Corporate Speech Amendment - squaring rights of corporations with rights of natural persons?

[JamesRussler]

Corporate influence on political speech is something that affects both sides of the political debate. What if we could amend the Constitution to settle this problem once and for all? Consider the following language as an amendment to the Constitution:

The government must not allow a for-profit corporation, which has availed the public of a medium and which hosts content from the public upon that medium, to censor, dissuade, or otherwise abridge the freedom of speech exercised by private persons in content hosted on the corporation's medium.​

Here are a few interpretive notes:

• The Amendment would only apply to "a for-profit corporation." This would include C-corporations, but would exclude non-profits, such as 501(c)(3) corporations and other charitable or purpose-driven organizations. The idea is that entities which are in the business of promoting certain views / priorities will not be hindered. At the same time, normal profit-seeking corporate entities will have to resist wading into cultural / political debates which are quite literally none of their business.
• The Amendment would only apply to corporations which have "availed the public of a medium." This would exclude corporations which limit use of their media to certain viewpoints or classes of people. Hence, a corporation which purports to host "liberal" or "conservative" content would fall outside the scope of the Amendment (e.g., DemocraticHub's board or Breitbart's comment section). It would, however, apply to a corporation which purports to be politically neutral (e.g., Youtube, Facebook, Sherdog, etc.). As long as corporations are transparent about their objectives, this should not be a problem.
• The Amendment would only apply to a corporation "which hosts content from the public upon [the corporation's] medium." Obviously this would not apply to a corporation with its own staff / in-house content creators, or if content is created by third-party professionals (e.g. New York Times). It would apply, however, to many social media sites like Facebook and YouTube which depend on private persons to create and post content. It would also apply to comment sections for purportedly neutral news sites (e.g., New York Times).
• The Amendment would only limit a corporation's ability "to censor, dissuade, or otherwise abridge the freedom of speech exercised by private persons." The term "freedom of speech" is meant to be consistent with its use in the First Amendment. Hence, true threats, incitement, defamation, obscenity, etc., may all be prohibited (the usually are anyway). Similarly, corporations may regulate the time, place, and manner of otherwise permissible content, within reason (they usually are anyway). However, "hate speech" may not be prohibited. Moreover, the "heckler's veto" (false flagging, spamming, etc.) may not be used to silence otherwise permissible viewpoints. If the corporation doesn't like it, it can always close its message board / comment section / video hosting operation. But if it is going to host content from the general public, it may not censor otherwise lawful speech.
• The Amendment would apply only to "content hosted on the corporation's medium." This should be obvious, but if a Google employee retaliates against you for something you said on Sherdog, it does not violate the Amendment.
• Lastly, note that the Amendment specifies that "The government must not allow" corporate censorship. Hence, the government would have an affirmative obligation to regulate corporations in this limited context. If a corporation censors you (as outlined above), ultimately the government has violated your Constitutional right. This doesn't mean that it would be liable for damages – only that it would charged with enforcing this Amendment. Also, because the Amendment does not specify which branch must enforce it, it permits any of the three to act if the others neglect to do so.

It is necessarily implied here that corporate speech rights are subservient to speech rights of natural persons. This would obviously have an effect on the validity of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and other cases regarding corporate speech. Overall, because the scope of this proposed Amendment is so limited, its effect would likely be minimal. Really, all it would do is prohibit giant media / tech corporations from silencing natural persons in the digital "public square."

Question: What do you think? Would the Amendment above solve or help our problems with corporate censorship / political interference? Or would such an amendment only make matters worse? I don't necessarily think the Amendment above is perfect or well-conceived. I'm just starting a conversation about it.

 

[EradiatedHaggis]

Technically all we need is for a big-time lawyer or group of lawyers to challenge the 1996 law that forces website/content providers to monitor the content because they are being held accountable for it.

The law, was passed a time when the government viewed the internet as a public utility, even the wording in the law states as much listing them with phone companies.

With Net Neutrality being gone, it means the law and thus section 230 no longer applies. As a NON-public utility they are just like every other company and NO company may take away the rights of others nor treat a customer differently than another. Since a site like Facebook, Youtube and such make MONEY off of people's accounts, they are making money off of them and are thus, customers...and they cannot create a contract that makes a person give up their rights either.

 

[Gunny]

Just based on the language of the amendment, I like it. And we all know who won’t....

 

[Trotsky]

I appreciate the effort you put into this. But, at least at first glance, this seems kooky and barely coherent. It's basically extending public forum content regulation standards to private forums and pretending that there is no commercial speech interests in regulating unsavory speech attached to a commercial brand. Also, the class/viewpoint distinction would become extremely political and wholly arbitrary.

 

[*Z*]

Nope. Horrible idea.

 

[Cubo de Sangre]

Technically all we need is for a big-time lawyer or group of lawyers to challenge the 1996 law that forces website/content providers to monitor the content because they are being held accountable for it.

Sounds like a bullshit law. Good riddance.

 

[EradiatedHaggis]

Sounds like a bullshit law. Good riddance.

There actually was a good reason for it. It was due to an early internet company stating that they would only allow access to "their content", I think it was Prodigy. They basically claimed responsibility for all content on their "internet".

It was, did a quick search for it. here is the case that caused all this bullshit.

https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co.

 

[Execute]

Id rather leave it up to corporations to manage their own content. This seems like an overreaction for conspiracy theorists/conservatives.

 

[Cubo de Sangre]

There actually was a good reason for it. It was due to an early internet company stating that they would only allow access to "their content", I think it was Prodigy. They basically claimed responsibility for all content on their "internet".

It was, did a quick search for it. here is the case that caused all this bullshit.

https://en.wikipedia.org/wiki/Stratton_Oakmont,_Inc._v._Prodigy_Services_Co.

Thanks. Not sure I understand. If Prodigy was already taking responsibility then why legislate they take responsibility?

 

[EradiatedHaggis]

Thanks. Not sure I understand. If Prodigy was already taking responsibility then why legislate they take responsibility?

The suit was that they pay for what someone posted which they claimed was tantamount to libel, so they wanted the company to be treated as a publisher. The law both held sites accountable, but also protected them by calling them a public utility from this kind of suit.

So, the law basically forced all OTHER internet companies to act like Prodigy and be responsible for content while protecting them from public lawsuits.

 

[panamaican]

Nope.

It's the government making a law regulating speech based on the fact that the people involved have chosen to act as a corporation? Would this apply if Facebook wasn't incorporated? Would it apply to limited partnerships? It wouldn't. It's targeting only a small portion of the population that's the worst type of law. Even worse since it contradicts the Bill of Rights.

There's a hole in this large enough to drive a tank through. So everyone will declare their media space limited use in their formation documents.

I hate the idea of a law aimed at controlling the actions of others yet riddled with creating targeted carve outs. It's bad governance.

I'm extremely disappointed that a lawyer would put forward any law that requires a private entity to respect the free speech rights of another private entity. We have no free speech rights due to each other within the private sector. Even presenting it suggests that this isn't about a better country but about bullying corporations.

Of course in this new era where we hand out cash to some companies and take it away from others without checking with Congress, I shouldn't be surprised that anyone wants to amend the Constitution for thinly veiled political reasons.

EDIT: On re-read, that's only mildly coherent. I must really dislike the idea.

 

[Trotsky]

Id rather leave it up to corporations to manage their own content. This seems like an overreaction for conspiracy theorists/conservatives.

It's weirdly asymmetrical as well. We're going to allow corporations to produce sometimes-disinformational corporate speech in their own corporate interest and allow them to funnel billions of dollars towards political purposes with funds gained through nonpolitical commercial transactions....but we're going to disallow them the speech rights to maintain the conversations hosted through their brand and force them to be apolitical in that narrow area?

Especially since corporations are much, much more likely to give to Republicans, this reeks of having your cake and eating it too.

I was hopeful when I saw "Corporate Speech Amendment" that this would be addressing the *actual * pressing issue of corporate speech penetrating our democracy, but nope - it's partisan wanking.

 

[44nutman]

But how would the NRA launder Russian money?

 

[abiG]

Corporate influence on political speech is something that affects both sides of the political debate. What if we could amend the Constitution to settle this problem once and for all? Consider the following language as an amendment to the Constitution:

The government must not allow a for-profit corporation, which has availed the public of a medium and which hosts content from the public upon that medium, to censor, dissuade, or otherwise abridge the freedom of speech exercised by private persons in content hosted on the corporation's medium.​

Here are a few interpretive notes:

• The Amendment would only apply to "a for-profit corporation." This would include C-corporations, but would exclude non-profits, such as 501(c)(3) corporations and other charitable or purpose-driven organizations. The idea is that entities which are in the business of promoting certain views / priorities will not be hindered. At the same time, normal profit-seeking corporate entities will have to resist wading into cultural / political debates which are quite literally none of their business.
• The Amendment would only apply to corporations which have "availed the public of a medium." This would exclude corporations which limit use of their media to certain viewpoints or classes of people. Hence, a corporation which purports to host "liberal" or "conservative" content would fall outside the scope of the Amendment (e.g., DemocraticHub's board or Breitbart's comment section). It would, however, apply to a corporation which purports to be politically neutral (e.g., Youtube, Facebook, Sherdog, etc.). As long as corporations are transparent about their objectives, this should not be a problem.
• The Amendment would only apply to a corporation "which hosts content from the public upon [the corporation's] medium." Obviously this would not apply to a corporation with its own staff / in-house content creators, or if content is created by third-party professionals (e.g. New York Times). It would apply, however, to many social media sites like Facebook and YouTube which depend on private persons to create and post content. It would also apply to comment sections for purportedly neutral news sites (e.g., New York Times).
• The Amendment would only limit a corporation's ability "to censor, dissuade, or otherwise abridge the freedom of speech exercised by private persons." The term "freedom of speech" is meant to be consistent with its use in the First Amendment. Hence, true threats, incitement, defamation, obscenity, etc., may all be prohibited (the usually are anyway). Similarly, corporations may regulate the time, place, and manner of otherwise permissible content, within reason (they usually are anyway). However, "hate speech" may not be prohibited. Moreover, the "heckler's veto" (false flagging, spamming, etc.) may not be used to silence otherwise permissible viewpoints. If the corporation doesn't like it, it can always close its message board / comment section / video hosting operation. But if it is going to host content from the general public, it may not censor otherwise lawful speech.
• The Amendment would apply only to "content hosted on the corporation's medium." This should be obvious, but if a Google employee retaliates against you for something you said on Sherdog, it does not violate the Amendment.
• Lastly, note that the Amendment specifies that "The government must not allow" corporate censorship. Hence, the government would have an affirmative obligation to regulate corporations in this limited context. If a corporation censors you (as outlined above), ultimately the government has violated your Constitutional right. This doesn't mean that it would be liable for damages – only that it would charged with enforcing this Amendment. Also, because the Amendment does not specify which branch must enforce it, it permits any of the three to act if the others neglect to do so.

It is necessarily implied here that corporate speech rights are subservient to speech rights of natural persons. This would obviously have an effect on the validity of Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), and other cases regarding corporate speech. Overall, because the scope of this proposed Amendment is so limited, its effect would likely be minimal. Really, all it would do is prohibit giant media / tech corporations from silencing natural persons in the digital "public square."

Question: What do you think? Would the Amendment above solve or help our problems with corporate censorship / political interference? Or would such an amendment only make matters worse? I don't necessarily think the Amendment above is perfect or well-conceived. I'm just starting a conversation about it.

Seems like a perfectly logical, easy fix. It will never happen.

 

[Fawlty]

This would literally make it illegal for Sherdog to dump White Supremacist threads.

 

[luckyshot]

“Corporations are people, too.” Mr. GOP, Mitt Romney

 

[JamesRussler]

Technically all we need is for a big-time lawyer or group of lawyers to challenge the 1996 law that forces website/content providers to monitor the content because they are being held accountable for it.

The law, was passed a time when the government viewed the internet as a public utility, even the wording in the law states as much listing them with phone companies.

With Net Neutrality being gone, it means the law and thus section 230 no longer applies. As a NON-public utility they are just like every other company and NO company may take away the rights of others nor treat a customer differently than another. Since a site like Facebook, Youtube and such make MONEY off of people's accounts, they are making money off of them and are thus, customers...and they cannot create a contract that makes a person give up their rights either.

You're talking about the Communications Decency Act, yeah?

 

[EradiatedHaggis]

You're talking about the Communications Decency Act, yeah?

Yeah, especially section 230. Thats the part I was talking about above with the Prodigy lawsuit.

 

[JamesRussler]

I appreciate the effort you put into this. But, at least at first glance, this seems kooky and barely coherent. It's basically extending public forum content regulation standards to private forums and pretending that there is no commercial speech interests in regulating unsavory speech attached to a commercial brand. Also, the class/viewpoint distinction would become extremely political and wholly arbitrary.

Oh, I wouldn't say it took much effort.

What is your position on Citizens United? It's my understanding that as a Liberal you're not terribly enamored of the idea that corporate speech merits the same level of Constitutional protection as natural speech. Assuming that's the case, and setting aside my little fictitious Amendment (above), how would you address the issue of corporate speech? Would you wait for a SCOTUS opinion in your favor? Pass a statute hoping it passes muster? Or has the problem disappeared since big tech corporations are apparently supportive of the Left? Honestly, it seems like many people on the Left stopped caring about this issue in the age of Trump.

As for the fictitious Constitutional Amendment, it would instantly abrogate or overturn any prior non-conforming judge made law, so no need to get hung up on that. It would apply as written, warts and all. Instead, do you have any suggestions on to improve it? Are there any clauses that are particularly problematic (your "class/viewpoint" point notwithstanding)? Keep in mind we already have a Constitutional amendment which applies against private persons. The idea that the Constitution would place an affirmative obligation on our government (rather than simply restrict it) is newer ground, but it's not so unprecedented as a practical matter.

As for your argument that "the class/viewpoint distinction would become extremely political and wholly arbitrary" – the whole point of that clause is to exempt politically active corporations from this Amendment. Are you suggesting that it's otherwise inadministrable?

 

[JamesRussler]

Sounds like a bullshit law. Good riddance.

You're a pretty devout Libertarian, amirite? IIRC, I read something you wrote on this subject, and you seemed pretty averse to any sort of government intervention whatsoever. I can respect that, even if I disagree.

That said, what should normal people do if big corporations simply decide to target them? We've seen Alex Jones get a taste of this recently, but what if it happened to you? Suppose Google, Facebook, Equifax, Experian, and TransUnion all decide that Cubo has to go. As a result, you can't finance anything, nobody can look you up online, and your existence in the modern world becomes unlivable. As a Libertarian, are you content with that so long as they haven't taken the extra effort to kill you? Or at some point, should government step in and perhaps protect life, liberty, and property?