The Case for Bringing Big Tech under First Amendment Regulation

Over the past few years, the censorship and control over the flow of information on the internet has been increasing at an accelerating rate.  In many parts of the world (e.g. China and the Middle East), governments have stepped in and asserted control over some or all of the information which is made available to their people.  In theory, at least, this is not an option for governments in most of Europe and the Anglosphere, due to their professed valuation of free speech.  Within the modern first world, the right to freely express yourself, to bring your intellectual goods (such as they may be) to the “marketplace of ideas” is thought to be well-nigh sacrosanct by the man on the street.  The United States even formally enshrines it in the Constitution via the First Amendment.  The government suppressing the speech of one or a group of people which it finds offensive or unpleasant is simply against the rules!

But of course, if there’s one thing we know about people, it’s that they’re tremendously good at getting around rules they don’t like.

Let me begin by being upfront about this matter – I do not believe in unlimited, or even substantially uncircumscribed, free speech as some sort of consecrated sacrament of western democracy.  If given the power to do so, for instance, I would ban all pornography.  Not just the kiddie stuff, but all of it.  Likewise, I’d bring back blasphemy laws – but only for prosecuting impiety against Christ and His people.  And I most definitely would legally curtail the ability of the Left to express its opinions on a wide range of topics.  I certainly would support rolling back definitions of “free speech” which progressives have used for the last century to debase and destabilise our societies.  Therein lies the reason for why I would support these – not to “enforce morality” or “create a theocracy,” but because all of those things are offences against good order, and good order, in turn, is how you genuinely have good government.

At this point, many readers will likely be tempted to call me a hypocrite for writing about the loss of free speech on the internet.  But this brings me to something else which I believe, which is that if you have a system in place (even a ridiculously suboptimal one like modern western democracy) that is set up along formal lines, then you should adhere to the formal power structure that has been established, until such a time as that structure has been formally replaced by another.  As such, though I don’t agree with the sort of unlimited free speech approach heralded by modern secular democracies, if we’re going to say we have it, then let’s actually have it.  Let’s not have it for some who are in favour with the progressive shadow government, while dispensing with it for those who are not. Any attempts by informal power-bearers (i.e. the Deep State and Blue Cathedral) to arbitrarily limit Rightist speech, especially those founded upon legally and ethically spurious concepts such as “hate speech,” should be confounded.

This is where I get back to the point about people getting around the rules.  While the US government (especially) and other western governments (somewhat less so) cannot formally limit freedom of speech, they’ve found an equally effective way to get around this stricture.  This is by using the massive technology firms in Silicon Valley and a few other locales (to be referred to here on out as “Big Tech”) to act as informal gatekeepers controlling access to information-sharing on the internet, especially through social media.  Big Tech firms essentially hold a monopoly over the various avenues for public discourse in the first world.  These companies essentially operate as “outsourced censorship” for the Deep State/progressive alliance, using their preponderant control over the flow of and access to information to shape public opinion while stifling ideological competitors.

I can see the potential problem with this every time I check the daily statistics on this very blog – Google consistently accounts for greater than 98% of all referrals from search engines.  Non-converged competitors like DuckDuckGo and Bing simply have no ability to make a dent in this.  Should Google act on its employees’ inclinations to bury Rightist sites in its search algorithms (and what’s to say that a soft sell of this hasn’t already taken place?), it could effectively destroy access to those sites from the great masses of internet users who don’t already specifically know about and visit those sites.

So, it really seems like a no-brainer that if you claim to have a democracy whose health is predicated on the free flow of information among an informed citizenry, then you’d want to take whatever steps are necessary to ensure that that flow remained free, right?

This is precisely why all of the “muh private corporation” arguments that have been advanced by libertarians and libertarian-leaning conservatives are basically irrelevant.  The argument that Google, Twitter, Facebook, YouTube (which is owned by Google), and other outlets should be free to do whatever they like because they’re private companies is simply not feasible under the current circumstances.  Much of this is due, ironically, to the legal and social climate that the Left has assiduously sought to create.  If a Christian-owned bakery out in some small town in the middle of the sticks qualifies as a “public accommodation,” then how much more so does a social media giant that gatekeeps the speech of billions of people on a daily basis?

Many of these libertarian types will reflexively argue that “free market solutions” are necessary to solve the problem of Big Tech censorship.  This is laughably naïve.  Free market solutions can only apply where and when you actually have a free market.  When you have a handful of tech oligarchs monopolising their respective spheres of internet activity and actively working to stifle the creation of free speech alternatives, then you don’t have a free market under any reasonable definition of term.  The fair play rules upon which a free market system necessarily rests simply do not pertain.

Look at the example of Gab.  Billed as the free speech alternative to Twitter, Gab initially appeared to be seeing a bit of success.  That was until an event completely out of Gab’s control took place (one of their users shot up that synagogue in Pittsburgh) that provided the perfect cover for Big Tech to crack down.  Suddenly, Gab found itself deplatformed by losing its service provider(s), its payment processors, and its domain registrar(s).  Unsurprisingly, other social media platforms that the shooter used, such as Facebook, did not come under similar deplatforming attempts.  Other alternative platforms like Bitchute (competitor to YouTube), as well as various individual content producers on the Right like InfoWars, have faced similar hurdles thrown up by progressive tech companies that own the means of access to the very infrastructure of the internet itself.  Hence, the argument to “build your own platform” is a hollow one.  You can do so, but Big Tech will still shut you down.

At this point, I am reminded of a discussion I had recently with someone on the normiecon site Free Republic.  He was making the typical “build your own platform” arguments discussed above.  I pointed out to him that even when someone does this, Big Tech can (and eventually will) simply shut them down once plausible cover is given them to do so.  I observed that they could do so to Free Republic itself.  In reply, he tried to argue that this simply COULD NOT HAPPEN to Free Republic, since they have their own servers and ISP.  I could only shake my head at such callowness.  All the techies have to do is go up a level and deny Free Republic its domain registration and access to the trunk organisation of the internet, and that site would cease to exist.

Further, I observed, the only reason that Free Republic wasn’t being censored yet is because it’s simply too small to matter.  Free Republic boasts that they have 100,000 users a day and deliver 20,000,000 page views per month.  For purposes of comparison, Twitter has 100,000,000 daily users who make over 500,000,000 tweets each day.  Twitter sees more users every 45 seconds than Free Republic does in an entire day.  Users make as many tweets in one hour as Free Republic has page views in an entire month.  Free Republic only exists because it’s small potatoes.  If Big Tech thought conservative use of that platform had contributed to Trump’s electoral victory the way Rightist networking on social media giants did, Free Republic would be deplatformed.  It could have all the secure servers it wanted, but PayPal wouldn’t process its donations and it would have its domain access revoked.

There are simply no credible moral or ethical arguments that can be advanced against bringing Big Tech under First Amendment controls.  Despite all of the burbling about “Russians hacking the election,” the fact remains that Big Tech companies have a nearly infinite capacity to jigger the results of elections in the directions they want, merely by selectively controlling the flow of information.  This is exactly what they’ve been doing for the past two years, ever since Trump surprised them by running a surprisingly effective social media strategy that likely contributed a great deal to his ability to do an end run around traditional mainstream media gatekeeping efforts, and ultimately winning the election in 2016. Again, while I don’t believe in democracy and elections, I do believe that if you have to have them, then they should be done properly and correctly.  This means not allowing Google or Facebook to suppress literally half the information available to be considered by the voting public on progressive-defined “fake news” grounds.

Further, Big Tech gets billions of dollars in contracts and preferments from the federal government for all manner of things, both innocuous and nefarious.  If you take the king’s coin, then you should play by the king’s rules.  And one of those rules is the First Amendment.

Also, there is some fairly strong legal precedent that could apply to the matter of Big Tech censorship and whether tech firms should be required to allow users access to free speech.  This would be the 1949 Supreme Court case of Marsh v Alabama.  In this case, a Jehovah’s Witness named Grace Marsh was distributing religious tracts on a sidewalk in a company-owned town near Mobile, Alabama.  Though the town was privately owned, it was situated near several neighbourhoods not owned by the company, whose residents were freely allowed into the town to shop at the stores and so forth.  Marsh argued that the town had violated her free speech rights by restricting her access to the town (and arresting her for criminal trespass) when it was routinely opened to unrestricted public access.  Oyez summarises the conclusion of the case,

In an opinion by Justice Hugo L. Black, the majority ruled in Marsh’s favor. The Court reasoned that a company town does not have the same rights as a private homeowner in preventing unwanted religious expression. While the town was owned by a private entity, it was open for use by the public, who are entitled to the freedoms of speech and religion. The Court employed a balancing test, weighing Chickasaw’s private property rights against Marsh’s right to free speech. The Court stressed that conflicts between property rights and constitutional rights should typically be resolved in favor of the latter.”

While this case hasn’t led to airtight protections of free speech on (generally public) private property in subsequent decisions, it still serves as a likely precedent for restricting a small handful of tech companies from effectively preventing all access to constitutional rights by large segments of the population.

So, if we were to see Big Tech brought under free speech regulation, what form should this take?  There seem to me to be three basic routes that could be taken here: trust-busting big tech companies using existing anti-trust legislation, instituting purely legislative measures to legally mandate free speech protection, and treating Big Tech companies as utilities similar to your local telephone or electric company.

The first of these is, I believe, the worst one, mainly because it doesn’t really address the main problem.  While the sheer size of these tech firms makes them more capable of suppressing dissident speech, the main problem with them comes from their willingness to do so.  That willingness, in turn, comes from the fact that they are ran and staffed by progressives who want to use raw, if informal, power to suppress their opponents.  Simply breaking Twitter or Google up into ten smaller Twitters or Googles doesn’t necessarily change anything in this dynamic.  All you have then is ten little Googles working together informally to throttle search engine results for conservative sites, or ten little Twitters banning users for “misgendering” trannies.  The way around this would be to force replacement personnel onto the fragments, at which point you might as well just nationalise them all and be done with it, which seems like it might cause more problems than it solves.

The second option is better, but still far from ideal, which is to institute legislative correctives into the US Code.  This is essentially the objective of legislative efforts like the proposed Social Media Anti-Censorship Act (SMACA), that have been passed around Twitter and other platforms recently.  The main problem with this is that it (obviously) relies upon the legislative process to provide significant relief, when legislation is often the worst way to go about actual problem solving. Expect any effort to get watered down with compromises and, if actually enacted, to suffer from the usual problems of oversight and enforcement that are typical in systems of divided government.

Probably the best way to address Big Tech censorship is through regulatory approaches utilising already-existing groundwork existing within the executive branch.  The analogy from more traditional utilities (all of which are under some form of government regulation at some level) holds true for Big Tech.  Your electric company can’t cut off your power because you supported the wrong presidential candidate or because you badthink about some controversial issue.  There’s no reason Big Tech should be able to either.  Some try to argue that access to Twitter or Facebook isn’t a necessity.  Technically, neither is access to the electric company.  You could buy your own generator and hundreds of gallons of gasoline a month to supply electricity to your home.  But there’s no reason you should have to, merely for holding “wrong” opinions.  Likewise, there’s no valid reason why you shouldn’t be able to participate in the same information sharing that the rest of society has, merely because your opinion crosses that of some pink-hair working for Twitter.

The foundation for this already exists in the myriad of regulatory powers which Congress has already acceded to the executive over the course of several decades.  Really, there is no formal reason stopping Trump from stepping in, without and outside of Congress, and bringing Big Tech under the stipulations of the First Amendment and punishing them if they break them.  The main drawback with this approach, of course, is the presence of so many Deep State moles in the federal bureaucracy who would work to actively hinder application and enforcement of any applied rules.  These would have to be dealt with first, and Trump would have to find the political will to do so despite managerial screeching.

At any rate, it is objectively in the national interest to destroy Big Tech’s censorship efforts.  Regardless of any arguments about “private companies” and the like, the public good is better served by allowing all ideas to be presented than to only allow progressive left-wing ideas to be expressed, ideas which seek to undermine and destroy the traditions and bases for stable society and good government in the USA and other western nations.


3 thoughts on “The Case for Bringing Big Tech under First Amendment Regulation

  1. Another option is to make the continued incorporation of these technology giants contingent upon them not doing anything that the federal government is not supposed to do. If they want to act like private companies, then make them be private companies. No incorporation, no tax breaks, no access to stock exchanges, no bailouts, no government contracts; just real private companies with full personal liability for everyone invested in them. If that is what censoring their opponents would cost them, no tech giants would do it.

    Liked by 1 person

  2. One of the issues with the constant screeching about free markets and free minds is that one has to be allowed to actually have access to them – especially if they are “essential”.

    The 3rd option you mention is the best and its easily the most digestible for normies and laypeople out there like myself. It can be argued for easily and quickly via the size of a tweet. That’s a big deal.

    Tie in some kind of emotional aspect to the argument and you’ve got a recipe ready to throw into the oven and see what happens.

    I still retain plenty of libertarian leanings, but we all need to realize that we must fight in the world as it is rather then what it should be.

    Liked by 1 person

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