Big Tech and Free Speech

Can Twitter ban Donald Trump? Can Facebook block op-eds suggesting that the Covid virus originated from a Chinese government lab? Can YouTube block videos of scholars who question broad lockdowns of the economy and society?

 

On the one hand, the First Amendment says the government may not make laws that restrict the freedom of speech. Congress could not pass a law forbidding Democrats or Republicans, progressives or conservatives from the public square.

 

But the First Amendment does not apply to private property. The Bill of Rights applies only to the government, not to individuals. Instead, owners have the right to include or eject anyone they wish from their property. As the Supreme Court just declared in Cedar Point Nursery v. Hassid: “The right to exclude is one of the most treasured rights of property ownership.”

 

Think of it this way: If you own a big yard, and someone decides to set up a sign on your yard, you would be well within your rights to tear it down.

 

But what if a company becomes so large and important that it provides the only service available? Railroads cannot choose to kick off passengers because of their race. Utilities cannot refuse to connect people to their networks because they are Democrats or Republicans. They are required to provide services to everyone, because there is no other option available. If a company becomes a dominant monopoly, the law allows the government to regulate its conduct.

 

So the question is: has social media become so dominant, or so involved with the government, that it should obey the First Amendment?

 

Facebook, Twitter, and YouTube are private companies that create a network of users who benefit from communicating with each other. Under Section 230 of a law called the Communications Decency Act, these companies are not held liable for user-uploaded speech on their platforms.

 

This puts them a similar position as say, a newsstand. Newsstand owners aren’t liable for the statements made in the publications they sell. Of course, this doesn’t mean that newsstands have legal immunity for everything they do. They couldn’t, for example, exclude Asians. But they can choose which publications to sell, in the same way that Twitter or Facebook can decide who to ban or restrict.

 

Eliminating Section 230 would vastly change the Internet in negative ways we might not expect. In fact, eliminating Section 230 would very likely lead to more censorship, as platforms would want to prevent (instead of react to) speech they could be held liable for.

 

But for all of the attention that Section 230 receives, it does not answer the ultimate question whether the law can govern social media as “common carriers” like transportation, communication, and utility networks – and hence subject them to a requirement of non-discrimination.

 

There are several dangers in regulating Big Tech companies, even if their networks have come to approach the size of monopolies. First, the reason antitrust law seeks to control monopolies is to prevent such companies from using their market power to charge higher prices or sell inferior goods than prices that would occur with normal market competition. But tech companies like Twitter, Facebook, and Google provide their products to consumers for free.

 

Second, big companies might turn regulation to their advantage. They could “capture” the agencies that regulate them, and use them to create barriers to entry to new competitors.

 

Third, premature regulation could suppress innovation by freezing an industry into place. Social media and tech companies constantly evolve, turn over, and replace one another. If we decide to regulate big tech, but end up with reducing the ability of new competitors to enter the market, we’ll have made everyone worse off.

 

In other words, we should be suspicious when Facebook, Amazon, Google, and Twitter all start supporting Internet regulations.

 

A robust tech sector is a good thing! Putting regulations in place that prevent new competition would be terrible: Imagine if we were still stuck with AOL as our web service provider, Ask Jeeves as our search engine, and MySpace as the only social network.

 

So how should big tech companies act, and how should they be regulated? Ideally, they will become more transparent when their decisions curb speech. Facebook, for example, has an independent “supreme court” that has the authority to overturn any decision made by Facebook.

 

That’s better than having politicians decide who to censor and when.