First Amendment, Censorship, and Compelled speech at SUNY Broome

Notice of speech at SUNY Broome on 1st Amendment
Michael Vass Vasquez speech on 1st Amendment at SUNY Broome as invited by SUNY Broome Republicans Club - flyer
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September 10, 2018 – SUNY Broome College – The following is a transcript of the speech given to the SUNY Broome Republican Club and members of the public, at Tichener Hall room 108 on the SUNY Broome College campus in Binghamton, NY. This was a free event, open to the public, on the topical and controversial issue of restricted speech on Google, Facebook, Twitter, Youtube, and other internet social media formats. Commentary is welcome. Sources researched in this speech are available at the end of transcript.

Hello, and thank you for joining me today. I’m Michael “Vass” Vasquez, and I want especially to note and express gratitude to the SUNY Broome Republicans Club and SUNY Broome for inviting me today, though the thoughts I will express are my own and do not necessarily represent any other organization or institution. I should share with you all that in my over 5,000 hours of articles, videos, podcasts and speeches there is no subject more difficult to address than the First Amendment.
Michael Vass covering President Trump as part of White House Press Pool
I have written and rewritten this speech about 7 times so far, as news and events add to the topicality of this subject. The problem is that this issue, one of the most debated in our nation, is very personal and in many ways subjective. Because of that, for tens of millions, it is emotional. When emotion is added to any discussion or debate, logic and true discourse is normally lost. Thus, while I cannot avoid this being personal, I will strive to not be emotional. I hope you can join me in that endeavor.

In addition, this is not meant to be political. But by the nature of the topic, and its influence on the internet, social media, and American lives, it will contain politics. The difference is not subtle. Therefore let me state that, no matter what examples I may use, at the end of the day I support citizens voting for what they believe in, no matter what it is they believe.

Finally, before I get deeper into the discussion, this speech and the Q & A after, will contain material and terms some will find objectionable. Some will find parts of this non-Politically Correct. If we are to have an honest and open conversation, then we must understand that compelled speech is unwelcome, and the potential to be offended is part of the double edge sword of freedom.
First Amendment
This may be the perfect time to introduce one of the key parts of this discussion. What is Free Speech? It’s not a simple question, and has long been debated. By no means do I have the final answer, but let me share both what It means to me and how it has been defined for our nation.

I am essentially what is called an Absolutist. By that I mean that not only am I am Orignalist in understanding the Constitution, I hold to the thought that ALL speech – excluding that speech which would harm others or is demonstrably false as stated in Schenck v. United States (1919) – should be allowed. My personal understanding of the First Amendment – in regard Free Speech , and how it is to be applied, is that

“Free speech is NOT to protect the language that is liked, but there to protect the language that is not liked. Because one day, my speech or yours, will be the language attacked.”

But what is actually the definition of the Free Speech Clause? The First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Currently the widely seen and often promoted view is that of Categorical speech is the meaning of the Free Speech Clause. By that I mean that speech is labeled and that label is either deemed free or restricted. Thus categories of speech like religion and race and ethnicity can be restricted. Commonly this is an effect of society, but not directly law. It’s subset is Politically Correct speech and more generally Prioritized speech.

The growing movement, directly from the PC movement, not only assigns the degree of freedom to a label, but also a priority to it. That would be the Compelled Speech. An issue that is not new, but has taken new life in the US with the promotion of the transgender rights movement, the similar debate in Canada as argued by Jordan Peterson, and recently in the Supreme Court case National Institute of Family and Life Advocates vs. Becerra.

Supreme Court
All of this was considered in 1972, as Justice Thurgood Mashall issued the Majority Opinion of the Supreme Court in the ruling of Police Department of the City of Chicago v. Mosley,

“…the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

I would add the 1977 decision in Wooley v. Maynard. as delivered by Chief Justice Burger,

“However, where the State’s interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.”

Which brings me back to the 2018 decision of NIFLA v. Becerra, and the opinion of Justice Kennedy

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression… This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.”

I will address compelled speech more fully shortly. But it should be noted that in current society, in discussion of Free Speech, we expect that the very same restrictions placed on Government are to be applied to private business. If the Government cannot compel individuals to promote a specific ideology, then a business should not do this. This is the main argument, made by all sides, to Facebook and Twitter, and Youtube, and social media in general.

To be honest, that public understanding is false. No private company is compelled, by law, to ensure freedom of speech. It is an accepted business practice, with limitations though.

As an example, I own a small media business. This includes a blog, a podcast, and use of various social media to further promote and expand the reach of my company. The public can comment on the distribution I provide – but such commentary is not unlimited. Restriction on vulgarity, obscenity, invoking or advocating violence, and discrimination are prohibited. In addition, excessive attacks of a personal nature are restricted if not banned.

Now you may say, ‘But Michael, you are an Absolutist’, and that would be a fair objection. Except that my personal Rights are not my corporation’s obligation. By the necessary function of the business, restriction is required, where in a personal interaction it is not. Not just to adhere to actual law, but also to adhere to cultural norms and expectations.

So would this be considered censorship? In an absolute understanding, yes. Is it compelled speech? No. Is it a violation of Free Speech? No.
31426791-censored-red-rubber-stamp-vector-over-a-white-background-
Let’s talk about censorship. That is defined as “the actions or practices of censors; especially : censorial control exercised repressively” per Miriam Webster. To Censor is defined as ” a person who supervises conduct and morals: such as an official who examines materials (such as publications or films) for objectionable matter”

The key to understand is the question of repressive action to delete, restrict and/or block speech. Censorship is NOT repressive by a business when it is to comply with law, and/or social norms and expectations, and/or does not prioritize commentary.

Social media, with an emphasis on the current giants in the industry to include Facebook, Twitter, Youtube and others are repressive in the censorship they engage in. Social media, at this time, has been consistent in de facto compelled speech and discrimination, via deletion, restriction, and prioritization of speech used on their platforms.

Here are a few examples of why I say this. On the passage of HR 1865 in March 2018, a law that applies legal penalties – even retroactively – to internet platforms that may have user content that unknowingly promotes or contains sex trafficking, per the Electronic Frontier Foundation (EFF),

“It’s easy to see the impact that this ramp-up in liability will have on online speech: facing the risk of ruinous litigation, online platforms will have little choice but to become much more restrictive in what sorts of discussion—and what sorts of users—they allow, censoring innocent people in the process.”

There is part of the discussion between Senator Ted Cruz and Facebook creator and owner Mark Zuckerberg at a Senatorial Hearing in April 2018,
Sen. Cruz vs. Mark Zuckerberg

“Senator Cruz: …In May of 2016, Gizmodo reported that Facebook had purposefully and routinely suppressed conservative stories from trending news… [Facebook] blocked Trump supporters Diamond and Silk’s page with 1.2 million Facebook followers, after determining their content and brand were, ‘unsafe to the community.’ To a great many Americans, that appears to be a pervasive pattern of political bias. Do you agree with that assessment?

Zuckerberg: …First, I understand where that concern is coming from because Facebook and the tech industry are located in Silicon Valley, which is an extremely Left leaning place… I think it is a fair concern that people would at least wonder about.”

On May 7, 2018, a coalition of organizations concerned with transparency and censorship on the internet including: ACLU of Northern California, Center for Democracy & Technology, New America’s Open Technology Institute, EFF, and a group of academic experts, created the Santa Clara Principles.

“In the aftermath of violent protests in Charlottesville and elsewhere, social media platforms have faced increased calls to police content, shut down more accounts and delete more posts. But in their quest to remove perceived hate speech, they have all too often wrongly removed perfectly legal and valuable speech. Paradoxically, marginalized groups have been especially hard hit by this increased policing, hurting their ability to use social media to publicize violence and oppression in their communities. And the processes used by tech companies are tremendously opaque. When speech is being censored by secret algorithms, without meaningful explanation, due process, or disclosure, no one wins.”

In another Senatorial Hearing on September 5, 2018, part of a conversation between Senator Kamella Harris and Facebook COO Sheryl Sandberg, on the active prioritization of censorship of Facebook,

“Sen. Harris: On June 28, 2017, Pro Publica Report found that in Facebook’s training materials instructed reviewers to delete hate speech targeting White men but not against Black children because Black children are not a protected class. Do you know anything about that? Can you talk to me about that?
Sandberg: I do, and what that was was I think a bad policy that’s been changed. But it wasn’t saying that Black children, it was saying that children, it was saying that different groups weren’t looked at in the same way and we fixed it.”

I can go on. The controversy of Facebook restricting publication of Declaration of Independence and defining it as hate speech. The controversy of Alex Jones being restricted and deleted from multiple social media platforms even as Hamas and Antifa (with more than 50 pages on Facebook alone) are untouched. The Prager U. lawsuit against Google and Youtube – where the US District Court found that censorship for a private business was allowed as the private company is not a State sponsor of the First Amendment,
Prager U.

“Thus, contrary to Plaintiff’s [Prager U.] position, Marsh does not compel the conclusion that Defendants [Google] are state actors that must comport with the requirements of the First Amendment when regulating access to videos on YouTube. Unlike the private corporation in Marsh, Defendants do not own all the property and control all aspects and municipal functions of an entire town. Far from it, Defendants merely regulate content that is uploaded on a video sharing website that they created as part of a private enterprise.”

So let me pause for a moment to look at what all this means. The Free Speech Clause, which under almost any review states that speech is protected unless under extreme circumstances, applies only against Government restriction and those that directly assume the responsibility of the Government. Private business is generally not included in this category, and are thus allowed to censor speech – unless directly prohibited by law – in any manner that they wish. While it is the impression of the public that private companies that profess to provide their platforms, specifically on the internet, for active free speech expression – an opinion that these private companies promote and market their services on – in practice and function this is not the case.

Therefore, we see that in function, adherence to Categorization of Free Speech, with an emphasis of Politically Correct prioritization, is the actual definition of Free Speech on Social Media. This is almost the definition of a chilling effect of Free Speech.

How many Americans have been disenfranchised by the seemingly arbitrary removal of Alex Jones? Or the restriction of the Declaration of Independence? Or the labeling of Diamond and Silk as “unsafe for the community” – an act that was final and unappealable until public outcry forced Facebook to reverse their position. Or what about the 600,000 people – admitted on September 9, 2018 – chilled due to the algorithms of Twitter, which CEO Jack Dorsey admitted on August 19th, is a “left-leaning company” yet proclaimed is not biased. By the way, Twitter has stated that this algorithm was an error and since corrected.

This has led many, including Forbes to conclude in part,

“…Silicon Valley companies when confronted with questions of how they decide what is permissible speech online: simply remain silent and wait for the story to pass, rather than take the opportunity to provide their users with more detail about how the online world they call home works.”

Let me mention another personal example. On Facebook I have a page, created and titled Vass Political Commentary. This page is directly a social media expansion of the news media division of my company. Prior to the Senate hearing for Zuckerberg, that page had never been blocked in promoting content – though it had, like my personal page, experienced substantive delays in posts appearing as well as comments from time to time.

After the hearing, that same page was denied the ability to promote any article, regardless of content, even after submitting to the request for proof of the company by Facebook, twice. The only reason provided, repeatedly and in a blockquote attributed to no less than 3 separate censors, was that this was political content and the page was restricted from this. In September, without notification, this restriction was apparently removed by Facebook as I have promoted 1 post. But in the time from May to September, potentially tens of thousands of citizens and voters were denied knowledge of exclusive interviews with Republican and Democrat elected officials on substantive law and legislation affecting their daily lives, in addition to other content.

I must admit that, since no notice was provided in noting the change in Facebook censor position on the restriction of promoting political content by a declared and recognized political page and company, I didn’t try to use the paid promotion services of Facebook. The frustration chilled my desire to express my Free Speech more widely as had been previously possible. Until I randomly gave it a shot.

Sadly, my experience is not singular. I know of several organizations that have encountered the same or similar, and in some cases worse treatment by Facebook and other social media. I am aware of organizations that have had content blocked, and others that were denied promotion even after 4 and 5 actions to provide Facebook with every requirement imposed on them. In every case these affected organizations and individuals were Right-leaning, though I will not say this did not occur to other types of organizations – I just have never heard of such happening. Nor was Mark Zuckerberg when asked by Senator Cruz.
Compelled-Speech-730x612
This brings me to Compelled Speech. Which is a tricky subject. I contend that Compelled speech is a consequence of restricted speech and censorship. Because to compel first other speech must be denied. If we understand it in this manner, then the absence of choice is a compulsion, and speech cannot be free if there is no choice in what is being said.

I would look to the decsion of Janus v American Federation of State Employees (2018). This is a well publicized case where it was decided that to compel members and non-union members to pay for the exercise of speech they did not want and/or rejected was unconstitutional.

“Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence.”

But how does this apply to private business, especially in regard to the internet and social media? Well, it is curious, perhaps, that there is no comment nor regulation in the guidelines or terms of use for social media companies that addresses compelled speech. It would be assumed that such language would be difficult if nor legally a quagmire to address if attempted. Yet, at the same time, the active and repressive restricted speech and prioritization of speech employed by social media companies creates an environment of compelled speech.

Let me sidetrack for a moment. Maybe I should have said this earlier, but speech is thought expressed through some medium. Thus art, film, written or spoken word is speech. When we restrict or compel speech we are invariably and without exception altering thought. That is why it is such a critical and gravely serious issue.

So when social media restricts speech they are altering the underlying thought that created that speech. In the most extreme case and expression of this restriction and therefore compulsion we are left with little more than mass brainwashing of the public. That is amplified, in my opinion, by the fact that this is done subtly, via algorithms and vague guidelines enacted by a self-described politically motivated and active preferences.

Back to my point, social media companies have admitted actively repressing speech – both by errors that were engineered with an detailed purpose, and by categorizing and prioritizing enforcement of guidelines that were until recently (and still to a large degree) unknown to the public and only recently ceased according to what the public has been told. The effect is that the public at large is left with a persistent and directed thought process, intended to create a specific mindset, because opposition to the only viable option presented has been minimalized and marginalized via censorship.
HillaryDelete
If I have not been clear, let me state that this is purposive. When a company creates specific guidelines internally that repressively censor speech, that is not an error or unintended outcome. When a company designs and implements algorithms that actively marginalize specific speech, and keeps such programs active until public attention is focused on the action, that is not an error. The shield of Political Correctness does not absolve the bad behavior, and in fact is the sword of the attack on freedom.

Social media, as it exists today, is not just repressive but an active force to compel users to adhere to a specific mindset for a defined and partisan purpose. What that purpose or partisan cause may be is immaterial to the action itself. Whatever we individually may think is a goal of the process, especially those goals we may like, imagine that the goal is inverted to an outcome we do not like – would we still find that to be positive? The mechanism does not change, but suddenly we are faced with becoming the marginalized rather than the supported, and as I stated at the beginning this violates what I understand and have shown as free speech defined by the Free Speech Clause.

This brings me to the solution of the problem. As the public has cried out against the Censorship and denial of Free Speech via the internet and social media, elected officials has been listening and waiting. It’s not that the Government has not wanted control over one of the most powerful and universal forms of speech, information, and thought – it tried to take over the format several times. One of the most recent times being the SOPA Bills. But the public was both unwilling and uninterested to allow such a transition of power.
Repressed speech
But with the introduction of Net Neutrality, and the errors of Facebook and Twitter among others being revealed, public opinion shifted. With Congressional Hearings being well publicized, elected officials took on the role of white hat heroes to the mustachio twirlings of evil corporate giants. In such a light suggestions of Government takeover have been cheered when noticed. It was just September 5, 2018, when Senator Mark Warner stated to Twitter and Facebook executives at a Senate hearing,

“I’m skeptical that, ultimately, you’ll be able to truly address this challenge on your own. Congress is going to have to take action here.”

But if the Department of Justice does act to create a more “fair” internet, as deemed by Government, do we have any reason to believe it will be better? Do we have any assurance that Government is a better arbitrar of free speech than citizens and/or private organizations?

I would say not only NO, but that such intrusion will be even worse. Besides the fact that Government has been shown historically to be the least effective source to run any form of private enterprise, let’s consider the record of Government on the First Amendment.

Since at least 1882, there have been no less than 65 Supreme Court cases involving the Federal or State Government on aspects of Free Speech. That’s not including Agencies or Departments of Government at any level. It was just 46 years ago, that the Supreme Court had to definitively declare that the Government did not have a right to restrict expression.

Even beyond that, how can we believe that Government control of speech, which is prohibited in any other format, would not be chilling in this format? Control over what speech appears on social media allows control over news coverage, political commentary, critique of elected officials, and the access as well as discussion of politics among the public. All it would take is a vagary of law, enforced with the full power of Government, to silence whole swaths of the nation. And with that, American use of social media would become the equivalent of North Korea or China.
Reagan vs Government help
My point though is not to denounce Government intrusion in public speech – whether in social media or the internet, well not completely. Nor am I advocating in allowing the current or future social media giants to repressively restrict speech.

What I hope we can all take from this discussion is first an awareness that free speech on social media is dying, if it can be said to exist at this moment. That no matter the company, the core root of censorship has been planted and like Pandora’s Box cannot be sealed completely forever. These things are real and true, no matter what political or social preference any citizen or user may have.

Secondly, the power to minimize and deter censorship and denial of freedom of speech lies squarely with the public. We are the most effective means of change. But that requires the first part of awareness and a willingness to actively put that awareness into action.

Thirdly, we must fully understand that free speech, if it is lost in social media, is a domino falling that leads inexorably to a loss of that speech in all mediums as the connection is absolute. The only true difference in speech via internet and all other formats is speed by which that communication can be received and responded to.

Finally, and perhaps most importantly, I hope that I have conveyed the fact that true free speech is an absolute. It allows both the thoughts we like and those we oppose. That the remedy of any speech and thought we find offensive is not an emotional outburst of repression and censorship but more clear and detailed speech. That distractions and popularity in fads and trends only serve to create opportunity to increase the censorship and repression of thought and speech. With a caveat that we must guard against speech that invokes violence and imminent harm, and actively use the tools available at a speed and breath unforeseen and incapable of society ever before.

It is my opinion that there is no separation of free speech, free thought, and a free life. These are the fundamental essence of this nation and its aspirations for all generations past, present and future. While there is no guarantee that such speech, thought, and life will always be pleasant – and there never should be such guarantee – we possess the power to ensure they will always be present.

I thank you and open the floor to questions.

SOURCES:

https://www.law.cornell.edu/constitution/first_amendment
https://www.merriam-webster.com/dictionary/politically%20correct
http://www.latimes.com/opinion/op-ed/la-oe-farris-nifla-vs-becerra-20180627-story.html
https://www.supremecourt.gov/opinions/17pdf/16-1140_5368.pdf
https://supreme.justia.com/cases/federal/us/408/92/#102
https://supreme.justia.com/cases/federal/us/430/705/
https://scholar.google.com/scholar_case?case=8474153321909160293&hl=en&as_sdt=6&as_vis=1&oi=scholarr
https://caselaw.findlaw.com/us-9th-circuit/1655069.html
https://supreme.justia.com/cases/federal/us/376/254/
https://casetext.com/case/unelko-corp-v-rooney
http://www.latimes.com/business/technology/la-fi-tn-facebook-guidelines-20180424-story.html
https://www.bloomberg.com/news/articles/2018-06-28/most-americans-think-social-media-giants-censor-their-views
https://www.cnbc.com/2018/08/28/trump-accuses-google-of-rigging-search-results-in-favor-of-bad-coverage.html
https://www.facebook.com/communitystandards/

https://www.facebook.com/communitystandards/violence_criminal_behavior
https://www.politico.com/story/2017/09/01/antifa-charlottesville-violence-fbi-242235
https://www.theguardian.com/technology/2018/aug/21/facebook-pages-accounts-removed-russia-iran
https://www.c-span.org/video/?c4747292/sen-harris-discusses-hate-speech-facebooks-sandberg
https://www.eff.org/press/releases/eff-and-coalition-partners-push-tech-companies-be-more-transparent-and-accountable
https://www.eff.org/deeplinks/2018/03/how-congress-censored-internet
https://www.reuters.com/article/us-usa-tech-congress/justice-department-probes-whether-social-media-is-stifling-speech-idUSKCN1LL14Q
https://www.eff.org/deeplinks/2018/09/whats-doj-really-seeking-accountability-content-moderation-or-censoring-speech-it
https://www.realclearpolitics.com/video/2018/04/10/zuckerberg_to_cruz_on_bias_silicon_valley_extremely_left-leaning_place_i_understand_the_concern.html
https://www.congress.gov/bill/115th-congress/house-bill/1865
https://newamericadotorg.s3.amazonaws.com/documents/Santa_Clara_Principles.pdf
https://www.newsweek.com/facebook-flagged-declaration-independence-hate-speech-1008815
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2688&context=historical
https://www.reuters.com/article/us-alphabet-google-youtube-censorship/google-defeats-lawsuit-claiming-youtube-censors-conservatives-idUSKBN1H320D
https://www.forbes.com/sites/kalevleetaru/2018/01/12/is-twitter-really-censoring-free-speech/#4ddfd66a65f5
https://www.washingtonpost.com/technology/2018/08/19/twitter-ceo-jack-dorsey-admits-left-leaning-bias-says-it-doesnt-influence-company-policy/?utm_term=.8d7ba99f87b4
https://www.bbc.com/news/technology-45426407
https://www.newsweek.com/diamond-and-silk-facebook-zuckerberg-882332
https://mtsu.edu/first-amendment/article/933/compelled-speech
https://www.supremecourt.gov/opinions/17pdf/16-1466_2b3j.pdf
http://www.mvass.com/2012/01/18/why-is-sopapipa-important/
https://www.reuters.com/article/us-usa-tech-congress/facebook-twitter-face-u-s-congress-over-foreign-bids-to-tilt-politics-idUSKCN1LL14Q

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