Modern Weapons

Tell It to the Judge

September 26, 2017

Tech companies have been very selective about which “hate orgs” they drop. Even though the SPLC list is loaded with black separatist groups, a check of that list finds that most of those organizations still have fully functioning websites that take donations via services like PayPal, which has dropped many sites that are white nationalist.

If PayPal only invokes its “no hate sites” policy if the owners of a site are white or Christian, but not if they’re black or Muslim, that’s discrimination. Perhaps it’s time for people on the right, and people who aren’t ideologically on the right but who give a damn about free speech, to take advantage of the antidiscrimination laws we already have on the books. If it can be shown that a tech company treats websites differently based on the race or religion of the owners, or the racial or religious point of view expressed on the site, well, that’s a nice little discrimination suit there.

Businesses like PayPal and Cloudflare don’t fear fashy-haircut dweebs carrying tiki torches, but they do fear attorneys and costly lawsuits.

Is my idea viable? I decided to ask an expert. Jeremy Malcolm is a legal scholar who serves as senior global policy analyst for the Electronic Frontier Foundation. I asked him a simple question: Let’s say that PayPal decides to stop doing business with “extreme” or “militant” websites that espouse one particular religious or racial worldview, but, at the same time, PayPal continues to do business with equally “extreme” or “militant” websites that espouse a different religious or racial worldview. Would the owners of the dropped sites have a decent chance of winning a discrimination suit, if they could show a double standard?

His response:

I think that would be an interesting case to try. All that I can say is that yes, anti-discrimination law would apply to PayPal and there are also some specific sectoral laws in the U.S. that apply to the finance industry that prohibit discrimination in financial services. (I’m not sure whether these apply to PayPal in the same way as they apply to banks, though.)

Finally, I asked him, “My understanding is that CDNs, internet security services, and transaction services can exercise viewpoint discrimination. But can that discrimination be race- or religion-based (as in, “we have one standard for Christian sites, but a different one for Muslim sites; one standard for white sites, but a different one for sites run by people of color”)?

His reply:

My understanding is no, unless they fall into the category of a tax exempt, bona fide private membership club. The KKK is one of those!

Ah, irony! The KKK can discriminate, but Cloudflare and Paypal can’t!

So maybe the best way, or the only way, to stop the war of extermination against websites the left has deemed hateful is via the courts. Sue and sue and sue until tech companies are forced to either stop dropping sites (any sites) based on ideology, or until they decide to apply their rules in a fair and consistent manner regardless of race or religion. And since I highly doubt that the latter will ever happen (as if PayPal would ever dare to drop the Nation of Islam website, even though it’s an official, certified “hate site” according to the SPLC), the end result might just be a victory for free speech—for everyone—online.

In Oliver Twist, Mr. Bumble famously proclaims that “the law is a ass.” But in the battle against online censorship, the law might just be “a asset.”

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