Opinion Nationalists and libertarians should admit their shortcomings on Big Tech
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Some libertarians argue that social media companies are private and therefore can suppress any speech they please. In normal free market environments, in which competitors could challenge them, this would be true and simple enough.
But Supreme Court Justice Clarence Thomas this week explained the problem with this line of thinking as it pertains to Twitter, Facebook, Google, and Amazon. "A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail," Thomas. "But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable."
Big Tech is a state actor with constitutional obligations
Unfortunately, Congress continues to ignore its unlawful delegation while Big Tech continues to regulate speech in the social marketplace as if the delegation is valid. Due to the significant impact on free speech, this controversy should be quickly resolved. There are three possible outcomes: Congress re-writes the statute; the court declares section 230 constitutional or unconstitutional, or courts provide due process rights for objectionable speakers deprived of free speech by state actors. The first two options are years in the future. Affording due process can be immediate.
"For many of today’s digital platforms, nothing is," Thomas concluded.
There is nothing comparable to Twitter, Facebook, Google, or Amazon. When conservatives and others who felt shunned on these platforms tried to create an alternative in Parler, Amazon shut that down. Parler’s reach and influence at the time were closer to swimming across a river or hiking a trail than the power of Twitter, but Big Tech still nipped the upstart competitor in the bud at precisely the moment it.
While many reacted to Thomas’s statements as a signal that he supported repealing Section 230, which protects these platforms from speech liability, the justice appeared to be only expressing that there is indeed a significant legal and even moral dilemma in Big Tech increasingly suppressing conservative speech. This threatens the spirit of the First Amendment, even if technology now allows mass censorship on these platforms within the confines of the law.
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The "concentrated control of so much speech in the hands of a few private parties," as Thomas put it, is a major problem.
Though Thomasto be directly targeting Section 230 (yet), there are politicians in both parties who do want to repeal the provision that allows free speech on the internet. Strike that — the provision that allows the free speech that Twitter, Facebook, Google, and Amazon allow on the internet. Republicans more identified with the "nationalist" faction within the post-Trump GOP have been eager to use state power to get these companies to bend to their will. Sen. Josh Hawley and others have called for the repeal of Section 230, as has former President Donald Trump.
That this could possibly end thedoes not seem to register or even matter to many who take this stance. The nationalists also either seem to be shortsighted or perhaps too embarrassed to admit that the government regulators they believe should babysit Big Tech might be more censorious than current Twitter. Imagine the new "Social Media Transparency Agency" or whatever such an office might be called under the Biden administration.
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If too many libertarians seem to deny that "cancel culture" exists and insist that social media monopolies should be able to continue rejecting the views of the 75 million voters who supported Trump, nationalists deny that the government action they are calling for could end up putting major means of communication in the hands of political adversaries. That is to say, adversaries who are no better than the current oligarchs and could even be worse.
I am a libertarian conservative who has the most sympathy for the pure free market answer, but I can no longer ignore the reality of Big Tech wanting to cancel the views of people who think like I do. There is no ideal solution to this problem. Though many do, all libertarians should at least admit that there is a problem. Nationalists should admit their prescriptions might lead to something worse. We should admit these things honestly.
The future of free speech in America might depend on how we act now. It’s time to think harder but also more honestly on this. At least Thomas is doing so.
Jack Hunter () is a contributor to the Washington Examiner's Beltway Confidential blog. He is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Sen. Rand Paul.
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