patrick.net

Private property rights are great. But that does not mean that we, as a society, had to let private restaurant owners and private hotel managers turn away customers because they were black. We didn’t have to accept a world in which black people had to defecate on the side of the road because they weren’t allowed to use a privately-owned restroom.

We, as a society, do not have to allow private companies to violate Americans’ civil rights.

Yesterday, Paul Joseph Watson, Laura Loomer, Alex Jones, and Milo Yiannopoulos were permanently banned from Facebook and Instagram. InfoWars content itself was banned even more broadly – accounts that share InfoWars content will see it deleted, and accounts that repeatedly share it will be banned themselves.

…for Loomer and Yiannopoulos, this was the death blow.

For Watson, this is a nontrivial loss – while he still has massive platforms on YouTube and Twitter, he spent plenty of time building up his Facebook and Instagram accounts too. All that time and effort is now dissipated because of the decision of some petty leftist apparatchiks in Silicon Valley.

But for Loomer and Yiannopoulos, this was the death blow.

Instagram was their only remaining platform, both having already been banned from Twitter. 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.

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.

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.

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. ...

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.