The most common rejoinder you hear these days to the charge that Big Tech is engaged in censorship is this:
They’re private companies. They can do whatever they want. The First Amendment doesn’t require them to offer you a platform.
That’s the prevailing argument of the left, and some on the right echo it to some degree, arguing that, yes, Facebook and Twitter are private and can ban who they want, but that the market should step up and make them pay a price for what they’re doing.
Except that neither argument is quite right. According to case law established in the federal judiciary, there are situations in which a private company is obligated by the First Amendment to protect the free speech of those it does business with.
As Vivek Ramaswamy and Jed Rubenfeld point out in Tuesday’s Wall Street Journal, the Supreme Court ruled in the 1973 case Norwood v. Harrison that it’s a violation of First Amendment free speech when a private company curtails free speech on provocation from the government.
In other words, ABC Corporation may or may not have let you have your say on its forum, but when Senator So-and-So threatened them with consequences if they didn’t silence you, then their actions became a First Amendment violation.
How many times have the likes of Zuckerberg and Dorsey been hauled before congressional committees in the last several years and told they’d better do something about “fake news,” or else Congress will consider action against them? Many. The account bans and the “fact-check” labels didn’t start appearing until both CEOs had been browbeaten multiple times by Congress.
Facebook and Twitter may be liberal companies who have their own free-speech rights, but when they’re doing the bidding of the government that protects them, that’s another matter.
I have not favored the repeal of Section 230 of the Communication Decency Act because it would remove almost all freedom of speech on social media. But it’s also true that Facebook and Twitter fear its repeal enough to make sure they keep certain politicians happy.
So no, Facebook and Twitter can’t necessarily claim their rights as private-sector companies to silence you – not if they’re doing it in response to politicians telling them to. And they clearly are.
There’s another problem, and that has to do with anti-trust law.
These laws are designed to prevent certain large, powerful companies from forming de facto monopolies and cutting off access to anyone else who might want to try to compete. How is that not exactly what happened this past week, when both Google and Apple removed Parler from their app stores, and Amazon removed it from its web-hosting platform?
If a competitor to Facebook and Twitter can’t enter the market because Google, Apple and Amazon will shut it down, then we’ve reached the type of monopoly situation that anti-trust laws are designed to prevent.
On that basis, it would be very plausible for the Justice Department to bring an anti-trust case against all of these companies and ask the courts to break them up. These actions are the definition of illegal anti-competitive moves.
Yesterday Facebook banned former Rep. Ron Paul from operating his page on the platform.
If you read me at all, you know I am no fan of Ron Paul. But Facebook did so without providing any explanation of what policies or standards Paul had supposedly violated. Its action seemed entirely motivated by Paul’s decision to share a story that was critical of Big Tech for shutting down Donald Trump’s accounts.
Ron Paul has been saying out-of-the-mainstream things for years and his access to these platforms was never in danger until now, when it’s suddenly in vogue to ban people – on the thinnest of pretexts – for merely thinking differently from the orthodoxy.
Big Tech is asking for both First Amendment trouble and anti-trust trouble for doing these things. Being private-sector companies won’t necessarily save them.
But in the meantime, some conservatives are right: It’s time for the free market to make Silicon Valley pay a financial price for what it’s doing.
That’s difficult when every market alternative gets shut down by the monopoly, but everything worth doing is difficult.
Smart, determined people will find a way.
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