Corporate Censorsip Is Untouched by the First Amendment

The regulation of online speech comes from two types of entities: companies and governments. Online service providers like Tumblr and Facebook arbitrate speech on their platforms, while dozens of governments around the world implement restrictions on speech through legal and technical mechanisms, blocking keywords and particular sites.

Increasingly, the line between governments and corporate intermediaries is blurred. While these online platforms make their own rules about acceptable speech, they are often subject to pressure from governments. For example, YouTube famously removed a provocative video in Egypt and Libya after reportedly receiving a request from the White House. The role of government is often far more overt: To do business in China, a company must submit to the state’s exhaustive censorship regime.

Intermediaries like Tumblr and Facebook often get the brunt of criticism for their role as censors, but are under no obligation to uphold the First Amendment. Instead, they are protected by Section 230 of the Communications Decency Act, which exempts them from being treated as publishers and both protects them from liability and allows them to regulate content as they see fit.

Nevertheless, as such services become more ubiquitous (more than one billion people use Facebook, making it nearly as populous as China), their role as arbiters of speech becomes increasingly complex. We treat these spaces like the public commons, while in fact they are private companies run by unelected sovereigns. When they censor content, because of public demand, or market or government pressure, it has a chilling effect on free speech.

While a filter like those now used in Britain, intended to weed out pornography or hate speech, may seem incomparable to Chinese state censorship, it is nonetheless problematic. Such filtering always catches more innocuous content as well: Facebook’s ban on nudity angers breast-feeding mothers, whose photos are often removed; Microsoft’s early decision to enforce “SafeSearch” on the Arabic version of its Bing search engine resulted in the blocking of terms like “chicken breast” and “breast cancer”; keyword filters intended for blocking pornography catch content about gay rights, and suddenly Tumblr’s speech regulations don’t look all that different from Russia’s.

Efforts to filter the Internet, no matter how noble they may seem, will always be incompatible with the principles of free expression.

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