Tuesday Talk*: Pay To Play

Online payment processors like Paypal are private companies and thus have the choice to do business with whomever they choose, provided it doesn’t discriminate against a protected class. But happens when they choice is exercised in a way to disfavor political views which are unpopular, or enterprises who do icky things?

In the past, it might never have occurred to a company to wield its business availability in such a way, but give the concerns about political correctness, does allowing a company engaged in evil enterprise not make the payment processor complicit? Sure, companies want to make money, but they’re similarly afraid of being blown up as a pariah for allowing their services to be used by the enemy of shriekers. This is particularly true for digital business, which relies to some extent on being cool enough to be acceptable to digital natives.

FIRE, now the Foundation for Individual Rights and Expression, has something to say about this.

• • The issue: Online payment processors like Venmo and PayPal often deny Americans access to these vital services based on their speech or viewpoints. 
  • The concern: When these companies appoint themselves the arbiters of what speech and views are acceptable, shutting people and organizations out of the online financial ecosystem for wrongthink, they seriously undermine our culture of free expression.

Imagine you could no longer use PayPal, Venmo, or another online payment processor because you run an organization that defends free speech for controversial speakers, operate an independent media outlet that challenges mainstream narratives, sell erotic fiction or “occult” materials, or . . . tried to submit an article about Syrian refugees into a newspaper awards competition.

These are not hypotheticals. They’re real, and they illustrate why online payment service providers should stay out of the business of policing their users’ speech and views.

The concern is obvious. By denying disfavored individuals and businesses access to the  a significant digital financial mechanism, you’ve cut off their funding and assured their financial failure. Granted, people can still send checks, if they know what checks are or have ever used a stamp. But I digest.

Access to online payment systems is crucial for the innumerable individuals and organizations that rely on financial support for their expressive activity. It’s essential to content creators’ ability to earn a living, to websites’ and other businesses’ ability to raise revenue, to fundraising by political candidates and nonprofit organizations, and to everyday Americans’ ability to consume content and support causes they believe in. When payment processing services act as political hall monitors or moral arbiters deciding what speech and viewpoints are out of bounds, they present a grave threat to free expression.

But what of the company’s right to free expression?** What of the others, who hate the disfavored companies, right to free expression. What of their right to try to coerce companies to shut their doors to businesses that are hated for their ideological heresy?

• PayPal’s acceptable use policy (and that of Venmo) states users may not use PayPal for transactions involving:
  • “the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime”
  • “items that are considered obscene” “certain sexually oriented materials or services.”

On the one hand, they lack the means to distinguish between real and imaginary violations of these policies, as reflected in some of FIRE’s anecdotes. On the other hand, they lack any due process to challenge their decision to shut off the spigot.

Unlike, say, certain legislators who believe that enacting poorly written, flagrantly unconstitutional laws is the solution to improper social pressure, FIRE argues that payment processors making ideological choices are undermining our “culture” of free speech. Not the First Amendment. Not a statute. Our culture, that the embodiment of free speech in the First Amendment doesn’t dictate support for it, but is a reflection of our principles favoring free speech.

Is FIRE right? Is there anything wrong with companies exercising their right not to do business with anyone they please? There are obvious conflicts of free expression all over the place here. Whose rights prevails? Or is it a matter of whoever presents the greatest threat to business wins the day, as in might makes right?

Should a law be passed requiring online payment processors to take all comers, like a public accommodation can’t discriminate on the basis of race? Will they then be forced to process payments to terrorists so they can blow things up and kill people? Where is the line?

*Tuesday Talk rules apply.

**Why, one might wonder, would a company like paypal even consider where money was going. After all, it’s just a money processor, not a church. FIRE explains:

PayPal’s CEO Dan Schulman defended the company’s policy against hate speech. “Probably the most important value to us is diversity and inclusion,” Schulman said.

You might think the most important value was to earn a profit. Apparently not.