If you prefer to listen rather than read, this blog is available as a podcast here. Or if you want to listen to just this post:

Or download the MP3


You may be familiar with Scott Adams, the creator of the Dilbert comic strip. According to Wikipedia, as of 2013 it was syndicated in 2000 newspapers in 65 countries and 25 languages. I say “as of 2013” because he’s been doing some things recently which have made him less popular, or at least have made a segment of people very angry with him (his net popularity may have actually increased.) Most of the evidence for this is self-reported, so there is some chance it’s a fabrication, but based on what he’s written I would be very surprised if it wasn’t in fact true, knowing, as I do, the sorts of things which make people mad. It doesn’t take a conspiracy theorist to know that anytime someone stakes out a strong political opinion, and particularly when that strong political opinion could be viewed as a defense of Trump (Adams is now endorsing Johnson, wait now he’s back to Trump) they’re going to get some backlash.

One of Adam’s claims is that Twitter (and Periscope, which is owned by Twitter) is Shadowbanning him. (With respect to Twitter, shadowbanning consists of not sending your tweets to all or most of your followers. With Periscope, Adams claim is that they artificially lowered the number of followers who were being displayed.) Adams is not the first to make this claim and he won’t be the last and as I said I see no reason to doubt what he says. His posts on the subject provide evidence to support his assertions and he’s quite calm about it. This is not someone with an obvious axe to grind, and he’s even reasonable enough to admit that it might not be happening, but one of the reasons it’s called shadowbanning is that it’s hard to tell what’s going on. The actual mechanism is murky (as you might imagine from the word shadow.)

Obviously if Adams doesn’t know for sure if he’s being shadowbanned I sure don’t, but even people who offer up alternative explanations for shadowbanning acknowledge that it exists. It seems more a question of how widespread it is, though there certainly are lots of people who think they’re being shadowbanned. Regardless of how widespread it is, or whether Adams is affected or whether it’s ideologically motivated it definitely represents a disturbing new weapon in the ongoing war over free speech, which has been heating up over the last few years.

I’m sure you’ve heard of this war, which mostly appears to be raging on America’s campuses. Everyone from The Atlantic to Zerohedge has written about it. (What? You haven’t heard of Zerohedge? Well there goes my clever A-Z construction. How about everyone from The Atlantic to The Economist?) And most of the articles are built around one or more ridiculous examples of someone objecting to something which appears fairly trivial. (a song, the cultural appropriation of a hair style or any of these 13 things.) I could do the same and fill up the article with similar ridiculous examples, but as I said that’s been done already, a lot. Which is to say this is not going to be a post rehashing the issue or another call for college kids to lighten up. What I want to talk about is what counts as censorship because I think that’s a more interesting way of approaching the issue. But before we can talk about censorship i.e. preventing free speech, we need to establish what free speech is in the first place.

The first and most legally consequential definition of free speech is just what it says in the First Amendment, “Congress shall make no law…abridging the freedom of speech…” Under this definition, unless the government is doing something to restrict your speech, you still have it. Which means that only the government can censor people. Even here there are exceptions. The Supreme Court has ruled that obscenity, threatening immediate violence, and false statements can be restricted without violating someone’s free speech. You may have also heard of the shouting fire in a crowded theater standard. Though it should be noted that this particular standard applies to falsely shouting fire in a crowded theater. If there actually is a fire, basically the opposite standard applies…

The government is generally not considered a battleground in the current war over free speech. Most people seem to think that it does a pretty good job of not censoring people. Though some may argue that they don’t need to since any necessary censorship is already carried out more effectively by the public at large. But I do think the recent scandal over the IRS disproportionately targeting conservative and tea party groups could be framed as a free speech issue, though few people seem to be making that connection. (The Wikipedia article doesn’t make any mention of a free speech angle.)  In any event there doesn’t seem to be much of a problem with the government arresting people for what they say.

And for some people this is exactly the standard they apply, unless the government is actually arresting no censorship is taking place. But the First Amendment doesn’t mention imprisonment, and it doesn’t even mention censorship. What it actually says is that Congress shall make no law abridging freedom of speech. I see lots of articles mentioning censorship, and it’s presence or lack, but I don’t see any mention of whether free speech is being abridged, which is what the First Amendment actually prohibits.

As usual with the Constitution the language was chosen very carefully, and abridge is interesting not only because it makes you think of a book, but because it implies a lighter hand than censorship. Obviously the way language is used changes over time, and abridge appears to have had a stronger connotation at the time the Constitution was written than it does now, but’s it not as if the word “censor” didn’t exist. The Framers chose abridge for a reason, and I think the implication we should take, with respect to interpreting the First Amendment, is that it’s not enough to avoid outright banning, but that we should be avoiding any diminishment of speech.

At the opposite end from the “only action by the federal government counts as a restriction of free speech” are people who feel that unless they can say anything they want in any setting without consequence that censorship, in some form, is taking place. But is this actually true? In the way that some people believe that unless the government is arresting you your free speech has not been violated, are there some people who believe the opposite? That unless people are being arrested for preventing speech that they don’t truly have freedom of speech? I don’t think so. I can’t find any calls to cart away network executives in chains if they cancel a TV show, or to lock up Jack Dorsey when someone is banned from Twitter or to round up the Mozilla board of directors when Brendan Eich was forced out.

This is not to say that people don’t get angry about these things, but their anger is not about what people can do, their anger is about what people should do. This may seem like a fine point, but a lot hinges on it. Legally, networks can cancel shows, and they can ban you from posting on Twitter, and they can fire you, and all based on what you said, but should they? As I see it the two sides are arguing past each other. The one side is arguing what censorship is technically, and the other side is arguing what censorship is morally. These are two completely different arguments, and while the former just appears to be looking at what they can get away with the later debate might actually include a discussion of what’s best for the intellectual health of students and citizens and the country as a whole.

To return to Adams and Twitter, the question of whether they can shadowban him is easy. They can, Adams himself admits it. And for many people that’s the end of the story, there is no separation between the ability to do something and the appropriateness of doing something. As you may have already guessed I am arguing that they shouldn’t and I’m going to make the argument that it should be considered censorship from a few different angles.  What I’m not going to be arguing is that free speech is some sort of absolute good, though that’s not far from my true feelings, but for the purposes of the present discussion it will help if I’m more specific.

My first point is made best by drawing a comparison. Imagine if one company ran all the newspapers in the country. It might be legal, it might still produce objective news, but it would definitely be worrying (they might even make a movie about it). The potential for abuse is just too great for people to not be concerned. People would, quite understandably, wonder why the government hadn’t broken it up. In fact, it would be nearly impossible for the government to not have a demonstrated interest in a single nationwide newspaper company, as either a monopoly which should be broken up, a monopoly which had been granted for some reason (like baseball) or at a minimum a monopoly to keep an eye on. And yet very few people are concerned about the effective monopoly of Facebook, or of Twitter (within its niche) but is this a case where technology has outstripped the ability of government to react to it? In other words one argument about whether shadowbanning is censorship hinges on Twitter’s dominant position. It’s not as if CNN has banned Adams, but he can still go on Fox News. There is no real competitor to Twitter, despite their troubles (which is not to say people aren’t trying.) The monopoly is even more apparent with Facebook, which made the news recently when it was revealed that employees within Facebook were suppressing conservative content.

One of the reasons why it’s so important that the government not abridge freedom of speech is that they have a monopoly. In the government’s case it’s a monopoly on the use of force, but it’s really the monopoly part that’s important. Other monopolies, particularly monopolies on modes of speech, have a similar moral responsibility to not censor. Once again, this has nothing to do with what they can do, but what they should do. And because of their effective monopoly, what Facebook and Twitter should do is very similar to what the government, another monopoly, should do.

The second argument concerns the particulars of shadowbanning. I don’t know about you, but I find the practice to be particularly Orwellian. We’ve already granted that Twitter can ban people, and I think that if they’re going to do that they just should, ideally with a reason why. In other words, if Twitter doesn’t want you on their platform they should have the guts to say it to your face. I would think the morality of this should be obvious, but if not perhaps it would help to look at reasons why they might shadowban people rather than outright banning them. The key feature of the shadowban is that there is no notification. Why is that? You would imagine that if they wanted to warn someone about their inappropriate behavior that they would send them a warning, something very clear and unmistakable. But they don’t which leads me to believe that it’s purpose is not to warn people. But if that’s not it’s purpose, what is? It seems specifically designed to restrict speech, but in a way that people won’t notice. This makes it difficult to complain about it, or even to know what’s going on, as we see in the case of Adams.

I said it was Orwellian, and on reflection it may be closer to Brave New World. Where people are distracted by the illusion of agency and control, while actually possessing neither. Also, as long as we’re talking about the First Amendment, there’s another section to it, which might bear on this topic. The First Amendment also grants people the right “peaceably to assemble and petition the Government for a redress of grievances.” Imagine if the government allowed a gathering on the National Mall. A typical protest where you can have your signs and you can yell and march, and do do all the normal things you do at a protest. But in reality, rather than letting you protest on the National Mall, the government, without your knowledge, secretly funnels you into the holodeck from Star Trek. As far as you can tell you’re marching towards the Capital waving your sign, with protesters as far as the eye can see. It’s hard to imagine that you wouldn’t feel pretty good about things, surveying the vast uprising that you’re a part of. But in the end it’s just a holodeck, and you haven’t really done any marching or any protesting. In reality you’re just a guy in a box shouting at himself.

To recap, thus far the arguments are, Facebook and Twitter should be held to a standard nearly as high as the government because of their de facto monopoly in social networks, and micro-blogging respectively. And that shadowbanning is creepy and dystopian. I want to look at free speech from one final perspective. I predict that I may be walking into a minefield, but I think the comparison I’ll be making is not without merit.

In 1954 the Supreme Court ruled in Brown v. Board of Education that separate was not equal, and from that point, though there was fierce resistance in many states, it was the law of the land that the government couldn’t segregate people on the basis of race. However private companies were still allowed to refuse service to blacks, as was the case in one memorable instance in 1957 when the Finance Minister of Ghana stopped at a Howard Johnson’s in Delaware and tried to order orange juice, only to be refused service. (Eisenhower personally apologized.) It wasn’t until the 1964 Civil Rights Act that it was made illegal for businesses to refuse service on the basis of race, under the doctrine of public accommodation.

These days it seems obvious that a hotel shouldn’t be able to refuse to give someone a room on the basis of race, but back then it wasn’t obvious. While it’s been clear since the founding of the republic that the government needed to be under certain restrictions, precisely because of the monopoly on force that I mentioned earlier, it wasn’t clear at all that the same restrictions should be placed on private businesses. The doctrine of public accommodation was their way around that. Not only were these businesses open to the public, but they used government provided roads and utilities. Consequently, while not part of the government they could nevertheless be placed under the same restrictions concerning discrimination.

Perhaps you can already see where I’m going with this, but if not, free speech is in the same situation the Civil Rights movement found itself in after Brown, but before the Civil Rights Act. There’s lots of things we don’t think the government should be able to do, but we’re okay with private businesses doing them. If you think this comparison is valid (and if you don’t think it’s valid I’m interested in hearing why). Then you’re left with one of three options:

1- Free speech is less important than preventing discrimination. And that’s why we allow a different standard to exist.

2- We should extend the same basic restrictions the government operates under to businesses which provide a public accommodation, particularly as it relates to speech.

3- The Civil Rights Act was a mistake and we shouldn’t apply any restrictions to private businesses in terms of racial discrimination just as we don’t with apply any restriction as regards speech.

I have a hard time believing that anyone is going to stake out option three as their position, particularly the kind of people who are offended by Scott Adams and others like him. (Rand Paul tried it and it worked about as well as you would expect.) This leaves either number one or number two. Number two assumes that you think that free speech is at least as important as preventing discrimination (otherwise we’re talking about option 1). And if you do, and you accept the comparison I made, then option two is the only logical choice. I win!

If you don’t want me to win (and, frankly, who could blame you) and you don’t want to get crucified for supporting option three. Your only defensible position, as far as I can tell, is to admit that free speech is less important than preventing discrimination. Perhaps you’re fine with that, perhaps you honestly feel that free speech isn’t especially important, particularly when, in this day and age, it appears to frequently result in threats and harassment. And even if you’re a big believer in free speech, like myself, it’s still appropriate to wonder what value it actually has. Why did the founders consider it so important? Important enough to be the very first amendment? What role does it serve? How does it improve our society, and our country?

These questions are particularly important right now on the eve of the election. If freedom of the press is ever important it has to be especially important when deciding who to vote for. And it can only exercise that importance if free speech is a way of improving the outcome in an election. The most obvious way it could do that is by disseminating truth.

There are some who would argue that in this day and age free speech is doing the exact opposite of that. We see articles lamenting the fact free election, we hear podcasts where the host complains that facts have become irrelevant. But if this is true (and I’m not convinced that it is) how do we decide which speech to allow and which speech to restrict? Certain people want to claim that it’s clear what’s factual and what’s not, and that we just have to impose restrictions based on that. But is it really that clear? I’m not sure that it is. I’ve already written about the questions which have been raised concerning Hillary’s health, and some people will declare it as fact that she’s in perfect health. But these same people were also saying she was in perfect health right up until the moment that she collapsed on September 11th and for several hours afterward. I remind you that I freely admit that I don’t know how healthy Clinton is. Just that people want to declare something like Clinton’s health to be a fact in the same way that it’s a fact that light travels 299,792,458 meters/second, and unfortunately those two are not equivalent.

But even if there was a foolproof way to designate something as a fact and a non-dangerous way to put a single organization in charge of applying that restriction (could we get unicorns farting rainbows while we’re at it?) distributing non-factual information is not why Adams and others like him are being shadowbanned. As far as I can tell Adams is being shadowbanned for expressing unpopular opinions. I am not claiming by this that this is the only reason that people get (shadow)banned, I’m claiming that when we examine all the reasons for someone to get banned saying things which are factually incorrect does not appear very high on the list, if it appears at all. Interestingly, while I was writing this post, the news reported that numerous Facebook employees wanted to remove Trump’s posts because they considered them hate speech. If you search the article I just linked to the words “untrue”, “lies”, “fact” and “false” do not appear.

Now, it might be that Trump did say things that were untrue, but it was just easier to make the hate speech argument. This takes us off into another realm where gallons of ink have been spilled, with arguments about whether people have a right to not be offended, and we’re already basically out of space. I’ll just leave you with two final thoughts:

First, it’s clear from the fact that many of the founders were slave-holders that they did not consider preventing discrimination to be more important than free speech. In fact they didn’t consider to be an issue at all. In this they were certainly incorrect, but are we so sure that it should be flipped to the point where preventing discrimination goes from having zero attention paid to it to being more important than free speech?

Finally, if you question the value of free speech I urge you to take a look at countries where free speech is restricted, and consider that in many ways this restriction represents one of the few differences between those countries and the United States. We’ll continue discussing this in my next post