By Yoree Koh and Jacob Gershman
Technology companies’ recent moves to address white supremacists thrust them into unusual territory for corporations that often take a more hands-off approach toward 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, “how are we 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.
Facebook Inc. said it removed on Tuesday the profile of Chris Cantwell, a white supremacist who was featured in a Vice documentary on the Charlottesville protests. The company also said it took down at least eight accounts and pages related to white supremacist groups, such as “White Nationalists United.”
On Wednesday, Twitter Inc. suspended the Daily Stormer’s account. A Twitter spokesman said that while he cannot comment about individual accounts, “The Twitter Rules prohibit violent threats, harassment, hateful conduct, and multiple account abuse, and we will take action on accounts violating those policies.”
Also on Wednesday, web security startup Cloudflare said it closed Daily Stormer’s account, making the site slower and more vulnerable to attack. Cloudflare co-founder and CEO Matthew Prince said in a blog post that while the company had wanted to remain “content neutral as a network” Daily Stormer’s claims that “we were secretly supporters of their ideology” pushed Cloudflare to cut the site off.
Behind the swift action from the firms 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, which has hosted fake news as well as violent live videos, and Twitter, 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. Now that Cloudflare has pulled the plug on Daily Stormer, security and domain name servers can be added to the list, a move that Mr. Prince says was a dangerous one to make, in part, because of the risks that come with getting involved in “content policing.”
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 to comment.
Daily Stormer has reappeared on the web under what appears to be a new domain name, indicating it had found a new domain registrar. That address appeared to be offline on Wednesday after Cloudflare discontinued its service. It will be able to reappear once that domain name moves to a new domain name server provider.
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 Dedman 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 isn’t 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 in denying admission to men displaying motorcycle club insignias, 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 was 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 firstname.lastname@example.org and Jacob Gershman at email@example.com