from the not-so-hard dept
Right
wingers are demanding that their political leaders do something,
anything. There must be a response to Twitter's ban on Donald Trump, and to Amazon
Web Services' shutdown of Parler. Republicans, once so ardent
for free markets, want the
government to teach
private tech companies
a lesson they won't soon forget. Nationalize
them.
Prosecute
them.
Whatever. Any measures that convey hate for the scary
truth-phobic
plutocratic
Bolsheviks
of Silicon Valley will do.
The
first problem, of course, is that the GOP, though strong in anger, is
weak in power. Even if they channel their enthusiasm
into concrete bills, they control neither the White House nor the
Senate nor the House of Representatives.
To
be sure, Democrats, too, are mad at the major social media platforms.
Their biggest
gripe, however, is that those platforms failed to suppress rightwing
extremism earlier.
Democrats strongly want quite literally the opposite of what
Republicans want. They want Trump and QAnon and “Stop the
Steal” to remain
off Twitter and Facebook.
Even
if implemented, most rightwing populist ideas would not serve
rightwing populist ends. We are told, for instance, that Section 230
must be repealed. But that would not undermine platforms'
discretion in moderating content. Platforms have First Amendment
rights of free speech and free association. When PragerU sued it for
placing certain videos in restricted mode, YouTube prevailed
not under Section 230, but under the First Amendment.
Actually,
repealing Section 230 would ensure that more far-right content gets
taken down. Section 230 is most useful, not when a platform removes
content, but when it leaves content up. Consider Force
v. Facebook,
decided by the U.S. Court of Appeals for the Second Circuit in 2019.
Victims of terror attacks in Israel sued Facebook for not doing a
better job of finding and removing extremist content posted by Hamas.
The court held both the publishing of the content, and any
algorithmic promotion of it, protected by Section 230.
Plaintiffs'
lawyers will not hesitate to treat posts by rightwing extremists as
akin to posts by Hamas. Nor will platforms, if exposed to liability
for such posts, hesitate to take down marginal material—any
post that plaintiffs' lawyers might try to tie to an attack.
It'd almost be worth it, the GOP destroying Section 230, for
the spectacle of Republicans
empowering plaintiffs'
lawyers
to drive the party's burgeoning conspiracist faction from the
commercial Internet.
Another
rightwing proposal is to declare each major platform a “public
forum” subject to First Amendment restrictions. But this plan
is almost certainly unconstitutional. “Merely hosting speech by
others,” the Supreme Court recently declared, in an
opinion
by Justice Kavanaugh, does not “transform private entities into
state actors subject to First Amendment constraints.”
Some
on the right want
to expand
this “state action” doctrine to embrace platforms. Others
want to apply Pruneyard
Shopping Center v. Robins,
a 1980 Supreme Court decision forcing a mall to let students protest
on its private property, in bold new ways. These efforts are riddled
with difficulties. For one thing, a pack of conservatives has
recently taken the bench. Most of those judges presumably have little
interest in bending the law simply to reach socialistic outcomes.
Populist
Republicans will likely conclude that antitrust is their best cudgel
for chastising Big Tech. Joining with Democrats, they can seek to
redistribute revenue, unwind deals, and punish refusals to deal. When
it comes to online speech, however, even antitrust will probably do
the right no good.
Freezing
a competitor out of a market for economic reasons can, indeed, be an
antitrust
violation.
That is not at all the same as refusing to deal with a company
because of the abhorrent opinions it holds, spreads, or condones.
After the storming of the Capitol on January 6, a prominent QAnon
account proclaimed that a death cult secretly runs the planet, that
this cult stole the election, and that President Trump had ensnared
the cult in a sting operation. The post received more than 2.2
million views on Parler:
You
have a First Amendment right not to associate with a business that
amplifies wingnuts. So does Amazon Web Services.
Some
Republicans want to use antitrust to break
up
companies. But would that really change anything? Amazon Web Services
has many competitors in the cloud-computing industry. So far none—not
even Trump-friendly Oracle—has been willing to accept Parler as
a client. Parler hosted
a lot of violent, racist, toxic speech. Even if there were twice as
many Facebooks and Twitters, they might all refuse to carry such
material. And even if there were twice as many cloud-computing
providers, Parler might still find itself universally shunned. Again,
Parler can’t make
other companies work with a partner they find immoral. This is, as
they say, a free country.
Which
brings us to the rub: a political party that lacks cultural
power—that cedes it ostentatiously, in fact, as if doing so
were a strategy—is
doomed to struggle. It’s not a question of electoral success.
Political power counts for little when you have no sway in
universities, large cities, the mainstream media, Hollywood, Silicon
Valley, or the wider corporate world.
Inter-elite
battles matter. If conservative ideas don’t get a hearing at
Princeton, at Google, or at NBC, conservative fortunes will suffer.
Conservatives should pay more attention, therefore, to ensuring they
are present where cultural power is wielded. They can do this by
denouncing the GOP’s fringe elements; by supporting principled
moderates and by offering a positive vision, one that appeals to the
next generation of top talent who will occupy our cultural heights.
Conservative
professors, computer engineers, and screenwriters deserve support.
Cranks and bigots “censored” by social media platforms do
not.
Corbin Barthold is Internet Policy Counsel for TechFreedom
Filed Under: big tech, conservatives, content moderation, section 230