Are Facebook and YouTube quasi-governmental actors?

By S.M.

ONE of the internet’s most odious conspiracy theorists has had his videos and podcasts removed from Apple, YouTube, Spotify and Facebook. Alex Jones (pictured), who has a radio show and runs a few websites, including Infowars, has raised doubts about the murders of 26 children and teachers in the Sandy Hook mass shooting, claiming the story was manufactured by gun-control advocates. He has suggested that America’s government was involved in the Oklahoma City bombing in 1993 and the September 11th terrorist attacks. He says that vaccinating children will give them autism. He repeatedly warns that America is on the brink of another civil war.

Mr Jones’s websites peddling this rubbish are still fully operational. But with the worlds’ biggest media platforms removing his pages and links over the past few days, he has lost direct access to millions of listeners and viewers. Mr Jones has, naturally, seen machinations in this too: the decisions by Apple, swiftly followed by others, to remove his material from their platforms feed with comic precision into his conspiracy theorising about mainstream media. “Apple, Spotify, Facebook and YouTube all banned Infowars within 12 hours of each other”, an Infowars writer wrote on August 6th. This is proof that the “purge was a co-ordinated effort” to meddle with the mid-term elections November rather than a good-faith effort to enforce the sites’ rules about hate speech.

There is no single explanation for why the tech companies chose this week to crack down on Mr Jones. His ludicrous theories, threats of violence and offensive characterisations of vulnerable people are nothing new. But with the platforms facing increasing pressure to weed out false and misleading posts—including co-ordinated attempts by foreign governments to manipulate public opinion in the run-up to the midterms—perhaps it’s not so surprising they picked a week three months before the election to act. Facebook says it removed Mr Jones after a surge of reports from users that his pages were “glorifying violence” and “using dehumanising language to describe people who are transgender, Muslims and immigrants”. A YouTube spokesman was pithier: when users violate “policies against hate speech and harassment” or try to escape the site’s rule-enforcement, “we terminate their accounts". (Brian Feldman of New York magazine makes a persuasive argument that it boils down to Apple’s power: “While Facebook and YouTube and Spotify can all cite hate speech or policy infractions as their reasoning publicly, the unspoken reason is that to not follow Apple’s lead could get their own apps booted from the App Store. Federal law shields platforms from responsibility for what users post; Apple’s policies don’t.”)

Mr Jones is using the episode to style himself as a First Amendment martyr. “Free speech is the central issue; this is the heart of the matter”, he wrote. “This is the core. This is it.” In a tweet (his Twitter account is still active), Mr Jones adopts the mantle of Je Suis Charlie: “The censorship of Infowars vindicates everything we’ve been saying...We’re all Alex Jones now”. Another Infowars reporter, Millie Weaver, echoed the theme: “Banning free speech has become the party platform of the Democrats”, she wrote in a tweet. “They want to take our guns & our voice”.

Barring Mr Jones from social-media sites limits his reach, but does it violate his freedom of speech? Not under any live understanding of the constitutional principle. The First Amendment’s ban on “abridging the freedom of speech” means the government may not censor or punish expression. No arm of the state may discriminate by viewpoint when setting the rules for a public forum. Even offensive and hateful speech is permissible under the Supreme Court’s expansive conception of free expression, unless it intrudes on one of a few very narrow carve-outs including direct incitement to violence or so-called “fighting words”—epithets uttered in someone’s face that could spark a brawl. But private companies are not the state. Apple, Facebook and YouTube can write their terms of service as they wish and police posts as they choose. If they do not want to host content they deem abusive or manipulative, they do not have to.

Laurence Tribe, a constitutional-law expert at Harvard, points out a small but fascinating caveat to this bright line between governmental and private censorship. “A very limited set of nominally private actors have been recognised as essentially governmental,” he says, in a few narrow contexts. For example, in Marsh v Alabama (1946), a company-owned town was told the First Amendment prevented it from arresting a Jehovah’s Witness for distributing religious pamphlets near a post office. The Supreme Court ruled that the town, though privately owned, functioned like a traditional municipality and needed to respect the proselytiser's constitutional rights.

Do Facebook and YouTube constitute quasi-governmental actors that should be held to constitutional standards when regulating their vast marketplaces of ideas? Mr Tribe says that under current law, they aren’t. But he worries that if these “hugely influential and far-reaching entities” are “capricious” or even “partisan” in their rule-enforcement, the ideal of an open society may be compromised. “After all,” he says, “some of these ‘private’ entities are every bit as powerful as any single state or as most entire nations.” What that means for the contours of free speech in the social-media age is not immediately clear. It is, he says, a “profound puzzle” how to envision a legal framework in which these companies might be held to account for their editorial decisions without undermining their autonomy to “filter out vicious, dangerous and demonstrably false and misleading pseudo-information”.