How Can Conservatives Fight Back Against Big Tech? For A Start, Just Be Sane Again.
Rightwingers are demanding that their political leaders do something,anything. There must be a response to Twitter's ban on Donald Trump, and to AmazonWeb Services' shutdown of Parler. Republicans, once so ardentfor free markets, want thegovernment to teachprivate tech companiesa lesson they won't soon forget. Nationalizethem.Prosecutethem.Whatever. Any measures that convey hate for the scarytruth-phobicplutocraticBolsheviksof Silicon Valley will do.
Thefirst problem, of course, is that the GOP, though strong in anger, isweak in power. Even if they channel their enthusiasminto concrete bills, they control neither the White House nor theSenate nor the House of Representatives.
Tobe sure, Democrats, too, are mad at the major social media platforms.Their biggestgripe, however, is that those platforms failed to suppress rightwingextremism earlier.Democrats strongly want quite literally the opposite of whatRepublicans want. They want Trump and QAnon and Stop theSteal" to remainoff Twitter and Facebook.
Evenif implemented, most rightwing populist ideas would not serverightwing populist ends. We are told, for instance, that Section 230must be repealed. But that would not undermine platforms'discretion in moderating content. Platforms have First Amendmentrights of free speech and free association. When PragerU sued it forplacing certain videos in restricted mode, YouTube prevailednot under Section 230, but under the First Amendment.
Actually,repealing Section 230 would ensure that more far-right content getstaken down. Section 230 is most useful, not when a platform removescontent, but when it leaves content up. Consider Forcev. Facebook,decided by the U.S. Court of Appeals for the Second Circuit in 2019.Victims of terror attacks in Israel sued Facebook for not doing abetter job of finding and removing extremist content posted by Hamas.The court held both the publishing of the content, and anyalgorithmic promotion of it, protected by Section 230.
Plaintiffs'lawyers will not hesitate to treat posts by rightwing extremists asakin to posts by Hamas. Nor will platforms, if exposed to liabilityfor such posts, hesitate to take down marginal material-anypost that plaintiffs' lawyers might try to tie to an attack.It'd almost be worth it, the GOP destroying Section 230, forthe spectacle of Republicansempowering plaintiffs'lawyersto drive the party's burgeoning conspiracist faction from thecommercial Internet.
Anotherrightwing proposal is to declare each major platform a publicforum" subject to First Amendment restrictions. But this planis almost certainly unconstitutional. Merely hosting speech byothers," the Supreme Court recently declared, in anopinionby Justice Kavanaugh, does not transform private entities intostate actors subject to First Amendment constraints."
Someon the right wantto expandthis state action" doctrine to embrace platforms. Otherswant to apply PruneyardShopping Center v. Robins,a 1980 Supreme Court decision forcing a mall to let students proteston its private property, in bold new ways. These efforts are riddledwith difficulties. For one thing, a pack of conservatives hasrecently taken the bench. Most of those judges presumably have littleinterest in bending the law simply to reach socialistic outcomes.
PopulistRepublicans will likely conclude that antitrust is their best cudgelfor chastising Big Tech. Joining with Democrats, they can seek toredistribute revenue, unwind deals, and punish refusals to deal. Whenit comes to online speech, however, even antitrust will probably dothe right no good.
Freezinga competitor out of a market for economic reasons can, indeed, be anantitrustviolation.That is not at all the same as refusing to deal with a companybecause of the abhorrent opinions it holds, spreads, or condones.After the storming of the Capitol on January 6, a prominent QAnonaccount proclaimed that a death cult secretly runs the planet, thatthis cult stole the election, and that President Trump had ensnaredthe cult in a sting operation. The post received more than 2.2million views on Parler:
Youhave a First Amendment right not to associate with a business thatamplifies wingnuts. So does Amazon Web Services.
SomeRepublicans want to use antitrust to breakupcompanies. But would that really change anything? Amazon Web Serviceshas many competitors in the cloud-computing industry. So far none-noteven Trump-friendly Oracle-has been willing to accept Parler asa client. Parler hosteda lot of violent, racist, toxic speech. Even if there were twice asmany Facebooks and Twitters, they might all refuse to carry suchmaterial. And even if there were twice as many cloud-computingproviders, Parler might still find itself universally shunned. Again,Parler can't makeother companies work with a partner they find immoral. This is, asthey say, a free country.
Whichbrings us to the rub: a political party that lacks culturalpower-that cedes it ostentatiously, in fact, as if doing sowere a strategy-isdoomed to struggle. It's not a question of electoral success.Political power counts for little when you have no sway inuniversities, large cities, the mainstream media, Hollywood, SiliconValley, or the wider corporate world.
Inter-elitebattles matter. If conservative ideas don't get a hearing atPrinceton, at Google, or at NBC, conservative fortunes will suffer.Conservatives should pay more attention, therefore, to ensuring theyare present where cultural power is wielded. They can do this bydenouncing the GOP's fringe elements; by supporting principledmoderates and by offering a positive vision, one that appeals to thenext generation of top talent who will occupy our cultural heights.
Conservativeprofessors, computer engineers, and screenwriters deserve support.Cranks and bigots censored" by social media platforms donot.
Corbin Barthold is Internet Policy Counsel for TechFreedom