Editor’s note: We endeavor to bring you the top voices on current events representing a range of perspectives. Below is a column arguing that regulation of Big Tech is necessary to protect free speech. You can find a counterpoint here, where Rebecca van Burken, a technology policy analyst at Reason Foundation, argues that regulation of Big Tech is both unnecessary and harmful to consumers.
It’s rare that a debate in the world of conservative politics moves as quickly as the debate over Big Tech. Last year, when I proposed that we should understand social media platform access as a civil right, I received immense pushback from conservatives who were inclined to think we should let Facebook and Twitter do what they want, as private companies. Those voices have gotten much quieter. That’s because of two basic phenomena.
HOW THEY CENSOR
First, Twitter and Facebook suppress popular conservative influencers and activists, preventing them from plying their trade. There are too many examples of this to count, but perhaps the most egregious is that of pro-Trump meme maker Carpe Donktum. Carpe was perhaps the most popular pro-Trump meme maker in the world, with President Trump routinely sharing his content. One day, he created a meme that mocked CNN’s habit of twisting every piece of news against conservatives. Twitter banned his account based on a frivolous copyright claim; then, when that claim was dropped, Twitter refused to restore his account. And why would they? After all, Carpe’s content was helping conservatives get elected.
Second, Twitter and Facebook outright suppress stories that benefit conservatives politically. The suppression of the New York Post’s Hunter Biden story is the most obvious — and worrying — example. Twitter’s safety team prevented the sharing of any links to the Post’s reporting, claiming that the reporting was the product of “hacking.” That claim is completely unsubstantiated, and yet Twitter has kept the Post locked out of its Twitter account without providing the slightest bit of evidence that they violated Twitter’s terms of service.
The deplatforming of popular conservative influencers, the outright suppression of stories favorable to Republicans, these are things that Twitter and Facebook have been doing for years, and they are only getting more aggressive. Two years ago, Twitter suspended Alex Jones; this month, they suspended White House press secretary Kayleigh McEnany and the New York Post. Things are getting worse, and if President Trump loses the upcoming election, much of the blame can be placed on this clear election interference. The solution is simple: regulate Big Tech, and protect Americans’ right to speak freely online.
REGULATION IS THE SOLUTION
Big Tech’s advocates suggest that if conservatives don’t like Facebook and Twitter’s censorship, they should simply use a different platform, or create one of their own. A classic version of this argument was tweeted by Justin Amash:
The First Amendment prohibits government censorship and protects private censorship. In a free society, Twitter and Facebook are allowed to make horrible decisions with respect to content moderation, and you are allowed to tell them off and use another service.
— Justin Amash (@justinamash) October 15, 2020
The problem? These companies are monopolies, properly understood. While Twitter and Facebook compete in some respects, they serve different purposes: Facebook is ultimately about what I would call “family and friends” social media; users are primarily fed content from their social circle. Twitter, conversely, is better understood as “public square” social media: it is the center of discourse for journalists, politicians and pundits, and the text-based, highly interactive format makes it the closest thing we have to a real public square.
These companies are monopolies because of “network effects”: their massive, diverse user bases are what make them so valuable. Competitors to Twitter, like Parler, are constantly fighting an uphill battle to get any kind of ideological diversity on their platform. As a result, even if they get an inflow of users every so often that are upset with Twitter’s censorship, those users inevitably flock back to Twitter, where the real debate is happening. And, if a competitor somehow manages to meaningfully threaten the market position of Facebook or Twitter, odds are they will simply be bought out by the larger company, as Facebook did with Instagram.
Conservatives have been told to “set up their own Twitter” for years now. Multiple companies have tried. None have come remotely close to succeeding, and Facebook and Twitter have gotten only more censorious. If competition were the solution to our problems, the New York Post would still have access to their Twitter account.
REGULATION IS A ONE-WAY RATCHET
Perhaps the most common conservative/libertarian argument against regulating Big Tech is that no matter how bad social media censorship is right now, it would be infinitely worse if Democrats were in control of the executive branch and able to regulate these platforms.
The rejoinder is one Big Tech’s defenders should be familiar with: the First Amendment applies to the government, even if it doesn’t apply to private companies. As such, government speech regulation is a one-way ratchet: it can liberate Americans to speak freely, but it cannot constrain us.
A recently decided Supreme Court case, Packingham v. North Carolina, is a great example of how this works. Under North Carolina law, sex offenders were not allowed to use social media sites. In a unanimous decision, the Supreme Court found this law unconstitutional, for a simple reason: under a long-standing First Amendment law, the government cannot restrict your ability to speak in public, and that applies to social media sites.
So, if a hypothetical President Biden tried to force social media sites to censor your speech, you would be able to walk into court and get an injunction to force them to stop. And First Amendment law is robust, even to bad facts; consider how public universities routinely lose in court if they try to prevent even odious white nationalists from speaking on their campus. If Joe Biden wouldn’t be able to regulate Richard Spencer’s speech, he won’t be able to regulate yours.
There is no conservative principle that requires that we submit to our own political marginalization. Facebook and Twitter are frivolously censoring conservative speakers and shutting down stories unfavorable to Democrats. These problems cannot be competed away due to the platforms’ monopoly power, which is evidenced by the fact that the platforms have gotten only more censorious in the face of supposed “competitors.” Finally, this is one of the few areas of public policy where it would be hard for government regulation to make things worse; the First Amendment protects Americans from the government constraining their speech.
This censorship makes every conservative user of these platforms fear losing their accounts, and consequently any meaningful access to the public square. Facebook is not only an important space to speak your mind; it also acts as the repository of information for many people, and a place to connect to old friends and acquaintances. Losing access to Facebook, as Bret Weinstein just did, is incredibly consequential and isolating for people who rely on it. Similarly, imagine trying to function as a journalist in 2020 without Twitter; unless you’ve been reporting for decades and have built up a massive, independent platform, it’s nearly impossible. As a result, conservative users self-censor, while liberal users barely have to worry.
It’s time. We settled the debate over whether the government can regulate private companies to protect the rights of Americans in 1964. In 2020, there are only two types of conservatives: those who are in favor of regulating Facebook and Twitter to protect conservative speech, and those who are wrong.
Will Chamberlain is the publisher of Human Events and Senior Counsel at the Internet Accountability Project.