For years now, the debate has raged on over whether Big Tech companies like Google, Facebook, and Twitter have the right to limit what is seen or said by the American people on their respective platforms.
There’s one side of the debate that says, “Hey, they’re a private company. They’re free to set whatever rules they want. That’s their RIGHT as a private entity.”
The other side shoots back, “No, Big Tech has crossed the line from private company to public publisher. These companies are no longer subject to those privacy laws!”
Needless to say, figuring out what to do is no easy task, and neither side will compromise.
Trying to figure out which side is right is a bit like trying to uncover the proverbial needle in a field of haystacks.
But the real problem is that there are actually a bunch of needles, and any of them could be correct depending on your interpretation of the law.
We used to say, “Well… what do the experts say? What’s their take?” but nowadays it’s hard finding an expert whose answer isn’t biased by their political leanings.
It’s so easy to invalidate an experts’ opinion when you can see right through their bias, so it leaves the answers up to the individual.
However, sometimes, these experts can make a case that is so compelling that it’s hard to not see the logic.
Let’s just hope that’s the case with Georgetown Law Professor Randy Barnett, who laid out a pretty good argument for why Big Tech platforms SHOULD be subject to punishment for First Amendment violations.
A LOGICAL Argument For Big Tech’s First Amendment Liability
Recently, The Federalist Society for Law and Public Policy hosted a panel of First Amendment experts to discuss whether Americans have the RIGHT to access social media platforms in the 21st Century, similarly to how law declared all Americans should have access to restaurants and lodging during the Civil Rights Movement.
Barnett’s argument is that social media platforms have become so essential to daily living in the United States that they need to be treated as public accommodations, which are defined as businesses that offer goods and services to the public. Accommodations cannot discriminate against recipients according to Title II of the Civil Rights Act of 1964, which prohibits public accommodations from discrimination based on race, color, national origin, and religion.
Barnett argues that Big Tech platforms like Facebook, Twitter, YouTube, Google, and all the others have become a public accommodation along the lines of non-governmental entities that states have the right to regulate (as Florida is trying to do).
He said, “Just as restaurants and hotels or public accommodations reach via government on highways, social media platforms can be considered public accommodations that are accessed via the internet … No one is compelled to create a public forum for the expression of speech. It is to their credit, that privately on companies like Facebook and Twitter have successfully created a communications platform that because it is so user friendly, has come to be as a central means of exercising the fundamental privilege of freedom of speech as privately owned restaurants and hotels are to the privilege of travel. By so doing, they have become public accommodations such as restaurants and hotels.”
And in a time when the government is contemplating the break-up of the quasi-monopolies these companies are running, it’s an important counterpoint to discuss.
Some tech experts have called for a repeal or clarification of Section 230 of the Communications Decency Act, which grants Big Tech companies legal immunity from hosting or removing content on their platform.
This legislative change would hold these companies liable for unfairly censoring the free speech of certain users on their platforms while allowing others to say whatever they want.
Facebook And Twitter’s “Universal Status”
Barnett believes that these social media companies’ “universal” status in society makes them a public accommodation, thereby not immune from liability.
“The universal nature of social media companies seems to easily place them into the public accommodation side of why,” he said. “Now, these remarks only scratched the surface of the difficulties raised by regulating social media companies as though they are public accommodations, have not reached any final estimate.”
Barnett did include a caveat that he is not sure that Big Tech has become public accommodations due to their alleged monopoly status, given that there are technically “competitors.”
However, he did note that Republicans in the 1800s developed the theory of “republican citizenship,” in which all citizens should be treated equally, saying, “Republican citizenship was a privilege of citizenship, was to be treated equally in the public sphere, as a citizen against invidious discrimination.”
He said that if the emphasis is on the rights of an American citizen, then “the fact that you’ve held yourself open to the public would be enough to subject you to public accommodations restrictions.”
And he’s right in where that logic goes.
These companies all crossed a line that is hard to uncross. They’ve become too important to the fabric of our society to suddenly turn around and limit who can use their platform and what can be said.
Especially when they decide to kick off Donald Trump while keeping Ayatollah Khomeini on!
It just isn’t logical.
But I’m glad that somebody out there—regardless of bias—made a case for why these companies should uphold ALL Americans’ right to be heard.
Will anybody will listen? That’s the REAL question.
“Let us be clear: censorship is cowardice. … It masks corruption. It is a school of torture: it teaches, and accustoms one to the use of force against an idea, to submit thought to an alien “other.” But worst still, censorship destroys criticism, which is the essential ingredient of culture.” – Pablo Antonio Cuadra