The moral case for reinstatement of “The Curve is Already Flat”
By: Thomas P Seager
Tags: Health, Writing Challenge, Covid 19, Censorship Resistance, Censorship

AJ Kay first drew the graphs for The Curve Is Already Flat by hand, using a stir stick as straight edge. Later, she digitized them in a painstaking process that made clear the timeline by which SARS-CoV-2 began spreading in the United States by Nov 2019.

My role in ‘… Already Flat’ was to assist A.J. Kay in analysis of the CDC data showing a surge of unexplained influenza-like-illnesses (ILI) in Nov 2019, and to organize that analysis into charts that made her thesis obvious. When Medium censored our article after hundreds of thousands of views in less than 48 hours, we republished it in the journal my company founded to disseminate knowledge for health and wellness related to deliberate cold exposure.

A.J. Kay’s letter to Medium makes an ethical appeal. She does not argue that Medium might profit from republishing our article. She argues that Medium has a moral obligation to reinstate — if only to uphold the principles and values it publicly espouses in its own marketing materials.

I’m prepared to go farther.

Although Medium is a private company, beholden to the venture capitalists that funded it with $132M in startup capital, it operates in public spaces using infrastructure built, owned, maintained and protected by a complex myriad of public and private partnerships on which it and its readers depend. Like all internet companies, Medium relies on a “social license to operate” — i.e., a tacit tolerance of the organizations activities, if not outright subsidy or support. As such, Medium has both a self-interest and an social obligation to operate in ways that are consistent with the ethical norms of the society in which it is embedded.

In the United States, those ethical norms are codified in the first ten amendments to the Constitution called the Bill of Rights.

There is one curious fact about the First Amendment, which guarantees freedom of religion, freedom of speech, freedom of assembly, freedom to petition the government for redress of grievances, and freedom of the press.

The First Amendment is the only place in the US Constitution that makes explicit reference to a specific technology as a human right. At the time of writing, the printing press was the dominant publishing technology, and the founders recognized that freedom of “speech” alone — without access to the technology to amplify that speech — was an empty idealization.

It is exactly this recognition that prompted Martha Nussbaum and Amartya Sen to posit a more practical theory of human entitlements called The Capabilities Approach.

The capability approach is a theoretical framework that entails two core normative claims: first, the claim that the freedom to achieve well-being is of primary moral importance, and second, that freedom to achieve well-being is to be understood in terms of people’s capabilities, that is, their real opportunities to do and be what they have reason to value.

— Stanford Encyclopedia of Philosophy (2011).

Nussbaum and Sen argue that human rights have no meaning without the capability to realize those rights.

What good is freedom of speech if there is no mechanism for people to hear what you say?

And it is here that the First Amendment requires a technological upgrade. It is no longer sufficient to grant freedom of the “press.” The technologies of publication have changed so much that the First Amendment in the modern age might as well guarantee the “freedom to tweet.” It was twitter, after all, that made Ev Williams a billionaire.

The First Amendment has never granted an absolute freedom. There are constraints and penalties that impinge upon abuses like libel, in which a publisher can be held liable for damages caused by published remarks.

Nonetheless, the ultimate defense against accusations of libel is the truth, and this is at the core of A.J. Kay’s appeal to Medium editors like Harris Sockel. Because the knowledge they censored for being too dangerous to disseminate has since been substantiated by subsequent accounts, Kay argues that our article is true.

Not that truth matters to Medium. They makes no mention of “truth” in their Terms of Service. According to Medium, it’s alright with them if you want to publish scandalous lies. They make no prohibition against libel, slander, or other abuses of your constitutional right to freedom of the “press,” but they do include one caveat.

Medium retains the right to “remove any content you post for any reason”.

Medium might censor you to protect Ev Williams financial interests. They might censor you to protect their political agenda. They might censor you because they don’t like the look of your profile picture.

Medium retains the right to censor you on the basis of race, gender, religion, sexual orientation, age, or purely out of malice.

Notoriously capricious in enforcement of their own policies, what we see in Medium’s terms of service is a commitment to… nothing but their own, childlike whimsy.

What protections against malevolent abuse are built into Medium’s platform?

None.

Certainly not the truth.

That means what the Founders intended to be a constitutionally protected fundamental human capability is now throttled by economic and political interests beyond the reach of the electorate — which is precisely what the founders drafted the constitution to guard against. A monopoly on the political power of speech cannot serve the interests of society, because such power has no counterweight, no balance, no feedback mechanism that pushes back against the corruption of its own short-sighted, self interest.

Kay has received no shortage of well-meaning advice to discard Medium, and to publish exclusively on her own blog. Sometimes, her readers suggest alternative network platforms such as LinkedIn and Patreon, which Kay has explored to different degrees, and might use to her readers’ benefit.

Nonetheless, this advice misses the point. Medium’s influential position as a network-based publication platform places ethical obligations upon it that cannot be discharged by claiming that other, alternative platforms, exist to take up their civic responsibilities for them. Medium’s “we do whatever the hell we want” terms are not tolerated in other sectors of American society: not in hiring, not in housing, not in lending, not in entertainment, and not in commerce, because as a society we have already decided that civil rights and liberties hold paramount over private, commercial interests.

The only way our democracy can function without collapsing in upon itself, is by protecting the rights of the minority in a system of majority rule.

To allow Medium to censor any article that offends their capricious self interest is to abdicate the position they have worked so hard to establish as an influential gatekeeper of ideas.

And it’s not just the impingement of AJ Kay’s freedom of speech that is imperiled. Because her article relates directly to the justification for prohibition on non-emergency medical procedures, Medium’s actions strike a double blow to Kay’s fundamental human capabilities.

By suppressing speech critical of the justification for lockdown, Medium armors public policies that sever Kay’s access to the healthcare infrastructure necessary to monitor and treat her inoperable liver tumor, and jeopardizes the well-being of her four daughters.

Ev Williams and his staff must be ashamed of themselves.