‘Social media helped Donald Trump take the White House,’ I wrote. ‘Silicon Valley won’t let it happen again.’ …
By the network platforms, I mean Facebook, Amazon, Twitter, Google and Apple, or FATGA for short — companies that have established a dominance over the public sphere not seen since the heyday of the pre Reformation Catholic Church. None had malign intent. As recently as 2008, not one of them could be found among the world’s largest companies by market capitalization. Today, they occupy first, third, fourth and fifth places in the market cap rankings, just above their Chinese counterparts, Tencent and Alibaba.
What happened was that the network platforms turned the originally decentralized worldwide web into an oligarchically organized and hierarchical public sphere from which they made money and to which they controlled access. That the original, superficially libertarian inclinations of these companies’ founders would rapidly crumble under political pressure from the left was also perfectly obvious.
Back in 2017, many Republicans still believed the notion that FATGA were champions of the free market that required only the lightest regulation. They know better now. …
Big tech is backed by the administrative state, who control much of the legal system. It’s a team play.
Big Tech’s coup against Trump triumphantly succeeded. It is not merely that Trump has been abruptly denied access to the channels he used throughout his presidency to communicate with voters. It is the fact that he is being excluded from a domain the courts have for some time recognized as a public forum.
Various lawsuits over the years have conferred on Big Tech an unusual status: public good, held in private hands. In 2018 the Southern District of New York ruled that the right to reply to Donald Trump’s tweets is protected ‘under the “public forum” doctrines set forth by the Supreme Court’. So it was wrong for the President to ‘block’ people — i.e., stop them reading his tweets — because they were critical of him. Censoring Twitter users ‘because of their expressed political views’ represents ‘viewpoint discrimination [that] violates the First Amendment’.
In Packingham v. North Carolina (2017), Justice Anthony Kennedy likened internet platforms to ‘the modern public square’, arguing that it was therefore unconstitutional to prevent sex offenders from accessing, and expressing opinions on, social network platforms. ‘While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views,’ Justice Kennedy wrote, ‘today the answer is clear. It is cyberspace — the “vast democratic forums of the internet” in general… and social media in particular.’
In other words, as president of the United States, Trump could not block Twitter users from seeing his tweets, but Twitter is apparently within its rights to delete the president’s account altogether. Sex offenders have a right of access to online social networks; but the president does not.
Republicans didn’t act while they could. They are going to regret it deeply.
In essence, Section 230 gives websites immunity from liability for what their users post if it is in any way harmful, but also entitles websites to take down with equal impunity any content that they don’t like the look of.
The surely unintended result of this legislation, drafted for a fledgling internet, is that some of the biggest companies in the world enjoy a protection reminiscent of Joseph Heller’s Catch-22. Try to hold them responsible as publishers, and they will say they are platforms. Demand access to their platforms and they will insist that they are publishers.
This might have been a tolerable state of affairs if America’s network platforms had been subject to something like the old Fairness Doctrine, which required the big three terrestrial TV networks to give airtime to opposing views. But that was something the Republican party killed off in the 1980s, seeing the potential of allowing more slanted coverage on cable news. What goes around comes around. The network platforms long ago abandoned any pretense of being neutral. Even before Charlottesville, their senior executives and many of their employees had made it clear that they were appalled by Trump’s election victory (especially as both Facebook and Twitter had facilitated it). …
The Republicans had their chance to address the problem of over-mighty Big Tech and completely flunked it. Only too late did they realize that Section 230 was Silicon Valley’s Achilles heel. Only too late did they begin drafting legislation to repeal or modify it. Only too late did Section 230 start to feature in Trump’s speeches.
Even now, very few Republicans really understand that, by itself, repealing 230 would not have sufficed. Without some kind of First Amendment for the internet, repeal would probably just have restricted free speech further.
Free speech guarantees on the Internet? Not a chance. The left own it now, and are having way too much fun.