by David Solway
What we are witnessing is the deployment of a totalitarian methodology justified as the legitimate practice of a private company.
Should First Amendment rights be extended to Big Tech corporations to publish and censor as they please? This is a question that has agitated the discussion on whether antitrust legislation should be applied to infogiants such as Google, YouTube, Twitter, Facebook, Reddit, Amazon, Pinterest and many others that have cornered the market on a public resource, information, and an essential human activity, the consumption of information. A solution to the problem of data sequestration and restricted access practiced by these companies is to rebadge them either as publishers or, alternatively, as public utilities.
These entities are protected by Section 230 of Title 47 of the United States Code, which allows them to “restrict access to or availability of material that the provider or user considers to be obscene…or otherwise objectionable” (italics mine). This provision has become, in effect, a license to censor expressions of opinion that run counter to the convictions and political views these companies promote. The First Amendment argument absolving Big Tech from complicity in monopolizing political discourse is succinctly summed up by a commenter to an article I recently posted in which I advocated antitrust legislation with respect to social media. He writes, in part:
“A private company…is exercising its First Amendment rights to do whatever the hell it wants short of libel and slander and incitement to violence…No private company has the obligation to carry content which it opposes ideologically. No private company has the legal obligation to be content-neutral… [T]hat would be a blatant violation of its free speech rights. The government can neither suppress nor compel speech nor demand ideological neutrality from private entities...Changing the rules to subvert the Constitution by defining companies you don’t like as “utilties” or “publishers” is the kind of fascist trick the left is always trying to get away with.”Wishing to establish fairness in information exchange -- the lifeblood of a democratic nation -- is the very opposite of fascism. The fact is that suppressing users on political grounds is itself a fascist -- or, more accurately, Marxist -- strategy that is now the name of the game. Google executive Jen Gennai makes it clear that Google is bent on sidelining supporters of Donald Trump, a practice nothing short of electoral tampering. The great purge against conservatives and free speech advocates is proceeding via tactics like demonetization, shadow banning, the rigging of algorithms, the employment of waffle terms in enforcing company policy (e.g., “community standards”) and outright segregation. This just in from a correspondent:
“On Twitter, a great many right wing accounts are anonymous, and must use certain themes in order to convey our politics. This is necessary because so many of us get suspended or banned. Thus there are code words people use in their tweets and profiles in order to find (or re-find) friends. The lack of identity creates disconnect and loneliness. The result is people mourning banned accounts almost like fallen comrades. Every day new screenshots make the rounds and are shared by those who knew the pseudonymous account in question, the next person whose account has been killed off: an image of their profile with all their tweets gone.”What we are witnessing is the deployment of a totalitarian methodology justified as the legitimate practice of a private company. In contrast, public utilities like phone and post and electric utilities cannot quarantine or ban their users -- anyone can make a call or send a letter or heat their homes regardless of political persuasion. A public utility cannot censor “content.” When a private firm can be shown to materially skew political discourse -- not via editorial expression of preference, which is legitimate and abides by the First Amendment, as is the case with media and press -- but by eliminating users of whom it does not approve, it has become not merely a private enterprise but a de facto political actor relying on unscrupulous practices.
The problem is compounded by the fact that Big Tech has dominated, indeed blanketed, the market under the aegis of the First Amendment. What is the rationale behind granting the freedom to monitor content to monolithic platforms that deny freedom of expression to others? These platforms function as cartels, as companies operating together to preserve each other’s monopoly status. Once a private company grows large enough to ally with other companies to cull or suppress shades of opinion it opposes, we are no longer in the sphere of freedom but of monopolistic protocols that filter or prevent common access and at the same time strip people of the ability to earn a livelihood.
If one regards information as a product like any other, then it cannot be refused to consumers by corporate fiat. Closing one’s account changes nothing. Depending on a small competitor changes nothing. A new info company will take years to acquire market significance, by which time one may be living in a quasi-totalitarian state. Moreover, start-ups can be severely inhibited by monopolies that control the technological apparatus.
The irony is that the First Amendment is being abrogated or bypassed when one is no longer free, under the law, to say what one wishes to say. A constraint of this nature smacks of authoritarian repression. The 1946 Lanham Act’s “Disparagement Clause,” which originally banned derogatory or offensive items in trademark assignment of private companies, in particular on grounds of sex or race, has been deemed unconstitutional and was overturned in 2017 by the Supreme Court as “viewpoint discrimination.” As Justice Alito explains: “We have said time and again that the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
Dissenters will contend that the First Amendment rights of companies have been violated, but the First Amendment more broadly has in actuality been upheld. The Justice continues: “[A]s we have explained, th[e] idea [that the Government has an interest in preventing speech expressing ideas that offend] strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate.” The Court determined that the First Amendment requires viewpoint neutrality.
What applies to trademark regulation and commercial speech applies equally to the conduct of social media and the major providers of information exchange. Speech is speech, whether commercial or “private,” advertisement or commentary, which in the cases examined here are both public issues. Big Tech companies may be designated as private entities, but in the course of their evolution they have become more than that, hiding under an interpretation of the First Amendment that permits them to steer the direction of public communication and decide the formation of desired policy.
As Daniel Greenfield said in a talk delivered at the Freedom Center, “The internet used to be about empowering individuals. And then the big dot-coms like Google came along and made it a gated community. If you wanted to exist on the internet you had to play by their rules.” The infogiants leave “no room for anybody who disagrees with the politics of the people who control the tech platforms.” Libertarians who say “there is no basis for antitrust action here” fail to understand what is at stake. In effect, the private realm has become a public atrium where social, cultural and political events are not merely discussed and weighed but pre-ordained by excluding opposing voices while featuring endorsed content. A recent episode shows how this maneuver works. Facebook removes a post commemorating the Holocaust while re-instating virulent anti-Semite Louis Farrakhan to its roster of users.
Of course, minor players that have little influence on public sensibility and do not control the fate of a nation or the tenor of public sentiment could be exempted. They may conceivably be in violation of the “Disparagement Clause” but they are not “search engines” that power the Internet. One does not kill an ant with a sledge hammer. Yet the hypocrisy is inescapable. A site for knitters like Ravelry can ban “any support for Trump or his administration.” No MAGA hats allowed but Pussy Hats are just fine. A controversy has recently erupted over its policy, which it will surely survive. But let them ban a knitter who celebrates being black or feminist or a member of the LBGT+ community, and the firestorm that would ensue would be devastating.
The major players, however, are another frenzy of shark. Their influence is so widespread and insidious that merely repealing their 230 immunity, as Senator Josh Hawley has proposed, does not go far enough. Such companies could lobby for exemptions, perhaps successfully. Rather, they need to be fundamentally reformed since “viewpoint discrimination,” which is their stock in trade, entails both nullifying the First Amendment and depriving consumers of the liberty to avail themselves of freely traded market products. Indeed, consumers can be readily prohibited from promoting their own products and services at company discretion. Additionally, information is itself a product -- it is an integral part of what is now called the information economy, in the same way as we refer to the industrial economy, to which antitrust laws apply.
Thus, there is no viable argument against redefining the censorious, viewpoint-discriminating Big Tech consortiums as public utilities. They may not be knitting networks, but they have the power and ability to unravel a nation.
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