As described earlier in this series,[i] major social media companies, Google/YouTube, Facebook, Twitter, Instagram, etc. (“Big Tech”) infringe on the free speech of people whose views are not in sink with the ideology of the members of Big Tech’s top brass. That the members of Big Tech companies’ top brass are ideologically simpatico is conceded even by left-leaning think tanks. For example, a Brookings report said, “We know that an overwhelming majority of technology entrepreneurs subscribe to a liberal ideology. Despite the claims by companies such as Google, I believe that political biases affect how these companies operate… Empirical evidence support this intuition; By analyzing a dataset consisting of 10.1 million U.S. Facebook users, a 2014 study demonstrated that liberal users are less likely than their conservative counterparts to get exposed to news content that oppose their political views. Another analysis of Yahoo! search queries concluded that ‘more right-leaning a query it is, the more negative sentiments can be found in its search results.’”[ii] The Washington Post confirms that Big Tech discriminates against non-leftists.[iii]/ As if that were not enough proof, Mark Zuckerburg was caught saying, “It’s just that breaking up these companies, whether it’s Facebook or Google or Amazon, is not actually going to solve the issues. And, you know, it doesn’t make election interference less likely. It makes it more likely because now the companies can’t coordinate and work together.”[iv]
As explained in the first two blogs in this series, [v] Big Tech’s selective suppression of free speech is “a big problem.” (Big Tech’s services create other serious problems, e.g., psychiatric problems for individuals,[vi] societal problems,[vii] and have increased the pace at which the cavern between competing ideologies widens, which rends society’s cohesion. All and each of these problems could be reasons to take governmental action to address them, but this series is focused exclusively on the biggest of Big Tech’s negative effects, infringement of free speech.)
While the negative effects of Big Tech’s infringement of free speech (and other domains) are huge, so are Big Tech’s positive effects in many domains. Big Tech provides incomprehensibly fantastic and desirable services. Although productivity increases attributable to information technology have been hard to find or quantify,[viii] the fact that Big Tech’s services are used/consumed in massive quantities is strong evidence that consumers find Big Tech’s services to be very valuable, i.e., are effective means by which people invent and produce things and pursue happiness. Consequently, it is reasonable to conclude that Big Tech deserves significant credit for increases in both productivity and happiness compared to what would have occurred without their services.
So, Big Tech creates huge positive and huge negative effects. We tinker with Big Tech at our peril. However, it is more perilous not to infringe upon Big Tech’s suppression of free speech. However, the extent to which regulations will reduce Big Tech’s ability to retain or increase the positive consequences of its services if Big Tech’s suppression of free speech is suppressed is an open question, but it could very seriously reduce the value of Big Tech’s services. Therein lies a conundrum, i.e., we are damned if we do suppress Big Tech’s suppression of free speech and damned if we don’t. Making matters more complicated, transferring to the government the power to control what speech should be suppressed or promoted is a surefire way to make matters worse.[ix]
Effectively addressing the huge problems Big Tech’s suppression of free speech is creating will not be easy, especially if we demand, as we should, that the policy not undermine our constitutional values. Nevertheless, Big Tech’s negative effects on free speech are so damaging to societies’ ability to enable human flourishing is so overwhelming, all options should be carefully examined and subjected to searing debate to tease out a policy that has a high probability of doing more good than harm.
The biggest hurdles to overcome concerning the regulation of Big Tech’s suppression of free speech are constitutional. The Constitution prohibits governments from infringing upon the rights of American citizens (a) to utter and publish their speech,[x] (b) to assemble peaceably with others (e.g., via a corporation) to exercise their rights as they please (e.g., to achieve political objectives), and (c) to not be deprived of life, liberty, or property, without due process of law.[xi] (Note, however, uttering or publishing words to commit a crime or a tort is not the exercise of free speech.[xii])
Big Tech companies are formed by citizens who have assembled with others to exercise their constitutional rights to speak and create portals to facilitate free speech—among other things. Consequently, Big Tech companies, like other publishers, have the constitutional right to publish whatever they want.
On the other hand, Big Tech’s ability to provide the goods and services of search and social media that Americans have grown to love if it were subject to criminal and tort liability like publishers would be severely curtailed. Publishers of speech are jointly and severally liable with the authors of criminal or defamatory content. [Big Tech was granted immunity from such liability in 1996.[xiii] More on this in later posts.] Big Tech could not survive in the form we now know it (could not provide as many positive societal effects) if it were made liable for the criminal and defamatory content that populates its search results and feeds. The resulting tidal wave of lawsuits would vastly weaken them, perhaps to extinction or uselessness.
Consequently, effectively addressing the problem without undermining America’s core principles will be very hard. Telling private companies what they can and cannot do falsely presumes that regulators will selflessly prescribe what they believe is in the best interest of society and knows enough to determine what is in the best interest of society. Regulation is fraught with negative consequences (some intended, some unanticipated), a corruption factory, and is often unconstitutional. All too often, regulations exacerbate the problem they intend to solve.[xiv]
George Gilder has predicted that cloud computing, upon which Big Tech currently relies to do its good and evil, will soon become a thing of the past, i.e., that we don’t need to do anything about Big Tech’s abuses.[xv] On the chance that Gilder’s prediction will not get the job done, let’s sort out what might be done in the next blog.
[iii][iii] See one of many examples “Did Facebook bury conservative news? Ex-staffers say yes.”
The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” and
The Fourteenth Amendment: “No state shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
[xii] The right to free speech is the right to express ideas, no matter how mean, despicable, offensive, fallacious or untenable an idea is. That right does not mean that one is free to say anything with impunity. One can be sued if she uses speech to commit a tort. For example, yelling fire in a crowded theater for the purpose of causing a stampede that will injure people, inciting violence, and defaming people (slander or libel) are not considered to be an expression of an idea, “speech.” They are wrongful acts against others, i.e., torts. Publishing tortious words of others is also a tort.
Torts, however, are not crimes. A tort is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act. The Constitution places limitations on what federal and state governments can do but it does not place limits on what people acting in non-governmental capacities can do.
[xiv] Perhaps the best example is the Dodd-Frank Wall Street Reform and Consumer Protection Act following the 2008 banking crisis. The bill was to solve the problem that banks had been “too big to fail,” which was why they had to be bailed out. After its implementation, the big banks got bigger and many smaller banks could not absorb the extra cost of regulatory compliance and closed their doors. See “The “Too Big to Fail Banks” are Bigger and more Powerful. The Financial Crisis has not Ended … It’s Only Gotten Worse” and “Dodd-Frank at 5 — helping big banks get bigger.”