Article by Kyle Sammin in The Federalist
Is Big Business Now A Greater Threat To Free Speech Than Government?
As I wrote in a preceding essay, the First Amendment was written to limit the government’s power. In the 18th century, only the state was conceived as possibly wielding the power to keep free people from speaking their minds. Thus, if maintaining a free people requires free speech, it followed that the government must be kept from controlling speech. For a long time, no more was necessary, but that would change.
As the United States grew in population and prosperity, there was very little agitation against business. There did not need to be. Most businesses were small affairs, owned by one man or one family, employing a handful of workers. Relations between labor and management were dealt with between individuals.
In 1854, Abraham Lincoln summarized this small-scale economy, speaking of a system in which a man “may look forward and hope to be a hired laborer this year and the next, work for himself afterward, and finally to hire men to work for him! That is the true system.”
Yet as corporations grew in size and power, that “true system” changed. Instead of one apprentice negotiating with an owner, a company that employed thousands would tell workers what they would get: take it or leave it.
In response, workers began to join together in trade unions, leveling the playing field, although diminishing their own independence. The balance between workers and management was restored, but the growing power of corporations still overpowered that of individual consumers.
Antitrust and utility laws were the response, but none of this much affected the realm of free speech. There was no news monopoly — newspapers were more plentiful than today — and restrictions on the new technology of radio came from the government, not the station owners. The biggest threat to the practice of free speech remained the state.
The Foresight of Justice Louis Brandeis
Although the two streams of jurisprudence here — anti-monopoly and free speech — did not much overlap in the early twentieth century, some of the same great thinkers were doing work in both. Foremost among these was Louis Brandeis, who joined the Supreme Court in 1916.
Brandeis was a progressive who saw Big Government and Big Business as equally threatening to the average American. Although he focused more on the growth of corporate power in his days as a private lawyer, Brandeis saw the danger in the government becoming too powerful. His solution was to resist consolidation in both regards — keep businesses small and local, and the government could stay small, too.
In regards to free speech, Brandeis also led the resistance to censorship, although often unsuccessfully. While American citizens were the freest in the world in their right to speak and publish, limits remained.
The so-called “Red Scare” that followed communist revolutions in Europe led governments to clamp down on people’s right to advocate socialist ideas in America. In Whitney v. California in 1924, the Supreme Court heard a challenge to one such law. Brandeis was in the minority, but Whitney soon became one of the rare cases more famous for the dissent than for the opinion of the court. Brandeis wrote:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Brandeis’s words remain one of the great summaries of the custom and law of free speech in America and follows the line of thinking started by Milton and Locke. In 1969, the Supreme Court adopted Brandeis’s ideas and overturned Whitney.
Since then, the government’s attempts to restrict free speech have mostly been rebuffed. Some efforts, like the censorship at issue in the 2010 case of Citizens United v. FEC, nearly succeeded, but most failed and failed quickly. The struggle for free speech in law trends toward greater liberty.
Threats to Free Speech From a New Foe
Today, however, something novel is happening in America: private actors have become a greater threat to free speech than the government is. Part of that comes from a laudable achievement — we have tamed free speech’s historical foe, the state. But part also comes from the rise of new means of communication that not only displace the old but are uniquely susceptible to monopolization in a way the old media were not.
That means that for the first time, corporate power might be a greater threat to our rights — especially our right to free speech — than the power wielded by the state. This accounts in part for the recent resurgence in antitrust advocacy.
Not long ago, there was considerable diversity not only in the sources of news and entertainment but also in the distribution of such things. Not only have the sources of news been subject to consolidation, but they have become separated from the methods by which they reach us. This vertical dis-integration might be seen as an antitrust success, except that the distribution methods are even more consolidated than the news sources.
The “distribution sources” in question are the social media giants of Facebook and Twitter, along with less powerful players in the field like Reddit and LinkedIn. Instagram and WhatsApp are also cited as delivery methods for news, but it does little good to mention them since they are both owned by Facebook. Consolidation across Silicon Valley has narrowed the real players in Big Tech to about half a dozen: Facebook, Twitter, Amazon, Apple, Google, and Microsoft among them.
As far as free speech is concerned, some of these players are more dangerous than others, but the interaction among them is also a problem. Six big technological competitors might look like a healthy industry, but it is an illusion. While they clash at times, these Big Six have divided up the tech world much as the 19th-century colonial powers divided up the globe. Spheres of influence are mutually respected and the political aims of each align with the others.
The Monopolization of Speech
First, the social media giants established monopolies in their respective fields. As companies grow in power, they exert control over their marketplaces. They evaded detection in doing so because their monopolies are different from those of the past.
What they monopolize is not a commercial product like Standard Oil’s monopoly on kerosene. Their monopoly is on access to a thing they created and that, outside of their network, cannot exist. As I wrote in the Washington Examiner last year:
There is no place to tweet except Twitter; there is no way to create Facebook posts outside Facebook. If Facebook or Twitter delete your posts or restrict your account, that network is closed to you, and each is a network that increasingly dominates the exchange of ideas. Even beyond the market for news and commentary, access to social media for businesses (especially Facebook) can be a make-or-break proposition.
The monopoly is on each social media company’s network, and the danger is in our increasing reliance on those networks to convey ideas. By 2019, a majority of Americans said they often or sometimes got their news over social media, and the number increases every year.
Unlike old-fashioned monopolies, social media companies use their power not only to exclude competitors but also to exclude customers with whom they disagree. AT&T wanted to control all telephony, but at least they only wanted your money. Facebook and Twitter also want to limit what you say, the equivalent of a telephone operator breaking in to shut down phone calls that their bosses find distasteful.
The Department of Justice shattered AT&T’s monopoly in the 1980s, breaking the company into several “Baby Bells.” The result was cheaper, better telephone service for everyone.
But that precise solution will not work for social media. No one is concerned about the price of a service that is given away for free, and the quality of the apps was never the problem. This network, and equal access to it, is the issue. Destroying that network would make service worse, not better. Moreover, it misses the point.
The intersection of monopoly power with free speech is something new. Even beyond the threat of exclusion from a social media company’s network, the collusion among the networks further stifles free expression. Consider the treatment of a rival social network.
In reaction to Twitter shutting down accounts with whose content it disagreed, two entrepreneurs launched an alternative site, Gab, in 2016. It went public in 2017 and seemed to offer the traditional alternative for dissatisfaction with a business: taking your business elsewhere. If the dispute with Twitter had been a traditional one, such as price or quality, that would have solved the problem.
But the nature of Twitter’s monopoly worked against Gab. Twitter users who had not been banned were reluctant to leave the network, because as unhappy as they were with it, it still offered the best forum for reaching a mass audience. Some maintained accounts at both sites, but only the banned — those who had no other option — were active users at Gab. Google decided it was a hate forum and removed it from their Play Store. Apple had never allowed it in the first place.
Gab was then restricted only to people extremely motivated to seek it out, and it became a deeply unpleasant echo chamber. When it emerged that the perpetrator of the 2018 mass shooting at a Pittsburgh synagogue was an active Gab user, the site was forever known as the home of murderous extremists. The providers that hosted them terminated their arrangements, forcing it further underground. The same process played out with Parler in 2020, and it will play out again for the next would-be Twitter competitor.
Mainstream opinion is unbothered. Few had heard of Gab or Parler, which they could not find in their phone’s app stores, and many who were aware of it associated it with Nazis. Shutting them down was good riddance to bad rubbish.
Those few who raised free speech concerns were told to read the law, as though that is all there is to our ancient liberty. Recent episodes of tech censorship have involved a larger combination of tech companies and taken in a larger swath of users — including a former American president.
Resisting Censorship Regardless of the Source
The drive to stifle speech is not limited to social media. Other tech monopolies have flexed their muscles. Amazon, which controls a majority of book sales in the United States, has started deciding which kinds of books it will allow. Anything that explores sexual orientation or gender dysphoria as mental illnesses is now forbidden. Tweets and Facebook posts on the subject are also likely to be censored if they voice the “wrong” opinions.
If free speech is necessary to enable individuals to discover virtue and choose their leaders, then monopoly censorship is just as harmful as government censorship. Even beyond the specific harm of stifling free expression, it does harm to the idea of free speech itself.
Legalistic denials from Big Tech supporters — “it’s not censorship if it’s not the government!” — miss the point. By allowing continued monopolies over segments of the public square and acquiescing in a restriction of free thought there, we erode the principle of free speech while piously upholding the laws that do nothing against this new threat.
The People Are the Guarantor of Their Liberties
As long as people believe in free speech, it will endure. According to a 2020 poll by Pew, a majority of Americans see the social media threat for what it is: censorship. That is good news. People are not distracted by the distinction of government and non-government; they see a powerful force trying to muzzle them and do not like it. The people understand that this right belongs to them and will resist anyone who tries to take it away.
The bad news is that such sentiments are declining. Americans, especially the young, increasingly are intolerant of speech that they hate. Instead of the liberty and courage that Brandeis extolled, they seek to decide public questions with private force. Milton and Locke would recognize the methods from their own times, although the actors and questions debated have changed.
That same 2020 Pew poll showed a majority of Democrats endorsing social media companies’ labeling of “inaccurate” tweets and posts. Polling by the Foundation for Individual Rights in Education (FIRE) that same year finds that significant percentages of college students support suppressing unpopular speech through heckler’s veto (27 percent) or blocking entry to an event (11 percent). Only 4 percent of those surveyed claimed that it was acceptable to use violence to suppress offensive speech, but that is still too many.
We all have reason to doubt the accuracy of polling after the failures of the last few years, but there can be no doubt that the principle of free expression is under renewed threat. Looking at that threat requires reacquainting ourselves with the history of free speech and monopolies. Our forefathers fought censorship and fought monopolistic abuses, but political battles are rarely won for all time. These two are back, joined up in novel fashion, but no different than what came before.
The lessons of Milton, Locke, Bastiat, Lincoln, and Brandeis must guide a new generation to protect our ancient freedoms. If we fail, those freedoms will fade from memory and their protection in law will fade with them. We may vote for legislators, but few of us will ever directly influence the words of a law.
In the custom that underpins the law, though, we all have a role to play. By resisting censorship from the government, corporations, or cancel mobs, we remind the world of the value of the freedoms won and cherished in centuries past, and further reinforce them for the challenges to yet come.
