Gab’s app is similar to Twitter. It has a policy that is committed to free speech. That free speech policy was developed primarily in reaction to Twitter’s actions, such as occasionally blocking privileges of individuals deemed to be “hateful.” Their commitment to free speech has not only allowed “alt-right” individuals to join, but also dissidents in foreign countries where freedom of speech is severely restricted.

Letting tech companies handle any type of censorship regarding the alt-right and/or white supremacists is a mixed bag as it opens the doors to general censorship of any viewpoint deemed inappropriate. A positive argument for such sanitization of publicly used language is that we are seeing the marketplace regulate this issue versus having the Congress or State legislatures getting involved. Allowing industries to try and create a resolution to resolve this problem is laudable. It is laudable because the marketplace (i.e. the internet community) is working out a problem of hate speech without waiting for the Congress or a federal agency, such as the Federal Communication Commission, step in through regulation.

Notwithstanding their efforts of trying to resolve this problem, the issue of malevolent language, there are two pitfalls with regulating speech of any kind from a policy perspective.

The first pitfall is that there are no universal standards that define “hate speech.” Hate speech is very subjective, the affects of which are in the eye of the beholder, which, results from this lack of definition. As Supreme Court Justice, Anthony Kennedy wrote in the case of Matal v. Tam,

… A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.^[2]

Matal v. Tam was a trademark case where an Asian rock band, known as the Slants were barred from trademarking their name. The US Patent and Trademark Office refused to trademark their name because the word “Slants” has been used derogatively against Asians.^[3]

As Justice Kennedy explained, any regulation dealing with ”hate speech” can invariably be used against “minorities or those with dissenting views.” Another example involves a pending case before the U.S. Supreme Court who will listen to the matter of Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission.^[4] In that case, the Supreme Court will determine whether or not the Colorado Civil Rights Commission was correct in ruling against Mr. Jack Phillips for violating Colorado’s Human Rights Statute after refusing to bake a wedding cake for a same sex couple because of his religious beliefs regarding marriage. The Colorado Civil Rights Commission determined that Mr. Phillips was guilty of discrimination for his refusal to bake the cake. Additionally, his religious beliefs were considered irrelevant by the commission. 

The second dilemma that comes with companies regulating speech involves the matter of access. The Internet is a predominant source of where the majority of the population gets news and information. We live in a Twitter, Google, Instagram, and Facebook world as theologian Leonard Sweet once said. Television and print news publications are struggling to adapt. Additionally, it is very expensive for someone to break into the technology industry with a platform that is just as original as Google or Twitter. To do so requires a commitment of at least a million dollars. Because of this limited access for companies and their competitors to provide platforms for news, there is the fear that corporations, and not the government, will be enforcers of censorship. At this time, there are a select group of corporations that would maintain a stronghold on control in making decisions regarding what is and is not considered hate speech. For so few to have so much power over deciding the parameters for which language can be censored has the potential for abuse of that power.

The challenge facing the tech community is to develop standards as to what the grounds will be to either suspend or expel an individual or entity based on the type of language they use. These standards need to be stringent and well defined. This process cannot be done at the whim of special interests groups^[5] and will require honest discussion. Unfortunately, Silicon Valley has a tendency to go autocratic.^[6] If you think this is political posturing, go ask Brendan Eich, the former CEO of Mozilla who had to resign because he donated money to a political action committee dedicated to the passage of Proposition 8, which would have amended the state constitution of California by defining marriage as between a man and woman. Eich was pressured to resign after a website discovered that he had donated $1,000 to an organization that was supporting Proposition 8.

If the tech community fails to navigate this matter slowly and thoroughly, expect the Federal government, through its power to break up monopolies, and exert its political muscle. Although doing this in the name of free speech is potentially beneficial, in the end, it will more likely than not be bad for businesses because it would allow the government an opportunity to intervene and regulate more.

 

CITATIONS:

[1] To read more about Gab’s situation see “First Amendment in Peril?” at https://www.city-journal.org/html/first-amendment-peril-15401.html

[2] See Justice Kennedy’s full opinion at https://supreme.justia.com/cases/federal/us/582/15-1293/opinion4.html

[3] See The Supreme Court of the United States decision on MATAL v. TAM, June 2017, https://scholar.google.com/scholar_case?case=8669821076053045429&hl=en&as_sdt=20000006

[4] See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/

Also see “Baker who refused to make wedding cake for gay couple is backed by Justice Department in SCOTUS case” http://www.abajournal.com/news/article/baker_who_refused_to_make_wedding_cake_for_gay_couple_is_backed_by_justice_#When:22:18:00Z

[5] Consider this example of what happens when censorship is applied on a whim based on politics – Following the events in Charlottesville, Cloudfare’s CEO made the decision to remove The Daily Stormer from their web hosting services. In a letter to his team Matthew Prince, Co-Founder & CEO of Cloudfare wrote, “Let me be clear: this was an arbitrary decision. It was different than what I’d talked talked with our senior team about yesterday. I woke up this morning in a bad mood and decided to kick them off the Internet. I called our legal team and told them what we were going to do. I called our Trust & Safety team and had them stop the service. It was a decision I could make because I’m the CEO of a major Internet infrastructure company.” See “Cloudflare CEO on Terminating Service to Neo-Nazi Site” https://gizmodo.com/cloudflare-ceo-on-terminating-service-to-neo-nazi-site-1797915295

[6] http://www.smh.com.au/world/technolibertarians-a-weak-link-in-democracys-defence-against-authoritarians-20170804-gxp8er.html.

See also, https://www.washingtonpost.com/amphtml/business/economy/in-silicon-valley-the-right-sounds-a-surprising-battle-cry-regulate-tech-giants/2017/08/24/818a6518-8832-11e7-961d-2f373b3977ee_story.html

Stanford Business Professor Keith Hennessey, a veteran of DC policy battles, recently coined a term to describe the media’s reaction to the President’s decision as “QTIIPs.” QTIIPS stands for Quantitatively Trivial Impact + Intense Political Symbolism. In his June 1 blog, Professor Hennessey goes on to explain QTIIPS.  QTIIPS can be best described as the overreaction to a policy decision. Other synonymous descriptions of QTIIPS could be overkill or hysteria.

Let’s revisit the Paris Accord as an example. The Paris Accord states that it is a multinational attempt at “keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius.” Critics such as Professor Hennessey and Oren Cass, a senior fellow at the Manhattan Institute with a focus on energy and the environment have criticized the Accord because it does not address the climate change problems by requiring tangible outcomes. The Accord’s supporters have dismissed these allegations by accusing the Accord’s critics as “deniers of climate change.” When the President announced his decision to leave the Accord, the Accord’s supporters reacted with hysteria.

The QTIIPS phenomenon is not limited to the Paris Accord. Consider, your e-mail inbox being filled with request for political donations. Every issue, whether it is Medicaid reform, tax cuts, the federal budget, or the numerous other policy issues is described as a life and death matter. The moment someone makes a proposal to address these issues; the immediate reaction for those opposing the proposal is to attack the position as being the beginning of the end of civilization. The problem with QTIIPS is that it blurs the real issues from the superficial ones.

The root cause of this problem is that you have political fundraisers and consultants who have a vested interest in creating a polarizing atmosphere. Everything is viewed through the lens of life and death. The challenge is to have someone with an understanding of policy and the individuals behind those policy decisions guide you through this political environment. This requires an experienced public policy firm guiding you through the political process.  An experienced government affairs office will not sell your position based on hysteria, but in preparation. Preparation means understanding the impact of the proposed legislation or regulation, assessing the political landscape, developing a plan to advocate your position and executing that plan.

RESOURCES/REFERENCES

• More information on Congressional Investigations and Political Intelligence
• Is the Paris Agreement QTIIPS? by Keith Hennessey
• We’ll Never Have Paris by Oren Cass
• The Paris Agreement, Essential Elements and Summary – United Nations
• Text of the 2015 Paris Agreement – United Nations

The final decision that was issued provides us with two important lessons in the drafting and proposal of new regulations surrounding industries with rapidly growing and evolving technologies. As the Congress continues to tackle the regulatory aspects emerging from new innovations in the Unmanned Aircraft sector, they should consider not only the current laws and regulations, but be able to adapt and proactively address regulatory issues as they arise.

LESSON #1: KNOW THE LAW

The D.C. Circuit Court of Appeals struck down the FAA’s registration rule because of Section 336 of the aforementioned Reform Act of 2012. Section 336 states that the FAA “may not promulgate any rule or regulation regarding a model aircraft, or an aircraft being developed as a model aircraft”.[iii]  According to the law, a model aircraft in this instance refers to an unmanned aircraft that is (1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.[iv]

The court agreed with Mr. Taylor’s argument that he was operating his UAV for recreational purposes only and met the standards which qualified his unmanned vehicle as a model aircraft. Because they noted Mr. Taylor was a hobbyist that flew his drones from his home and within the visual line of sight, the court agreed that the FAA overstepped its boundaries and found the drone registration rule a violation of the Reform Act of 2012.

LESSON #2: BE ADAPTABLE

The drone industry is undergoing a technological revolution. Although, we think of drones as flying machines, technology is pushing for vehicles that will be self-driving. In fact, some developing drone designs are working on being able to transport people.[v]

The government’s challenge is to balance the need to innovate versus the challenge to regulate. Currently, the Federal Communications Commission and the Federal Trade Commission are applying the concept of regulatory humility to address this tension.[vi] FCC Chairman Ajit Pai recently explained this approach before the U.S.-India Business Counsel on March 29th. In his description, Chairman Pai discusses the importance of regulatory humility;

“That’s why—consistent with decades of bipartisan tradition—we are pursuing a light-touch regulatory approach. This approach suggests that the Internet should be free from heavy-handed government regulation. It seeks to eliminate unnecessary barriers to infrastructure investment that could stifle broadband deployment. It aims to minimize regulatory uncertainty, which can deter long-term investment decisions. It favors facilities-based competition—that is, creating an incentive to build one’s own network instead of relying on another’s (which depresses the deployment incentives of each).

It encourages competition among companies using any technology and from any sector—cable, telco, fixed wireless, mobile, and satellite. It embraces regulatory humility, knowing that this marketplace is dynamic and that preemptive regulation may have serious unintended consequences. And it places demands on the FCC itself—to be responsive to the public and to act as quickly as the industry it regulates. This regulatory approach, not the command-and-control rules of the 20th century, is most likely to promote digital infrastructure and opportunity.”[vii]

As we are able to process data at a quicker speed, the ability to analyze and assess a regulation’s impact on the economy becomes more immediate as the effects are almost instantly visible. As a result, agencies need to realize that their regulations would be open to assessment and review on an almost constant basis.

For the FAA and other federal agencies, it would be wise to assess the impact of their regulations since the marketplace has changed in their respective areas of industry. Technology is changing “the command and control approach” of federal agencies not just in telecommunications, but also in education, healthcare, and other industries.

CONCLUSION

In closing, this recent ruling by the DC Circuit Court of Appeals should be a wake-up call not only to the federal agencies, but also to the Congress. Both the Congress and Federal agencies need to be aware of the framework behind current laws and must also be ready to assess the impacts of the policies that are passed from both the Executive and Legislative branches.