Parler game: Law prof says private companies have right to block content

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Parler user scrolls through feed of Fox News host Sean Hannity. (NEXSTAR)

JOHNSON CITY, Tenn. (WJHL) – Twitter and Facebook aren’t violating the Constitution when they block users’ content and shut down their accounts, nor are web hosting services like Google doing so when they suspend social network sites such as Parler, Constitutional law professor Stewart Harris said Monday.

“It’s a free speech issue or perhaps if you prefer a censorship issue but it’s not a Constitutional issue,” Harris said. “Because the Constitution including the First Amendment protects us only against the government.”

Private companies are under no First Amendment obligation to host or allow forms of speech, including ones protected by that amendment, if they deem that speech to violate their standards.

“The government cannot restrict our free speech and the Supreme Court by the way is very much in favor of that and has been very, very strict in its First Amendment holdings,” Harris said. “But private entities can do as they wish.”

The ‘Duck Dynasty’ precedent

Harris pointed to A&E’s short-lived suspension of ‘Duck Dynasty’ patriarch Phil Robertson in 2013 as an example. Robertson’s comments about LGBTQ issues and race relations drew quick criticism from LGBTQ advocacy groups and the NAACP.

A&E put Robertson on a filming hiatus and that produced its own backlash.

“There was this huge outcry and people were saying you know, ‘I’ve got freedom of speech, this is a violation of my First Amendment rights,'” Harris said. “Well, no, it wasn’t, because (A&E) was not the government. If there was any legal issue there it was a matter of contract.”

Within a week, though, A&E had reversed course — not because of any Constitutional obligation, though. Harris said the same parameters hold true in the cases of Facebook and Twitter suspending President Donald Trump’s personal accounts and Google, Apple and Amazon’s moves to suspend their web hosting of the social networking site Parler.

Whether recent decisions to shut down President Donald Trump’s Twitter and Facebook accounts or Google, Apple and Amazon’s moves to suspend their web hosting of Parler are going to help or harm the direction of civil discourse in America is another question, Harris said.

He likened it to any person’s right to hold a political rally on their private property and prevent their favored candidate’s opponent from speaking there.

“He has no right to come on your property and make you host him in the same way that these platforms are hosting internet sites,” Harris said.

That said, some people may consider the tech giants’ decisions to be biased toward one said — and that could potentially open the door for courtroom drama.

There’s a possibility that there could be legal repercussions if some court were to find that a private internet company was not acting in good faith when it banned certain people but not others,” Harris said.

The Section 230 question

The recent moves by tech giants to limit speech that’s primarily representing conservative views leave many questions to be answered by the government and business, Harris said.

One is over the “Section 230” law that provides internet companies some protection for liability, mostly from defamation or invasion of privacy litigation.

That is in exchange, Harris said, “for them not restricting their platforms except to ban truly bad stuff.”

“As long as those companies act in good faith then they’re in compliance with Section 230. I could see someone making an argument that if they really are being selective and they’re shutting down only certain political viewpoints then there could be an argument that they’re not acting in good faith.”

One question that may be considered in coming weeks and months is whether to oversee the internet like a public utility, something that would open the door for greater regulation.

“They have become extraordinarily powerful in the last 20 years” Harris said of the tech giants. “So the question before us now is whether we’re comfortable with this and we’re comfortable with … some media mogul moderating our speech and maybe not letting the Nazis or the Proud Boys on, or do we want to treat them more like a governmental entity or like a regulated utility.”

That brings its own set of challenges, he said, calling an effort to enforce the First Amendment or some analog of it on media companies “a very difficult path to go down and a momentous decision.”

“We’ve seen what happens when the government regulates speech,” Harris said. “Do you really want to put some politician – and think, politician of the opposing party somebody you didn’t want in office – do you want that person regulating your speech?”

For now, Harris expects platforms like Facebook — and Parler, for that matter, which can ban or delete the accounts of anyone it wants to as well — to “pretty much what they want in terms of barring or restricting the people who use their platforms.”

Harris doesn’t expect a quick resolution of the Section 230 question or considerations about regulating tech providers a la public utilities.

“It’s probably much more likely that other platforms like Parler will get their acts together and find a place to host them and essentially what will happen is we’ll have more of a division in the country, we’ll have people not talking to each other at all because they’ll be on completely different platforms.”

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