When Digital Platforms Become Censors

The most famous victim of deplatforming is, not coincidentally, the least popular: Alex Jones, the radio host known for promoting outrageous conspiracy theories about everything from vaccinations to the Sandy Hook massacre. In a concerted action earlier this month aimed at loosely defined “hate speech,” Facebook , Apple , Spotify and YouTube removed from their services most of the material by Mr. Jones and his InfoWars network. Twitter recently followed suit with a seven-day suspension.

Apple cited its “terms of use” in removing InfoWars from its iTunes podcast listings but couldn’t explain why it didn’t remove the InfoWars app, which shares the same content, from its App Store. YouTube made general reference to its “terms of service and community guidelines,” but didn’t say what Mr. Jones had done wrong. Facebook’s reasons were similarly vague.

Their evasiveness isn’t hard to explain. After all, Mr. Jones isn’t doing anything different from what he has been doing for years. The real reason for his removal is that technology companies don’t like his views and have come under increasing pressure to deny him the use of their platforms.

Nor is it just Alex Jones who’s been subjected to digital unpersoning lately. The Austin-based “crypto-anarchist” Cody Wilson creates and distributes designs for guns that can be produced using 3-D printers. Shopify recently shut down the online storefront of Mr. Wilson’s company, Defense Distributed.

But there is nothing illegal about what Mr. Wilson is doing—he recently won two First Amendment victories in federal court—and he did not violate Shopify’s rules. In fact, since 2017, Shopify has operated according to a self-declared “free speech” policy regarding what people can sell on its site. Unable to explain its grounds for excluding Mr. Wilson, the company has now overturned that policy. It is also worth noting that a site set up to support Mr. Wilson, CodeIsFreeSpeech.com, has been blocked by Facebook.

This week, Vice co-founder Gavin McInnes was suspended from Twitter along with his far-right Proud Boys organization, who call themselves “Western chauvinists,” though they say they oppose white supremacy. Twitter doesn’t like them, and it doesn’t like their politics. But even a mainstream conservative figure like radio host and author Dennis Prager has complained that YouTube placed age restrictions on some of the videos he produced. Facebook blocked an advertisement for Republican Congressional candidate Elizabeth Heng, ostensibly because her video mentioned the Cambodian genocide, which her family survived. Microsoft even threatened to shut down the web services used by conservative Twitter-competitor Gab because a single user on the network had posted anti-Semitic content.

If internet megaplatforms like YouTube and Facebook were publishers, none of this would be especially problematic. One of the essential duties of a publisher is deciding what to publish and what not to publish. The Supreme Court has even held, in Miami Herald v. Tornillo (1974), that the law can’t compel newspapers to print replies to their articles, because it would interfere with their choice of what to publish.

But internet platforms don’t want to be treated as publishers, because publishers are also responsible for their decisions. If a newspaper publishes a libelous story, it can be sued. If it infringes someone’s copyright, it can be held liable for damages. And everything it chooses to publish or not to publish is a reflection on its reputation.

Today, the big internet companies are treated not as publishers but as conduits—tools that other people use to spread their own ideas. That’s why the “safe harbor provision” of the 1996 Communications Decency Act, a landmark in internet regulation, states that platforms aren’t legally responsible for what other people publish on their sites. The law was originally intended to protect things like newspaper comment sections, but its application has become very broad, encompassing virtually all of the content on social media and sharing sites.

Now these companies are trying to have it both ways. They take advantage of the fact that they are not publishers to escape responsibility for the endless amounts of problematic material on their sites, from libel to revenge porn. But at the same time, they are increasingly acting like publishers in deciding which views and people are permitted on their platforms and which are not. As a narrow matter of First Amendment law, what these companies are doing will probably pass muster, unless some federal court decides, as in Marsh v. Alabama (1946), that their platforms are functionally equivalent to “company towns,” where the public square is privately owned.

As a more general issue of free speech, however, the fact that a few corporations can play such a disproportionate role in deciding what subjects are open for debate is a problem. It is made more so by the pronounced leftward leanings of the big tech companies, which lately appear determined to live up to the right’s worst fears about them. Extremists and controversialists on the left have been relatively safe from deplatforming.

Some politicians are fine with corporations putting their thumbs on the scale. Senator Chris Murphy (D., Conn.) wants more online censorship, not less. He tweeted that Mr. Jones’s InfoWars site is just the “tip of a giant iceberg of hate and lies,” and that “These companies must do more than take down one website. The survival of our democracy depends on it.” But the tech giants rightly fear legislation that will force them to be open to everyone, or perhaps worse, that will make them financially responsible for everything published on their platforms.

The notion that Silicon Valley megabillionaires are actively limiting what ordinary Americans can talk and write about is likely to produce a backlash. The tech industry’s image has already suffered over revelations about Facebook’s experiments aimed at manipulating users’ newsfeeds to test their emotional states, as well as various cases of invasion of privacy and data mishandling. Twenty years ago, most Americans saw Silicon Valley as liberating; now it seems to have gone from the hammer-wielding woman in that famous “1984” Apple commercial to the Big Brother figure up on the screen.

And then there is the competition angle. Mr. Jones’s InfoWars is itself a media operation, in competition not only with Facebook and YouTube but with cable channels like CNN and MSNBC, which have made him a target. What happened to Mr. Jones could be described as “a conspiracy in restraint of trade,” in which one group of media companies gets another group of media companies to knock off a competitor.

One of the arguments for leaving tech industries unregulated has been that the industry is in constant ferment. But with a few companies now dominating the field, that ferment is less likely to continue. When giant companies combine to kick out their competitors and start interfering in politics, you can be sure that, even if they claim they are acting in the interests of decency, that’s not where it will end.

—Mr. Reynolds is a professor of law at the University of Tennessee and writes the InstaPundit blog.