Fairly regularly there’s a public discussion on free speech and the first amendment. There’s one happening now and I want to talk about these components and how they are similar or different and what roles they play, and why antitrust should be a part of these exact conversations. Antitrust is often a part of a separate conversation as it’s a completely different area of law. However in the area of large tech companies, antitrust is inextricable from the others.
Free speech is an ideal. Something that various countries and organizations implement in various ways where the specifics differ. Free speech as a principle is thought to have originated in ancient Greece, and is Article 19 of the Universal Declaration of Human Rights.
The US Constitution’s First Amendment (1A) is the implementation of the free speech ideal (as well as other ideals) in the United States Bill of Rights. This amendment prevents the government (and only the government) from restricting speech. While this freedom is extremely broad it is not absolute. Some examples of restricted speech are prohibitions against slander, libel, fraud, and breaking NDAs.
This particular amendment being first distinguishes it as one of our most important freedoms. This is somewhat unique among modern democracies. Almost all of them have a form of free speech but, particularly in Europe, their “prime” freedom is often some form of a right to privacy.
Discussions around these ideas are never ending. Whether it’s removing a celebrity or politician from Twitter, protests, a company refusing to do business with a hate group, or a student newspaper publishing something the school doesn’t like, opinions abound.
These discussions are increasingly happening at the same time as a significant phenomenon in the tech sphere over the past couple decades: unprecedented and significant consolidation of our national communication platforms under control of an extremely small number of people. Social media has consolidated into 2 American conglomerates (Twitter and Meta). Or four companies if you include Snap and ByteDance, the owner of TikTok. While other platforms and publishers exist, most conversation happens on these platforms (e.g. almost one out of four Americans is on Twitter). More traditional platforms and publishers inescapably cover these social media apps extensively. Even a brief time watching cable news will have anchors reading and commenting on tweets and other social media posts.
This leads to an old idea in politics: the public square. The public square is another ideal – where ideas can be discussed and is the foundation of a functional democracy. Previously this was covered by local meeting halls, newspapers, regional TV stations, local radio, etc. While those still exist they often predominantly cover the conversation that happened that day on one of the social media platforms. So our public square has been consolidated into the hands of 2-4 CEOs.
When CEOs act as moderators of the public square by deciding to remove or retain content, they are protected by 1A. So this is not in defiance of 1A, but can be a restriction on the ideal of free speech. Previously an editor exercising discrimination against publishing something wasn’t a restriction on free speech in practice because the speaker could likely find a publisher in the marketplace which would carry their speech.
Now however 2-4 CEOs make this decision. Our Constitutional framers thought that even leaving control of the free speech ideal in the hands of hundreds of politically diverse, duly elected representatives was too much power in the hands of too few. And yet we now have similar power in the hands of far fewer. And even the classic appeal for corporate governance is weak in these situations. Thanks to a common dual-class shareholder structure, many of these companies have huge shareholder bases while retaining complete control themselves in the hands of the founders or a very small number of investors.
So while not a 1A violation, these CEOs exercising discrimination on their platforms clearly restrict the public square and violates the ideal of free speech. How can this be addressed – by legally requiring those companies carry all content? That would be compelled speech and in fact be a 1A violation in itself. By letting the market compel it? While that may work for some companies it won’t for these major companies that are de facto monopolies and oligopolies. And there’s also scant evidence that free speech is a competitive advantage.
There’s a lot of complexity around these concerns beyond just the topics I’ve covered here. Section 230, algorithmic amplification, dual-class shareholders, to name but a few. We must also contend with the fact that America’s historical interpretation of the ideals of both free speech and the public square often didn’t include large swaths of Americans, due to race, religion, gender, or other characteristics.
A significant cause here of the restriction upon the public square is not private entities deciding what content they do and don’t carry. That’s a centuries old American right. The root cause is that power being consolidated into the hands of so few people, often beholden to no one in practice. The solution is to revive our antitrust laws. These have been rarely and poorly enforced against tech companies. Meta (previously Facebook) purchased Instagram specifically to prevent competition, Google is the largest online ad company in the country and controls over 92% of the American search engine market, Apple requires any browser on iOS to use the same rendering engine as their Safari browser.
One reason for this lack of enforcement is a long history of support for a theory of antitrust from the “Chicago School” which rose to prominence in the 1960s and 1970s and focused entirely on consumer price. (Columbia Law professor Tim Wu covers this in his book The Curse of Bigness). The theory was not prepared for national communications platforms where citizens were effectively the product being sold to advertisers. It’s hard to declare antitrust based on bad consumer pricing when the products offered to everyday users are free.
In the early 20th century, Teddy Roosevelt became known as the “trust buster” due to his administration’s enforcement of antitrust laws. He had two main reasons for addressing this aggressively. One was the impact on the end consumer that persisted throughout most of the 20th century. But he was also determined to ensure private individuals and companies can’t be a challenge to the federal government. Only duly elected representatives of the People should be able to wield that level of power. This is a major weakness of the Chicago School of thought, and one reason why it’s waning in popularity in antitrust discussions.
We should revive, update, and begin enforcing antitrust laws against these consolidations of power which exert changes over society that no private entity should be able to do, including infringe on our ideals of free speech. Let those platforms decide what speech they will and won’t carry, and let the market grow and decline with dozens or hundreds of social media companies across multiple sectors, geographies, interest groups, and more.
A list of options which is by no means exhaustive could include: Facebook’s purchase of Instagram can be unwound. Tech giants with an algorithmic driven feed (e.g. Twitter, Facebook, TikTok) can be required to disclaim certain details about that algorithm to users similar to nutrition labels or cigarette warnings. Amazon and Google can be required to stop using their search engines to prefer their own products and services. Google and Apple can be required to not prefer their own apps in their respective app store search results, or require developers to use and prefer their payment platforms.
There are lots of options here, but the priority is clear. The goal is no longer to only ensure consumers pay the lowest price, but to ensure that our ideals can be upheld without being challenged by a private entity that is disproportionately powerful. To ensure that the only rules that society runs on are set by the People themselves via democratically elected leaders who represent us.
Image credit: https://www.flickr.com/photos/[email protected]/4249886990