Second Amendment Censorship

posted on November 29, 2021

When White House Press Secretary Jen Psaki called the Biden administration’s desire for speech restrictions from Big Tech “our asks” last July, tremors shook the foundation of the First Amendment so hard they reverberated all the way to the Second.

Gun owners are already acutely aware that Facebook, Twitter and other Big Tech companies censor, demonetize and outright ban a lot of firearm-related content. It also isn’t a secret that President Joe Biden (D) and his administration want a long list of gun-control laws, gun bans and more sent to his desk. So the notion that this administration could pressure—or, as Psaki says, “ask”—Big Tech to help them control the conversation about the Second Amendment in order to sway public opinion is worrying.

When speaking specifically about Facebook on July 15, Psaki said, “[I]t’s important to take faster action against harmful posts. As you all know, information travels quite quickly on social-media platforms; sometimes it’s not accurate. And Facebook needs to move more quickly to remove harmful, violative posts—posts that will be within their policies for removal often remain up for days. That’s too long. The information spreads too quickly.

fake news

“Finally, we have proposed they promote quality information sources in their feed algorithm. Facebook has repeatedly shown that they have the levers to promote quality information ... . So, these are certainly the proposals. We engage with them regularly and they certainly understand what our asks are.”

So then, we must ask, is the Biden administration privately “asking” Facebook and other Big Tech companies to remove pro-Second Amendment content it thinks is “harmful” to its preferred politics?

Biden’s Surgeon General Vivek Murthy did recently issue an advisory calling for a “whole-of-society” effort to combat the “urgent threat to public health” posed by “health misinformation.” He was referring to COVID-19, but this same administration is
also fond of claiming that guns are a “public-health crisis.” Also, many anti-Second Amendment politicians closed gun stores during the beginning of the pandemic. Could they then work with Big Tech to further censor pro-Second Amendment content as part of “public-health” policy?

“We don’t take anything down. We don’t block anything,” said Psaki when Fox News’ White House correspondent Peter Doocy pushed for answers. Rather, she said, the administration is merely “flagging problematic posts” and suggesting “additional steps” that Facebook and other social-media companies should take.

Even if the Biden administration hasn’t dabbled in getting Big Tech to censor gun owners, given the public pressure the Biden administration is applying on tech companies, as well as the federal government’s ability to launch litigation and to support legislation to further regulate social-media companies, it’s not hard to comprehend that Big Tech might think it in its interest to appease this administration—not that the progressives running most Big Tech companies today need much prodding to move against Second Amendment advocates.

Facebook CEO Mark Zuckerberg
Facebook CEO Mark Zuckerberg has come under increasing criticism for censoring content for political reasons.

Why They Are Going After Speech
For context, it’s worth noting that gun-control activists’ multi-decade strategy to “de-normalize” firearms, firearm ownership and the shooting sports has failed; they’ve failed even though, over the last decade, Big Tech has often acted as a roadblock to gun-related content. Despite this censorship, gun sales have skyrocketed, and more people are shooting recreationally today; also, the general culture simply doesn’t regard guns or gun ownership with the suspicion that was prevalent in many places a couple of decades ago. In addition, gun owners and firearms-rights advocates are more assertive and less defensive than they used to be.

As a result, it isn’t difficult to understand why the Biden administration might try to get around First Amendment restrictions on government censorship by working with private censors; after all, it must be bothersome to Biden that legislative protection for gun rights have done well, thanks in no small part to the NRA, over the last few decades. Nearly every state now offers “shall-issue” carry, and we’ve seen a rapid move toward constitutional carry in numerous states—now including Texas and my own home state of Tennessee. These represent enormous changes, which took place in a relatively short time.

So, defeated in many courts and legislatures, they’ve shifted the battle to institutions where they have more clout: The unelected government bureaucracy and now to Big Tech.

Operation Choke Point
An easy way to understand this type of government pressure on private industry is to consider the Obama administration’s “Operation Choke Point.” This initiative was an informal effort to, yes, choke off the finances of companies in the firearms business. This effort was informal because it didn’t involve public processes like administrative rulemaking, much less actual legislation. Such efforts would likely have failed, and would have attracted bad publicity, which is why they weren’t tried.

Instead, Operation Choke Point involved informal “guidance” from bureaucrats to banks and other financial institutions. The result was a cutoff in credit and financial services for many firearms sellers and manufacturers, and the threat that the entire industry would be cut off from the normal channels of commerce.

Because this was informal jawboning from bureaucrats, there were no proposed rules to comment on or to challenge in court. There was no legislation to oppose in Congress. There were simply bureaucrats from the Federal Deposit Insurance Corporation (FDIC), the Department of Justice (DOJ) and elsewhere, gently “suggesting” to various large banks and financial firms that they stop serving certain companies.

Based on informal guidance, those financial institutions were encouraged to close the accounts of companies that were allegedly financial “high risks,” but that were in fact gun and ammunition dealers. (Which, given the boom in gun sales brought about by the Obama administration’s policies, were unlikely to have been financially risky at all.)

The government lumped legitimate gun and ammunition dealers in a category with things like Ponzi schemes and drug-paraphernalia sellers. And instead of proceeding via legitimate legal procedures, these agencies kept their pressure campaign clandestine.

FDIC officials would contact banking executives via telephone (leaving no email records that might be found in a Freedom of Information Act request) and threaten increased regulatory burdens of their institutions, while purporting to offer helpful advice on how to avoid those burdens. In one case, the FDIC’s Atlanta regional office allegedly went as far as to threaten a bank chair with criminal prosecution if they didn’t drop their clients.

According to a lawsuit filed by lenders, the officials told them that continuing their relationships “will result in harsh and prolonged examinations, reduced examination ratings and/or other punitive measures.”

Operation Choke Point was eventually shut down after a barrage of lawsuits, and the election of President Donald Trump (R), whose administration ordered it ended. But it wasn’t the end of such efforts by our current administration.

Our Tech Shadow Government Takes Over
With government efforts neutralized under President Trump, the new “shadow government” of Big Tech and activist groups continued the efforts embodied in Operation Choke Point. As we’ve seen in recent years, the tech giants have become more and more open about their willingness to leverage their power to silence dissenting voices and shut down companies (and people) of which they disapprove. The firearms industry was a major target.

Spend a little time perusing the “acceptable use” policies of virtually any tech platform and you’ll observe strict regulations, often rising to the level of outright bans, on sales and advertisements for firearms and ammunition. Sometimes these bans even extend to accessories like holsters. Whether it’s Facebook, Instagram or Twitter, or even sites like Pinterest or LinkedIn, guns, ammunition and their sellers are disfavored and banned.

Google Shopping actually bans all gun listings, and at one point even banned any searches containing the word “gun,” which caused trouble for the sellers of nail guns, water guns or, amusingly, even searches containing the word “burgundy” because, well, bur-gun-dy. Other sites that serves as intermediaries for private sales, like Craigslist and eBay, are also hostile to firearms buyers or sellers.

Even if parties find one another despite these barriers and arrange a sale, payment processors won’t help them. PayPal, Square and Venmo all ban the use of their services for firearms transactions.

So, if you’re a firearms-related business, you’ve got problems. You can’t advertise on any of America’s top platforms, and smaller, independent sales are also difficult, to say the least. These difficulties have led to the rise of smaller, specialized platforms like Armslist, GunBroker and Gun Owners’ Club. But those companies operate at risk of further targeting, and many think their future is precarious. Armslist has even set up a subscription fee and a legal defense fund to guard against future litigation expenses.

Beyond Sales and Sellers
But it doesn’t stop with sales. The Big Tech platforms have also used their clout to silence activists, politicians and commentators who take a pro-gun line. Pro-gun statements are filtered as “misinformation” even if factually true, and political arguments are characterized as “violence,” “incitement” or “hate speech” even while more-extreme statements in support of other political viewpoints are tolerated. There’s an anti-gun thumb on the scale at every step.

YouTube has demonetized makers of gun videos—making it impossible for them to earn a living—and sometimes outright removed their content. Typically, no real explanation is given. The video artist “The Honest Outlaw” was demonetized by YouTube without being given any reason other than a vague claim that his content violated YouTube’s “community standards.” Despite an audience of over 650,000 subscribers and apparently complete compliance with community guidelines, he remains demonetized to this day.

And it’s not just outsiders with names like “The Honest Outlaw.” Huge firearms dealer Brownells, for example, had its YouTube channel banned in 2018. Brownells has been in business since 1939, and is the very model of a law-abiding, socially responsible firearms seller. Brownells was big enough, and able to generate enough of an outcry, that it quickly had its channel restored.

But the bans and demonetizations continue. The standards are—perhaps deliberately—confusing and unclear, but the common factor is that firearms content keeps being found to have violated them. Reloading expert “IraqVeteran888” had hundreds of his YouTube videos deleted in one fell swoop, despite having been reassured by YouTube support that those videos did not violate community guidelines.

In addition, many sites manipulate their search algorithms to make firearms content, and other politically incorrect content, harder to find. This “shadow banning” leaves content online, but out of reach for many users.

fake news meter

Remedies for This Censorship
What to do? It’s possible to set up alternate platforms, but when Twitter-competitor Parler did that, various tech firms, including Amazon Web Services, united to take it down. It’s harder to gain an audience on a stand-alone site these days.

Some states are fighting back. Both Florida and Texas have enacted laws prohibiting social-media companies from taking down content for political reasons. These laws have not yet been tested in court, but they have a fair chance of surviving. Social-media companies argue, of course, that their censorship actions are free speech. Just as a newspaper can’t be forced to publish a rebuttal by someone it’s attacked, they shouldn’t have to publish content with which they disagree.

The problem with this argument is that the social-media companies also argue that they’re not publishers at all, but are platforms, and thus shouldn’t be held responsible when users post content that is libelous, fraudulent or in violation of intellectual property laws.

It’s hard to argue both things at once, but they do.

Section 230 of the Communications Decency Act protects platforms from being held liable for content posted by others. Without this statutory carve-out, the big social-media platforms would be in trouble. If they were regulated under the ordinary laws applicable to publishers, they might collapse under the liability.

U.S. Supreme Court Justice Clarence Thomas recently argued that courts have wildly over-read the protection offered by Section 230. The statute was designed to keep newspapers and similar outlets from being sued over things people posted in their comment sections, but has been expanded by judicial opinions into a near-impenetrable shield for an entire industry.

He also suggested that big platforms like Twitter and Facebook should be regulated as “common carriers,” like utilities, and forced to provide service to anyone who wants it, on equal terms.

A common objection is that these Big Tech platforms are private companies and can run their businesses as they see fit. The weakness in this argument is that private companies in this country haven’t been able to run their businesses as they see fit for a very long time—government places limits on their ability to hire, to fire, to open and close locations, on their wages and benefits and much, much more. And even in the 19th century, common carriers were regulated and subjected to special obligations of public service.

Aside from Justice Thomas’ critique, there’s increasing enthusiasm for using antitrust laws to break these huge platforms up. Each operates as a near-monopoly, and as the experience of Parler demonstrates, they’re quite happy to collude to shut down a competitor.

If Big Tech sites like YouTube, Facebook and Twitter faced real competition, they’d have an incentive to be less heavy handed, since censorship would cause them to lose traffic to competitors. And, by comparing sites, any algorithmic manipulation would be easier to spot.

In recent years, the previously nonpolitical tech platforms have gotten very political indeed. They should not be surprised if politics bites back. Those who want to see more free speech online would be well advised to elect politicians who agree.


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