For those of you who don’t know, I spent the better part of two decades working in email marketing. I think Scott Adams described marketing best: “we don’t screw the customer; we hold them down while the salespeople screw them.” That being said, I did (mostly) enjoy my time as a marketer, and I became more than a little familiar with a little company named Salesforce. If you’ve never heard of them that’s not surprising; they’re what’s referred to as a B2B company (that’s “business to business”), and their products are used to manage and run e-commerce across the nation.
Why that’s particularly relevant is because of a recent change in their acceptable use policy. Salesforce is now in the business of driving social policy as well as sales. While I might personally disagree with their stance, I want to get out in front and applaud them for making this move. I would love to see more companies, particularly big companies, making moves like this, for a few different reasons.
First it appeals to my libertarian desire for private action over government action. Yes, I have come around to accepting that not all government is bad, but I still believe that government should be the answer of last resort, not the first thing we try and then we turn to private solutions only after every possible governmental approach has been tried and failed. Also, there are a few common misconceptions that need to be addressed regarding private actors versus government action.
The big one that bothers me the most is the idea that somehow private actors can violate your right to free speech. Let’s take a look at the text of the First Amendment, shall we? “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Yes, I can see pretty clearly in there were it says that “Facebook shall not delete your posts because reasons.” The government cannot legally censor you (aside from a few exceptions). Private actors are not required to provide you with a platform for your crazy. In fact, that would be a violation of the First Amendment (freedom of association).
How does that apply in the case of Salesforce and their terms of service? By doing business with Salesforce, you are voluntarily associating with them, and vice versa. Their terms of service are, quite literally, the terms under which they are willing to associate with you. Don’t like it? Fine. Don’t do business with them. Nobody is forcing you to. It’s a free market. So long as Salesforce doesn’t use their market dominance in an anti-competitive way there is no issue (and by the way, that has nothing to do with the First Amendment, that’s standard antitrust stuff, which last I checked is justified under the commerce clause; but I could be wrong). And let’s not even try to drag the Second Amendment into it. I don’t care if they prohibit you from selling guns or gardenias using their software, the point is the same: they are not the government, and nobody is forcing you to do business with them.
That’s not to say there aren’t any First Amendment issues to be concerned with here, it’s just that nobody seems to be focusing on the relevant party, by which I mean Salesforce. Anybody remember a little case known as Citizens United? Yes, I know liberals love to hate on that case, but every dark cloud and so on. In this instance, it’s relevant because Salesforce as a legal entity has rights. The right to free speech. The right to free association. The right to not be compelled to provide a service to someone who will use it in a way that they deem inappropriate. Note that this last point is ethically in line with the baker who refused to serve the gay couple in Colorado. Whether liberal or conservative, you don’t get to pick and choose who gets to express their moral beliefs through their business just because you happen to agree with them. The law applies to everyone equally or it is worthless (which says more about the law de facto than de jure).