What Should Be Done About Social Media Platforms And People’s Access To Them

Mockarena, Co-Founder

If you’ve followed us Chicks since the early days, you may remember when in early 2013, I woke up one morning to discover that I was locked out of my Facebook account, because I’d written a post about Jay Carney and titled it, “Jay Carney can kiss my assular area.” Facebook wasn’t happy about that, and so I was blocked from being able to post anything.

I called Daisy immediately, and she launched into a full-on PR assault since she still had access. Back in that day, when we had around 40,000 followers or so, whenever we did a post, at least 30,000 people would see it in their timelines. That was when Facebook was a good platform – when you could choose what pages to follow and actually SEE THEIR STUFF show up in your timeline chronologically, instead of FB trying to algorithm their way into your head and decide FOR you what you should see and when. So when Daisy went on her tirade against FB, the vast majority of our 40,000 followers saw it, and spread the word.

Ultimately, word traveled to Todd Starnes, who picked up the story on Fox, and then it was also picked up by the Blaze, and BOOM – within 24 hours we had an apology from Facebook, my account was restored, and all was right with the world.

But then a few years went by, and as I mentioned, FB changed. A LOT. To give you a numerical context that may make it easier to understand, I’ll put it like this: In 2012, when we had 40,000 FB followers, around 30-35,000 of those followers would see each post. Today, with 1.2 MILLION FB followers, around 5-10,000 followers see each post. In other words, vastly more people saw our content when we had a fraction of the following we do now. How in the world does that make sense?

We’ve gone from around 85% of our followers seeing our content to less than one percent of our followers seeing our content. That’s how drastic of a change FB made to content creator pages like ours.

In terms of being blocked or banned or censored or suppressed on FB, I consider us trailblazers, since it happened back in 2013 and became so public. It was even a big enough deal that the View talked about it.

Today? It’s basically a daily occurrence that conservatives are kicked off or suppressed via algorithms by Facebook, and even when it’s a “big” name who’s being kicked off, it seems it’s only newsworthy for a few days and then everyone moves on with their lives, hoping they won’t be next.

Most recently, Alex Jones, Milo Yiannopoulos, Laura Loomer, Gavin McInnes, Paul Joseph Watson and a few others were de-platformed, and apparently there’s a new film about that coming out. (It should be noted that Louis Farrakhan was also removed – ostensibly because FB needed a token non-conservative to even out their purge.)

Check this out:

The question now is – what should be done? Some folks say that social media platforms should be treated as utilities, such that the content of speech is irrelevant and everyone has a voice, no matter how hateful, or racist, or bigoted, or even violent the voices are. After all, phone companies can’t cut off Alex Jones’ telephone service, no matter how insane his phone conversations might be, right? Should it be the same for social media platforms?

Others say, rightly, that Facebook and Twitter etc. are private companies who can do what they want. Their playing field, their rules. But when those private companies truly become (as they have) THE PLACES where public discourse takes place, where news breaks, where people share their views – how comfortable are we with their secrecy about their means of exclusion?

How comfortable are we with the fact that a gender dysphoria scientist/researcher, an expert in his field, was recently supressed by Twitter for sharing scientific research?

Will Chamberlain, a lawyer who runs Human Events, has a new proposition to consider – and that is that access to social media platforms like FB, Twitter, etc. is a civil right. You can read the details of his proposal right here, but here are some highlights.

They no longer have any ability to meaningfully contribute to public discourse.

They have been silenced. Not by the government, but by the private companies which – together – constitute the modern public square in 2019.

Now, a critic might argue that Loomer’s First Amendment rights haven’t been violated, because she could always go to a public park and scream into the ether.

That’s true.

Lyndon Johnson’s black employees could always sleep in their cars, too.

Platform access is a civil right.

You should now have the same right to speak on Facebook, Twitter, and Instagram that you do in a public park.

This is not the current state of the law. The Supreme Court has made it clear that the First Amendment does not prevent private actors from restricting speech, except in rare circumstances. And no current legislation recognizes platform access as a civil right.

This is aspirational. It’s what the law should be.

Free Speech is more than the First Amendment, which only protects you from the government infringing on your rights. In 2019, that is woefully inadequate. Access to the large social media platforms – Facebook, Twitter, and Instagram – is a prerequisite to meaningful free speech in 2019.

Social media companies certainly will strenuously object to this formulation, but they can hardly complain, given that the federal government has underwritten and undergirded their development.

The vast majority of serious public debate takes place there. Thus, access to large social media platforms is a civil right.

When private companies violate civil rights, we pass laws to stop them from doing so.

That’s what we should do here.

So that’s the rationale, and it’s difficult to argue with. And Chamberlain goes on to explain how this needs to happen:

Conservatives should focus on passing legislation – at BOTH the state and federal levels – that protects all citizens’ access to large social media platforms on civil rights grounds. Access should be forfeitable only if one engages in unlawful speech on a platform.

“Unlawful speech” means the kind of speech that’s ALREADY forbidden by law – like yelling “FIRE!” in a crowded theater, etc. This would completely make social media companies lose their collective crap, given how beholden they seem now to the loud voices screaming, “YOU HAVE TO SILENCE PEOPLE WHOSE OPINIONS SEEM EXTRA MEAN TO ME!” “Hate speech” has become such a wholly effective label to put on speech people disagree with – and the social media companies have reacted strongly to it.

I don’t know about y’all, but I don’t WANT Louis Farrakhan de-platformed. I want his hateful rhetoric in plain sight, not shrouded in secrecy where it can fester without our knowledge.

Wouldn’t it be a better world if the protections of free speech under current law were the standards by which social media companies operated, instead of their own arbitrary rules about what is and isn’t acceptable speech?

Chamberlain continues:

If a large social media company wrongfully denies you access to or removes you from their platform or, you should be able to walk into court, get an injunction against the company that forces them to restore your account, and be awarded substantial statutory damages.

Notice – I said *both* state and federal laws. It will be a very serious challenge to get a federal law passed protecting this civil right, given the current composition of Congress. But states with heavily Republican legislatures can pass laws that protect their state’s citizens from de-platforming.

And if they do so, Facebook, Twitter, and Google will have to comply if they want to keep doing business in that state.

Now, there are plenty of conservatives who get bajiggity about this proposal because of our inclination to say, “WAIT. We are for LESS government regulation. We don’t want psychopaths like AOC and Bernie Sanders at the helm of deciding what is and isn’t acceptable speech.”

Chamberlain responds to that criticism:

If Democrats retake the White House, they can’t constitutionally use laws like the one I proposed above to constrain speech.

First Amendment Law is a one-way ratchet. If a regulator tried to twist the civil rights laws in such a way that they were constraining speech, you could walk into a district court anywhere in the country and get an injunction forcing them to stop.

And further:

Finally, and perhaps most importantly, the laws I am proposing do not necessarily require regulators to enforce.

By creating a private right of action that allows citizens to walk into court and get their accounts restored, it will be judges – not regulators – that protect the civil right to platform access.

This is the similar to how other civil rights are protected. While there are regulators that try to stop civil rights violations ex ante, much of the “regulation” is done through ex post litigation. I see very few conservatives complaining about courts’ ability to issue injunctions and impose fines to remedy racial discrimination.

Another example is the Telephone Consumer Protection Act of 1991(TCPA) – which imposes restrictions on telephone solicitations, automated text messages, and the use of auto-dialing systems. While the FTC does regulate based on this statute, one of the primary mechanisms of enforcement is litigation. The TCPA created a private right of action for consumers who were the target of unlawful phone calls and texts. That right of action allows private citizens both injunctive relief and statutory damages.

Would conservatives say that the TCPA (signed into law by George H.W. Bush) is an “unacceptable” interference into the free market? Or that we have to worry about what Democrats will do with the power to regulate telemarketers?

Obviously not.

So, what are your thoughts? Is access to these platforms, as Chamberlain suggests, a civil right?