In late October, a gunman apparently fueled by virulent anti-Semitism and opened fire on a synagogue in Pittsburgh, killing 11 people and injuring several others. Shortly before the shooting, he had posted on Gab, a social media site that caters to “” users. Afterwards, private companies — including payment processors PayPal and Stripe, hosting service Joyent, and domain registrar GoDaddy — with Gab, which resulted in the site being taken for a week.
In the case of white nationalists and their ilk, this unpopularity is well-deserved, but we should be very careful before we accept a world in which a few big companies can drive speakers off the internet at their discretion.
As a legal matter, private companies generally have the First Amendment right to choose whom to associate with (subject to important limitations, including civil rights laws and rules). And that typically includes the right not to associate with individuals or organizations because of their virulently racist beliefs. Indeed, that’s part of how free speech is supposed to work: We have the freedom to express ideas, but others have the freedom to judge our ideas and choose not to associate with us if those ideas are noxious.
Nonetheless, the more “infrastructure-like” a company is for the online world — essentially a gatekeeper to the modern-day public square — the more important it becomes that the company not drop or suspend customers on the basis of their First Amendment-protected speech. After all, nobody is proposing that people who post racist speech have their telephone service disconnected or their internet service turned off. Even those who commit crimes do not lose access to such utilities as a direct punishment.
It can be hard to define who these gatekeepers are, but generally, the more vital a company’s services are to the ability to speak online and the more monopolistic it is, the greater the concern.
Internet service providers like AT&T and Verizon are the clearest case: They offer a network connection, which is vital to speaking online, and exist in an uncompetitive market. They shouldn’t have the right to stop doing business with customers because of what they say over the company’s network. (That’s partly what net neutrality is all about.)
Beyond ISPs, however, lies a complex ecosystem of quasi-gatekeeper companies that make online speech possible. For example, to publish a website you need not only a network connection (provided by your ISP), but also a web address (which requires a domain registrar), a place to put content (a hosting service), and protection against hacking and (a security service). Advocacy groups also need the ability to raise money to support their expressive activities, which requires the use of credit card or other payment systems if that money is to be raised online.
Complicating the question of whether a particular company is a gatekeeper is the fact that technologically sophisticated users may be able to perform some of these functions themselves and the fact that the company might offer many of these kinds of services in overlapping packages.
Given the importance of preserving a world where anybody can post constitutionally protected speech online, the thing to watch is the degree to which there is enough competition, variety, and consumer choice among the services people need to publish online. And for many necessary services, the market is not very competitive.
It may be tempting to say, “I don’t care if these racists can’t get on the internet.” But we don’t want a world in which a small number of gatekeeper companies get to decide who can and cannot speak online. The internet is the meaningful speech arena of today’s world, and anything that individuals may say in a park, they should be able to say somewhere online.
Let’s remember that at various times and places in the 20th century it was generally agreed that certain speech was regarded as “beyond the pale,” including speech advocating communism, homosexuality, racial equality, and birth control. Would the GoDaddys and Paypals of the era, if they had existed, have refused to do business with individuals and organizations taking those positions?
Today, private companies frequently make bad calls: Various iterations of Facebook’s and YouTube’s community standards have led to the silencing of , , and offering information about sexual health.
Companies that have only the bluntest tools at their disposal are even more likely to . For domain registrars, for example, the only choice is to leave a website up in its entirety or take the whole thing down.
Indeed, faced with controversies, companies often act in response to business and political pressures against customers who are deeply unpopular. When the major credit cards, PayPal, and Western Union in 2010 after that site posted government documents on the U.S. war in Iraq and other subjects, they did so from U.S. politicians, for example.
The fact is, such steps may only serve to worsen the problem as racists bolster their reprehensible views with a sense of persecution. Such takedowns allow them to think, “If more Americans don’t agree with us, it’s not because our views have been rejected in a fair marketplace of ideas, but because they’ve been suppressed.”
The ACLU and other free speech worry about gatekeeper companies blocking even the most heinous speakers because it sets a terrible precedent without solving the underlying societal problem. If free expression is to be more than a formality in today’s world, gatekeepers should resist calls to censor or drop their users for exercising their free speech rights.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.