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April 9, 2018
by Arthur Hunter

Is it time for Facebook to fall under the First Amendment?

April 9, 2018 10:29 by Arthur Hunter

Facebook has deemed two black women as “unsafe for the community” based on political views, penalizing them without explanation.  (You can read about it here).  Once again, a social media giant penalizes a content creator behind the scenes and once again they offer no justification other than “because we can.”   The only reason Facebook, Twitter and Youtube can get away with this is because they are considered private entities rather than “public forums”.  If Facebook were to become a public forum, then it would no longer be allowed to have control over ideas and this kind of censorship would be illegal.   Mark Zuckerberg has openly stated his goal is that every person on earth have internet access, and therefore a Facebook account.  Imagine this future for a moment….Facebook literally would be the de facto platform for human socialization for every person on earth.   This is what they dream of corporately.  This is their end goal.    There is no clearer definition of “public forum”.   If our laws do not encapsulate this scenario, then it is our laws that need adjusting. 

A Public Forum is legally defined as a place open to all forms of expression where ideas cannot be censored.  Facebook censors ideas and gets away with it because it is not a public forum.  Or is it?   As it stands now, if Facebook, Youtube, or Twitter want to censor, penalize, or demonetize content creators simply because they don’t politically or otherwise agree with their content, they can do so without explanation and without recompense.

This is not a conservative or liberal issue.  The desire to share ideas across the entire spectrum of thought, even though we may disagree, is a freedom we all want.  This is a human issue. 

The recent case of two black women named Diamond and Silk being labeled “unsafe to the community” by Facebook without explanation illustrates the trend by social media giants in penalizing content creators behind the scenes for any reason at all.  We saw only last week a frustrated Youtube content creator walk into Youtube headquarters with a gun and started shooting people before shooting herself mainly because she was furious over her content being demonetized by Youtube without explanation.  Twitter has been exposed for “shadow banning” people, which is the practice of throttling the reach of content without the user ever even knowing.   These social media giants can do this because they are considered “private” and therefore can ban or demonetize content for any reason whatsoever.   However, if they were to fall under the scope of a “public forum” then acts of censorship of ideas would be illegal violations of first amendment freedoms punishable by law. 

The argument against Facebook being a public forum is based on the reality that it is a privately owned domain (as opposed to government owned) and that users come to the private domain voluntarily, agree to a set of rules (terms of service) and therefore they are at the mercy of the owners of the domain.  This makes sense.  The only problem is, what if that domain is so large, so massive, that it utterly owns a monopoly over its space so that people literally have no place else to go in order to have the same social reach?  Is there not a line that should be drawn?  Do you really think it's acceptable in a no-so-distant future where nearly everyone on earth has a Facebook account, that Mark Zuckerberg and a few other mega-billionaires will have 100% control over the ideas flowing over their “private domain?”  Once you have 2 billion people socializing on a social platform, the very idea that it is still "private" is absurd.

Internet Houses 

The internet is a landscape.  Each domain on the landscape is a piece of property, much like houses and estates that crop up on our landscape.  Let's say you and I were to purchase a domain (i.e. stake our claim on some internet land) and then we decided to setup a forum.  Let's say I love classic automobiles and you love omnivorous mammals.  We create our own forums for our own specific group.  You run a forum for omnivorous mammal lovers, and I run one for classic cars.  We can invite others into our private house and socialize, and if we don’t like our guests, we can kick them out for any reason at all.  This is right and proper.  No one disputes this, and legally we are entitled to do so.    

However, Facebook and Twitter are not houses.  Nor are they estates, not even ranches.  They are entire realms, vast and far-reaching.  They do not compare to our scenario of internet houses whatsoever.  They have managed to gobble up and monopolize the social media space so completely that the general public has little choice in using them.  In order for the average person to reach his or her friends with any kind of normal voice and to stay in touch with public information in the public sphere, they cannot go elsewhere except to use one of the social media giants.  Using my classic automobile forum (i.e. coming over to my little house) is duly insufficient for someone to be connected to the wider public.  The only way for someone to be connected to the wider public sphere, that person must enter the realm (not the house) of a mega giant.

Consider Twitter.  The President of the United States nearly exclusively uses Twitter for communicating to the public.  John Doe, who has a right and interest in his government, therefore needs to use Twitter in order to stay abreast of current events.  And yet Twitter decides to censor and ban John Doe because they didn’t like an idea he tweeted, and now John Doe has no alternative, he has been thwarted from the “public square”. 

Twitter acts like a public square.  Twitter looks like a public square.  Twitter has so many millions of people that it is an objective fact that the general public IS on twitter.  Therefore, how can our laws exempt twitter from being a “public square?”

Anti-Trust Laws

We already have laws that protect our society from unchecked expansion of mega-corporations.  These laws ensure that fair competition exists in an open-market economy.  Famous historical cases include the breakup of AT&T and Microsoft's  Internet Explorer.  When it comes to the public sphere, in the internet age, there is no logical reason that anti-trust laws cannot be modified to apply to social media as well.  None of us, not me, nor you, could possibly compete with Facebook or Twitter.  Our little internet houses wouldn't have a chance. These mega corporations run by elite billionaires (the top 1% of the top 1%) are the undisputed kings of their type of services, and their reach is so vast that they squash any chance that someone else has to compete with what they do.

When combined, Twitter, Youtube, and Facebook literally reach the entire developed world.  The general public itself is embodied on these sites, and the general public expresses itself on these sites, they represent billions of people, therefore any argument that these sites are not “public forums” is irrational.  It is the definition of our laws that fall short and should be changed. 

Facebook, Twitter, and Youtube are not private “houses” on the internet landscape, but they are instead gigantic realms that encapsulate the public majority, therefore they are public forums.  In the future, human socialization will occur more on the internet than in person.  In fact, this is probably the case right now.  And for all this socialization, it all happens on just 3 companies:  Facebook, Twitter, and Google (which owns Youtube).  These 3 mega giants control nearly all human socialization on the internet. 

Human socialization is the interaction of human beings, it is all of us.  It is us.  And yet if these 3 companies have full power to control, regulate, and dictate who speaks, what is said, and who can listen, then we have betrayed our very existence and have given up our own freedom of expression and put it in the hands of a select few.  

Our laws need to catch up to the internet.  Twitter, Youtube, and Facebook should not be allowed to monopolize and control the public square.  Remember that the very purpose and the very existence of Twitter and Facebook are to bring socialization to the entire community-  not just a small community, or a subset of a community, but all of us, the whole community, in other words, they exist to reach and engage the entire general public.  While this mission alone is not enough to make Facebook, for example, a public forum, when you combine this mission with a billion people, now we have something that is no longer private.  That it is now a public community is a self-evident truth.

The constitution is greater than Mark Zuckerberg, it is greater than Jack at Twitter, and greater than Google.  These 3 companies have gained far too much power over human discourse, and it is time our laws are changed to strip them of their ability to regulate and monopolize human socialization.

Our laws must change.   It is dangerous to allow shadowy people behind the scenes the power to regulate and control human socialization.  Our laws need to be redefined as to what point a line is crossed when a private internet "house" becomes a public "internet realm".   For example, a law could simply say that once a single internet forum reaches more than 1 million real people, the laws of the first amendment kick in.  There is nothing wrong with this concept, we have legal triggers like this all over our law books (take HIPPA, for example, or the tax code, or a monopoly that triggers a forced breakup).  At some point, a person who creates a forum and starts gobbling up millions upon millions of people ends up crossing a line from "private house" to "public square."  I do not know the answer as to where that line lies, and I will leave that to everyone else to come up with that line, but make no mistake, there is a line, and our laws need to reflect it as such.

If Facebook, Twitter, and Google want every person on earth to use their services, and if they get to the point (which they already have) where literally billions of people use them, then they are no longer “private houses”.  They are no longer “private entities”.  They are monopolies.  And I dare anyone to try and explain to me, using logic and reason, that a place where the entire public gathers to socialize, whereas that place exists solely for the intended purpose that the entire public gathers there to socialize, can rationally be called a "private forum" instead of a "public forum".    

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