Economic Power Being Leveraged to Control Political Discourse
A commenter on the Introduction post, by the way, remarked that such calls for treating social media platforms as common carriers aren’t very libertarian or conservative—and they’re not. They stem from a concern that’s mostly associated with liberals (though not foreign to conservatives): the concern over excessive private corporate power, which sometimes needs to be checked by government power. I’m generally skeptical about such concerns (more on that later), but I wonder whether in this instance this traditional liberal worry is justified. More below, and more on the First Amendment questions coming up soon.
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Let’s begin with the policy question, and ask: Why might we want phone companies to be barred from cutting off service based on subscribers’ viewpoints?
Say a phone company argues: We don’t want our service to be used to promote racial hatred or advocacy of Communism or conspiracy theories, and our other subscribers don’t want it, either. We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in “hate speech” or advocating violence or revolution. That speech is “terrible,” and it “hurts society.” Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be, but are highly competitive cell phone providers?
I take it one answer might be something like this: We don’t want large business corporations deciding what Americans can say in a particular medium of public communication. Sometimes, in the few areas where the First Amendment permits government regulation, the people’s representatives decide that. Usually, individual speakers and listeners decide that. But companies that provide communications infrastructure should provide the infrastructure, not control what may be communicated on it. When “dominant digital platforms” have the power “to cut off speech,” we should be as concerned about that power as we are about, say, government power to exclude people from limited public forums.
This is generally the attitude, I think, even as to many platforms that aren’t legally common carriers. For instance, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that, “Tomorrow, like today, our text messages will go through.”
Likewise, e-mail systems are generally not treated as common carriers, and can in theory legally screen messages based on their viewpoints or on their supposedly spreading conspiracy theories or misinformation. Still, I suspect that most people would be surprised if Microsoft (Outlook) and Google (Gmail) decided to control their communications this way. In the words of New York’s high court, an e-mail system’s “role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers’ conversations.”
Of course, phone companies or delivery companies might well use their power wisely, to block speech that the government can’t suppress but that is still bad—bad for its subjects who are being insulted or harassed or defamed, bad for democracy, bad for public health, bad for the victims of crimes that the speech might inspire. But such companies, like all human institutions, can act badly as well as well. And common-carrier law allows us “not to place all one’s hopes in the good will of corporate actor.”
This is connected to the argument of the Court’s majority in Austin v. Michigan Chamber of Commerce and of the four dissenters in Citizens United v. FEC: The power of immensely rich corporations may “give corporations unfair influence” and “distort public debate[s].” Or, in the words of the liberal think tank Demos, criticizing Citizens United: “Concentrated wealth has a distorting effect on democracy[;] therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace.”
I think the Citizens United majority was right to hold that this couldn’t justify restricting corporations’ own speech. But the argument for limiting the power of massive corporations strikes me as especially strong—and, as the next Part will argue, consistent with the First Amendment—when the corporations are using their immense “financial resources” not just to try to persuade listeners through the corporations’ own speech, but to suppress others’ speech.
Indeed, much of Justice Stevens’ argument in his Citizens United dissent would apply to such selective blocking decisions by infrastructure companies:
A legislature might [reasonably] conclude that unregulated general treasury expenditures will give corporations “unfair influence” in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match…. [Because of the speech of corporations,] the opinions of real people may be marginalized…. “[Corporate] expenditure restrictions … are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.”
Corporate “domination” of electioneering can [also] generate the impression that corporations dominate our democracy…. The predictable result is cynicism and disenchantment: an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance.
To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that cor
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