Our civil rights laws don’t have to treat them the same way.
These two weeks have seen a dramatic escalation in social media censorship. Given the banning of the President, from both Facebook and Twitter, Twitter’s suspension of some 70,000 accounts they alleged were “dedicated to the propagation of this conspiracy theory across the service,” and the collective purge of Parler from the internet by Apple, Google, and Amazon, most of the libertarian shibboleths standing in the way of big tech regulation have proven feeble.
One, though, still seems to be sticking around. The Dispatch’s David French, a peacetime conservative if there ever was one, has abandoned his prior suggestion that Facebook and Twitter moderate in line with First Amendment principles, and applauded the censorship of President Trump. Moreover, he has suggested that there’s a fundamental inconsistency in treating platform access as a civil right:
This is a somewhat common argument from libertarian-leaning conservatives: “how can you argue for regulating social media companies when you wouldn’t demand the cake be baked?”
That said, it’s not a particularly strong argument. There are three obvious ways to distinguish companies like Facebook and Twitter from a random baker: size, market power, and legal immunity. All three suggest why the rights of an individual baker should take precedence over the rights of our social media monopolies.
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Jack Dorsey.[/caption]
THE SIZE DISTINCTION
Underlying the argument against forcing the baker to bake the cake is an appeal to common sense—“this is going too far.” That’s an intuitive argument precisely because the individual baker is one individual facing off against the state’s civil rights apparatus. Forcing a devoutly Christian baker to provide his services to a gay wedding feels wrong; that feeling is based on a perfectly normal and reasonable ethical impulse that awakens when the powerful coerce the powerless.
[I]f Facebook and Twitter would be able to survive a repeal of Section 230, they should certainly be able to survive a new non-discrimination statute...
But there’s a difference between bakers and social media giants.
Our laws implicitly recognize that wealthier individuals and larger corporations can bear greater burdens than others. That’s the basis for progressive taxation. It’s also the basis of our regulatory state. Since at least the 1950s, U.S. economic policy has exempt small businesses from regulations large companies have to comply with. (Obamacare, for example, notoriously exempts small businesses with fewer than fifty employees from its health insurance mandates.)
Moreover, one of the primary arguments for retaining Section 230, the much-contested provision that grants platforms liability protection for the content they host, from libertarian tech policy types is that only the largest social media companies will be able to handle the increased liability resulting from its abolition. Jeff Kosseff, the author of The Twenty-Six Words That Created the Internet, argues, for instance, that repealing Section 230 would handicap social media startups: "It will be harder for them because they will face more liability at the outset." Elliot Harmon, activism director at the NGO Electronic Frontier Foundation, adds:
"Google, Facebook, and Twitter are likely to survive any change to Section 230 that Congress passes. Those companies have the staff to review users’ posts at scale and the legal resources necessary to comply with future changes to Section 230 ... Future legislation to erode Section 230 might do nothing more than further harden Facebook and Google from meaningful competition."
Note how that argument cuts both ways: if Facebook and Twitter would be able to survive a repeal of Section 230, they should certainly be able to survive a new non-discrimination statute, one that is narrowly targeted at preserving Americans’ right to use their platforms.
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Mark Zuckerberg.[/caption]
THE MARKET POWER DISTINCTION
A single baker in a town of 150,000 does not have meaningful market power over the wedding cake market in his own city, let alone the state of Colorado or the entire country. And libertarians implicitly know this: their defense of the baker was not based on some absolute rejection of civil-rights laws, but rather that the application of civil rights laws to a single, devout Christian baker was both unjust and disrespectful of the baker’s sincerely held religious beliefs.
Twitter and Facebook have far more in common with the phone company or the electric company than they do with a local florist or baker.
Facebook and Twitter are clearly different. Facebook is now a trillion-dollar company, measured by market cap; 1/3rd of the global population uses its platforms, there is zero long-term debt on the balance sheet and FB continuously delivers significant growth, Twitter is hardly a minnow at a valuation of $35 billion. More importantly, each has meaningful market power if their markets are properly characterized: it is nearly impossible to compete with Facebook in the friends-and-family social media market, while Twitter is nearly as impregnable in its public square social media market.
It’s nearly impossible to break into journalism in 2021 without a Twitter account; the consequences of a journalist losing their Twitter account is often termination and loss of livelihood. Losing Facebook is no small matter either, given that many use it as a repository for their photographs and as their primary means of connecting to friends and family. The consequences of the grooms-to-be being unable to retain the services of a single devout Christian baker, however, are trivial. They could have just called one of the other dozen bakers in their city.
In that sense, Twitter and Facebook have far more in common with the phone company or the electric company than they do with a local florist or baker. What these platforms offer is almost impossible to replicate given how essential size and scale is to their service. Ash Staub, writing for Human Events, explains:
"The value of a social media platform increases in proportion to the size of its user base. This is known as a 'network effect.' For this reason, a user cannot simply jump ship from Facebook or Twitter to a smaller competitor in the same way that they could patronize a local restaurant over a national chain, because the value of Facebook or Twitter is its size, which a smaller competitor cannot hope to match."
With that kind of power comes responsibility.
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Parler.[/caption]
THE IMMUNITY DISTINCTION
The impetus for Section 230 was the idea that platforms should not be treated as the publishers of third-party speech, but rather as passive platforms not subject to liability, even if they engage in some amount of moderation of their platform. As many commentators have pointed out, that’s a government subsidy that other media outlets do not enjoy. Under Section 230, news publishers retain liability for what they produce—the New York Times cannot escape defamation liability when it publishes a letter to the editor written by another.
But this subsidy also blunts the force of the moral argument that, as private companies, Twitter and Facebook should not be forced to associate with speech they abhor. Section 230 recognizes, from the outset, that they are not responsible for that speech; they are merely hosts. They do not then have a free license to engage in viewpoint discrimination. As the Internet Accountability Project's Rachel Bovard explains,
“While private companies have the right to set the rules for their own platforms and online communities, they do not have a right to do it with the privilege of Section 230 protections. And the more these companies engage in behavior that ranges away from the original goal of ensuring a ‘true diversity of political discourse’ and toward gatekeeping independent thought in America, the more they prove themselves undeserving of special government treatment.”
To the extent that the freedom of conscience of Facebook is as important as the freedom of conscience of a florist or a baker (which is not at all clear), our law should clear Facebook’s conscience: we absolve them from liability precisely because we do not want them to be responsible for third-party speech.
GO TO A DIFFERENT BAKER, NOT A DIFFERENT SOCIAL MEDIA PLATFORM
The underlying issue here is that Facebook and Twitter aren’t just “another group of Americans,” as David French would have it. They are not local bakeries. They are trillion-dollar social media monopolies with government-granted tort immunity. They have a level of control over the public square and political speech that an authoritarian leader could only dream of.
Free speech is more than just the First Amendment. It’s a cultural commitment to the idea that all Americans should have the right to express themselves publicly, and to participate in the political life of the nation. A world in which Jack Dorsey and Mark Zuckerberg’s right to ban you is more important than your right to speak freely on social media is a world where that commitment is meaningless.
And you can believe that while still believing that your local baker should not be forced to bake the cake.
