By resisting censorship from the government, corporations, or cancel mobs, we reaffirm the value of the freedoms won and cherished in centuries past.
As I wrote in a preceding essay, the First Amendment was written to limit the government’s power. In the 18th century, only the state was conceived as possibly wielding the power to keep free people from speaking their minds. Thus, if maintaining a free people requires free speech, it followed that the government must be kept from controlling speech. For a long time, no more was necessary, but that would change.
As the United States grew in population and prosperity, there was very little agitation against business. There did not need to be. Most businesses were small affairs, owned by one man or one family, employing a handful of workers. Relations between labor and management were dealt with between individuals.
n 1854, Abraham Lincoln summarized this small-scale economy, speaking of a system in which a man “may look forward and hope to be a hired laborer this year and the next, work for himself afterward, and finally to hire men to work for him! That is the true system.”
Yet as corporations grew in size and power, that “true system” changed. Instead of one apprentice negotiating with an owner, a company that employed thousands would tell workers what they would get: take it or leave it.
In response, workers began to join together in trade unions, leveling the playing field, although diminishing their own independence. The balance between workers and management was restored, but the growing power of corporations still overpowered that of individual consumers.
Antitrust and utility laws were the response, but none of this much affected the realm of free speech. There was no news monopoly — newspapers were more plentiful than today — and restrictions on the new technology of radio came from the government, not the station owners. The biggest threat to the practice of free speech remained the state.
Although the two streams of jurisprudence here — anti-monopoly and free speech — did not much overlap in the early twentieth century, some of the same great thinkers were doing work in both. Foremost among these was Louis Brandeis, who joined the Supreme Court in 1916.
Brandeis was a progressive who saw Big Government and Big Business as equally threatening to the average American. Although he focused more on the growth of corporate power in his days as a private lawyer, Brandeis saw the danger in the government becoming too powerful. His solution was to resist consolidation in both regards — keep businesses small and local, and the government could stay small, too.
In regards to free speech, Brandeis also led the resistance to censorship, although often unsuccessfully. While American citizens were the freest in the world in their right to speak and publish, limits remained.
The so-called “Red Scare” that followed communist revolutions in Europe led governments to clamp down on people’s right to advocate socialist ideas in America. In Whitney v. California in 1924, the Supreme Court heard a challenge to one such law. Brandeis was in the minority, but Whitney soon became one of the rare cases more famous for the dissent than for the opinion of the court. Brandeis wrote:
Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.
Brandeis’s words remain one of the great summaries of the custom and law of free speech in America and follows the line of thinking started by Milton and Locke. In 1969, the Supreme Court adopted Brandeis’s ideas and overturned Whitney.
Since then, the government’s attempts to restrict free speech have mostly been rebuffed. Some efforts, like the censorship at issue in the 2010 case of Citizens United v. FEC, nearly succeeded, but most failed and failed quickly. The struggle for free speech in law trends toward greater liberty.
Today, however, something novel is happening in America: private actors have become a greater threat to free speech than the government is. Part of that comes from a laudable achievement — we have tamed free speech’s historical foe, the state. But part also comes from the rise of new means of communication that not only displace the old but are uniquely susceptible to monopolization in a way the old media were not.
That means that for the first time, corporate power might be a greater threat to our rights — especially our right to free speech — than the power wielded by the state. This accounts in part for the recent resurgence in antitrust advocacy.
Not long ago, there was considerable diversity not only in the sources of news and entertainment but also in the distribution of such things. Not only have the sources of news been subject to consolidation, but they have become separated from the methods by which they reach us. This vertical dis-integration might be seen as an antitrust success, except that the distribution methods are even more consolidated than the news sources.
The “distribution sources” in question are the social media giants of Facebook and Twitter, along with less powerful players in the field like Reddit and LinkedIn. Instagram and WhatsApp are also cited as delivery methods for news, but it does little good to mention them since they are both owned by Facebook. Consolidation across Silicon Valley has narrowed the real players in Big Tech to about half a dozen: Facebook, Twitter, Amazon, Apple, Google, and Microsoft among them.
As far as free speech is concerned, some of these players are more dangerous than others, but the interaction among them is also a problem. Six big technological competitors might look like a healthy industry, but it is an illusion. While they clash at times, these Big Six have divided up the tech world much as the 19th-century colonial powers divided up the globe. Spheres of influence are mutually respected and the political aims of each align with the others.
First, the social media giants established monopolies in their respective fields. As companies grow in power, they exert control over their marketplaces. They evaded detection in doing so because their monopolies are different from those of the past.
What they monopolize is not a commercial product like Standard Oil’s monopoly on kerosene. Their monopoly is on access to a thing they created and that, outside of their network, cannot exist. As I wrote in the Washington Examiner last year:
There is no place to tweet except Twitter; there is no way to create Facebook posts outside Facebook. If Facebook or Twitter delete your posts or restrict your account, that network is closed to you, and each is a network that increasingly dominates the exchange of ideas. Even beyond the market for news and commentary, access to social media for businesses (especially Facebook) can be a make-or-break proposition.
The monopoly is on each social media company’s network, and the danger is in our increasing reliance on those networks to convey ideas. By 2019, a majority of Americans said they often or sometimes got their news over social media, and the number increases every year.
Unlike old-fashioned monopolies, social media companies use their power not only to exclude competitors but also to exclude customers with whom they disagree. AT&T wanted to control all telephony, but at least they only wanted your money. Facebook and Twitter also want to limit what you say, the equivalent of a telephone operator breaking in to shut down phone calls that their bosses find distasteful.
The Department of Justice shattered AT&T’s monopoly in the 1980s, breaking the company into several “Baby Bells.” The result was cheaper, better telephone service for everyone.
But that precise solution will not work for social media. No one is concerned about the price of a service that is given away for free, and the quality of the apps was never the problem. This network, and equal access to it, is the issue. Destroying that network would make service worse, not better. Moreover, it misses the point.
The intersection of monopoly power with free speech is something new. Even beyond the threat of exclusion from a social media company’s network, the collusion among the networks further stifles free expression. Consider the treatment of a rival social network.
In reaction to Twitter shutting down accounts with whose content it disagreed, two entrepreneurs launched an alternative site, Gab, in 2016. It went public in 2017 and seemed to offer the traditional alternative for dissatisfaction with a business: taking your business elsewhere. If the dispute with Twitter had been a traditional one, such as price or quality, that would have solved the problem.
But the nature of Twitter’s monopoly worked against Gab. Twitter users who had not been banned were reluctant to leave the network, because as unhappy as they were with it, it still offered the best forum for reaching a mass audience. Some maintained accounts at both sites, but only the banned — those who had no other option — were active users at Gab. Google decided it was a hate forum and removed it from their Play Store. Apple had never allowed it in the first place.
Gab was then restricted only to people extremely motivated to seek it out, and it became a deeply unpleasant echo chamber. When it emerged that the perpetrator of the 2018 mass shooting at a Pittsburgh synagogue was an active Gab user, the site was forever known as the home of murderous extremists. The providers that hosted them terminated their arrangements, forcing it further underground. The same process played out with Parler in 2020, and it will play out again for the next would-be Twitter competitor.
Mainstream opinion is unbothered. Few had heard of Gab or Parler, which they could not find in their phone’s app stores, and many who were aware of it associated it with Nazis. Shutting them down was good riddance to bad rubbish.
Those few who raised free speech concerns were told to read the law, as though that is all there is to our ancient liberty. Recent episodes of tech censorship have involved a larger combination of tech companies and taken in a larger swath of users — including a former American president.
The drive to stifle speech is not limited to social media. Other tech monopolies have flexed their muscles. Amazon, which controls a majority of book sales in the United States, has started deciding which kinds of books it will allow. Anything that explores sexual orientation or gender dysphoria as mental illnesses is now forbidden. Tweets and Facebook posts on the subject are also likely to be censored if they voice the “wrong” opinions.
If free speech is necessary to enable individuals to discover virtue and choose their leaders, then monopoly censorship is just as harmful as government censorship. Even beyond the specific harm of stifling free expression, it does harm to the idea of free speech itself.
Legalistic denials from Big Tech supporters — “it’s not censorship if it’s not the government!” — miss the point. By allowing continued monopolies over segments of the public square and acquiescing in a restriction of free thought there, we erode the principle of free speech while piously upholding the laws that do nothing against this new threat.
As long as people believe in free speech, it will endure. According to a 2020 poll by Pew, a majority of Americans see the social media threat for what it is: censorship. That is good news. People are not distracted by the distinction of government and non-government; they see a powerful force trying to muzzle them and do not like it. The people understand that this right belongs to them and will resist anyone who tries to take it away.
The bad news is that such sentiments are declining. Americans, especially the young, increasingly are intolerant of speech that they hate. Instead of the liberty and courage that Brandeis extolled, they seek to decide public questions with private force. Milton and Locke would recognize the methods from their own times, although the actors and questions debated have changed.
That same 2020 Pew poll showed a majority of Democrats endorsing social media companies’ labeling of “inaccurate” tweets and posts. Polling by the Foundation for Individual Rights in Education (FIRE) that same year finds that significant percentages of college students support suppressing unpopular speech through heckler’s veto (27 percent) or blocking entry to an event (11 percent). Only 4 percent of those surveyed claimed that it was acceptable to use violence to suppress offensive speech, but that is still too many.
We all have reason to doubt the accuracy of polling after the failures of the last few years, but there can be no doubt that the principle of free expression is under renewed threat. Looking at that threat requires reacquainting ourselves with the history of free speech and monopolies. Our forefathers fought censorship and fought monopolistic abuses, but political battles are rarely won for all time. These two are back, joined up in novel fashion, but no different than what came before.
The lessons of Milton, Locke, Bastiat, Lincoln, and Brandeis must guide a new generation to protect our ancient freedoms. If we fail, those freedoms will fade from memory and their protection in law will fade with them. We may vote for legislators, but few of us will ever directly influence the words of a law.
In the custom that underpins the law, though, we all have a role to play. By resisting censorship from the government, corporations, or cancel mobs, we remind the world of the value of the freedoms won and cherished in centuries past, and further reinforce them for the challenges to yet come.
A new Democratic-sponsored Colorado Senate bill is raising eyebrows with the proposed establishment of a state-run ministry of truth to regulate online speech.
The bill, titled “Digital Communications Regulation,” seeks the creation of a digital communications division under the state department of regulatory agencies to regulate online content available in the state. The division will be run by a new commission to serve as government-blessed arbiters of truth.
Under the legislation, proposed by Democratic state Sen. Kerry Donovan, the new commission is tasked with the authority to investigate and hold hearings on claims filed with the division that accuse a particular platform of engaging in what the government declares unlawful conduct. Such conduct under the proposal ranges from promoting “hate speech” to “disinformation,” “fake news,” and “conspiracy theories,” or content the commission determines is meant to “undermine election integrity.” The idea for a similar proposal at the federal level was floated by New York Democratic Rep. Alexandria Ocasio-Cortez in January.
The bill puts government force behind an already-implemented progressive purge pursued by Silicon Valley tech giants wielding unprecedented power over the digital public square, with many of the same rules already in place. Such rules, however, which have become more stringently enforced to justify censorship of conservatives and reporting unfavorable to progressive interests, have been applied with remarkable inconsistency.
“We all know from experience at other places where such rules are in place, they’re not applied equally,” Joshua Sharf, a senior fellow in fiscal policy at the Denver libertarian think tank Independence Institute, told The Federalist. “They’re actually impossible to apply equally.”
The contrast between the four-year conspiracy alleging President Donald Trump was a Russian agent and the online suppression of blockbuster revelations published by the New York Post last fall, which implicated then-Democratic presidential nominee Joe Biden in his son’s potentially criminal overseas business ventures, illustrates how rules governing online content are arbitrarily enforced for political purposes. There is no shortage of examples highlighting Silicon Valley’s double-standards.
“Realistically, we all know what the intent here is,” Sharf, who runs his own online blog, warned. “The intent here is to limit what Sen. Donovan considers conservative speech.”
Donovan did not respond to The Federalist’s request for an interview.
Under the senator’s legislation, communications-oriented online businesses, including social media platforms and media-sharing platforms with services offered to Colorado residents, would be forced to register with the new government ministry of truth. Failure to do so would classify as a class-two misdemeanor with up to a $5,000 fine each day until they comply.
Republican Colorado Sen. Jerry Sonnenberg, who sits on the State, Veterans, and Military Affairs Committee where the bill was introduced, railed against the proposal as unconstitutional and shared no faith that the independent commission appointed by the governor would dictate online content fairly.
“I have no confidence whatsoever that if the commission was formed it would be somewhat politically diverse,” Sonnenberg told The Federalist. “It’s almost like a giant commission just like Facebook to determine what posts are accurate and what are not.”
Republicans in the state’s upper chamber have already pledged their opposition, though Democrats control both houses of the Colorado legislature.
“Nobody wants an unelected commission of wannabe authoritarians deciding what is and is not ‘fake news’ and what we can and cannot read on the internet,” Colorado Senate Republican spokesman Sage Naumann told The Federalist. “We’re hopeful this bill never makes it to the floor.”
Sonnenberg said he saw no momentum for that happening, even as Democrats hold the majority.
“Anybody with a reasonable mind would look at this bill and go, ‘This doesn’t make sense.’ This indeed is a violation of our First Amendment, a blatant violation,” Sonnenberg told The Federalist. “If this is a party-line vote and it gets out of committee, we have bigger problems in our country.”
We can remember when the left used to accuse conservatives of being prudish censors. Now it’s the left that appears determined to censor speech it doesn’t like. And they appear to have three incredibly powerful allies in their quest: Facebook, Twitter and YouTube.
The CEO’s of those tech giants — Mark Zuckerberg, Jack Dorsey, and Susan Wojcicki — routinely describe their services as neutral platforms, fiercely committed to openness and free expression.
“Twitter stands for freedom of expression,” Dorsey once declared. Twitter’s general manager in the U.K. once called it “the free speech wing of the free speech party.”
YouTube parent Google claims that “the flow of ideas and open access to information on the web helps communities grow and nations prosper.”
Zuckerberg told a Senate hearing on Tuesday that Facebook is “a platform for all ideas.” Continue reading
The Left’s highly selective application of today’s standards to yesterday’s heroes.
By Victor Davis Hanson • National Review
The latest round of condemning the past on the moral criteria of the present started with banning the Confederate flag from public places. Now it is on to airbrushing away progressive old white guy Woodrow Wilson, in Trotskyized fashion, from public commemoration.
But do those on the Left realize that they are rapidly becoming captives to the consequences of their own ideology? Their current effort to rewrite the past is doomed to failure for a variety of reasons.
First, this damnation of memory is not a balanced enterprise, but predicated on today’s notions of politics, race, and gender. No one is insisting that the great work of Martin Luther King Jr. be dismissed from the pantheon of American heroism because he was a known plagiarist and often a callous womanizer who did not live up to our current notions of gender equality. The racist eugenicist Margaret Sanger is still a saint. Continue reading
In Paris, it’s easier to battle a climate crisis than confront jihadists on the streets.
By Bret Stephens • Wall Street Journal
Hunger in America is an imaginary enemy. Liberal advocacy groups routinely claim that one in seven Americans is hungry—in a country where the poorest counties have the highest rates of obesity. The statistic is a preposterous extrapolation from a dubious Agriculture Department measure of “food insecurity.” But the line gives those advocacy groups a reason to exist while feeding the liberal narrative of America as a savage society of haves and have nots. Continue reading
A student backlash against hearing words and ideas that oppose their own, citing emotional “trauma”, is changing the culture of the American campus
by Ruth Sherlock • Telegraph
Far from the bra-burning, devil-may-care attitudes at universities in the Sixties and Seventies, today’s generation of American students increasingly appears to yearn for a campus ruled by dogmatic political correctness, in which faculty members assume the role of parents more than purveyors of academic rigour.
The lexicon of college has changed: students now speak about “micro-aggressions”, “trigger warnings” and “safe spaces”. Continue reading
By Zachary Leshin
Retired Harvard University Law Professor Alan Dershowitz strongly criticized the recent protests at the University of Missouri and Yale University, stating that “these students are book burners,” and “the fog of fascism is descending quickly over many American universities.”
Dershowitz made his comments during an interview on The Kelly File on Thursday. When asked for his reaction about the student unrest at Yale and the University of Missouri, Dershowitz said, “These are the same people who claim they are seeking diversity. The last thing many of these students want is real diversity, diversity of ideas. They may want superficial diversity, diversity of gender, diversity of color, but they don’t want diversity of ideas.” Continue reading
by Kaitlyn Schallhorn • The Blaze
As college students nationwide garner national media attention for their protests against school administrations and perceived racial injustices on their campuses, famed Harvard professor Alan Dershowitz has a word for them: hypocrites.
In a no-holds-barred interview with Business Insider, Dershowitz argued that “the last thing these students want is diversity.”
“They may want superficial diversity, because for them diversity is a code word for ‘more of us,’” he said. “They don’t want more conservatives, they don’t want more white students, they don’t want more heterosexuals.” Continue reading
To forestall censorship by authoritarian governments, the White House must renew the Icann contract.
By L. Gordon Crovitz • The Wall Street Journal
We’re at the midpoint between the Obama administration’s March announcement that it would end U.S. protection of the open Internet and September 2015, when the change is supposed to happen. During this time, there has been no progress finding an alternative for protecting the Internet from authoritarian governments.
That’s no surprise—except to Obama administration officials who apparently never considered how hard it would be to replace U.S. stewardship. Continue reading
by Jared Smith
When the United States Government announced its intent to forfeit its historical role of providing oversight for the Internet’s Domain Name System (DNS), it did so prematurely – before ensuring that the Internet Corporation for Assigned Names and Numbers (ICANN) would be independent and strong with a clearly limited role. The vague conditions of the transition set forth by the National Telecommunications and Information Administration (NTIA) allow room for the process to be potentially subverted by unfriendly governments or intergovernmental organizations with ulterior motives – or neutered by ICANN itself. As the process moves forward, the United States must require that ICANN be able to ensure its ability to maintain the security, stability, resiliency, and openness of the Internet Domain Name System, while meeting the needs and expectations of global customers and partners of the Internet Assigned Numbers Authority (IANA) and supporting a multi-stakeholder model of governance.
Since the establishment of ICANN’s contract with the NTIA to manage the backend functions of the Internet in 1998, the United States Federal Government has repeatedly expressed the desire to privatize oversight of the DNS process. However, the privatization of ICANN’s role has routinely been delayed due to ICANN’s inability to perform its proper functions without the guidance of the NTIA.
Since the late 1990s, Presidential Administrations and Congress have supported the NTIA in its goal of ensuring the Internet’s core functions are controlled by the broad Internet community; the importance of these functions is too great to risk foreign government interference. As the Internet has matured, it has grown in scope and importance. Concerns have been raised regarding the power vacuum the United States’ absence would create. Governments with unfriendly views towards an open Internet – including Russia, China, and even some democracies – have made their intentions and desires to limit critical speech well-known. Were one of these nations able to exert influence over ICANN, they could potentially limit or favor specific domain names based on political affiliations or organization. If a government were successful in limiting free speech on the Internet, it could serve as precedent for limitation of speech and discrimination against minorities in other venues or through mediums. Continue reading
by Paul Farhi • Washington Post
White House journalists are creating an alternative system for distributing their media “pool” reports in response to the Obama administration’s involvement in approving and disapproving certain content in official reports.
A small group of reporters initiated an online forum this month in which they shared “pool” information among themselves, without White House involvement. The forum was set up by the White House Correspondents’ Association (WHCA), which negotiates with the White House’s press staff over access for journalists.
Pool reports — those summaries of the president’s public appearances that go to the news media at large and are used in countless news stories — are filed by a rotating group of journalists whose work is intended to be free of content changes by the White House.
The pool journalists, however, must submit their reports to the White House press office, which distributes them via e-mail to hundreds of news organizations and others. The White House maintains the list of recipients.
Reporters have complained that the Obama White House exploits its role as distributor to demand changes in pool reports and that the press office has delayed or refused to distribute some reports until they are amended to officials’ satisfaction. Continue reading
Two months ago, a petition bearing more than 110,000 signatures was delivered to The Post, demanding a ban on any article questioning global warming. The petition arrived the day before publication of my column, which consisted of precisely that heresy.
The column ran as usual. But I was gratified by the show of intolerance because it perfectly illustrated my argument that the left is entering a new phase of ideological agitation — no longer trying to win the debate but stopping debate altogether, banishing from public discourse any and all opposition.
The proper word for that attitude is totalitarian. It declares certain controversies over and visits serious consequences — from social ostracism to vocational defenestration — upon those who refuse to be silenced. Continue reading
by Ajit Pai
News organizations often disagree about what Americans need to know. MSNBC, for example, apparently believes that traffic in Fort Lee, N.J., is the crisis of our time. Fox News, on the other hand, chooses to cover the September 2012 attacks on the U.S. diplomatic compound in Benghazi more heavily than other networks. The American people, for their part, disagree about what they want to watch.
But everyone should agree on this: The government has no place pressuring media organizations into covering certain stories.
Unfortunately, the Federal Communications Commission, where I am a commissioner, does not agree. Last May the FCC proposed an initiative to thrust the federal government into newsrooms across the country. With its “Multi-Market Study of Critical Information Needs,” or CIN, the agency plans to send researchers to grill reporters, editors and station owners about how they decide which stories to run. A field test in Columbia, S.C., is scheduled to begin this spring. Continue reading