How Can Conservatives Fight Back Against Big Tech? For A Start, Just Be Sane Again.

from the not-so-hard dept

Right wingers are demanding that their political leaders do something, anything. There must be a response to Twitter's ban on Donald Trump, and to Amazon Web Services' shutdown of Parler. Republicans, once so ardent for free markets, want the government to teach private tech companies a lesson they won't soon forget. Nationalize them. Prosecute them. Whatever. Any measures that convey hate for the scary truth-phobic plutocratic Bolsheviks of Silicon Valley will do.

The first problem, of course, is that the GOP, though strong in anger, is weak in power. Even if they channel their enthusiasm into concrete bills, they control neither the White House nor the Senate nor the House of Representatives.

To be sure, Democrats, too, are mad at the major social media platforms. Their biggest gripe, however, is that those platforms failed to suppress rightwing extremism earlier. Democrats strongly want quite literally the opposite of what Republicans want. They want Trump and QAnon and “Stop the Steal” to remain off Twitter and Facebook.

Even if implemented, most rightwing populist ideas would not serve rightwing populist ends. We are told, for instance, that Section 230 must be repealed. But that would not undermine platforms' discretion in moderating content. Platforms have First Amendment rights of free speech and free association. When PragerU sued it for placing certain videos in restricted mode, YouTube prevailed not under Section 230, but under the First Amendment.

Actually, repealing Section 230 would ensure that more far-right content gets taken down. Section 230 is most useful, not when a platform removes content, but when it leaves content up. Consider Force v. 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 a better job of finding and removing extremist content posted by Hamas. The court held both the publishing of the content, and any algorithmic promotion of it, protected by Section 230.

Plaintiffs' lawyers will not hesitate to treat posts by rightwing extremists as akin to posts by Hamas. Nor will platforms, if exposed to liability for such posts, hesitate to take down marginal material—any post that plaintiffs' lawyers might try to tie to an attack. It'd almost be worth it, the GOP destroying Section 230, for the spectacle of Republicans empowering plaintiffs' lawyers to drive the party's burgeoning conspiracist faction from the commercial Internet.

Another rightwing proposal is to declare each major platform a “public forum” subject to First Amendment restrictions. But this plan is almost certainly unconstitutional. “Merely hosting speech by others,” the Supreme Court recently declared, in an opinion by Justice Kavanaugh, does not “transform private entities into state actors subject to First Amendment constraints.”

Some on the right want to expand this “state action” doctrine to embrace platforms. Others want to apply Pruneyard Shopping Center v. Robins, a 1980 Supreme Court decision forcing a mall to let students protest on its private property, in bold new ways. These efforts are riddled with difficulties. For one thing, a pack of conservatives has recently taken the bench. Most of those judges presumably have little interest in bending the law simply to reach socialistic outcomes.

Populist Republicans will likely conclude that antitrust is their best cudgel for chastising Big Tech. Joining with Democrats, they can seek to redistribute revenue, unwind deals, and punish refusals to deal. When it comes to online speech, however, even antitrust will probably do the right no good.

Freezing a competitor out of a market for economic reasons can, indeed, be an antitrust violation. That is not at all the same as refusing to deal with a company because of the abhorrent opinions it holds, spreads, or condones. After the storming of the Capitol on January 6, a prominent QAnon account proclaimed that a death cult secretly runs the planet, that this cult stole the election, and that President Trump had ensnared the cult in a sting operation. The post received more than 2.2 million views on Parler:

You have a First Amendment right not to associate with a business that amplifies wingnuts. So does Amazon Web Services.

Some Republicans want to use antitrust to break up companies. But would that really change anything? Amazon Web Services has many competitors in the cloud-computing industry. So far none—not even Trump-friendly Oracle—has been willing to accept Parler as a client. Parler hosted a lot of violent, racist, toxic speech. Even if there were twice as many Facebooks and Twitters, they might all refuse to carry such material. And even if there were twice as many cloud-computing providers, Parler might still find itself universally shunned. Again, Parler can’t make other companies work with a partner they find immoral. This is, as they say, a free country.

Which brings us to the rub: a political party that lacks cultural power—that cedes it ostentatiously, in fact, as if doing so were a strategy—is doomed to struggle. It’s not a question of electoral success. Political power counts for little when you have no sway in universities, large cities, the mainstream media, Hollywood, Silicon Valley, or the wider corporate world.

Inter-elite battles matter. If conservative ideas don’t get a hearing at Princeton, at Google, or at NBC, conservative fortunes will suffer. Conservatives should pay more attention, therefore, to ensuring they are present where cultural power is wielded. They can do this by denouncing the GOP’s fringe elements; by supporting principled moderates and by offering a positive vision, one that appeals to the next generation of top talent who will occupy our cultural heights.

Conservative professors, computer engineers, and screenwriters deserve support. Cranks and bigots “censored” by social media platforms do not.

Corbin Barthold is Internet Policy Counsel for TechFreedom

Filed Under: big tech, conservatives, content moderation, section 230