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Yes, Amazon and eBay can ban sales of Confederate merchandise. Is that good or bad?

- June 24, 2015

Retailers move to remove Confederate merchandise after the South Carolina church shooting. (The Washington Post)
The news that eBay and Amazon are moving to block sales of Confederate-related merchandise is causing concern among commentators like the New York Times’ Josh Barro. Barro and others have no time for Confederacy nostalgia, but worry that having “Amazon and eBay exercising a lot of discretion over third-party postings may not be a great road to go down.”
But Amazon and eBay have banned sales of certain political material for many years. Amazon bans sellers from selling products that “promote or glorify hatred, violence, racial, sexual or religious intolerance or promote organizations with such views.”  eBay’s ban has identical wording. Neither organization has been fully successful in enforcing these bans, but they stand.
Why do both Amazon and eBay ban certain kinds of content?
France, Germany and Nazi paraphernalia
One of the most important, though little-known, moments in Internet regulation was the fight between Yahoo and France over Nazi paraphernalia. (In this account I am relying on Jack Goldsmith and Timothy Wu’s excellent summary of the case). France, like Germany and some other European states, bans people from buying or selling Nazi-related materials. These countries do not have an equivalent of the U.S.’s First Amendment and have obvious historical reasons for being sensitive about Nazis and far-right sentiments. In 2000, two French anti-racist organizations sued Yahoo, which was then trying to create an Internet auction business, in French courts for allowing the buying and selling of Nazi-related materials. Yahoo  fought back on free speech grounds and on the grounds that it was a U.S.-based company, but lost the case when it became clear that it could use “geolocation” techniques to filter its auction results so that French people — and only French people — would be blocked from buying and selling Nazi-related material.
And yet Yahoo  decided not to filter Nazi-related auctions for French people only. Instead, it created a general ban on auctions of “items that are associated with groups which promote or glorify hatred and violence,” claiming improbably that it was doing this not because of a French court ruling, but because “society as a whole had rejected these groups.” Other major Internet companies such as eBay and Yahoo, which allow auctions or third-party companies to sell items via their Web sites, have adopted similar policies, for similar reasons; because they don’t want to get in trouble with French or German legal authorities, and because of informal pressure.
These rules are now being reinterpreted to ban Confederate memorabilia.
Amazon and eBay have a strong legal position
Since these businesses are enforcing this ban for their own reasons, rather than because of U.S. government pressure, the First Amendment doesn’t really apply. Because of the First Amendment, the U.S. exercises a light hand in telling websites what they can or cannot publish–except when violating copyright, where the U.S. often chooses to apply harsh sanctions.
This has led to a somewhat unusual set of incentives. On the one hand, the U.S. government has sometimes tacitly encouraged online businesses to censor certain kinds of material that the government cannot ban. For example, when Congress passed the Communications Decency Act, it correctly expected that some of the provisions banning child pornography would be struck down by the courts on First Amendment grounds. So it created rules encouraging Web sites to censor these materials themselves, by providing them explicit protections against being sued on First Amendment grounds.
On the other hand, the U.S. system sometimes allows private actors to use strong copyright rules to engage in effective censorship. Thus, for example, Scientologists have used copyright law to sue their critics for publishing secret information about the Church online, and sought to prevent search engines such as Google from linking to it.
Businesses can be pressured by governments and private groups
What this all means is that the actual implementation of free speech and commerce rights is often at the discretion of private companies. The U.S. regime has strong controls on what governments can or cannot censor, but relatively weak controls on what e-commerce firms can or cannot tell their customers they need to do as a condition of doing business. Indeed, in some circumstances, U.S. legislators have implicitly asked e-commerce firms to censor communications that they cannot themselves censor directly.
This means that e-commerce firms are fat, juicy targets for non-U.S. governments, as I discuss at length in this article, and  non-state actors who want to limit certain kinds of speech and sales, as in the case of Confederate memorabilia.
One plausible interpretation of this week’s announcements is that the U.S. is beginning to move toward a national consensus that Confederate memorabilia are strongly associated with hatefulness and racism, creating pressure on large firms to conform to the emerging norms about what is and what is not acceptable.
But there will likely be instances in which Americans (including CEOs) will want to resist pressure to remove or ban material, as when foreign governments want to suppress material that is politically embarrassing. In those instances, the U.S. legal system does not especially help these businesses to resist pressure, which may lead, over time, to limited private censorship regimes within what many consider to be semi-public forums.
Disclaimer: Amazon chief executive Jeffrey Bezos owns The Washington Post.