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Uploaded:2020-06-30
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YouTuber Hank Green has a question: Can social media sites violate the first amendment? Join us as we search for an answer with Former Reddit CEO Ellen Pao, author and activist Eli Pariser and ACLU attorney Mohammad Tasjar.

Learn More:
Ellen Pao's book: https://www.indiebound.org/book/9780399591013
Eli Pariser's book: https://www.indiebound.org/book/9780143121237
Hank Green's (non-tech related novel:) https://www.indiebound.org/buy-local/9781524743475

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(Intro)

PA: Hi.  I'm Priyanka, and my producer Yale had this crazy idea.  When he was a kid, he was obsessed with Blue's Clues.  He claims it was all about finding answers and piecing clues together to build a complete story.  Anyways, seeing as he's obsessed with this idea and I'm contractually obligated to be in his video, we thought we'd try to answer some questions, but first, we had to convince our bosses that people would actually watch these videos.  

Influencers?  That's cool.  

HG: I'm Hank Green.  I have a question and I appreciate you trying to help me get to the bottom of this.  I like this idea.  Why isn't getting kicked off social media a violation of the first amendment?  Like, at what point do they stop being companies and become, like, I think that people say like, a public square?  I just wanna understand like, where the line is legally but also sort of like how we feel about this, because I think that how we feel actually does matter, and now I'm going to leave it to you to figure out the answer to that.  Good luck.  I don't have complete faith in your ability to get to the bottom of it, but good luck.  Thank you.

PA: That's kind of a complicated one.  Let's break it down.  I'm not a lawyer but it seemed like we should talk to one, right?  So Yale and I put our collected eight ears of liberal arts education to work to find one.  

Ah.  He looks smart.  Mohammad Tajsar from the ACLU.

MT: The peculiar thing about the first amendment that I think people always get tripped up about is that it only applies to the government, so if the government is suppressing your speech or if the government is preventing you from protesting, that's when you can raise the first amendment flag.  Does the first amendment actually apply to social media companies?  In the simplest form, the answer is no, right?  The first amendment only concerns what fancy legal people call "state action", so if the government messes with your speech, then the first amendment will come to your rescue and that's actually what happened when Donald Trump personally banned a bunch of people from viewing his tweets, because they have a first amendment right to understand what public policymakers are saying about the country that they live in.

If Twitter or Facebook is the one that's doing the banning or doing the, you know, making you feel bad online, you don't actually have a first amendment (?~2:25) against them, so that opens up a real problem because what if it is, in fact, the companies that are doing it, and if they ban you from their platform, is your first amendment right violated?  And the answer is no, but maybe the answer to that should be yes?  Or if it's not the first amendment doing that, maybe it should be some other laws or some other rules, and that I think is what a lot of people are trying to figure out.

PA: Okay, so that explains part of the question.  Free speech is a right we get from the government, not from a private company, but what about this idea of social media as a public square?

MT: I actually don't quite like the framing of the public square.  The public square is meant to suggest a place where people can come together, talk, and discuss things freely without fear of censorship or violence or anything like that, and our great hope for the internet was that it was going to be this like, wonderful democratizing public square where people can talk and discuss things, anybody has a platform, they could do whatever they want, but that's not actually how it all played out.  I mean, we don't have much of a public square.  We have something more like a private bar, where imagine you can get in, but sometimes you gotta pay a cover charge and once you get in, you can barely see other people and you're mostly only talking to people that you like, and that actually is, I think, the much more proper analogy for what we have here.  

The companies that control most of the ways in which we talk to each other online make it so that we don't actually have a robust, free public debate.  They're mediating the conversation as a way for them to monetize the conversations that we have, so I don't think we actually have a public square.  I think we have something totally different and I think we gotta start acting like we have that. 

PA: So Mohammad doesn't seem to think that these companies are public squares, or at least they don't behave like they are.  He also made it pretty clear that while the first amendment is not protecting us online, maybe something else should.

So Yale and I set out to find that something.  This is a question about social media, so we decided to ask someone who's actually worked at one of these companies to see if they had any ideas and since Mark Zuckerberg won't respond to any of my wall posts, we found someone better: Ellen Pao, the former CEO of reddit.  She's insanely smart, and after a series of emails back and forth, she weirdly agreed to be in this video.

EP: I don't know what all social media platforms are thinking, but it seems like they were thinking kind of similarly to what we were thinking at reddit, which was, you want more conversation, right?  You think more conversation is better, but when you're actually, you know, pushing them out of the conversation, where you're just, you know, screaming at them or you're harassing them, or you're doxxing them, and then you only have the loudest voices remain, and often those are the very extreme voices that don't really bring  people together and that drive (?~5:06) people further apart.  

I think it would be nice if social media were a public square and people respected one another and you could see people and actually see the impact your words were having on people.  Somebody said recently to me, social media is more like people flinging feces in your face, right?  It's not actually a public square.  You can't do that in a public square, really, and not get arrested.  

Platforms are a community of people coming together based on a set of rules, right?  So you set some boundaries and then make sure that they're known and then you make rules around them, like you're not allowed to post content that incites hate.  You're not allowed to post content that incites violence.  You're not allowed, you know, for Facebook, you're not allowed to incite genocide in Myanmar, right, so like, let's think about what all the situations are and then let's set up a clear set of rules.  Then, let's apply the rules consistently.  

It's almost like a public utility at this point, where everybody's using it.  That's where all the conversations are happening, that's where people are getting their news and information.  You know, I am not a big believer of regulation, but if the, you know, if the CEOs of these companies can't get it together, then somebody needs to come in and clean it up, right?  Somebody has to say, This is not allowed.  You can't incite genocide.  You can't incite white supremacy.  You can't be a place where people are organizing all sorts of hate crimes or mass shootings or encouraged like, there's a set of activity that maybe actually needs to be regulated unless, you know, the CEOs completely change behavior and stop encouraging it by their inaction.

PA: Okay.  Legally, there aren't a ton of protections, so the government isn't much help here, but Ellen seems to think that as they are right now, social media companies aren't much help either. 

Hank asked us why getting kicked off of social media doesn't violate the first amendment.  He also asked us how we should feel about all of this, and at this point, it seemed like we shouldn't feel great, and because we didn't feel great, Yale and I decided to talk to one last expert.  Someone who could tell us if there's a world where technology can actually serve democracy.  Eli Pariser.

He's an author and activist, plus he's done a bunch of TED talks and we love those.  

Eli P: Mark Zuckerberg used to say that his big aspiration (?~7:16) for Facebook was a utility and he kept saying that until the lawyers mentioned to him that like, hey Mark, you might not wanna mention that utility thing because utilities are heavily regulated because they tend to be monopolies and you don't really want someone owning, you know, the water company in your town deciding who gets water and who doesn't, so we're in this very uncomfortable moment where, in many ways, these are monopolies.  They, you know, there is no place like Facebook.  There is no place like Twitter, but they're not regulated as such, but to me, you know, it's also a problem of maybe we need to actually kind of lower our expectations for what Facebook and Twitter are going to do and raise our expectations for what other kinds of institutions we need.

I think part of what we need on the internet are more of those kinds of public spaces that do these very particular things rather than just these private engines for data and commerce.  Those are important, too, but like any city, you kinda need both.  You need the town square and you need the stores around it.  In the late 1800s, like, there were plenty of bookstores but at some point, people came along and said, you know what we actually need is libraries, because for a nation that's starting to have a lot of people who can read, not everyone's going to be able to afford to buy books at a bookstore and libraries became this incredibly important community institution that now exists in almost every community in America, so I think we need to be thinking about like, what institutions do we want to build, do we want to imagine for the internet that are public infrastructure rather than privately owned companies that ultimately will have to report their profits every quarter.

AP: So Hank asked us, Why isn't getting kicked off of social media a violation of the first amendment?  Aren't these places public squares?  And the simple answer is no, it's not a violation of the first amendment because social media platforms aren't public squares.  They're basically bars.  Some are exclusive, some have no line, and some are way overpriced, but they can all kick you out for pretty much anything that they want to and Mohammad, Ellen, and Eli all genuinely believe that that's kind of a problem. 

When it comes down to it, our speech on social media and the speech that algorithms serve us is regulated almost entirely by guys like Mark Zuckerberg and Jack Dorsey, who are genuinely the world's shittiest bouncers.  Meanwhile, the government is a bunch of people who haven't been to a bar since 1979 and have no idea what a disaster they've become.  

So Hank.  Does that answer your question?  

HG: Um.  It answers my one very specific question and then it gives me a whole lot of other ones.  That was great.  I find that very--I found that very well-done and informative.  It did not seem like 10 minutes.

First I'll say that your lightbulb animation was deeply scientifically inaccurate.  I don't know how you think the electricity is getting to the filament in that lightbulb, but I'll just throw that out there.  

So I've been thinking a lot about how to imagine these platforms and this makes it really clear that like, the government doesn't regulate them, but they are a social space that we inhabit, but they are a company and so in a way, their rules are their constitution.

We very much kind of exist in this unfortunate state right now where we live kind of a lot of our lives in America but then we live a lot of our lives in like, the world where Mark Zuckerberg is president, but nobody voted for him and, you know, are they the shittiest bouncers in the world?  I don't know, because like, I don't know if, like, I--what I think isn't like they're bad at it.  I think that no one person should be the ones deciding that for such a massive group of people that has such a tremendous impact on society. 

You know, we've all just watched social media tremendously move forward the conversation around racial justice in America, and like, without Twitter, I don't think that would have happened and that--I think that that's--I think that that's good.  At the same time, I definitely see that we have mis-used the tools as individuals, as a society, and I think that the owners of the tools themselves have mis-used those tools, but I think that we're extremely new to this. 

Like, it's not surprising when you have a social institution that is entirely new that has no norms and taboos, that didn't exist--basically didn't exist 10 years ago, certainly didn't exist 15 years ago, that like, we're not great at it yet, and I think that, you know, we learn fast but we don't learn that fast so like, I, yeah, I think we're gonna suck at it.  I just, I think that Eli is right that there will be other ways of imagining this and doing it in the future and will it be that we're all like, better digital citizens?  Will it be that there are better platforms run by better people?  Will it be that there's government regulation?  Probably, hopefully all of those things, you know?  

(Credits)