“Facebook, Twitter, YouTube, and other social media platforms are much more like churches or clubs than they are like a public plaza, regardless of their size.”
A few weeks ago, I wrote a piece for Merion West that argued, among other things, that the social media platform that Jordan Peterson recently announced—Thinkspot—was probably not going to have the advertised consequence of creating a truly open forum for the discussion of all ideas. There were two parts to this argument. The central one was about the dynamics of online discourse and why it is inherently hostile to an ideal situation where different points of view are discussed on their intellectual merits. I also briefly stated that I believe it is misguided to frame conversations like this as being about free speech in itself, since I believe that the concept of free speech should be limited strictly to government interference rather than individuals’ ability to express themselves on various platforms. The article sparked multiple replies through different media, though the common thread was that they were directed towards this secondary aspect of the piece. In essence: my separation of free speech from access to various platforms was incorrect.
I treated the issue as fairly obvious, so I did not explain why I made the distinction. I have not changed my perspective on this, though, in fairness, it deserves a lengthier look than what I initially dedicated to it. To re-state the position: what I want to argue is that the concept of free speech should be understood as nothing more than freedom from state censorship. To put it another way, free speech is a negative political right, which is to say that it prevents the state from doing something to individuals. This is in opposition to a positive right which entitles someone to something. In the end, taking the side that free speech requires access to platforms is to say that free speech is a kind of positive right. This is where I believe the misunderstanding stems from, and a closer look at all these concepts shows that free speech is best understood as a negative right.
Given the prior framing, it is in order to discuss the concept of rights. They can be grouped into many different categories depending on what aspect of them we are considering. A useful one to start with is the distinction between legal rights and natural rights. The latter are rights that everyone has just by virtue of being human. Legal rights are simply those that citizens of a particular polity have according to the laws of said polity. There is no point in discussing whether legal rights are real or not, and even proponents of natural rights have a place for them. On the other hand, not everyone agrees about whether there are natural rights in the first place. In fact, saying that there is no such thing as rights really only makes sense when referring to natural rights. One might say that legal rights are senseless, not useful, or even immoral, but their existence depends solely on being written down on a piece of paper as part of the law. Jeremy Bentham, who called the “French Declaration of the Rights of Man and the Citizen” “nonsense upon stilts” theorized extensively about legal rights. Of course, this does not guarantee the possibility of making them effective, but that is an entirely separate question.
The main point that I want to make about this categorization is this: legal rights are a given. What is up for discussion is how to arrive at them. For legal positivists, they are whatever gets written down as the law, and there is no need for justifications based on higher principles. For those who believe in natural rights, legal rights ought to be a kind of application of natural rights to the social context. By definition, natural rights are more limited in scope than legal rights. It would be complete nonsense to speak, for example, about the natural right to paid vacation leave because it only makes sense in a social context. It is perfectly possible to have legal rights that are simply given to citizens, even if they are not required by any natural right, because they increase welfare, for example. The one just mentioned could be an example of one. But there are certain rights that necessarily ought to be recognized if natural rights are accepted. A clear example is the right to due process. It only makes sense in a social context since detention and punishment require some kind of social structure. But if we accept the right that people have a natural right to be free, then that right can only be infringed upon under certain very strict and previously agreed upon rules. Now, one can arrive at the rights required by natural liberty even if one rejects natural rights altogether. For example, due process can be justified by the notion that it is socially more useful to only punish those whom we are certain of their guilt, and due process is the best way we have to determine someone’s guilt beyond reasonable doubt. Note that this is framed in terms of what is useful, so there is no appeal to higher moral principles.
A second conceptual distinction between rights is the one initially mentioned, namely, between positive and negative rights. An important factor to note here is the correlation between rights and duties. A useful discussion about this can be found in Joel Feinberg’s “The Nature and Value of Rights.” Not all duties have a correlated right. If I have a duty to walk 10 kilometers, there is no implied right that anyone has regarding this. But the same is not true in reverse. All rights have a correlated duty, and this becomes especially relevant when discussing negative and positive rights. If I have right to life, that is a negative right, which implies other people have a duty to not kill me. On the other hand, if I have a right to shelter, which is positive, that means someone or somethings has a duty to provide shelter to me. Note that, while natural rights are generally characterized as negative rights, there is nothing inherent to them that means they have to be either negative or positive. The same can be said for legal rights, though in a framework in which most natural rights are negative, most positive rights will necessarily be legal. But again, this is not a strict distinction.
With all the preceding context in mind we can now discuss free speech. The reason I mentioned these particular conceptual distinctions is to explain why free speech is best understood as a legal negative right. Having this discussion implies believing in free speech. The point I am trying to make is that, even if one believes in natural rights, free speech is not one. Now, it would clearly fall within the category of those rights that are required by natural rights, particularly the right to liberty. Obviously, for anyone who does not believe in natural rights but does believe in free speech, it only makes sense as a legal right.
This characterization of it is relevant because it defines its scope of application. I believe it is best understood as a legal right because, while we would all be free to speak without society, the value of free speech comes from our ability to defend claims, other rights, political positions, and other things that only make sense in a social context. It is also negative in the following sense: even though it clearly implies the ability to speak, it can only be made effective in the absence of an external impediment on that capacity. Here is where one may argue that this means nothing if one does not have access to a platform, and that, as such, social media platforms are infringing upon people’s right to free speech by removing content—or kicking them out altogether. This conception of free speech is nonsense, and I believe it can easily be shown why. This does not mean that various arguments against social media platforms removing content cannot be made, including the value of open discussion, which I have made before. It does not even imply that there is no way to argue that free speech laws should be expanded to include social media. But it is important to keep in mind that this is an extra step that must be consciously taken. More on this later. Before it is taken, however, free speech laws should not apply to them, given that it is only a negative right.
For example, certain churches can prohibit certain kinds of dress on their premises, even if the state cannot do something like that. Conversely, if we accept, for the sake of argument, that the state is right to ban public nudity, it does not follow that people should be forced to wear clothes in the privacy of their homes.
To see why the idea of free speech as a positive right necessitating the access to platforms makes no sense, we need to go back to the idea of the relationship between rights and duties. Understood negatively, the right to freedom of speech implies only the state’s duty to not deny individuals from expressing any kind of idea in the spaces in which the law is the only authority, which is to say, in public spaces. A clear example of this is not arresting peaceful protestors on a public plaza, or park, for example. But in the context of liberal democracies, the state is not the supreme authority on every matter and on every realm. For example, certain churches can prohibit certain kinds of dress on their premises, even if the state cannot do something like that. Conversely, if we accept, for the sake of argument, that the state is right to ban public nudity, it does not follow that people should be forced to wear clothes in the privacy of their homes. In the same fashion, private citizens should be allowed to have certain topics that they do not want discussed in the privacy of their homes—and even to ask anyone who does broach them to leave. This explains why not many people are fond of unexpected visits by religious groups. Synagogues are also not expected to allow Christians to preach, and this is not considered a violation of free speech.
Usually, the argument is that a platform like Facebook or Twitter is so widely used that it already is the equivalent of the public square. But this argument is clearly flawed once it is analyzed in more detail. Facebook, Twitter, YouTube, and other social media platforms are much more like churches or clubs than they are like a public plaza, regardless of their size. As such, they should be allowed to have terms and conditions that users are expected to follow. It is easy to lose sight of this given their size, but none of these platforms exist in a vacuum. They all aim to provide their users with a particular service, which presumably is the reason that users join them; they are looking for such a service, and they have the right to do what they believe will keep the users engaged. If this includes removing content aligned with certain ideologies, they can do that. Again, these platforms are so big that it is easy to stop thinking of them as closer to clubs, but it is easier to see if we think of smaller platforms. No one, as far as I know, has complained about having their content removed from music (or sound) platforms like say Bandcamp. I do not know for sure, but I think it is unlikely because they cater to more specific audiences and so it would be a strange medium to make a political statement, given their reduced reach. Probably, then, no one would make that complaint, because no one would care enough. On the other hand, making a lengthy Facebook post or video and then having it removed can feel distinctly like having one’s rights violated. But Facebook is not qualitatively different than Bandcamp in the sense that they are both platforms that seek to provide their users with a particular experience whether that be music or staying in touch with other people. Yes, Facebook has expanded its scope by now having news and other kinds of content, but it remains part of what they want to offer. The only real differences between both platforms is their size and what they aim to provide, but as private offerers of services, they remain much closer to clubs or churches.
As I said earlier, this does not imply that under no circumstances can free speech laws be applied to social media platforms. But as I also stated, this requires an extra step. This extra step is essentially transforming Facebook, Twitter, YouTube, etc. from their status as clubs into a public plaza. This may sound like splitting hairs or mere semantics, but it is neither. I do not mean metaphorically or rhetorically start thinking about them as such. If that were only that there would be no point in discussing any of this, since that change already happened on a conceptual level. What I mean is that is that is something that literally needs to be done, by which I mean legally and politically. A useful analogy would be to think of the state purchasing a private building and declaring it a public forum. This is not meant to imply that the government should take over ownership of these platforms, but they can be declared public utilities much like privately owned urban transit systems. But the point is that there needs to be a political and legal process that makes this a reality, and it has not happened yet. I am in favor of a scheme like that; until that happens, we have to live with the fact that social media sites should be allowed to set certain rules. The reason is that if, for example, Facebook is not explicitly regulated as a public utility, then there is no argument that can be made against Facebook removing content that cannot also be made against any other type of club-type community.
On some level this might seem like a continuum fallacy. That is, surely it is hard to identify a specific size at which platforms need to start abiding by free speech laws, but that does not mean that because small ones do not have to—one as big as Facebook is also exempt. But once again, this is not about size; it is about purpose. If there were a platform of which literally every person was a member, but specifically geared towards discussing movies, it would not follow that, because of its size, it should now allow people to discuss politics. The same principle applies to social media giants and the ideological content that they remove.
That is through the rather left-wing medium of transforming private companies into public utilities.
Now, those on the Right that complain about these policies by private platforms, might be relieved to know that it is not just conservative or other brands of right-wing ideology that get people banned. Posting the sentence “men are trash” or something equivalent, will get you in as much trouble as making racially-charged statements. To this day, however, I have never seen anyone who complained that Jared Taylor was banned from Twitter also complain that are not allowed to express this kind of anti-male sentiment on Facebook. In fairness, I have also never seen the reverse happen, either.
The final point on this, though, is that there is one way in which those on the Right who see themselves as having had their rights infringed can make those platforms uphold them. That is through the rather left-wing medium of transforming private companies into public utilities. But this, then, is why, at least until now, being deplatformed has nothing to do with free speech, and why Thinkspot is really about making a platform. That is something that I welcome, but it needs to be called what it is.
As a final word I would like to recapitulate on the main argument of the previous article, because it is relevant. Imagine that Facebook, Twitter, and YouTube, are made into public utilities, so their parent companies are no longer allowed to remove content on any grounds. Thinking that this somehow will transform them into spaces where the free and open discussion of ideas will finally happen borders on the delusional. All of that requires an exhaustive set of conditions that cannot simply be legislated or willed into being. Users will keep engaging in bad faith arguments, online verbal abuse, and other forms of harassment. So, while it might still be a net positive to regulate all these platforms as public utilities, we should be very cautious of thinking that making Facebook respect free speech is some kind of silver bullet for open discourse. It is far from it. Incidentally, and this brings it all back to the central point of the original article on Thinkspot—this is why it strikes me as rather naïve to think that yet another platform, albeit with less strict policies, will somehow be a real forum for open discussion of all ideas. I would gladly be proven wrong, and I would gladly join it if that were the case. But, as things stand right now, all the available evidence of online interaction points me in the opposite direction.
Néstor de Buen holds an M.A. in social sciences from The University of Chicago. He has previously written at Quillette.