Most people agree that Big Tech has too much power. The approaches to dealing with that crisis break up into roughly three.
1. Section 230 Repeal – A favorite of many conservatives, but would accomplish very little, and likely backfire.
2. Antitrust breakups – My preferred approach. It would take down some of the big players, Google, Amazon, and Facebook, but it would not deal with the overall coordination in the industry without a lot more trust-busting and ruthless measures taken against any coordination. And that may be a big ask.
3. Close government regulation – The problem with giving the government a lot of power over companies that effectively control speech is obvious. But the flip side for a lot of conservatives is the conviction that things can’t get any worse anyway and there’s no other exit strategy.
There are some liberals, leftists and conservatives who support some of these approaches, but, generally, with very different goals.
Conservatives and liberals generally want more speech. Leftists, a group that encompasses most of the Democrats and the media, want less speech. One group wants to pressure social media companies into censoring less, another wants them to censor more.
Any action taken against Big Tech has to be viewed in that context.
Justice Clarence Thomas made some measured comments about the Big Tech speech crisis recently in one of his concurrences involving President Trump’s Twitter account.
Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.
On the surface, some aspects of Mr. Trump’s Twitter account resembled a public forum. A designated public forum is “property that the State has opened for expressive activity by part or all of the public.”…
If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company’s right to exclude
The first is common carriers. The second is public accommodation.
The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech.
In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers… Though digital instead of physical, they are at bottom communications networks, and they “carry” information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way.
The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today’s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google’s algorithm uses to refine and improve search results.
These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry. To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.
Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet—and users rarely do— Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results.
Facebook and Twitter can greatly narrow a person’s information flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books, Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing. It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is. If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform’s right to exclude.
I’ve snipped some of the technical legal references, but the upshot is fairly clear. A public accommodation ought to be familiar enough from the Civil Rights Act. And it’s an argument that I’ve made before. If a diner in Georgia can be a public accommodation, how is Google not a public accommodation?
Any such measures however take us into the territory of government regulation of the internet. As much as I dislike the idea of giving the government power over what had been the ultimate arena of free speech, events, especially in the last few years, have made it painfully clear that the Silicon Curtain has descended, and I don’t know if a Democrat government could eliminate speech nearly as well as Google, Facebook, Twitter, Amazon and other tech companies have begun colluding to do. And I emphasize “begun”. All of this is just getting started.
I still hold out hope for anti-trust and the rise of a new free internet out of the rubble of Big Tech, but I’m not sure that the political slant and its resulting coordination in the industry (and for that matter across most industries) can be halted. Yet I’m not terribly confident that government regulation won’t backfire badly in the end. In a choice between two evils, I have to reluctantly choose a legal system which at least is governed by some notion of civil rights, over an ideological cartel that has zero regard for the rights of its political opponents.
And that takes us to final question.
Big Tech didn’t begin doing this on its own. There’s been a whole lot of pressure from Democrat government officials.
None of this analysis means, however, that the First Amendment is irrelevant until a legislature imposes common carrier or public accommodation restrictions—only that the principal means for regulating digital platforms is through those methods. Some speech doctrines might still apply in limited circumstances, as this Court has recognized in the past. For example, although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U. S., at ___, ___ (slip op., at 6, 9), it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 68 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid.; Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.
That’s a fundamental question. If Democrat officials can pressure companies to censor their political opponents, the First Amendment becomes a joke.
As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.
The hint there isn’t very subtle.
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