Social Media and Public Square: An addendum on Free Speech.

This essay is an addendum to my primer on Free Speech.

There has been new interest in Western countries to curtail Big Tech power. Including Social Platforms. Especially since the banning of then President of the US, Donald Trump, from Twitter and Facebook. The social platforms are seen as stifling ‘free speech’. While most of the lamentations came form the MAGA Cult Republican party, there have been murmurings from EU leaders as well. There are multiple reasons theories as to why the actions of Twitter, Facebook, et al are prohibiting free speech.

However, these arguments don’t hold much water in face in the practical sense. The real problem with Big tech power is summarily ignored by regulators and governments. There are already laws that require nothing more than treating these corporations as anything other than businesses.

The Theories

There are two main theories under which Big Platform censorship is deemed as a ‘government’ action.

• Social Media platforms are de facto government entity like Public Squares.
• Social media platforms are Common Carriers, like telephone company.

Public Squares Theory

The proponents argue that Twitter and Facebook are ‘public squares’ and should have the same obligation as a government to facilitate free speech. Youtube just lost a lawsuit in Germany for banning an Anti-Lockdown video. The ruling clearly said:

Depending on the circumstances, especially if private companies – as in this case – move into a dominant position and take over the provision of the framework conditions of public communication themselves, the fundamental rights obligation of private parties can in fact be close to or even equal to a fundamental rights obligation of the state.

There have been similar free speech liabilities on ‘Company Towns’ in the US. The owners of the town were not allowed to restrict speech on the streets of the municipality. The owners of the town were a de facto government, and hence the constitutional protection against their intervention on speech held. There are two issues with this argument, when applied to social platforms;

1. There is no way you can call Facebook a ‘de facto’ government. If it is, then it would the world’s only real Supra-National government. And it would have the highest number of citizens.
2. The material they are supposedly censoring would not be protected speech in most jurisdictions.

The ‘Public Squares’ argument is a favorite of right-leaning political pundits. Because they are the most likely to be ‘censored’. The most right-leaning arguments, it is full of bunk. If Facebook is indeed engaging in ‘government censorship’, then it is mostly censoring things that most governments would not allow. These platforms regularly catch slack for the mental health of moderators. Would treating them like government change anything?

The Common Carrier Argument

Another school of thought has deemed that these platforms are common carriers, as they enjoy the same protections as common carriers. Common Carrier is a legalese term for a utility; a la telephone, electrical companies, etc. In most jurisdictions, Internet platforms are shielded from liability if their platforms are used for illegal activity. Just like common carriers. The regulation frameworks are, however, are not the same.

Your telephone company(kids, ask your parents!), is only allowed to treat all traffic as equal. They have to adhere to specific rules by your local telecommunications regulator.

Twitter-as-a-common-carrier makes sense. It is a communication service, like a telephone. I However, if people find the their ‘censorship’ egregious, then I doubt they will like the draconic control of the FCC or the ARCEP. Let alone more restrictive markets like India. There is massive censorship and restriction on traditional electronic media channels like Radio and over-the-air TV by these regulators. Some jurisdictions extend that to Satellite and Cable TV as well.

The Big Tech Problem

I am not arguing that Big Tech platforms have disproportionate amount of power. I have been a victim of one such platform. The problem is that both the EU and the US have robust anti-trust laws that cover this eventuality. They do not need to diminish property rights of big businesses to preserve free speech. However, both entities have neutered them to the point where they are now tools to empower incumbents like Facebook, Twitter, and Youtube.

B-A-N-A-ANAS

There is a joke amongst US legal scholars that the Supreme Court is like a child that has learned how to spell banana but never learned where to stop. Used to be that any anti-trust case brought the highest court in the US went to the government by default. Regardless of the merit of the case. But then the paradigm change. The reason for the change is beyond the scope of this essay. It did change.

Now ‘consumer harm’ is the only metric seen when presiding over Anti-trust cases. And the harm itself is only ever measured in pricing. No other argument, or metric is ever considered. How can Google’s monopoly on online video be considered harmful when the service is ‘free’ for consumers? Besides the fallacious nature of the designation of consumer, this opens a lot of opportunity for consolidation. In any industry, not just consumer tech. So in effect any specific competitor that may challenge Facebook, Twitter, Google, and other Big Tech behemoths will either be acquired(like Instagram) or crushed with sheer scale(Dropbox’ consumer business vs Google Drive).

The EU laws are much more punitive than the US. They have regularly fined previously unheard of amounts in fines to these companies. Be as it may, the fines are still not enough put a dent for the business of the corporations. The EU leaders have decided to deal with the devil they know. They want to make the market less competitive to make their own lives easier. They want these companies to assimilate or destroy all their competition.

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Treating Big Tech excess as a free speech issue is a red herring. It is a monopoly issue. All the machinations by governments and regulators are a distraction form the fact that they have gutted their anti-trust regimes, and are welcome collaborators with these monopolies. While there has been recent action on the anti-trust front, the end goal seems to be to maintain these monopolies.

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