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There can be no doubt any longer that Facebook, Google, Twitter, and their subsidiaries—YouTube, Instagram, Periscope, among others—are trying to suffocate political speech. These American companies have chosen political sides with the Democratic Party, donating what amounts to an in-kind political contribution by silencing those who disagree with them.
Consider that techno censors have never harassed fake news organizations like CNN, and wannabe doxxers like Pennsylvania State Representative Brian Sims spew hateful attacks on minors without consequence.
There can be no doubt any longer that tech companies have no desire to preserve liberties or the common good. They endeavor to become a new slave power by taking that which we earn by the sweat of our brow. We work; they eat.
As long as we play by their often hidden and opaque rules, and utter only the approved opinions, we might be able to partake in the scraps they throw at us from their table.
Their actions condemn any pretense that they are disinterested, objective gatekeepers of speech. Google tried to silence the Claremont Institute from purchasing an innocuous ad announcing its 40th anniversary dinner gala. Twitter banned David Horowitz. Many others face lifetime bans for expressing their political opinions.
When the Silicon Valley oligarchs feel political pressure for their deplatforming decisions, they blame the “algorithm” or say the “mistake” was a technical “glitch.” This is, of course, a lie; but it allows them to avoid responsibility.
It is, moreover, a lie that is a material misstatement or omission in connection with the sale of a security; if it were known that these public companies were risking regulation by tampering with American politics their stock values would plunge.
And the lie is transparent. Limitations on free speech are imposed only on the Right, not the Left. Algorithms are coded by human beings and those codes target certain forms of speech the human programmers don’t like. Just ask James Damore, who wrote about Google’s “echo chamber.” It might be more appropriately called a Star Chamber.
This has had a chilling effect on speech. When people have to watch what they say or else lose their livelihoods, political speech comes with a high price. Libertarians believe all of this is fine, just the price we pay for a free market and that time will solve the problem. But, these are the same interests who believed that trade with China was free, when it truly wasn’t. What can be done to secure the freedoms and equal liberty of speech for the common good of the republic?
A co-founder of Facebook believes the company should be broken up, in part because, “Facebook’s board works more like an advisory committee than an overseer, because Mark [Zuckerberg] controls around 60 percent of voting shares. Mark alone can decide how to configure Facebook’s algorithms to determine what people see in their News Feeds, what privacy settings they can use and even which messages get delivered. He sets the rules for how to distinguish violent and incendiary speech from the merely offensive, and he can choose to shut down a competitor by acquiring, blocking or copying it.”
In fact, at Google, community standards are difficult to find to the point that it is obvious they are being concealed from the consumer. Facebook standards are posted, but unequally enforced. The Southern Poverty Law Center violates several tenets of Facebook’s standards, and has never been banned. Same with Antifa and Black Lives Matter. Those groups suffer no harassment for their hateful speech.
The remedy we should seek is the protection of all political speech—in its broadest definition—in order to preserve liberty and equality, which would also preserve the free press.
Government intervention to the extreme of taking over tech monopolies would not solve the problem: this is something Zuckerberg wants because it will guarantee Facebook will always be a monopoly. There is a better option to this chilling situation in the form of a two-pronged approach that would empower users (the consumer) and preserve the right to property in our opinions.
The first is to break up the tech monopolies. The second is to open up libel laws. Both are necessary and need to be moved in tandem.
The Sherman Antitrust Act provided that any person who “shall monopolize” or “conspire” to do so, is guilty of a felony. Arguably, most of our tech giants are engaged in monopolistic practices, therefore the legal pretext for breaking them up is present.
In addition to the Sherman Act, the Clayton Antitrust Act provides that no company may change the price of a good between purchasers or discriminate in providing goods and services. It is often supposed that the only “customers” on social media are advertisers and paid-content promoters. But all users who agree to allow their data to be used and sold are customers; they simply pay with property rather than cash.
Where a consumer purchases a service in exchange for his or her personal data, only to find at a later date that the company denies the service in a discriminatory manner, that might be a violation of the Clayton Act. Companies like Facebook and Google collect, and sell, a user’s data. But for those banned, it is a bait and switch, a species of fraud. Banning a person from a platform while also keeping their data presents a legal problem for the company with which a user has the right to compensatory damages. Looking to the specific terms of the user agreement may not matter. These are contracts of adhesion in the setting of a natural monopoly.
Breaking up the tech companies could look something like the breakup of AT&T in the early 1980s. The platform would remain the same, but the services offered could be styled to suit the consumer.
Facebook could still be the same Facebook overlay, but the product delivery could be different, depending on user choice. One might accept the free version wherein ads are displayed, while the payment would be the user’s data, much like now. Another might opt to pay for the service without ads, and so on. Either way, the community would not change, and public speech and interaction would continue as it does presently. Unregulated competition could survive in this construction, and several companies could use the platform’s homepage overlay to offer unique services as a result.
The problem with Facebook in particular is that they are offering their services for free in return for the purchase of our data—likes, dislikes, browsing history, etc. Platforms that ban users arbitrarily or discriminatorily and then retain user data are either breaching a contract or possibly liable under an equitable theory such as estoppel or quantum meruit (unjust enrichment). They do not return the data of the user, nor do they pay the user for the data they have used to profit their enterprise. When a ban is imposed, the user-data is retained (as well as the data derived from the user data) for their own profit while wiping out the user’s work product in toto.
But the damages and enrichment are real—and calculable. This potential legal liability is ripe for class action. Discovery in such a suit would expose the political model posing as a business concern.
Connected to this potentiality for class action, is the harm and damage for libel. Just because a user might hold controversial opinions does not give anyone the right to damage that person’s reputation. The consumer ought to have access to the courts to seek redress. When Facebook banned Milo Yiannopoulos, for example, it did so publicly for his alleged “hate speech.” This is a potential libel that should be actionable. No media outlet has the right to harm a person’s reputation. It violates the First Amendment, and contravenes every human being’s right to his own reputation. If Yiannopoulos is a “racist,” then it should be provable in court. If the company cannot prove such, then it should have to cough up damages.
While we have not considered the literal addictive properties that entice us in the form of a dopamine fix, as Sean Parker admitted, the freeing of speech might go a long way to preserving a space for liberty to flourish without the tyrannizing control those companies seek to impose over us. It is also the reason mainstream media cheers when those they disagree with are ousted. They are afraid of those who challenge their oligarchical position. They are afraid of the stronger deliberative argument.
They should be afraid. By breaking up these companies and opening up libel laws, citizens would have the tools they need to seek recompense for injustices done to them, and they would be free to speak their minds. The republic would be better for it.
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