As Much Free Speech as You Can Afford
Twitter Blue....itself up.
Social media is going through it at the moment. Ever since Elon Musk took over Twitter, he has (in my opinion) steadily been making the site worse. Gutting the human and technical infrastructure of the company, refusing to pay bills, and rather hilariously transforming the once-coveted blue check into something akin to a mark of the beast, so on and so forth. The latest and last straw for many people to flock to one of the other seemingly dozens of Twitter alternatives cropping up (e.g., Substack’s own Notes, Bluesky, Spill, Spoutible…idk probably Goodreads?) was when he introduced limits on the number of posts that people could actually see on the platform if they weren’t Twitter Blue subscribers. Advertisers — the main source of Twitter’s revenue — presumably love it when the number of people who can see their ads are artificially limited.
It is difficult to tell whether Musk is intentionally running Twitter into the ground, or if he is genuinely not very good at running things — as the man himself said:
Either way, the lack of confidence in Twitter’s futures have caused what appears to be everyone and their respective mothers to set their hands to creating a Twitter-killer. Meta/Facebook/Instagram is set to unveil their effort — Threads — in a couple days.
Threads, be it terrible or wonderful, has an immediate leg up on competitors like Bluesky or Substack in that it is already going to be drawing from a userbase in the billions. 77% of internet users are active on at least one Meta platform. Stated differently, Meta is the proverbial 800-lb gorilla in the room.
The problem is that for all the nice things Meta / Mark Zuckerberg have to say about free speech, they have some decidedly anti-free speech policies. In particular, Meta has a policy of prohibiting anyone who has at any point in the past of a sex offense from using their platforms (unless they are well-known celebrities and can drive a lot of traffic to their platforms, in which case they will find ways to make exceptions). Even Donald J. Trump — who was banned from Meta’s platforms for the Jan 6 attack on the capital which resulted in multiple fatalities and represented a historic attack on our democracy — was not banned permanently.
In Packingham v. North Carolina, the United States Supreme Court (of ill-repute, as of late) held that the government cannot lawfully prohibit people whom the North Carolina state government designated as sex offenders1 from accessing social media websites. Writing for the majority, then-Justice Kennedy referred to social media as the modern town square, and singled out Facebook (in its pre-Meta days) in particular as being amongst the most popular such platform.
It seems unlikely that Meta will reverse its longstanding policies here of these blanket, permanent bans. Keen-eyed legal eagles will doubtlessly point out here that Meta is a private company and can make whatever decisions it wishes to without offending the First Amendment.
That may (or may not) be true — I wrote a lot more about it here if you’re interested. But there is a normative value of freedom of speech as a human right that Meta seems particularly into adopting as at least a piece of marketing. In a 2019 speech at Georgetown, Mr. Zuckerberg “[U]nderscored his belief that giving everyone a voice empowers the powerless and pushes society to be better over time — a belief that’s at the core of Facebook,” which seems contrary to policies of blanket, permanent bans for unpopular groups.
Of people who are listed on public sex offense registries in America, there’s about a million. Of people who have sex offense convictions, doubtlessly many, many more. Should Meta become synonymous with the modern public square, it raises the question of how — exactly — does a rather large group of people with a First Amendment right to speak effectively discharge that right? Stated differently, as I wrote in 2018:
[W]hile Packingham makes plain that social media is now the “modern public square,” less clear are the implications of that fact when those digital spaces are operated not by governmental entities, but private actors who are free to—and do—silence the very voices Packingham endeavors to amplify. In this constitutional vacuum, a paradox threatens to cement a digital underclass: permanent pariahs who, despite being given voice, have no mouth from which it can issue.
Obviously protecting people and in particular children online are laudable goals — goals that such bans to little to nothing to advance.2 But it is undeniable that probably the least popular human rights campaign that exists are movements to abolish public conviction registries. I believe that is due, in part, to the lack of ability for people who are impacted by them to show up and speak, so even though mountains of social science demonstrate that they are ineffective or even counterproductive at their stated goals, legislatures continue to impose new restrictions on people who have already served their sentences in the pursuit of public safety.
My position is that you don’t have to sacrifice freedom of speech (either the constitutional or normative varieties) for the sake of public safety, and in fact you shouldn’t because upholding that core value does, in fact “push society to get better over time.”
But of course, things don’t have to get better. They can always get worse.
This might be funky phraseology but the reality is that who is and who is not required to register as a sex offender is entirely a legislative determination, and oftentimes states require people who have committed crimes that involve no sexual component to similarly register as a “sex offender.” The government typically is empowered to erode people’s civil rights when it starts with groups that are unpopular.
There are many different reasons for this. Foremost is that nearly all computer-facilitated crimes against children are perpetrated by people who would not be subject to such a ban — often fellow children. Further, the only thing a ban does is prohibit people who are willing to abide by it. As the saying goes, locks only keep out honest people.