The argument from free speech is that government should not be allowed to censor, regardless of the mechanism. Payment processors currently offer that mechanism.
The argument from free speech is that government should not be allowed to censor, regardless of the mechanism. Payment processors currently offer that mechanism.
If the government were coercing Mastercard into censorship, that would be a free speech issue. But absent state pressure, a private company choosing not to do business with certain content isn’t censorship in the constitutional sense. That’s just market behavior. If you want to challenge the influence of financial infrastructure on speech, that’s a separate (and valid) policy debate but it’s not a First Amendment violation.
It's a free speech issue if the government _can_ pressure Mastercard and, separately, Mastercard _can_ act as a censor. That government isn't using this ability in this particular instance is no more of a consolation than if there was a law that permitted censorship but was not used for that or enforced in practice.
Severing either of these two links would be enough though.
You’re shifting from a First Amendment claim to a broader “potential for abuse” argument. That’s fine, but let’s be precise.
1. Government pressure only triggers a First Amendment issue when it’s actual, not hypothetical. Courts require clear state action or coercion.
2. Mastercard acting on its own isn’t censorship in the legal sense, it’s a private company making content-moderation decisions. You may not like that power, but it’s not unconstitutional.
If you want structural reforms, like regulating payment networks as common carriers, that’s a policy question, not a current free speech violation.
The amendment is about laws, not execution. As long as we're not interpreting the amendment literally and trying to infer its spirit at all, the equivalent in this case is that the executive branch should not have the power to legally censor people or companies at all, as opposed to merely not using that power.
Not sure what your point is. Mine from the beginning is there is no constitutional issue like free speech here as the government is not coercing Mastercard or Visa. There are a lot of other valid complaints and arguments but free speech is not one.
I'm saying that Mastercard/Visa being able to do this on their own is one half of a free speech issue. It's not a free speech issue of its own, but it creates a free speech issue when combined with them being vulnerable to government pressure.
Imagine that the government instituted a private organization that had the power to cripple any business, with no recourse, and had control over it. The first amendment does not literally prohibit this, yet this would have clearly been a violation of the first amendment in spirit.
Your distinction is correct as far as it goes, but there is a third observation that must also be taken into account, which is that the tidy division of economic, social, and political matters into private and public domains is uninteresting from the perspective of power. An example of this is how gov'ts, constrained by law, cannot legally engage in widespread surveillance, have found what is morally a loophole by involving private companies who are able to do so more freely. Or, for example, the policing of certain ideas on privately-owned social media which have become de facto public forums. It is completely uninteresting to claim that you aren't forced to use these forums or that you can start your own as jejune free market extremists like to claim. A little intellectual maturity will make plainly obvious why that is the case.
Now, I happen to think that, pace Dershowitz, adult content does not fall within the scope of free speech. The entire purpose of free speech is to allow the truth to be to expressed. Free speech takes an attitude of pragmatic permissiveness toward certain varieties of what are objectively bad speech as the price for that to happen. It's a choice that was made in American political history, but even here, the bounds of what is legally permitted under free speech have not remained fixed for various reasons.
Adult content is nowhere in the vicinity of this notion of free speech, and certainly not its moral purposes. There is no right to produce or to view adult content. There is no right to anything that is objectively unethical, and both the production and consumption of such content is unethical. Gov'ts can choose to take a permissive stance toward such activity for prudential reasons (for example, historically, while prostitution was categorically condemned on moral grounds, gov'ts took a permissive attitude in some respects, because they felt that banning it would cause still greater problems), but they have the authority to criminalize it.
So, given that it isn't a free speech issue, I have no problem, in a free speech context, with private companies banning such content from their platforms or from being the subject of transactions passing through their systems.
What is the government's role here? As far as I can tell the censorship was coordinated and facilitated by private parties.
You have a for profit business that in some areas like adult content walks a line between regulatory oversight, public outcry and the risk to underwriting the business. In this case it was public outcry, there have been instances in the past where different local jurisdictions have come forth. My point is they walk the line between those three areas.