By Yoree Koh and Jacob Gershman
Technology companies' recent moves to crack down on white
supremacists thrust them into unusual territory for corporations
that often take a more hands-off approach to who uses their
services and how.
In the wake of weekend violence at a white supremacists rally in
Charlottesville, Va., Alphabet Inc.'s Google and GoDaddy Inc.
stopped providing hosting support for the Daily Stormer, a neo-Nazi
site that the companies said violated their terms of service.
Airbnb Inc. banned participants in the rally from staying in
rentals booked through its site.
Uber Technologies Inc. blacklisted white supremacist James
Allsup after Mr. Allsup and another passenger allegedly made racist
remarks to their driver in Washington, D.C., on Friday night. In a
video Mr. Allsup posted on Twitter, Mr. Allsup is heard asking the
driver what he said was racist. Crowdfunding site GoFundMe removed
campaigns to raise money to bail out the driver charged with
speeding into a crowd of counterprotesters on Saturday, which
killed 32-year-old Heather Heyer. On Tuesday, payments company
PayPal Holdings Inc. reiterated that it works to ensure "that our
services are not used to accept payments or donations for
activities that promote hate, violence or racial intolerance,"
saying that includes white supremacists and Nazi groups. It is
unclear if PayPal has recently removed or suspended any accounts
that violated its terms of service.
Behind the swift action from the companies lie considerations
about freedom of speech and the legal application of company
policy, which seems to vary depending on who the end user is.
Companies that are considered communications platforms have the
greatest leeway to enforce policies that bar certain users, legal
experts say.
Tech companies "certainly have the right to make their own
judgments about what's in the terms of service and whether it's
being violated," said Mike Yang, former general counsel at
Pinterest Inc. and a former deputy general counsel at Google.
Recently, the debate about what kind of speech tech firms allow
on their platforms has focused on companies such as Facebook Inc.,
which has hosted fake news as well as violent live videos, and
Twitter Inc., which has ramped up efforts to remove some accounts
from its site.
Following the violence in Virginia, domain registrars -- which
act as intermediaries by making sure that a website's domain name
is linked to the correct IP address -- have also become arbiters of
free speech. If a registrar pulls service from a site, the site
will appear offline to the public until it finds another
registration provider.
"The number of net intermediaries acting as gatekeepers has
increased," since GoDaddy booted Daily Stormer, said Daphne Keller,
who studies platforms' legal responsibilities at the Stanford
Center for Internet and Society. "Suddenly the domain registrars
are sitting in judgment on content and speech," joining the usual
players around free speech such as Google, Facebook and
Twitter.
Domain registrar GoDaddy said that, while it doesn't usually
take actions on complaints that would "constitute censorship of
content," it decided that an article Daily Stormer posted
ridiculing Ms. Heyer crossed the line "to promoting, encouraging,
or otherwise engaging in violence against any person." On Sunday,
it gave Daily Stormer 24 hours to find a new registrar.
Daily Stormer then registered on Google. Hours later, Google
canceled Daily Stormer's website-hosting registration, saying the
site violated Google's policies against inciting violence.
Daily Stormer, whose site was inaccessible Tuesday, didn't
respond to a request for comment.
Many of the actions that companies have taken against
supremacists would probably be unconstitutional under the First
Amendment if imposed by an elected official or public agency,
experts say. The First Amendment's protections of speech and
expression are restrictions on government power.
"In general, the First Amendment is no barrier to discrimination
on the basis of ideology or speech by a private person or entity,"
said Dale Carpenter, a constitutional law professor at SMU School
of Law in Dallas.
Airbnb rejected the reservations of some visitors to
Charlottesville after it said it learned earlier this month that
they were planning to stay in and organize "a series of after
parties at several Airbnb listings while in town to attend this
terrible event," the company said in a statement. The company
pointed to its community commitment as the reason for rejecting
their reservations.
"We require those who are members of the Airbnb community to
accept people regardless of their race, religion, national origin,
ethnicity, disability, sex, gender identity, sexual orientation, or
age," the company said. "When we see people pursuing behavior on
the platform that would be antithetical to the Airbnb Community
Commitment, we take appropriate action."
However, companies such as Airbnb and Uber could face more
challenges to applying their policies because the business segments
they operate in open them up to a host of local laws, experts say.
Businesses that offer their services to the public must comply with
state and local laws banning various kinds of discrimination. Those
laws typically protect against discrimination on the basis of race,
religion, ethnicity and gender. Unless a company is targeting
supremacists because of their gender or race, those laws probably
wouldn't apply, according to UCLA constitutional scholar Eugene
Volokh.
That's not true everywhere. A few places like Seattle have laws
that also ban discrimination on the basis of political ideology.
Seattle's public accommodations law says a business can't turn away
a patron because of conduct "reasonably related to political
ideology" unless the customer's conduct would "cause substantial
and material disruption" of the owner's property rights.
In California, where antidiscrimination laws are particularly
strong, its courts ruled that a German restaurant in Torrance
couldn't evict patrons just for wearing swastika pins. An
unsubstantiated fear of "troublemakers" didn't justify a topless
bar owner in San Diego denying admission to men clad in motorcycle
club insignia, under a separate ruling.
Airbnb has argued in lawsuits against cities like San Francisco
and Anaheim, Calif., that it is a communications platform, putting
it in the same class as Facebook or Twitter, not a short-term
rental business. The lawsuit against San Francisco settled in May
without a clear resolution on whether Airbnb is a communications
platform. Anaheim appeared to recognize Airbnb as a communications
company.
For Airbnb, excluding renters based on their racist views is a
shift from last year, when the company changed how information is
shared on its site after renters said hosts discriminated against
them for race or other characteristics.
Write to Yoree Koh at yoree.koh@wsj.com and Jacob Gershman at
jacob.gershman@wsj.com
(END) Dow Jones Newswires
August 16, 2017 07:14 ET (11:14 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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