Reining in Big Tech

Yesterday, I predicted that the Twitter ban on President Trump would be the beginning of the end for Twitter, and perhaps for Big Tech. Soon thereafter the stock market punished Twitter by shaving a few points off its price. And Jim Cramer, another prophetic voice, suggested last night that Twitter could be in trouble. The same applies to other social media companies, like Facebook. 

The fact is, the world can live without Twitter. It can also live without Facebook. If you ask yourself how much value these companies add to the national economy, you will draw a blank. As for Google, its value as a research tool is inestimable.

As it happens, Twitter boss, Jack Dorsey, has been running the country from French Polynesia. Question for today-- what was Jack doing in French Polynesia? Huh?

And then, German Chancellor Angela Merkel issued a statement, to the effect that Twitter had made a very large mistake.

“The right to freedom of opinion is of fundamental importance,” Steffen Seibert, Merkel’s chief spokesman, told reporters in Berlin on Monday, according to Reuters.

“Given that, the chancellor considers it problematic that the president’s accounts have been permanently suspended.”

Of course, Merkel, who was raised in Communist East Germany, and whose nation has led the world in fascism, knows whereof she speaks. We will add that the French government has spoken out forcefully against Twitter's actions.

The only people who are defending it are American Democrats.

Watching the wave of cancellations directed against Donald Trump and his supporters, not just from social media giants but by banks and other industries, you would think that you are living in the Third Reich and that Trump and his supporters are the new Jews.

Had you been watching Tucker Carlson last night, you would have learned that the Biden administration nominee to lead the Justice Department Civil Rights division, Kristen Clarke,  was not merely a flaming racist, but also, when she was at Harvard, invited a vicious anti-Semite named Tony Martin to speak. Then she defended his views.

We should not be surprised to discover that fascism comes to America masqueraded as anti-fascism. Public harassment of Trump administration officials, encouraged by Rep. Maxine Waters, making sure that they are fired from their jobs and cannot get another job, burning books that defy the party ideology-- these were Storm Trooper strategy in Hitler’s Germany.

Robert Spencer has the analysis at Front Page:

The destruction of the freedom of speech in America today is being carried out by the Leftist establishment that dominates the political sphere, the social media giants, the establishment media, the educational system – virtually everything, really. The Left is using the Capitol riot of January 6 as its Reichstag Fire moment to criminalize, silence, and destroy utterly not just President Trump, but all Americans who still dare to oppose its sinister woke totalitarianism. In doing so, Leftists are revealing themselves, for all their rhetoric about how Trump and his supporters are fascists, to be quintessential fascists themselves.

See also, the Ace of Spades discussion, quoting Jack Cashill at The American Thinker. 

At the very least, we ought to recognize that the moral paragons who declare that they are against hate have been trafficking in hate for these last four years. As you know, Twitter has never had a problem disseminating the anti-Semitic vitriol put out by the Iranian ayatollah. And American leftists, led by Antifa and Black Lives Matter have been spewing nothing but hate these past months.

As for the case against Big Tech, two legal experts outline it in the Wall Street Journal this morning.  Vivek Ramaswamy and Jed Rubenfeld make the case against Big Tech-- on constitutional grounds. (For the record, and for those who might care about such things, Rubenfeld is married to Yale Law Professor Amy Chua, aka the Tiger Mom.)

Theirs is a powerful argument, one that deserves your attention. Given that I am anything but an expert on legal matters, I will present it without commentary. 

The authors open by asking whether a private company has the power to regulate content when the constitution prohibits the government from doing so. They respond that when private companies function like state actors, they cannot censor content:

Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” 

They continue:

That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

Apparently, the courts have long held that giving companies immunity from liability turns their private actions into state actions:

The justices have long held that the provision of such immunity can turn private action into state action. In Railway Employees’ Department v. Hanson (1956), they found state action in private union-employer closed-shop agreements—which force all employees to join the union—because Congress had passed a statute immunizing such agreements from liability under state law. In Skinner v. Railway Labor Executives Association(1989), the court again found state action in private-party conduct—drug tests for company employees—because federal regulations immunized railroads from liability if they conducted those tests. In both cases, as with Section 230, the federal government didn’t mandate anything; it merely pre-empted state law, protecting certain private parties from lawsuits if they engaged in the conduct Congress was promoting.

As it happens, Democrats have been happy to pressure these Tech Titans to do their bidding, largely by shutting down conservative voices, but also by censoring any news that might make Democrats look bad.

Congressional Democrats have repeatedly made explicit threats to social-media giants if they failed to censor speech those lawmakers disfavored. In April 2019, Louisiana Rep. Cedric Richmond warned Facebook and Google that they had “better” restrict what he and his colleagues saw as harmful content or face regulation: “We’re going to make it swift, we’re going to make it strong, and we’re going to hold them very accountable.” New York Rep. Jerrold Nadler added: “Let’s see what happens by just pressuring them.”

Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”

For more than half a century courts have held that governmental threats can turn private conduct into state action.

Also, the authors do not believe that anything will be accomplished by repealing Section 230. They believe that the courts should stop the travesty-- of private companies acting on the behalf of the state and doing what the state is not allowed to do.

Republicans including Mr. Trump have called for Section 230’s repeal. That misses the point: The damage has already been done. Facebook and Twitter probably wouldn’t have become behemoths without Section 230, but repealing the statute now may simply further empower those companies, which are better able than smaller competitors to withstand liability. The right answer is for courts to recognize what lawmakers did: suck the air out of the Constitution by dispatching big tech to do what they can’t. Now it’s up to judges to fill the vacuum, with sound legal precedents in hand.

American democracy is under siege from Silicon Valley’s political plutocracy. Next week Mr. Trump will be a private citizen without a Twitter account. Our new class of corporate monarchs will still control whether and how Americans can hear from the president—or anyone else. We have devolved from a three-branch federal government to one with a branch office in Silicon Valley. But there’s no democratic accountability for Jack Dorsey and Mark Zuckerberg.

Hard cases make bad law, and Mr. Trump presented America with a hard case last week. The breach of the Capitol is a stain on American history, and Silicon Valley seized on the attack to do what Congress couldn’t by suppressing the kind of political speech the First Amendment was designed to protect.

There’s more at stake than free speech. Suppression of dissent breeds terror. The answer to last week’s horror should be to open more channels of dialogue, not to close them off. If disaffected Americans no longer have an outlet to be heard, the siege of Capitol Hill will look like a friendly parley compared with what’s to come.

Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right. Aggrieved plaintiffs should sue these companies now to protect the voice of every American—and our constitutional democracy.

So, the attack against Big Tech has now found a rationale-- these companies are violating everyone’s constitutional rights. It’s time to sue Big Tech.