A Contract of Social Justice Adhesion

While some would argue that this proposed law impairs the right to contract, it’s not really true. Contracts on the internet are characterized by “adhesion,” meaning that you don’t get an option to negotiate terms, as you would in a person to person contract negotiation. You can take it or leave it, and if you “need” what they’re selling*, then you take it. More to the point, no one reads them, anyway, and no one knows what they’re giving away.

Both houses of Congress have now passed bills prohibiting contracts that preclude individuals from, or penalize them for, making negative reviews. Both the Senate’s and House’s versions offer protection:

(b) Invalidity Of Contracts That Impede Consumer Reviews.—

(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), a provision of a form contract is void from the inception of such contract if such provision—

(A) prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication;

(B) imposes a penalty or fee against an individual who is a party to the form contract for engaging in a covered communication; or

(C) transfers or requires an individual who is a party to the form contract to transfer to any person any intellectual property rights in review or feedback content, with the exception of a non-exclusive license to use the content, that the individual may have in any otherwise lawful covered communication about such person or the goods or services provided by such person.

Cool, right? You won’t get Kleargeared for calling some company’s crappy product ugly. Given that it’s limited to “form contracts,” rather than agreements actually reached between parties, its “impairment” of the right to contract is a red herring. The biz can still negotiate a contract term prohibiting criticism, but it just can’t do so in the seven thousand paragraph terms of service on some “click to agree” backpage.

But just as some companies throw in some bizarre and dubious terms that no one would expect, but for the fact that nobody bothers to read them, Congress isn’t above doing the same thing:

(2) RULE OF CONSTRUCTION.—Nothing in paragraph (1) shall be construed to affect— …

(C) any party’s right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or otherwise controlled by such party any content of a covered communication that—

(i) contains the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;

At Volokh Conspiracy, Eugene founds this clause and took issue.

But contracts barring speech that “is inappropriate” (whatever that is) “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic” would remain perfectly legal.

That, I think, is a very bad idea, and indeed an unconstitutional idea.

Heh, it’s like you’re all lawyers now. Those same contracts of adhesion imposed by clicks can now include a provision penalizing you, by imposing a sum of money that can be automatically charged or, upon failure to pay, destroy your credit, because you wrote a review that included

the personal information or likeness of another person, or is libelous, harassing, abusive, obscene, vulgar, sexually explicit, or is inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;

Note that while Eugene only addresses the second half of the exemption, I include both. Harassing? What does that mean? Abusive? Anything shy of a tummy rub is abuse to some people (actually, a whole lot of people). Vulgar? You’ve got to be kidding? But the “inappropriate” with the laundry list of marginalized victims is just sheer insanity.

And why? What possible reason could there be for Congress, both houses mind you, to insert such language in a law which seeks to eliminate a wholly unrelated problem? Eugene goes after this clause on the basis of “special interest” speech restrictions:

Should Congress be free to set up one set of contract law rules for contracts dealing with “unpatriotic speech” and another for contracts dealing with other viewpoints? A special set of contract law rules for contracts dealing with speech that “is inappropriate with respect to veteran status,” differing from rules related to other speech? A special set of contract law rules for contracts dealing with speech that condemned a business’s environmental practices? I don’t think so — and Congress likewise shouldn’t set up rules allowing special restrictions (not applicable to other speech) on “inappropriate” speech “with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic.”

But this ignores the overarching aspect of legislative initiatives seeking to micromanage microaggressions, the current trend of pretending that hate speech isn’t free speech. While it makes no sense that it’s included in this proposed law, it obviously is included, and equally obviously conforms to a certain trend of thought that it’s time to limit the First Amendment to happy talk.

Before anyone argues, as has similarly become the trend, but it’s right because these are horrible things and should be stopped, bear in mind that these aren’t choices being made by people who share your feelz, but imposed by clickwrap with potentially dire consequences and no due process by businesses. Facebook can include a term that its members are never to write the word “girls” on the internet as it’s sexist, and if they do, agree to be charged seventy-eleven gazillion dollars!!!  And Congress says, “we’re down with that, brother Zuck.”

And the first time you realize it will be when the charge appears on your credit card, or the bank turns down your mortgage. Is that what you meant by hate speech?

*No one, for example, “needs” to be on Facebook or Twitter. But in the broader scheme of “need,” it’s rather hard for many people to live without it. So you click yes when you open an account and never look back.

3 comments on “A Contract of Social Justice Adhesion

  1. jim ryan

    Similarly, there are email disclaimers, which deal with same and similar issues…
    ____________________________________________________
    READ CAREFULLY. By accepting this email you agree, on behalf of your employer, to release me from all obligations and waivers arising from any and all NON-NEGOTIATED agreements, licenses, terms-of-service, shrinkwrap, clickwrap, browsewrap, confidentiality, non-disclosure, non-compete and acceptable use policies (“BOGUS AGREEMENTS”) that I have entered into with your employer, its partners, licensors, agents and assigns, in perpetuity, without prejudice to my ongoing rights and privileges. You further represent that you have the authority to release me from any BOGUS AGREEMENTS on behalf of your employer.

    1. SHG Post author

      If only that worked, I would add “and by opening this email, you agree to name all your children ‘Scott McScottFace’ and wash my cars weekly.”

  2. Erik H.

    The whole thing is an idiotic and pointless clusterfuck. That said, without the saving paragraph in 2(c), someone else who used your rules of “…I reserve the right to delete or edit any/all comments” might think those actions were forbidden, since they’re adhesion. Of course they could win a FA challenge in the end, but it might chill speech in the interim.

    If they are dead set on this stupidity the least they could have done is to stop here:

    “(C) any party’s right to remove or refuse to display publicly on an Internet website or webpage owned, operated, or otherwise controlled by such party any content of a covered communication.”

    because obviously you don’t need to publish anything you dislike, on your own website.

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