On Sun, Jan 10, 2021 at 7:53 PM William Herrin <
bill@herrin.us> wrote:
On Sun, Jan 10, 2021 at 6:58 PM Matthew Petach <mpetach@netflight.com> wrote:
> Private businesses can engage in prior restraint all they want.
Hi Matt,
You've conflated a couple ideas here. Public accommodation laws were
passed in the wake of Jim Crow to the effect that any business which
provides services to the public must provide services to all the
public. Courts have found such laws constitutional. Not to mention the
plethora of common-law precedent in this area. You can set rules and
enforce them but those rules can't arbitrarily exclude whole classes
of people nor may they be applied capriciously.
...unless the higher calling of "religious freedom" is at stake,
in which case, sure, it's OK to exclude entire classes of people,
if serving them would go against your religious beliefs.
precedent set by
Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018)
Businesses which post the sign that starts, "we reserve the right,"
are quite mistaken. If a customer is rejected and removed without good
cause and thereby injured, a business can find itself on the losing
end of a lawsuit.
But if a customer is simply denied service based on a
category that the business provider claims is against
their religious beliefs, and no injury takes place,
the courts have provided precedent in support of
such exclusion.
"No shirt, no shoes, no service," on the other hand, is entirely
enforceable so long as that enforcement is consistent.
The legal term "prior restraint" is even more narrowly focused. It
refers only to blocking publication on the grounds that the material
to be published is false or otherwise harmful. The government is
almost never allowed to do so. Instead, remedies are available only
after the material is published.
Fair enough; I used the phrase "prior restraint" in a completely
amateur and inaccurate way to indicate a business taking action
against a customer prior to actual harm being done.
With private organizations it gets much more complicated. No
organization is compelled to publish anything. But then section 230 of
the DMCA comes in and says: if you exercise editorial control over
what's published then you are liable for any unlawful material which
is published. More precisely, common law precedent says you're liable
for what you publish. Section 230 grants immunity to organizations who
_do not_ exercise editorial control. But what is editorial control?
The courts have been all over the place on that one.
Amazon, Google, and Apple did not exercise editorial control
over the content; they severed a customer relationship, which
is well within the rights of any business. They didn't keep Parler
on the platform, but say "you can't say the following words in
any of your posts" -- which would have put them on shakier
grounds; they simply said "sorry, we don't want you as a customer
any longer."
If you're my customer, and my terms of service allow me to
terminate my relationship with you at any time for a list of
reasons, then I can terminate my relationship with you at
any time, based on those reasons.
As ISPs, we depend on TOS clauses like that to allow
us to terminate customers that are DDoSing others, are
attacking others, are causing harm to others, are posting
illegal content, etc.
If you're notified of CSEI on your platform, removing
access to it and turning it over to the FBI doesn't put
you in jeopardy of violating section 230 immunity.
You're not acting as a moderator of content, you're
enforcing your terms of service and cooperating with
law enforcement.
If I kick a customer off because their check bounced,
I'm not moderating their content, I'm severing my
relationship with a customer for non-payment.
Of course, I'm still a complete layman, and I bow to
John Levine's *much* more nuanced and accurate
explanation of the difference, which I've hopelessly
mangled in this discussion. ^_^;;
Regards,
Bill Herrin
Matt