A Holistic Approach to Ending Corporate Censorship

Over the past decade, the large technology companies of Silicon Valley have transitioned from a mindset of attempting to make government censorship impossible to a mindset of attempting to make government censorship unnecessary. People with views that oppose the progressive liberal narrative have increasingly found their posts removed and accounts suspended on the social media platforms created by these companies. Domain registrars, web hosting companies, and payment processors have joined in this effort to de-platform those who are not part of the progressive movement, such as conservatives, libertarians, reactionaries, and the alt-right, especially the latter two. At first, there were just a few relatively marginal people being removed from social media, having their crowdfunding campaigns taken down, and being chased off of web hosting. But these behaviors have become more common, as has the denial of service by payment processors.

There are several proposals for how to respond to these developments, and the debates concerning them highlight differences in political theory and strategy between the aforementioned groups under attack by the outer arms of the Cathedral. Let us consider each option in order to construct a holistic approach to freeing the Internet from censorious technology giants.

Policy Inaction and Reliance on Alt-Tech

The view articulated by mainstream libertarians and free-market conservatives is that the technology giants are success stories of capitalism, having brought about wondrous advances in commerce and communication. They tend to view these technology companies as private businesses whose owners should be able to set their terms of service as they see fit and choose with whom they will associate or not associate. Indeed, many view ostracism as a nearly universal positive, working to reward preferred behavior while punishing dispreferred behavior. If technology companies behave improperly, they believe that the market will punish them by elevating alternatives to prominence as customers flee to other providers. This leads them to favor inaction at the policy level while championing alt-tech as the solution.

This stance is best understood as inability to deal with the context of the situation, naivete by those who have yet to face the wrath of the establishment, or malice by those who are part of the establishment. The truth is that the dominant companies in social media, website hosting, domain registration, and payment processing have such large market shares that it is difficult for competitors to enter the market. Those who try face many hurdles in trying to start a site and remain online. The established companies can and do use their positions to engage in anti-competitive business practices, such as keeping competitors out of search results and application stores. This can keep competitors from gaining the brand recognition necessary to build the user bases they need in order to become successful platforms. This was less of a problem in the early days of social media when turnover of the most popular sites was higher, but the near-monopolies of the largest companies are no longer as vulnerable. In a free market, censorious behavior from the largest technology companies would be of little concern, but the market is not free because it has been effectively cornered.

Although ostracism on the basis of behavior is nothing new, the crowdsourcing power of the Internet has transformed it into a political weapon that can be used to ruin people unjustly. Moreover, it is capable of dividing an entire society along ideological lines. When reasoned discourse is shut down and unpopular viewpoints are suppressed by howling irrational cyber-mobs, those who are de-platformed are likely to have their internal victim narratives confirmed, radicalizing them further. This may even motivate extremists who would otherwise spew hateful rhetoric but take no further action to go ahead with plans to commit acts of terrorism. It also may serve as a precursor to a novel type of civil war, one which arises when the heated rhetoric that is naturally produced as a byproduct of democracy escalates into political violence and there is no peaceful outlet to reduce tensions before they consume the entire society.

It is clear that doing nothing is not a reasonable strategy, and that alt-tech is necessary but not sufficient, so let us consider our real options.

The Communications Decency Act

Recent commentary on this subject has focused on Section 230 of the Communications Decency Act of 1996, codified at United States Code, Title 47, Chapter 5, Subchapter II, Part I, Section 230. The stated intent of this law is laid out in Subsection (b):

(b) Policy
It is the policy of the United States—
(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

The substance of the law at issue here is found in Subsection (c):

(c) Protection for “Good Samaritan” blocking and screening of offensive material
(1) Treatment of publisher or speaker: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
(2) Civil liability: No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in (1).

This statute allows service providers on the Internet to restrict the actions of customers without being legally responsible for the actions they do not restrict. The Communications Decency Act was written partly in response to the Supreme Court case Stratton Oakmont, Inc. v. Prodigy Services Co. (1995), which suggested that service providers were publishers subject to responsibility if they assumed an editorial role. The original purpose of these provisions is revealed in Subsection (d):

(d) Obligations of interactive computer service: A provider of interactive computer service shall, at the time of entering an agreement with a customer for the provision of interactive computer service and in a manner deemed appropriate by the provider, notify such customer that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. Such notice shall identify, or provide the customer with access to information identifying, current providers of such protections.

As usual, laws intended to solve a particular problem, in this case protecting minors from viewing obscene materials that they are not mentally prepared to view, are employed later for other purposes far beyond their original intent. The technology giants of today use this statute in order to have their cake and eat it too; they censor as they see fit and suffer no liability for what they choose not to censor.

Section 230 has come under attack from both left-wing and right-wing activists. The former wish to remove liability protections to incentivize more zealous censorship of “hate speech”, while the latter wish to either remove the ability of interactive computer service providers to censor content and remove people or make it easier for victims of defamation to sue the platforms that host defamatory material. But a full repeal of Section 230 would allow for platforms to be legally responsible for all of the content they host. Whereas moderating the sheer volume of user-generated content that exists today would be impractical, many sites would stop hosting such content. Lawsuits from failed moderation would overload the courts, and content hosting would mostly move to the decentralized dark web.

There would have to be a replacement statute following a repeal in order to mitigate the extreme disruption to business as usual. This replacement should serve the purposes laid out in Subsections (b) and (d) of Section 230, which has not been done by Subsection (c), item (2). Any replacement for that provision should keep interactive computer service providers from removing otherwise legal content from their sites unless they wish to be responsible for everything that they allow to remain. This would make Internet censorship so impractical that it would almost never occur, as success would produce very little benefit while failure would result in being treated as a publisher of vast quantities of libel and slander. This would be in keeping with the general methodology of federal regulations; rather than prohibiting an activity outright, it instead makes the activity too difficult for any reasonable entity to perform. Other measures could be used to keep obscene materials away from minors and allow users to filter out content that they do not wish to view. These measures already exist, and are such obvious solutions that there is no need to require them by law.

Altering Section 230 should rein in social media censorship, but it would be of questionable efficacy against domain registrars and web hosting companies, and would be useless against payment processors. Therefore, let us consider other approaches.

The Public Utility Approach

In the view increasingly expressed by conservatives and alt-rightists, the Internet is an essential aspect of life in the 21st century, and the technology companies that deny people access to the most popular social media platforms, domain hosting services, and payment processors are curtailing both the civil liberties and economic opportunities of those people. The largest technology companies are effective monopolies, in that these firms are the only sellers of products and services that have no close substitutes. In response, they call for the state to regulate these companies as public utilities, much as they do to providers of electricity, water, and natural gas. This line of thinking also leads to support among these people for net neutrality regulations. Some argue that government regulation is even more necessary in this case, as the network effects and first-mover advantages of the largest technology firms mean that a competitor cannot provide the same quality of service even if there were no significant barriers to entry into the business of creating social media platforms, search engines, and payment processors, which there are.

Treating social media and web hosting as public utilities is likely to cause more problems than it solves. When governments began regulating other industries, innovation in those industries slowed. The companies which were nearly monopolistic either remained so or became real monopolies, as competition became even more difficult. Freezing current troublesome companies in place as major players rather than allowing upstarts to displace them is an undesirable outcome. This is exacerbated by the fact that public utility regulations are just as vulnerable to regulatory capture as any other regulations. Furthermore, the cost of regulation is likely to be high, and the regulated businesses will pass this cost onto their customers. However, given the dominant market shares of domain registrars and payment processors, as well as the barriers to entry for creating new ones, those businesses may need to be treated as public utilities until meaningful competition can emerge.

The Anti-Trust Approach

There was obvious collusion between the legacy establishment media, dominant social media platforms, payment processors, domain registrars, and web hosting companies in the effort to silence Alex Jones in August 2018 and in the effort to shut down Gab in October 2018. There is a strong case to be made that such conduct runs afoul of the Sherman Anti-Trust Act. Passed in 1890 and amended to include and exclude various activities since, the Act is codified at United States Code, Title 15, Chapter 1, and reads:

“Section 1: Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Section 2: Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.”

Section 3 extends these provisions to the District of Columbia and U.S. territories. Much of the meaning and application of anti-trust law has been fleshed out judicially rather than legislatively. This has resulted in two major types of Sherman Act cases: “per se” cases and “rule of reason” cases. In a per se case, market actors strictly violate Section 1. In these cases, conduct has a “pernicious effect on competition” or “lack[s]…any redeeming virtue”[1] and “would always or almost always tend to restrict competition and decrease output.”[2] Such cases do not contemplate intent or effect, and simply require proving that the conduct occurred.[2] A rule of reason case considers intent, motive, and effect to attempt a prediction of whether the conduct in question promotes or suppresses competition. This is more difficult to prove, but should not be necessary in the most prominent cases of corporate censorship.

One example of prohibited conduct is “concerted refusals to deal”.[3,4] The efforts to de-platform Alex Jones and shut down Gab offer two obvious examples of concerted refusals to deal, and should easily clear even the heightened standard of Twombly[5] for bringing a case that cannot be summarily dismissed. As for Section 2 violations, the courts have distinguished innocent monopoly from coercive monopoly, which is the difference between a monopoly earned by providing goods and services so well that no one cares to compete and a monopoly maintained by using one’s dominant position to suppress competition. Though the technology giants mostly were innocent monopolies in the beginning, few have remained so, as the Jones and Gab incidents demonstrate. More generally, suppressing a company’s search results and keeping a company out of application stores is tantamount to anti-competitive business practice that would violate Section 2.

Champions of the free market have decried anti-trust law as a cause of market inefficiency[6] and as a violation of property rights. Ayn Rand described such laws as “the penalizing of ability for being ability, the penalizing of success for being success, and the sacrifice of productive genius to the demands of envious mediocrity.”[7] Concern about market inefficiency is important, but should not overrule non-economic moral and philosophical values. While ability and success can be penalized by anti-trust action if the targets are innocent monopolies rather than coercive ones, this does not have to be the case, and is not the case here.

A more substantive criticism is to fault anti-trust laws for solving problems caused by corporate law by additional legislation rather than by repealing bad laws. Another valid point is that anti-trust will be insufficient even if it is necessary, as trust-busting will solve nothing if Facebook, Google, Twitter, PayPal, et al. are broken into a hundred pieces, each of which behave exactly as the former did. More fundamental changes are thus needed, which brings us to the final option we will consider.

The Anti-Corporate Approach

We come now to the strongest approach, which is championed uniquely by libertarian reactionary thought. The nature of corporations leads to a clear rationale for restricting their behavior in such a manner as to end corporate censorship. A corporation is a legal fiction created by the state to shield business owners from full financial liability and ease the enforcement of laws upon those businesses. Without registering or chartering a corporation under the laws of a state, it is impossible to establish such entities as we know them. For the four millennia that business structures similar to corporations have existed, they have always been intertwined with state power. Although one could negotiate contracts with other legal persons to make an unincorporated business function similarly to a corporation, this would not be identical to a state-recognized corporation in terms of its interaction with the state or its liabilities for negative externalities.

Two results directly follow from this. First, registering a corporation amounts to participation in a government program. Second, state-recognized corporations are not truly private businesses, but public-private partnerships in which the state provides limited liability through its monopoly on courts and the private business fulfills its purpose, whatever it may be.

In order to participate in a government program, a person or other entity is supposed to be in compliance with government laws. As all of the censorious technology giants are incorporated in the United States, they should obey American law. The Constitution is the supreme legal document with which a state-recognized corporation should be in compliance for this purpose. (More generally, if a corporation is chartered or registered under the laws of a particular state and that state has a constitution demarcating the limits of its claimed powers, then no such corporation should exceed those limits, for no entity should delegate powers to others that it does not have itself.) The Constitution contains a number of provisions which are supposed to limit the conduct of government, including provisions to protect freedom of speech, freedom of the press, freedom of assembly, security against unreasonable search and seizure, and due process, among other rights. Because state-recognized corporations are public-private partnerships, they should be held to the same limitations on their conduct. Because corporations exist on the backs of taxpayers who are extorted to fund the government that allows them to incorporate, any funding grants or bailouts they receive, and any public works they perform, to let taxpayers be denied service by these entities compounds the injustice of taxation and violates the legal doctrine of estoppel.

The technology giants should face a choice of ceasing all censorship, forfeiting their corporate charters or registrations, or leaving the United States. In other words, they must choose between opening the marketplace of ideas, becoming truly private companies, or getting out of the way, any of which would be an improvement in the long term. Even the threat of this proposal would have the technology giants rushing to behave better, and could accomplish the same results as public utility regulation with far less threat to innovation.

Conclusion

The effort to stop corporate censorship is the most important social issue of our time because failure in this effort will greatly hinder the ability to discuss any other issue, at least from any position that deviates sufficiently from progressive liberalism. Silicon Valley has both a greater and a more insidious power to suppress dissident speech than the Cheka or Gestapo ever did. As Henry Olson explains,

“While a force like the Cheka was obviously able to inflict much more pain on individual people than Google can, its obvious brutality could not help but stir up popular resentment; thus, the common refrain that by the fall of the Berlin Wall the only people still believing in communism were American university professors. Therefore, the fact that modern tech companies have given up primitive methods of control for more sophisticated ones is an evolutionary improvement in managerial totalitarianism, not a weakness. The goal of the gulags was rarely to hurt individual people; it was to make the cost of opposing the system prohibitive to others. If Google, Twitter, PayPal, or any other company can silence dissent just by changing search algorithms or banning dissidents from using a service, then it has achieved in the same results in a less intrusive way. And because their methods are less obviously evil, they are also less likely to engender popular disillusionment or revolt.”

We have considered five methods for countering censorious technology giants: market competition by alt-tech companies, changing Section 230 of the Communications Decency Act, treating interactive computer service providers as public utilities, breaking up technology giants with anti-trust laws, and making incorporation contingent upon ending censorship. Only the latter method could possibly work without assistance from the others, as alt-tech could be suppressed by a concerted effort, the CDA does not deal with payment processors, public utility regulation would stifle innovation while freezing the currently dominant companies in place, and anti-trust risks replacing a few large bad actors with many small bad actors. Given the importance of this issue, a holistic approach of all of the above (and perhaps more) is essential for preventing the curtailment of discourse by an elite few, and thus preserving peace and order.

References:

  1. Northern Pacific Railway v. United States, (1958).
  2. Broadcast Music, Inc. v. CBS (1979).
  3. FTC v. Superior Court Trial Lawyers Association (1990).
  4. NW Wholesale Stationers, Inc. v. Pacific Stationery & Printing Co. (1985).
  5. Bell Atlantic Corp. v. Twombly (2007).
  6. Greenspan, Alan (1962). Antitrust. Nathaniel Branden Institute, New York.
  7. Rand, Ayn (1967). Capitalism: The Unknown Ideal, Ch. 3. New American Library. Signet.
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