owner does not like.
F. The biggest and best Internet communications companies censor conservative causes, both the content and the members posting that content. They even went so far as refusing to allow the President of the United States to post their political messages. These communications companies are dead wrong. They offer a service to all comers. If they allow political viewpoints on their site, then they shouldn't be free to censor a point of view. Graphic pictures of dead bodies or offensive language are reasonable things to exclude, but a public forum like Facebook or Twitter should be open to all political ideas, or to none. The service being sold is communication, the exchange of ideas, which should be open to all who observe proper behavior and decorum.
Okay, what are the common these here?
First is private property. What's mine is mine and I can do with it as I like. If I want to have a room in my house where I don't allow certain people to enter, even based on their ethnicity or sex, then fine. (Is having a "Man Cave" bad because it discriminates against women? What about a No-Men-Allowed girls' night?)
Second is freedom from discrimination. How does this fit with my private-property premise? My answer is the notion of "public facing," a notion not seen in America's founding documents but relevant here. I believe we recognize a notion that having a door on a public street, or posting a publicly-accessible web site, is an offering to "the public." Such an offering should be the same to all who wish to enter. The restaurant in (A) opened its doors to the public while the private club in (D) did not. The casino in (B) made its rules clear to everybody. The bakery in (C) is willing to sell the same products to all who wish to buy and those products do not include two men on top of a wedding cake. The mall owner in (E) isn't forbidding entry to the protesters, but the mall is for shopping and not for protest activity.
I didn't write this piece now because I was worried about black families on the turnpike or protests in shopping malls. I wrote this because I feel there's a sad lack of logic and insight in the controversy (F) about Internet social-communications media censoring conservative views and banning President Trump. We have Reddit, Twitch, Shopify, Twitter, Google, YouTube, Facebook, Instagram, Snapchat, Tiktok, Apple, Discord, Pinterest, Amazon AWS, Stripe, Okta, and Twilio all jumping on the We-Hate-Trump bandwagon.
I don't believe it's about Freedom of Speech or Freedom of Religion. The First Amendment says "Congress shall make no law...," Congress has made no law in this case, and nobody else has restricted what people can say or pray.
There is a Free-Speech argument, more than a legal loophole but less than satisfying to me. Freedom of Speech does not mean freedom from consequences. If I defame somebody with false statements, then I'm guilty of libel or slander, libel if written and slander if oral. The consequence of libel or slander is usually found in civil court, a lawsuit. If I put up a billboard saying "PETER MULLIGAN IS AN ASSHOLE," then I can expect to be sued by Mr. Mulligan. Furthermore, the billboard company also has legal exposure as they should have known the message they posted was libelous.
Okay, here's the gotcha for Facebook and other social web pages. Government agencies have immunity against this liability. We can't sue the police, for example, for slander. Furthermore, the government can designate private companies to have the same immunity. I believe they're called "common carriers." I can't sue the telephone company, for example, because you make a call saying nasty stuff about me. The legal quid pro quo for this immunity is the company can't censor content. The telephone company can't restrict my use of their service because they don't like what I say. Facebook, Google, Twitter et al have the same common-carrier designation, freedom from legal exposure for slander or libel, and also a prohibition on censorship of content. So long as that content meets a standard of decorem (no nudity or profanity, for example), then they can't censor it by this legal principle. At least that's how it was explained to me by a friend who knows more than I do.
One law-educated buddy thinks the core legal issue against these companies will be Anti-Trust laws, their monopoly status. The sheer number of companies listed suggests there is no obvious monopoly acting here, but I'm going to avoid Anti-Trust for the reason that it runs contrary to the American principles I stand for. When a company uses its powerful status to cheat or to break the law, then they should be prosecuted, but not just because they have been successful. I'd like to base my position on principles I agree with.
Another argument is that these agencies act as de-factor public places, the virtual cyber street corner, so people have Freedom of Speech there. It's the same argument the ACLU used to defend the mall protesters. It isn't about the speech, it's about the product being promoted. In addition to offering posting of live events and humorous memes, social-media-communications fora offer posting political opinions, at least the ones they like. Just as we have a concept of non-discrimination in public restaurants, we have a concept of non-discrimination in public political fora. The Communications Act prohibits the FCC from censoring public communications media. "`The public interest is best served by permitting free expression of views.' This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive." While I sympathize with this sentiment, I don't believe it's the core issue here.
As one might gather from the earlier part of this essay, I believe these Internet-social-communications companies should have their doors open to conservative political opinions for the simple reason that political discussion is something they sell and they promote themselves as fair and impartial in that mission. They call it "fact finding" rather than "censorship." It is their promotion of their public position that should obligate them to political fairness. I would be almost as upset to find their doors closed to political-liberal thought even if I believe that liberal thought promotes terrible things.
For those who don't like sharing Facebook with conservatives, I'll suggest it wasn't that long ago when Democrats were hot and bothered about sharing their restaurants with black people.
I'll point out that not everybody is comfortable with the public-facing notion of law. In a world where consumers have choices there may be no good reason to require a restaurant to serve all diners. We could justify non-discrimination on a lonely road by having serving the public be a requirement of the road owner. The purist form of libertarian thinking (including my own, actually) would embrace this notion. I would appreciate an establishment post their race, ethnic-group, sex, and sexual-preference restrictions outside the restaurant so I don't have to be thrown out when I don't comply.
I'll also point out that not everybody is comfortable with the notion of social-communications companies filtering their output in any way. The old Ma-Bell telephone company had no restrictions of what was said on a telephone call between consenting adults. One fellow I know has said for forty years that all bulletin-board postings (what we called our social medium in those days) should be open and free but should require identification, no anonymous postings.
Today is 2021 February 26, Friday,
11:20:23 Mountain Standard Time (MST).
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