Bear Pit: now the sole domicile of politics at LuLa

[Alan Klein]

The question will come down to whether a particular company is exercising monopoly as the current trial between Apple and a game manufacturer is currently being tried.  That's not always clear and each company and situation is different. Remember, free speech includes business speech.  If a company is financially hurt by a monopoly because the monopoly doesn't like its politics and shuts down their service,  the company hurt by that action may have legal recourse.

[digitaldog]

Right, Alan.  Even though you've said on multiple occasions
"I don't use Facebook.  I don't know anything about it"

He's someone who never lets complete ignorance of a subject get in the way of having strong opinions about it. 

[Robert Roaldi]

There's a relatively newish podcast, Sudhir Breaks the Internet (https://freakonomics.com/sudhir-breaks-the-internet-2/), whose subject is the influence of social media. There are 5 episodes so far, about 30 min each, and I don't know how many episodes are planned.

The introductory blurb: "Sudhir Venkatesh is a sociologist who has studied crack gangs, sex workers, and gun runners. But then he found himself working at Facebook, and later at Twitter. Now he’s back from Silicon Valley to expose the tangled wiring of our digital society on his podcast, Sudhir Breaks the Internet. In each episode, Venkatesh will reveal what he learned in Silicon Valley and talk with the people he met along the way who are building and running the digital world, and those who are using it in a signal way, digging deep into their motivations and challenging their priorities. Sudhir Breaks the Internet is a production of the Freakonomics Radio Network."

[Robert Roaldi]

... Remember, free speech includes business speech.  If a company is financially hurt by a monopoly because the monopoly doesn't like its politics and shuts down their service,  the company hurt by that action may have legal recourse.

Where has that happened?

Also, please define "business speech" and explain what the constitution or the courts have to say about "business speech". It's the first time I see the term.

And what does a lawsuit between Apple and a game manufacturer have to do with free speech or political censorship, because you lost me on that one.

[Alan Klein]

Where has that happened?

Also, please define "business speech" and explain what the constitution or the courts have to say about "business speech". It's the first time I see the term.

And what does a lawsuit between Apple and a game manufacturer have to do with free speech or political censorship, because you lost me on that one.

Let's say Google Maps refuses to take an ad from that cake manufacturer who refused to make cakes for gay people. It could put that cake maker out of business.  Goggle could run into anti=trust monopoly issues.  Some of these companies have such a huge footprint, they could run into these issues. 

[TechTalk]

Monopoly power and antitrust law is another area where some misunderstandings exist. First, I suppose, it would be useful to acknowledge that having a monopoly in a market is not in itself illegal or in violation of antitrust laws. Monopoly dominance is permissible when it is acquired by lawful means. "To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct." [Justice Scalia writing opinion of unanimous court Verizon v. Trinko, 540 U.S. 398 (2004)]

Anticompetitive conduct being the key differentiation between a legal and an illegal monopoly, the anticompetitive conduct must generally be directed at excluding competitors or preventing new entry in the same market. Anticompetitive conduct would be exclusionary or predatory acts such as: exclusive supply or purchase agreements; product tying; predatory pricing; or refusal to deal.

Let's take an example of refusal to deal. To repeat, the anticompetitive conduct must generally be directed at excluding competitors or preventing new entry in the same market. Here are two examples of companies refusing to sell advertising—one an antitrust violation case and one that is a First Amendment case.

This example is from the Federal Trade Commission (FTC). "For example, in a case from the 1950's, the only newspaper in a town refused to carry advertisements from companies that were also running ads on a local radio station. The newspaper monitored the radio ads and terminated its ad contracts with any business that ran ads on the radio. The Supreme Court found that the newspaper's refusal to deal with businesses using the radio station strengthened its dominant position in the local advertising market and threatened to eliminate the radio station as a competitor." This is clearly anticompetitive conduct as it involves a refusal to deal for the purpose of excluding a competitor from a shared market.

What if you're refusing to deal with a business that is not a competitor? Businesses can freely choose to associate with each other. Can you also freely choose not to associate your business with another that doesn't conform with your self-determined standards — perhaps by refusing to accept their advertising? As I mentioned in a prior post, the First Amendment insures individuals and businesses are free to choose whether or not to distribute content based on their own self-determined standards without government interference.

This is a more recent example from 2017. InfoStream Group, owner of dating sites WhatsYourPrice.com and SeekingMillionaire.com sued SiriusXM for refusing their advertising. A federal court found for Sirius XM saying: "Precluding a broadcaster from refusing to sell airtime is inconsistent with the First Amendment protections enjoyed by private broadcasters. Sirius, as a broadcaster, has a First Amendment right to decline to run advertisements... In any event, ‘speech results from what a speaker chooses to say and what he chooses not to say' and therefore the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.”

https://www.hollywoodreporter.com/business/business-news/judge-agrees-broadcasters-have-first-amendment-right-refuse-advertisements

[Alan Klein]

Monopoly power and antitrust law is another area where some misunderstandings exist. First, I suppose, it would be useful to acknowledge that having a monopoly in a market is not in itself illegal or in violation of antitrust laws. Monopoly dominance is permissible when it is acquired by lawful means. "To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct." [Justice Scalia writing opinion of unanimous court Verizon v. Trinko, 540 U.S. 398 (2004)]

Anticompetitive conduct being the key differentiation between a legal and an illegal monopoly, the anticompetitive conduct must generally be directed at excluding competitors or preventing new entry in the same market. Anticompetitive conduct would be exclusionary or predatory acts such as: exclusive supply or purchase agreements; product tying; predatory pricing; or refusal to deal.

Let's take an example of refusal to deal. To repeat, the anticompetitive conduct must generally be directed at excluding competitors or preventing new entry in the same market. Here are two examples of companies refusing to sell advertising—one an antitrust violation case and one that is a First Amendment case.

This example is from the Federal Trade Commission (FTC). "For example, in a case from the 1950's, the only newspaper in a town refused to carry advertisements from companies that were also running ads on a local radio station. The newspaper monitored the radio ads and terminated its ad contracts with any business that ran ads on the radio. The Supreme Court found that the newspaper's refusal to deal with businesses using the radio station strengthened its dominant position in the local advertising market and threatened to eliminate the radio station as a competitor." This is clearly anticompetitive conduct as it involves a refusal to deal for the purpose of excluding a competitor from a shared market.

What if you're refusing to deal with a business that is not a competitor? Businesses can freely choose to associate with each other. Can you also freely choose not to associate your business with another that doesn't conform with your self-determined standards — perhaps by refusing to accept their advertising? As I mentioned in a prior post, the First Amendment insures individuals and businesses are free to choose whether or not to distribute content based on their own self-determined standards without government interference.

This is a more recent example from 2017. InfoStream Group, owner of dating sites WhatsYourPrice.com and SeekingMillionaire.com sued SiriusXM for refusing their advertising. A federal court found for Sirius XM saying: "Precluding a broadcaster from refusing to sell airtime is inconsistent with the First Amendment protections enjoyed by private broadcasters. Sirius, as a broadcaster, has a First Amendment right to decline to run advertisements... In any event, ‘speech results from what a speaker chooses to say and what he chooses not to say' and therefore the right in question comprises both a right to speak freely and also a right to refrain from doing so at all, and is therefore put at risk both by prohibiting a speaker from saying what he otherwise would say and also by compelling him to say what he otherwise would not say.”

https://www.hollywoodreporter.com/business/business-news/judge-agrees-broadcasters-have-first-amendment-right-refuse-advertisements

I generally agree that business as well as private people should be able to associate with whomever they wish.  The issue is when a company reaches a position of almost a public utility, whether that position precludes that right due to the monopoly situation that was reached. That puts the monopoly in a position where it can destroy people and businesses. 

Let's say the cake maker was refused telephone installation by the only telephone company available for his area because of his beliefs.  He'd be out of business the same day.  He would sue charging them as a monopoly and restraint of trade. 

The question is have certain social media reached the position of public utility like a phone company where people cannot effectively do business without kowtowing to the specific media. The cake maker's speech would be silenced.  He cannot believe and act they way he wishes without giving up his business.  I don't think that's the kind of society we want to live in.  In specific cases where the power on one side restrains trade, we have to use some common sense.     

[Robert Roaldi]

Let's say Google Maps refuses to take an ad from that cake manufacturer who refused to make cakes for gay people. It could put that cake maker out of business.  Goggle could run into anti=trust monopoly issues.  Some of these companies have such a huge footprint, they could run into these issues.

Interesting. I didn't pay much attention to that story when it came up, did it hinge on free speech? I thought it was about religious freedom, but I admit to being confused and know little about it or how it was prosecuted.

When I first heard about that incident though it wasn't clear to (nor is it now) what mixing eggs and flour and selling it has to do with the private practices of the people buying the pastry. That is, it was not clear to me how what the clients did in their private lives interfered with what the pastry shop does. It occurred to me that they could easily have sold pastry to all kinds of people they disagreed with, murderers, pederasts, adulterers, tax cheats, hired killers, Presbyterians even. So it struck me that their refusal to sell cake to gays was because of their opposition to gays, based on religious beliefs. Was that their argument?

It seems to me that you could still practice your religious principals while selling cake to gays. (If they had been doctors, would it be ok to refuse for them to treat a gay guy who was hit by a car?)

Seems risky to me to place religious belief in a primal role like that. Some religious beliefs say it's ok to kill infidels for example. I'd hate to see that become the norm.

[Alan Klein]

Interesting. I didn't pay much attention to that story when it came up, did it hinge on free speech? I thought it was about religious freedom, but I admit to being confused and know little about it or how it was prosecuted.

When I first heard about that incident though it wasn't clear to (nor is it now) what mixing eggs and flour and selling it has to do with the private practices of the people buying the pastry. That is, it was not clear to me how what the clients did in their private lives interfered with what the pastry shop does. It occurred to me that they could easily have sold pastry to all kinds of people they disagreed with, murderers, pederasts, adulterers, tax cheats, hired killers, Presbyterians even. So it struck me that their refusal to sell cake to gays was because of their opposition to gays, based on religious beliefs. Was that their argument?

It seems to me that you could still practice your religious principals while selling cake to gays. (If they had been doctors, would it be ok to refuse for them to treat a gay guy who was hit by a car?)

Seems risky to me to place religious belief in a primal role like that. Some religious beliefs say it's ok to kill infidels for example. I'd hate to see that become the norm.

It was based on religious protection but it could have been free speech as well, although that may have been harder to prove on the cake maker's part. 

Background:  The cake maker was an artist.  He didn't just sell cakes.  He decorated them artistically to order.  A gay couple wanted their wedding cake decorated with them two men shown on the cake.  He felt it was against his religious beliefs and asked them to go elsewhere.  To him it would be like asking a religious person who's a jeweler to make up a special necklace that let's say showed a pagan entity.  It was against his religious beliefs.  The courts agreed with him but based on a different rationale that the Rights Commission looking into it was not being fair to him.  The courts skirted the question.  Frankly, if you believe that people and businesses can associate with who they wish, then you should agree with the cake maker just on those grounds alone. 

[Robert Roaldi]

... Frankly, if you believe that people and businesses can associate with who they wish, then you should agree with the cake maker just on those grounds alone.

Not sure I can go along with that as stated. A white supremacist baker might not want to sell cakes to a black person. Would that be ok?

[Alan Klein]

Not sure I can go along with that as stated. A white supremacist baker might not want to sell cakes to a black person. Would that be ok?

If you believe that people can associate with who they wish, then yes.  Which is it?

[LesPalenik]

Not sure I can go along with that as stated. A white supremacist baker might not want to sell cakes to a black person. Would that be ok?

Not if he used a bleached white flour.

[TechTalk]

Thank you very much for this explanatory series.

I'm happy if you found anything useful in the posts. I've tried in those posts to include enough information to indicate that none of the issues under discussion are as black and white as those with an ideological agenda paint them with their oversimplified, misleading, misunderstood, and exaggerated narratives and claims.

Rights and laws are often portrayed as if they're absolute, when in fact they are generally limited in various ways—regardless of what some may wish to believe. Rights in order to have a meaningful effect are generally broad and the limits on them narrow and defined. The limits have limits, as do rights. The resulting complexity is why we have courts and lawyers to examine the gray areas between the rights and the limitations.

The trigger for most of the discussion is due to Trumpinista pundits and politicians manufacturing a narrative and set of talking points around Facebook and Twitter either flagging or blocking some limited and specific content that doesn't comport with their standards or terms of service. Those of the same mindset in the general population lap it up and parrot the talking points.

First, they make the extreme and absurdly broad assertion that the First Amendment is under assault by claiming "conservative" speech is being censored and "conservatives are being silenced". Utter nonsense, but the claims are made with nonstop outrage and repeated endlessly by the faithful. Their outrage at being "silenced" is broadcast, discussed, and found everywhere—including "the biased mainstream liberal media" as well as on Facebook and Twitter.

Anyone that spends any time looking at Facebook or Twitter will see that there is a gigantic array of conservatives and conservative opinion there. It is a very narrow and limited range of disinformation or inflammatory rhetoric which they consider dangerous to democracy, public safety, or their business reputation which has been flagged or blocked under their terms of service. Only a handful of those outraged pundits and politicians have been blocked or temporarily suspended for repeated violations of their their terms of service. That, however, is not the desired narrative of ever increasing and endless conservative victimhood and outrage.

But it doesn't stop with claims of their First Amendment rights being violated. There are multiple talking points thrown out, all of which have large holes in their argument. But the hope is that if you just keep repeating them often enough; with sufficient volume and outrage; and mixing them together; you'll get some to believe it's true. I explained the hole in their First Amendment argument which is the right of publishers and distributors of content to freely decide what to distribute without coercion. That's a pretty big hole unless you favor the kind of coercion used by authoritarian governments to force their message out to the public.

So, they throw other things out there to encourage outrage—it's Monopoly power and no one can hear our voices anymore! Oh No! 47 U.S. Code § 230 [Section 230] must be protecting their silencing of us—that's it! We're all alone, crying in the wilderness where no one can hear us! It's all just a part of the continuous feeding required by the rightwing media outrage machine to be digested and spread like manure over the populace to fertilize and target their feelings of victimization.

https://bhr.stern.nyu.edu/bias-report

[TechTalk]

As Linda Holmes of NPR wrote in 2010 "The First Amendment doesnt guarantee that speaking your mind will have no economic consequences. Because the free in that concept means free from government interference,not free from consequences."

"Many people are shocked to learn that the First Amendment free speech guarantee, along with all constitutional rights, only protects us against the government. So, if the government interferes with your freedom of speech, you can bring a First Amendment lawsuit to challenge that. And that's true whether we're talking about a federal government official or a state or local government official. But guess what? Facebook, Twitter, the other social media platforms are not the government. They are private sector entities, and therefore, they have no First Amendment obligation to protect your freedom of speech."

— Nadine Strossen, professor at New York Law School

Thanks for the concise and insightful posts. I decided to expand on your posts a bit to explore those points in more detail.

[Chris Kern]

It was based on religious protection but it could have been free speech as well . . .

No, it couldn't.  That's an idiotic claim.

[digitaldog]

That's an idiotic claim.

Well he's super consistent in this kind of posting.

[Alan Klein]

No, it couldn't.  That's an idiotic claim.

The point I was making is that Constitutional protections founded on the 1st amendment whether having to do with religion or free speech override congressional legislation. Obviously in the cake situation, the bakers religious beliefs were the basis of his defense.  But in others situations, a person's right to exercise their free speech could override congressional legislation.  It's too bad you had to resort to insult rather than questioning how I arrived at my conclusion.

[digitaldog]

Thanks for the concise and insightful posts. I decided to expand on your posts a bit to explore those points in more detail.

It's just too bad, all we've posted will fall on the deaf ears of the regular idiotic claimers. 

[Alan Klein]

Well he's super consistent in this kind of posting.

I took you off my ignore list hoping that you'd stop the personal insults.  Apparently, I made a mistake.

[Alan Klein]

So now inflation is worrying the Democrats and Biden.   Maybe he'll stop the trillion dollars spending regimens and the printing and taxes he needs to pay for them.  It's nuts!

Inflation is back. Biden should be worried
It's time to sound the inflation alarm inside the White House.

From used cars and gasoline to lumber and food, prices are surging. The return of inflation, after a decades-long absence, is squeezing families and businesses recovering from the pandemic.
https://www.cnn.com/2021/05/25/business/inflation-economic-growth-biden/index.html