Big Tech's War on Free Expression

"Congress shall make no law... abridging the freedom of speech..." As the more legalistic among us will note, the opening words of the First Amendment to the Constitution specifically reference government.

But now, tech monopolies doing what government is not allowed to do. As you know, some law professors believe that these companies should be subjected to the rules that inhibit government censorship. Justice Clarence Thomas is trying to show the way on this question.

For now, freedom of expression has been eroded by a censorious group of tech oligarchs. A half-dozen or so unelected, unappointed tech oligarchs have taken over the marketplace of ideas. They are treating it like their very own playpen, allowing only the idea that suit them or their interests. Of course, they do not admit to be self-interested, because they are wedded to greater ideals.

One does not know whether they are just buying protection from their Democratic overlords, whether they really believe that groupthink should prevail or even whether they are simply doing it because they can get away with it. In the end someone will figure out a way to dispossess them of their powers.

Strangely enough, as Matt Taibbi points out in his latest Substack column, the current corporate suppression of speech derives from the fact that speech has been privatized, that it has become the private property of corporate oligarchs who have no interest in fostering open debate and discussion. They seem only to care about shutting down whomever they want to shut down and stifling the marketplace of ideas. After all, they have a monopoly on the technology. Why should they not have a monopoly on ideas?

Taibbi explains:

The central problem is the speech landscape has been almost fully privatized, with the overwhelming majority of people getting information via a handful of key companies: Apple, Google, Facebook, Twitter, Amazon. That bottleneck makes it possible to control information in amazing new ways, especially since the companies have shown, from the zapping of Infowars to the paper-training of Parler, that they’re willing and able to work in concert, against any set of actors they deem unsuitable.

Working in concert-- doesn’t that sound like conspiring to deprive citizens of their freedoms.

It has extended to the systematic effort, largely successful as of today, to silence the former president of the United States. One was not surprised to hear the CEO of Twitter, Jack Dorsey explain that removing the New York Post site from its platform for two weeks before the election was a mistake, but those are empty words. Dorsey pays no price for making an in-kind contribution to a presidential campaign, and the mealy-mouthed Republicans did not, to my knowledge, ask him whether or not it was a mistake to silence Donald Trump. 

Doesn’t this feel like punishment, meted out without due process of law and without there being any finding of criminal activity. Or else, isn't it tantamount to defamation of character, a civil tort. Apparently, our new criminal laws and our new civil torts are Twitter’s terms of service. How come Congress has done nothing to stop this abridgement of free speech?

The same problem is inherent in the case of Trump’s Twitter ban, even though a strong argument can be made that Trump did repeatedly violate the company’s terms of service. The issue isn’t companies shutting Trump down, it’s that shutting a president down is even possible. As Sanders (and, sadly, few other politicians on his side of the aisle) pointed out, “tomorrow it could be somebody else who has a very different point of view.”

Of course, Bernie Sanders is right. Other constitutional scholars have made the same point. If corporations have the power to shut down speech, they will apply it to people on both the left and the right. So explains Taibbi in his column. And he is correct. It is McCarthyism redux.

And yet, no one is doing anything to stop it. Government officials seem to believe that they do not have the power to affirm the basic principle in the first amendment. 

The efforts to silence a former president have gone from the ridiculous to the obscene. Now, Trump’s voice has been banned from Facebook:

Moreover, the mission creep has been mind-boggling. Silicon Valley has gone from banning Trump for past concrete violations to future potential violations. Facebook just last week banned an interview of Trump by daughter Lara, declaring that “the voice of Donald Trump” will henceforth be removed, as the risk of allowing it to be heard at all is “too great.” In flash, content moderation went from enforcement of terms of service to Minority Report-style projection of future offense.

Furthermore, the bans on Trump almost immediately swam downstream and turned into bans of people covering Trump. In the same way that people like Fischer and Chariton were penalized for filming pro-Trump protesters, groups like the Freedom of the Press Foundation had their database of Trump tweets attacking the media temporarily removed from Google Docs. Only through sheer luck — the Foundation had contacts in Google — was the database restored.

Let’s be clear about this. The behavior of these tech companies is abusive. It is harassment. It is an assault on the former president, and, by extension, the tens of millions of people who voted for him.

Given that government officials are powerless to stop it, people who support Trump and even people who support the constitution find themselves feeling empathy for Trump. As Adam Smith and Yale Professor Paul Bloom have pointed out, when we see someone being beaten up, we tend to feel empathy for that person, and we want to avenge the offense committed against him. 

This means, to put a finer point on it, that this level of censorship has produced a lot of angry, vengeful people across America. Either the lame brains in Congress figure out a way to put an end to this assault on our fundamental freedoms, or bad things will happen. For now, it appears that these companies and their executives do need protection.

Taibbi suggests that in ten years time we will all figure it out and decide that it was a bad idea. And yet, between now and then, a lot of things can happen.

Ten years from now, people will likely not have trouble realizing that putting five or six companies in charge of regulating all content was probably not a good idea, for all but a small handful of empowered actors. At the moment, the partisan angle is clouding the issue, as ordinary people are being conned into viewing speech as a giant turf war in which they have a rooting interest. News flash: you probably don’t.