Can private entities restrict freedom of expression?

[Max_S]

Spin-off from the ongoing debate, “Are social media’s recent bannings a freedom of expression issue?”

The topic for debate is this: can private entities restrict freedom of expression? Is it possible, and if so, under what circumstances?

I’ve seen a few answers from the other thread, and I think there’s room for debate. Here’s a summary. I apologize in advance if I’ve miscategorized anybody.

On the “yes” side,

@Kimstu

If you’re just trying to argue that the ability of private entities to legally restrict the speech of users on platforms that they provide is a (legal and constitutional) limitation on free expression, well, yes it is. Also, water is wet.

@DemonTree

And nor does it matter whether it’s the government doing the banning or private entities, what matters is whether it has a significant effect reducing free expression.

@BigT

That said, there in fact is relevance to whether the above is done by a private entity or some sort of ruling authority–and whether the private entity is a monopoly and thus functions like a ruling authority. As long as it is merely a private entity, that entity itself has freedom of expression, and is not required to support your expression. You are always free to use another private entity or become your own private entity.

And on the “no” side,

@k9bfriender

Only in the sense that, if someone sends me a chain letter, me not passing it on to 6 of my friends is a limitation on their free expression. (Does anyone remember chain letters, are they still a thing?)

Sure, it does “limit” your free expression, but I don’t think that it restricts your freedom of expression. That’s a nuanced difference, but I think it is very important for this topic.

I see having access to social media platforms to be a privilege, not a right.

@iiandyiiii

If it’s government, that is reducing free expression. If it’s private entities, it’s not.

~Max

[begbert2]

Private entities can certainly restrict your ability to use their platform to freely express yourself. They can’t stop you from grabbing an applebox and setting up on a streetcorner (or calling a press conference, if you happen to be a president).

[Max_S]

@begbert2

Private entities can certainly restrict your ability to use their platform to freely express yourself.

But does that restrict your freedom of expression?

~Max

[Kimstu]

What this is is a debate over the meaning of “freedom of expression”. If the OP can provide a consistent definition of the term that he’d like us to use in the context of this thread, we’ll all be less likely to be arguing at cross-purposes.

[Max_S]

My opinion is close to BigT’s. I think private entities can restrict freedom of expression, but only when said entity either a) has monopoly power over a means of expression, or b) is acting as a state actor (at the direction of the state).

For example, pretend a school board dislikes a bank employee due to remarks she made as a private citizen at a public meeting. The school board goes to her employer, the bank, and asks them to fire her. The bank voluntarily complies. I say the bank is effectively a state actor despite being a private entity, because it carried out the state’s bidding. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).

~Max

[Max_S]

Freedom of expression is a term of art with legal baggage, for example it is a human right under the United Nations Universal Declaration of Human Rights (article 19). It also has a considerable history in U.S. case law.

ETA: Article 19

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

~Max

[TriPolar]

Yes it does. So what?

[begbert2]

@Max_S

But does that restrict your freedom of expression ?

If you arbitrarily define it as something that only the government can take away, no.

If not, then I, a private citizen, could be considered to be restricting your freedom of expression if I kidnapped you, tied you up, gagged you, and left you in a basement without an internet connection.

So you tell me - if I did that, would I be restricting your freedom of expression?

[BigT]

@Max_S

My opinion is close to BigT’s. I think private entities can restrict freedom of expression, but only when said entity either a) has monopoly power over a means of expression, or b) is acting as a state actor (at the direction of the state).

That is basically my position, as long as “monopoly” can include multiple groups as long as they are acting together like one entity.

Though @begbert2 is correct that I also think certain illegal actions can also abridge freedom of speech. Someone can illegally act like an authority over you, as in the kidnapping case they described.

[begbert2]

@BigT

Though @begbert2 is correct that I also think certain illegal actions can also abridge freedom of speech. Someone can illegally act like an authority over you, as in the kidnapping case they described.

Putting aside the tying up and gagging, a parent can restrict their child’s ability to express to a similar degree quite legally.

[begbert2]

I’ll note that my position is that private entities can absolutely restrict your freedom of expression - it’s just not illegal for them to do this unless they’re breaking some other law.

[Kimstu]

OP, the issue is complicated by the fact that what you’ve chosen as examples of “yes” opinions aren’t all substantially different from what you’ve chosen as examples of “no” opinions.

k9bfriender and I, for example, are both saying that a private entity definitely has the power to put restrictions on what individuals can and can’t say on a platform provided by the private entity. However, we both agree that that is not an unconstitutional infringement of the inalienable right of freedom of expression.

Nonetheless, you’ve put my remark on the “yes” side of the issue, and k9bfriender’s on the “no” side.

I think you have set yourself up in this thread to go on trying to reconcile or distinguish between different statements about “freedom of expression”, oblivious to the nuances in different uses of the term, and not getting anywhere with a meaningful debate.

[BigT]

@begbert2

@BigT

Though @begbert2 is correct that I also think certain illegal actions can also abridge freedom of speech. Someone can illegally act like an authority over you, as in the kidnapping case they described.

Putting aside the tying up and gagging, a parent can restrict their child’s ability to express to a similar degree quite legally.

Hmm. Not sure if I agree or not. On one hand, I’ve always been against the idea that having rules in one’s house is somehow an abridgment of freedom of expression. On the other hand, a child is not empowered to permanently leave the house, unlike an adult.

Then there’s the issue of whether the concept even really applies to children in the same way it applies to adults.

Hmm. I think I’d fall on saying it is a restriction, but it’s a special case. Mostly because I remember arguing that school uniforms removed freedom of expression, and thus encouraged kids to act out in other ways to differentiate themselves.

Still, there are a lot of things you can do with kids that you can’t with adults.

[iamthewalrus_3]

I think that they could, but that being banned from Twitter/Facebook/whatever is not remotely extreme enough. You can, after all, always go make your own website.

But what if Google and Apple decided that Chrome and Safari would refuse to render a web page from your domain? What if domain registrars refused to even let your domain resolve to a server? What if cell phone companies decided to not give you a phone number and kept you from being able to call people in person and talk about your ideas. Those are cases that could legitimately happen, and I’m inclined to say that we as a society should not let them happen.

Some businesses should be content-agnostic common carriers. Twitter and Facebook and various message boards are not among them.

[Max_S]

@Kimstu

However, we both agree that that is not an unconstitutional infringement of the inalienable right of freedom of expression.

I don’t think there is a constitutionally inalienable right of freedom of expression, so I’m not sure what you are saying you and k9bfriender agree on. But I did misread your post, where I thought you had written “freedom of expression”, you had actually written “free expression”. So, in retrospect, I don’t think you’ve expressed your position on the main question. Apologies.

~Max

[BigT]

@Kimstu

OP, the issue is complicated by the fact that what you’ve chosen as examples of “yes” opinions aren’t all substantially different from what you’ve chosen as examples of “no” opinions.

k9bfriender and I, for example, are both saying that a private entity definitely has the power to put restrictions on what individuals can and can’t say on a platform provided by the private entity. However, we both agree that that is not an unconstitutional infringement of the inalienable right of freedom of expression.

Nonetheless, you’ve put my remark on the “yes” side of the issue, and k9bfriender’s on the “no” side.

I think you have set yourself up in this thread to go on trying to reconcile or distinguish between different statements about “freedom of expression”, oblivious to the nuances in different uses of the term, and not getting anywhere with a meaningful debate.

I think that’s because k9bfriender claims that there is a difference between limiting free expression and limiting freedom of expression. They at least seem to think that difference matters, so I think the OP is right to not ignore it.

Since @k9bfriender appears to be the one using an unusual definition, I would say it would make more sense for them to clarify than for the OP to try and do so.

I suspect that part of the debate will be defining exactly what “freedom of expression” means.

[begbert2]

@BigT

Still, there are a lot of things you can do with kids that you can’t with adults.

Sure. Kids don’t have all the rights adults have. That’s kind of the point - “rights” are arbitrarily assigned.

The reason that americans have the right of free expression is because the government pinky-promised it wouldn’t take that right away. That restriction is something that the government imposed on itself. It didn’t impose that restriction on anyone else - I can stop you from talking all I want so long as I do it in a manner that’s otherwise legal.

If a town wanted to stifle somebody’s right to expression, all they have to do is refuse to listen - if everyone collectively slams the door in his face the moment he starts to speak, does he have the right to express himself? He certainly doesn’t have the ability to express himself.

Which brings us back to what a “right” is. Is it just a statement about what the government is letting you do, or is what you are able to do unfettered by anything? (What’s coming to mind here is being able shop at any establishment without being discriminated against for being a protected class - is that a “right” or just a law?)

[crowmanyclouds]

@begbert2

{…} If a town wanted to stifle somebody’s right to expression, all they have to do is refuse to listen - if everyone collectively slams the door in his face the moment he starts to speak, does he have the right to express himself? He certainly doesn’t have the ability to express himself. {…}

So, this ‘’‘Right to Expression’‘’ trumps my right to not listen?

Having an ability should not require the forced participation of a third party.

[Max_S]

I would say the right to freedom of expression with children is subject to inherent restrictions, for example it is defined separately in the Convention on the Rights of the Child, Article 13,

1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child's choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
   • (a) For respect of the rights or reputations of others; or
   • (b) For the protection of national security or of public order (ordre public), or of public health or morals.

~Max

[begbert2]

@crowmanyclouds

So, this ‘’‘Right to Expression’’’ trumps my right to not listen?

Having an ability should not require the forced participation of a third party.

Well, I’m not saying that you have a universal right to express yourself. But yes, if the government eliminates all avenues you have for expressing yourself to it, then it is violated your constitutional right to free expression.

@Max_S

I would say the right to freedom of expression with children is subject to inherent restrictions, for example it is defined separately in the Convention on the Rights of the Child, Article 13,

So a parent who takes their screaming child out of a supermarket is breaking the law? Who knew?

Edit - I suppose they’re only breaking the law if they’re a government agent.