Posted on August 7, 2018

A Response to Online Shadow Banning

Adam Candeub, Wall Street Journal, August 5, 2018

Have you been shadow banned? That’s the term for Twitter’s limiting the reach of disfavored accounts. The company can, for instance, remove your name from its autopopulated drop-down search box, making it harder to find you.


{snip} To this day, mail service, telephones and airlines operate under “common carriage” law and must serve all customers regardless of their political, religious or social views.

These protections have a long history. Precedents from the 17th century outlawed discrimination by docks, ferries and bailors. Common-law courts extended the idea, as technology developed, to railroads and telegraphs, and then eventually to telephones and air travel. Administrative agencies later codified the protections into regulation.

Should the old principle of non-discrimination apply to social-media platforms? The question pits free speech against private property and makes odd friends and adversaries. {snip}

Rep. Gaetz [Matt Getz, R-Fla.] announced on July 27 that he filed a complaint against Twitter with the Federal Election Commission. He claims that, by shadow banning him, Twitter “gives his political rivals an unfair advantage” that constitutes an in-kind campaign contribution.

In a recent lawsuit my co-counsels and I filed on behalf Jared Taylor — a self-described “race realist” and “white advocate” whom others consider a white separatist — Twitter claimed the power as a network owner to remove any user for any reason. But on June 14 California Superior Court Judge Harold Kahn rejected Twitter’s claim. The suit, which alleges Twitter failed in its promises to give users a free and open platform, will now proceed.

The entire gamut of 19th-century common-carriage protections cannot be applied unchanged to the internet’s complex offerings. Yet for centuries courts have adapted antidiscrimination protections for new technologies, and they could do so again for social media.

From classical Athens onward, democracies have required an agora, a central public forum open to everyone on equal terms. Today, the dominant social-media platforms have become America’s agora. {snip}

Mr. Candeub is a professor of law at Michigan State University and lead counsel in Jared Taylor’s suit against Twitter.