SZABO: Tech Giants Should Have The Freedom To Kick Conservatives Off Their Platforms

Carl Szabo | NetChoice

This month, conservative senators held a hearing on tech companies “stifling free speech.” Before the hearing, senators read the decision of a Trump-appointed judge in Freedom Watch v. Google — a recent case tackling accusations of bias.

In the case, Judge Trevor McFadden threw out a lawsuit filed by Freedom Watch and activist Laura Loomer against YouTube, Facebook, Apple, and Twitter. Freedom Watch demanded the court stop the platforms from demonetizing and age-rating their content.

Many users don’t want to see or have their children see depictions or discussions of graphic content. Likewise, many businesses don’t want their advertising associated with controversial content and will pull advertising if platforms display it.

As a result, online platforms like YouTube, Twitter, and Facebook have adopted policies and codes of conduct to address the concerns of users and advertisers. Every person using these services agrees to these standards, and in exchange, the services build the platforms, pay for the server space, and make content available to billions of people.

Of course, there are users who break their agreements. On Twitter, Laura Loomer did so by posting tweets that harassed others for their religion. Loomer tweeted, “Muslims are out in force … rubbing [the attack] in everyone’s face [by] aimlessly walking around in hijabs.”

Freedom Watch regularly posts videos on YouTube that would break the platform’s community standards. In a recent video, Rep. Illhan Omar is accused of being a “jihadi in Congress” and a member of the Islamic invasion of the United States.

There are both examples of offensive content — and while both Freedom Watch and Loomer have their First Amendment right to express these opinions, they do not have the right to force Twitter, YouTube, or any other private company to host them — especially when their activity breaks the terms of service both Loomer and Freedom Watch signed up to by joining these platforms.

Reacting to rule-breaking behavior, YouTube, Facebook, Apple, and Twitter demonetized and content restricted Freedom Watch and Loomer’s posts that violated the platforms’ policies. Freedom Watch’s videos still exist on YouTube — they were only demonetized and identified as inappropriate for some audiences.

Rather than accept personal responsibility for its breach of contract, Freedom Watch played the victim and sued the platforms.

In a complaint that reads more like a conspiracy theory than a legal document, Freedom Watch cried victim to industry-wide collusion to suppress conservative views.  Freedom Watch blamed its dearth of YouTube subscribers on a “coordinated conspiracy between these platforms” as opposed to the more likely situation — not Freedom Watch’s audience is smaller than they’re willing to admit.

Judge McFadden was unconvinced. In his opinion, McFadden outlined Freedom Watch’s failure to make a viable legal argument. McFadden said Freedom Watch “repeatedly states that the Platforms have engaged in a conspiracy or illegal agreement. But it offers only these conclusory statements to suggest the existence of such an agreement.”

In effect, Freedom Watch made sweeping accusations of bias and illegal conduct, but couldn’t back it up with evidence.

The case sets an important precedent that conservatives must recognize: if content creators break rules and community guidelines, then they must accept that there may be repercussions. If conservatives dislike these guidelines they are welcome to choose from the abundance of alternative services out there.

Conservatives may claim that alternative platforms won’t be able to provide as many viewers for their content, but they miss the irony that YouTube and similar platforms are as popular as they are because of, not despite, their content moderation practices.

Freedom Watch’s outcome is similar to that of PragerU’s recent suit against YouTube for demonetization and content-gating of controversial videos on YouTube. The judge in that case likewise identified that posting content on YouTube is not a right, but a privilege.

It’s unfortunate that many conservatives are following the siren-song of populism leading them to trash their conservative values.

Conservative concerns that their political opinions are seen by others as unpalatable are very much understandable.

What’s not understandable is conservatives ignoring personal responsibility and instead accusing platforms of bias whenever right-wing content creators are caught breaking the platforms’ rules. Data shows that while 12 percent of PragerU’s YouTube videos are in restricted mode, 28 percent of videos from Vox and 55 percent of Daily Show videos have also been restricted.

It’s also particularly concerning that some conservatives voice support for heavy-handed intervention forcing private businesses to host controversial content.

At the end of the day, if we abandon our conservative values of limited governments and free markets, turning instead to government as the solution to perceived slights, what are we left standing for?

Carl Szabo is general counsel for NetChoice, a trade association of eCommerce businesses and online consumers. Facebook is a member of NetChoice. Szabo is also an adjunct professor of privacy law at the George Mason University Antonin Scalia Law School.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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