Corporate Censorship Is the Product of Power
On June 6, National Review published an article by David French titled “Social-Media Censorship Is the Product of Culture and Commerce” in which he argues that corporate censorship is a market outcome that should not and probably cannot be corrected by legislative means. In this rebuttal, I will show that his argument is thoroughly flawed and representative of a deeper failing of conservatism that can only be resolved by shifting rightward from conservatism to reaction.
French begins with the June 5 demonetization of conservative comedian Steven Crowder’s Youtube channel for using homophobic language against Vox journalist (and perpetual whiner) Carlos Maza. He notes the lopsided nature of such actions:
“A right-wing speaker says something outrageous and faces consequences, while multiple left-wing speakers seem to spew venom with impunity, including at people (like, say, conservative Christians) who are also ostensibly protected by various social-media anti-harassment and anti-discrimination policies.
The regularity of the controversies — combined with the persistence of the overt viewpoint discrimination — is resulting in a demand that government ‘do something’ to solve the problem.”
French attempts to explain the causes of and offer solutions to this problem later, but claims that “the problem is far too complex and deep-seated for the government to solve. And if the government tries to step in with too heavy a hand, it’s going to violate the law.” Nothing could be further from the truth. In fact, as I have argued on multiple occasions, there is a simple legislative solution to corporate censorship that a sufficiently knowledgeable and strong rightist political movement should be able to implement.
Before moving on, let us note that a law-violating government is a contradiction of terms, as it is government that creates and enforces the law. The most that one could say is that the law in practice would be inconsistent with the law on paper. To be fair, this inconsistency is a serious problem, but the American system of government is ultimately designed to produce such inconsistencies whenever it is faced with opponents that move faster than it is designed to move, as is the case against Big Tech.
Echo Chambers and Boycotts
French describes the origin of the disproportionate censorship of rightists by the technology giants rather well, if shallowly:
“The American tech industry — especially in Silicon Valley — exists in a largely common ideological culture. While there of course exists some degree of overt discrimination against conservatives, the reasons for the monoculture reach well beyond overt discrimination. At elite levels tech is young, coastal, and disproportionately drawn from elite academies. In other words, it’s located in the most blue parts of America, is comprised of the most blue age demographic, and draws its workers from the most blue educational institutions.”
In other words, the technology giants are filled with Cathedral operatives, bred and trained. But French’s next paragraph demonstrates a lack of understanding of how social media works:
“Even then, however, the market in theory can rather easily correct the problem. Social-media companies have national (and global) ambitions. They became (and remain) economic titans in part by serving tens of millions of Americans who voted for Trump in 2016 and will happily vote for him in 2020. If Trump supporters en masse chose to punish even one social-media platform, it would suffer a colossal economic setback.”
They also became (and remain) economic titans in part by serving hundreds of millions of people in other countries which, for good or ill, take a decidedly un-American approach to freedom of speech. They value compliance with those foreign governments more highly than liberty because they do not wish to lose the customer bases of those countries, so they ban people for wrongthink at the behest of said governments. If Trump supporters were sufficiently passionate and coordinated to boycott a particular platform, this would only create pro-Trump and anti-Trump echo chambers as they flock to an alternative site while doing little more than a pinprick’s worth of damage to the social media giant being boycotted. While an accelerationist seeking to further the political divide could give this practice a bootlegger’s support, it would not cause a company the size of Facebook or Twitter to reconsider its practices. Social media functions by being social, and this creates a network effect; people join a site because there are many people there already. In fact, a version of French’s boycott has already been tried with the creation of Gab and people exiled from establishment platforms moving there. The established platforms have used their dominant market positions to suppress Gab’s growth and portray it as an exclusively alt-right platform that is only used by purveyors of hateful content.
Apathy and Markets
Though French is wrong about the efficacy of a boycott, he knows that one will not occur and understands why:
“Here’s the blunt truth, however — most red Americans either don’t know or don’t care about social-media censorship. They certainly don’t care enough to delete their apps.”
A recent Pew Research study found that only 22 percent of Americans use Twitter, and only 2.2 percent of Americans are responsible for 90 percent of Tweets posted by American users. At least for Twitter, this is true. But Pew also found that 69 percent of Americans use Facebook and 73 percent use Youtube, so the problem may not be a lack of awareness so much as a lack of alternatives.
French continues,
“This isn’t a market failure; it’s a market verdict. Apathy rules, and this apathy is sustained in part because social-media companies have chosen their targets carefully. There are few normal Americans who want to jump off their favorite app because YouTube censored someone who uses phrases like ‘lispy queer’ or because Facebook ditched Alex Jones, a man who claimed the Sandy Hook shooting was a hoax.
Those who do truly care about censorship are a rounding error in the market. They’re part of the tiny slice of American citizens who are not only engaged in online conservative politics, they’re motivated enough to do something about censorship. This small group has no meaningful market impact, but it does punch above its weight in one key area — access to government power. They know senators. Senators know them.”
French is correct to say that this is not a market failure; indeed, there is no such thing. But many conservatives and libertarians fail to understand is that the market is not a god who must be obeyed; it is just a collection of processes that turn inputs into outputs through economic calculation. Like any other algorithm, garbage in means garbage out, and there is power to be gained by ruining an opponent’s calculations via inputting garbage. If this verdict indicts anyone, it is the establishment platforms that use their power to suppress competition. Contrary to French’s intention, he has just made a strong case for government intervention to offset the error introduced by apathy and distorted incentives. In the next section, I will strengthen the case by arguing that the state should clean up its own mess, and can do so by restoring rights and liberties rather than committing the usual further violations.
Constitutional Concerns and Real Solutions
French contends that “[t]he First Amendment limits the government’s power to force a private corporation to provide a platform for speech it despises” and notes that “the more any social-media company curates its content, the more First Amendment protection it is likely to enjoy.” For these reasons, he believes that “as Facebook or any other social-media company works on its algorithms, tries to filter out fake news, and refines its community standards, it’s staking out its identity as a private actor making specific speech and membership choices to build a specific kind of private community” and that federal courts may stop an antitrust investigation launched in response to such conduct.
First, it need not be the case that “the more any social-media company curates its content, the more First Amendment protection it is likely to enjoy.” This is only so due to the Communications Decency Act of 1996, codified at United States Code, Title 47, Chapter 5, Subchapter II, Part I, Section 230. This statute allows service providers on the Internet to restrict the actions of customers without being legally responsible for the actions they do not restrict. The Communications Decency Act was written partly in response to the Supreme Court case Stratton Oakmont, Inc. v. Prodigy Services Co. (1995), which suggested that service providers were publishers subject to responsibility if they assumed an editorial role. The original purpose of these provisions is revealed in Subsection (d):
(d) Obligations of interactive computer service: A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.
As usual, laws intended to solve a particular problem, in this case protecting minors from viewing obscene materials that they are not mentally prepared to view, are employed later for other purposes far beyond their original intent. The technology giants of today use this statute in order to have their cake and eat it too; they censor as they see fit and suffer no liability for what they choose not to censor. A repeal of Section 230 and restoration of Prodigy Services Co. would make platforms legally responsible for all content that they host. Whereas moderating the sheer volume of user-generated content that exists today would be impractical, many sites would stop hosting such content. Lawsuits from failed moderation would overload the courts, and content hosting would mostly move to the decentralized dark web. There would have to be a replacement statute following a repeal in order to mitigate the extreme disruption to business as usual, and it should keep interactive computer service providers from removing otherwise legal content from their sites unless they wish to be responsible for everything that they allow to remain. This would make censorship so impractical that it would almost never occur, as success would produce very little benefit while failure would result in being treated as a publisher of vast quantities of defamatory material. This would be in keeping with the general methodology of federal regulations; rather than prohibiting an activity outright, it instead makes the activity too difficult for any reasonable entity to perform. Other measures could be used to keep obscene materials away from minors and allow users to filter out content that they do not wish to view. These measures already exist, and are such obvious solutions that there is no need to require them by law.
Second, “private corporation” is a contradiction of terms. A corporation is a legal fiction created by the state to shield business owners from financial liability and ease the enforcement of laws upon those businesses. Without registering or chartering a corporation under the laws of a state, it is impossible to establish such entities as we know them. Although one could negotiate contracts with other legal persons to make an unincorporated business function similarly to a corporation, this would not be identical to a state-recognized corporation in terms of its interaction with the state or its liabilities for negative externalities. Without the state using its monopoly on law to offer the benefits of incorporation in exchange for filing fees and acceptance of corporate law, which specifies a different code of conduct with different punishments for violations compared to laws that apply to real people, corporations cannot exist. By this reasoning, we may also regard incorporation as a government program.
Because corporations ultimately owe the form of their business organization to the taxpayers who are forced to fund the government that enforces the legal system that allows them to incorporate, to let taxpayers be denied service by these entities compounds the injustice of taxation and violates the legal doctrine of estoppel. Furthermore, in order to participate in a government program, a person or other entity is supposed to be in compliance with government laws. As all of the censorious technology giants are incorporated in the United States, they should obey American law. The Constitution is the supreme legal document with which a state-recognized corporation should be in compliance for this purpose. The Constitution contains a number of provisions which are supposed to limit the conduct of government, including provisions to protect freedom of speech, freedom of the press, freedom of assembly, security against unreasonable search and seizure, and due process, among other rights. Because state-recognized corporations are public-private partnerships, they should be held to the same limitations on their conduct.
In cases that do not involve criminal behavior by the users of a corporation’s goods and services, they should either serve the public that is forced to pay for the legal system that allows them to incorporate or forfeit their incorporation and rights to do business as a separate legal entity from the people who own and operate the business. Further penalties could include barring a company thusly disincorporated from reincorporating for a number of years and/or disallowing anyone on the board of directors of a company thusly disincorporated from serving on any other corporate board for a number of years.
Finally, it would be incumbent upon the technology giants to prove that they are being investigated in retaliation for legitimately exercising their rights (which they are not doing, as just explained) as justification for a motion to dismiss an anti-trust action. As for anti-trust action, there is strong evidence for such cases to be tried. There was obvious collusion between the establishment media, social media platforms, payment processors, domain registrars, and web hosting companies in the effort to de-platform Alex Jones in August 2018 and in the effort to shut down Gab in October 2018. Such conduct runs afoul of the Sherman Anti-Trust Act. Passed in 1890 and amended to include and exclude various activities since, the Act is codified at United States Code, Title 15, Chapter 1, and reads:
“Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.
Section 2: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”
Section 3 extends these provisions to the District of Columbia and US territories. Much of the meaning and application of anti-trust law has been fleshed out judicially rather than legislatively. This has resulted in two major types of Sherman Act cases: “per se” cases and “rule of reason” cases. In a per se case, market actors strictly violate Section 1. In these cases, conduct has a “pernicious effect on competition” or “lack[s]…any redeeming virtue” and “would always or almost always tend to restrict competition and decrease output,” as decided in the Supreme Court cases Northern Pacific Railway v. United States (1958) and Broadcast Music, Inc. v. CBS (1979). Such cases do not contemplate intent or effect, and simply require proving that the conduct occurred. A rule of reason case considers intent, motive, and effect to attempt a prediction of whether the conduct in question promotes or suppresses competition. This is more difficult to prove, but should not be necessary in the most prominent cases of corporate censorship.
One example of prohibited conduct is “concerted refusals to deal,” as explained in NW Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co. (1985) and FTC v. Superior Court Trial Lawyers Association (1990). The efforts against Jones and Gab offer two obvious examples of concerted refusals to deal. As for Section 2 violations, the courts have distinguished innocent monopoly from coercive monopoly, which is the difference between a monopoly earned by providing goods and services so well that no one cares to compete and a monopoly maintained by using one’s dominant position to suppress competition. Though the technology giants mostly were innocent monopolies in the beginning, few have remained so, as the Jones and Gab incidents demonstrate. More generally, suppressing a company’s search results and keeping a company out of application stores is tantamount to anti-competitive business practice that would violate Section 2.
Champions of the free market have decried anti-trust law as a cause of market inefficiency[1] and as a violation of property rights. Ayn Rand described such laws as “the penalizing of ability for being ability, the penalizing of success for being success, and the sacrifice of productive genius to the demands of envious mediocrity.”[2] Concern about market inefficiency is important, but should not overrule non-economic moral and philosophical values. While ability and success can be penalized by anti-trust action if the targets are innocent monopolies rather than coercive ones, but abusus non tollit usum and this is not the case here. A more substantive criticism is to fault anti-trust laws for solving problems caused by corporate law by additional legislation rather than by repealing bad laws. Another valid point is that anti-trust will be insufficient even if it is necessary, as trust-busting will solve nothing if the censorious companies are broken into a hundred pieces, each of which behave exactly as the former did. But the more fundamental changes of repealing Section 230 and forcing public accommodation on incorporated companies would address these concerns.
French’s Proposal
French advises conservatives,
“Persuasion, engagement, and market pressure are preferable to attempts to recruit the government to erode First Amendment protections that, in other contexts, stand as a firewall protecting conservative causes and conservative speakers from the emerging culture of coercion. To rebuild a culture of liberty online, conservatives have to engage two audiences, first and most directly the small audience of men and women who hold the levers of corporate power. Do not presume bad faith. Do not presume that every key executive in every social-media company has closed his or her mind. In fact, we’ve seen persuasion work. We’ve seen accounts reinstated and apologies issued. It happens.”
How to recruit the government to solve the problem without eroding the First Amendment was explained in the previous section. The conduct of the technology giants is designed to make persuasion and engagement impossible. And if that is the goal, why would the censors themselves turn anything other than blind eyes and deaf ears to those whom they are suppressing? Given the blatant hypocrisy between Twitter CEO Jack Dorsey’s statements on two episodes of the Joe Rogan Experience podcast and the continued censorious behavior of Twitter, it is difficult to presume anything other than bad faith, at least in his case. In fairness, we have seen accounts reinstated and apologies issued, but this usually only happens for moderate content creators with large audiences. Less famous or more ardent rightists do not enjoy such forgiveness, especially if they are effective communicators. As usual, conservatives are nowhere to be seen when fascists and reactionaries are under attack, then are surprised when they find themselves under attack next.
French then argues that conservatives need to appeal to the masses and convince them of the problem of corporate censorship. But again, corporate censorship can make it impossible to actually do this, leaving a conservative (or any other opponent of the Cathedral) stuck in a Catch-22. Fortunately, the approach detailed above makes this unnecessary, for it relies upon a standard of making sure that the public receives service in exchange for payment.
French continues,
“Then there’s also the matter of our own, individual commercial ambitions and our own entrepreneurial energies. It is foolish to presume that the companies that dominate the marketplace today will do so indefinitely, and it’s foolish simply to cede the halls of Facebook or YouTube to ideological opponents. Just as conservatives need to send philosophers into Stanford, we also need to send our programmers into Menlo Park and our entrepreneurs to San Jose.”
“Entrepreneurial energies” are certainly necessary, but are insufficient when the deck is so thoroughly stacked. The truth is that the dominant companies in social media, website hosting, domain registration, and payment processing have such large market shares that it is difficult for competitors to enter the market. Those who try face many hurdles in starting a site and remaining online and functional. The established companies can and do use their positions to engage in anti-competitive business practices, such as keeping competitors out of search results and application stores. This can keep competitors from gaining the brand recognition necessary to build the user bases they need in order to become successful platforms. This was less of a problem in the early days of social media when turnover of the most popular sites was higher, but the near-monopolies of the largest companies are no longer as vulnerable. In a free market, censorious behavior from the largest technology companies would be of little concern, but the market is not free because it has been effectively cornered. As for “sending our programmers to Menlo Park,” one wonders if French is aware of the recent case of James Damore, a Google employee who was fired for expressing views on women in STEM fields which are consistent with empirical data but heretical to progressive orthodoxy.
Misguided Conservatism
French again accuses some conservatives of wanting to “use the government to erode freedom for the alleged purpose of saving freedom,” claiming that “[t]he alleged ‘easy’ solution — the fast fix of federal legislation — is likely blocked by the First Amendment.” I have already explained how this need not be the case, as well as how the impulse to censor can be thwarted by state power rather than vested in the state for future use. But it is two of French’s concluding sentences that reveal how misguided the contemporary conservatism of French and his ilk truly is. First, he writes,
“Moreover, there’s something fundamentally entitled and not-conservative about claiming that you should have government-mandated access on terms you prefer to a platform you didn’t create, that’s maintained by people you oppose, and that you should have that access for free.”
As explained previously, the access is neither entitled nor free because people are forced to pay for the legal system that allows the technology giants to organize their businesses as they do and enjoy the advantages thereof. A conservative may object that many people do not pay taxes, and thus access should not be guaranteed to them, but everyone in the United States uses US dollars, and they are debased by the Federal Reserve’s monetary policy as a means of enabling government spending. In Milton Friedman’s words, “Inflation is taxation without legislation.” Whereas the dollar is the world reserve currency, this argument extends a theoretical right of platform access beyond every American to many other people globally. Though this is not what President Obama meant when he said, “If you’ve got a business, you didn’t build that. Somebody else made that happen,” the words certainly apply in another sense.
Furthermore, French’s reasoning leaves one to wonder what he thinks of the Civil Rights Act of 1964, as Titles II and VII of that act do for minorities exactly what he wishes not to be done for conservatives. Would he take a strong stand for property rights and against the Civil Rights Act at the risk of being called racist by leftists and losing his status as a “respectable conservative”? This is doubtful. If he does embrace legally mandated anti-discrimination on the basis of race, sex, and other categories, why not political ideology? Note that in the presence of such a legal framework as the Civil Rights Act, leftists are estopped from complaining about being forced to serve portions of the public that they would rather exclude.
Second, French writes that “[t]he government does not exist to correct market outcomes that well-connected conservatives do not like.” This claim is exactly wrong, and would likely get French rebuked as one of the “sophisters, economists, and calculators” by Edmund Burke, the man regarded by many as the founder of conservatism. Indeed, if a virtuous state were logically possible, correcting the flawed inputs that produce flawed market outcomes would be its only function aside from the obvious necessities of providing military defense and maintaining law and order. French argues that “social-media censorship is the product of culture and commerce,” but both culture and commerce are downstream from power. Leftists, aside from the demographic rounding error that is left-libertarianism, have no scruples about using state power (or its derivative, corporate power) as a weapon to advance their agenda by rewarding their friends, punishing their enemies, funneling money into their activist organizations, disrupting their opponent’s activist organizations and lines of communication, and engaging in social engineering to put their thumb on the scale of politics. The Right must learn to do the same so that we may either obtain peace through mutually assured destruction or hasten the collapse of the current system.
Conclusion
Establishment conservatives seem not to understand that the left is at war with the right, quite possibly because most of them are actually of the left. In war, one destroys one’s enemies until they surrender, and any strategy which fails to accomplish this is unfit for purpose. Conservatives value systems of order and the ethos of the fair fight to a politically autistic extent, embracing these values even as they become the rope used by progressives to tie their hands behind their backs, knowing that the conservatives will adhere to rules which are designed by the left but never followed by them. We must realize that a set of principles which leads to consistent failure is a set of principles worthy only of abandonment and replacement. By refusing to turn the left’s own tools against them where appropriate and destroy said tools otherwise, conservatism demonstrates itself to be unfit for the task at hand by being unwilling to do what is necessary to win the war. This can only be rectified by embracing reactionary thought on the role of corporations and turning the Cathedral’s own methods against it. Perhaps it is not conservative to force one’s opponents to grant us access to their platforms, but it is justifiable and necessary under the circumstances, especially since they have already done the same to us.
References
- Greenspan, Alan (1962). Antitrust. Nathaniel Branden Institute, New York.
- Rand, Ayn (1967). Capitalism: The Unknown Ideal, Ch. 3. New American Library. Signet.
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