In 2020, Americans must decide whether their country is worthy of praise or contempt.
Common Carriage Now
The state-corporate assault on freedom of speech is accelerating.
The following is adapted from a panel presentation given at the 2022 Claremont Institute Constitution Day Symposium.
During the early Trump years, we saw people like Alex Jones de-platformed by the tech companies. But many, at the time, figured that it was fair to toss “fringe” characters like Jones under the bus, and that fears about a “slippery slope” of cancellation were overblown. They were wrong. Similarly, James Damore’s July 2017 memo about Google’s diversity/woke practices was another warning sign about exacerbating rot within the technology industry, but few bothered to so much as raise an eyebrow.
During his first year as a senator, Josh Hawley of Missouri started to talk about, and propose policies about, Big Tech, in a way that was different than the way politicians of the Right had previously discussed the issue. Initially, suggestions for reform revolved around Section 230 and antitrust; those certainly remain hot topics of discussion today. The discussion of common carrier regulation, which I’ll get to in a bit, came only a bit later.
Big Tech’s “Pearl Harbor attack” was its October 2020 nuking of the New York Post story pertaining to Hunter Biden’s infamous “laptop from hell.” The nation’s fourth-largest newspaper via print circulation was locked out of its own Twitter account; Twitter users were blocked from privately direct-messaging the URL to each other; and Facebook algorithmically penalized the dissemination of the story.
During the 2020 presidential election, Robert Epstein estimated in Senate testimony that Google was able to swing millions of votes to Hillary Clinton simply by changing its search engine algorithms to favor and disfavor certain stories, thus significantly boosting her candidacy. And overall, for the 2020 presidential campaign, if you combine the extremely narrow winning margins for Joe Biden in the various states—Wisconsin, Pennsylvania, Arizona, and Georgia—that tipped the outcome of the election and take into account the percentage of 2020 Biden voters who tell pollsters that their vote would have changed if they had known all the details about the Hunter Biden laptop story (as high as one in six Biden voters), it seems clear that Big Tech gave the election to Joe Biden.
These technologist oligarchs, including also the Amazon marketplace and such Amazon subsidiaries as its Kindle e-Book near-monopoly, control in private hands the equivalent of the twenty first-century public square. But they don’t behave as responsible stewards or custodians of the commons.
These platforms operate as regime-approved gatekeepers—enforcers of a cordon sanitaire—when it comes to permissible speech and conduct. We saw this most clearly when, in the aftermath of January 6, Apple, Google, and Amazon—via its Amazon Web Services cloud business—nakedly colluded to nuke Parler from existence.
But as bad as censorship and de-platforming are in the abstract, as has become increasingly obvious over the course of the Biden presidency, the biggest issue we presently face is the broader disintegration of America into a two-tiered body politic of the ruling class, as the late, great Angelo Codevilla called it, and the “deplorables,” as the much less great Hillary Clinton called it. The tip of the spear has been the thorough politicization of the Department of Justice and the intelligence community.
The January 6 riot has been weaponized by the ruling class to subjugate us and make us bend the knee to Wokeism and the regime. The June 2021 National Security Council pamphlet announcing a “National Strategy for Countering Domestic Terrorism” fits neatly into this, as of course does the Hunter Biden laptop story. Most obviously, Biden’s bizarre recent speech in Philadelphia, with its rhetoric against so-called “MAGA Republicans,” can only be understood as a de facto declaration of war against half the citizenry. Other recent Democratic Party rhetoric, such as Kamala Harris’ recent comments to Chuck Todd comparing modern “domestic terrorists” to the 9/11 jihadists, only underscores the point.
This would be bad enough on its own, but we’ve also seen powerful recent evidence of the extent to which the ruling class and the Biden administration are co-opting the private sector to do their dirty work for them. Mark Zuckerberg recently disclosed to podcaster Joe Rogan that the FBI reached out, on the eve of the 2020 election, to warn about so-called “Russian disinformation”; Zuckerberg openly admitted that this led Facebook to manipulate its algorithms to censor the Hunter Biden laptop story. This is, of course, hardly the first time the intelligence community has put its partisan thumbs on the scale during a presidential election, as anyone familiar with Carter Page, Crossfire Hurricane, and the “Russia collusion delusion” could tell you.
Around the same time as Zuckerberg’s confession, Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry unveiled some redacted documents pursuant to their ongoing lawsuit against the Biden administration for open collusion with Big Tech, especially as it pertains to the sprawling censorship edifice enforced to quash dissent to the COVID-era biomedical security state. Facebook and the Biden administration evidently had regular, weekly calls to set the terms by which the social media giant would censor or promote various topics.
The simple goal was to censor “misinformation,” thus constraining the Overton window of permissible civilian opinion on all things COVID-related. What’s more, the Schmitt revelations also came shortly after Vivek Ramaswamy and Jed Rubenfeld, in an August Wall Street Journal op-ed, persuasively demonstrated how Twitter, specifically, obeyed Biden Regime orders about nuking the account of Alex Berenson, a prominent skeptic of COVID-era groupthink and biomedical security state idolatry.
These problems are not unique to the technology industry. Banking and financial services have demonstrated their willingness to de-bank dissidents. In January, the Canadian truckers had their GoFundMe account suspended. At Penn Law, professor Amy Wax recently had her own GoFundMe account ominously “investigated.” Gadfly and congressional candidate Laura Loomer, infamously, has been totally suspended from PayPal. Some major banks, most prominently Bank of America after the Parkland, Florida school shooting, stopped lending to firearms manufacturers that produce varieties of the technically undefinable and cosmetically amorphous subcategory of weapons the Left refers to as “assault weapons.” And most recently, just last month, credit card companies American Express, Visa, and MasterCard announced that they would separately categorize sales at gun stores, thus targeting legal gun purchases.
What to Do?
We have to “know what time it is” and act accordingly, prudentially wielding power in less dogmatic and more pliable fashion to engage in some of the tit-for-tat tactics our foes engage in, protecting and rewarding our dehumanized voters and people by any lawful means necessary.
Statutorily, we should add political viewpoint as a “protected class” to our sprawling corpus of civil rights legislation. It might be better, in the abstract, instead to roll back this corpus of law, but acknowledging the unlikeliness of that ever happening, we must prudentially respond to the conditions of the real world and protect our voters and people from invidious discrimination. At this point, the civil rights regime is not going anywhere, so it’s time to at least try to better make it work for us and fight back against the proliferation of “DEI” and woke capital. We can also fight back against woke capital indoctrination directly at the state level, as Florida’s “Stop W.O.K.E. Act” does.
More broadly, we must conceptually view platform access and financial services access as inherently civil rights, pertaining to speech and basic economic livelihood, that must be protected and secured.
When it comes to Section 230 of the Communications Decency Act, consider the preambulatory language in statutory subsection (a)(3): “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” (Emphasis added.) The infamous extra-legal immunity provision in statutory subsection (c) is thus part of an implicit quid pro quo, seen in statutory subsection (a), that the tech platforms will offer a “true diversity of political discourse.” Big Tech has lost that “quid,” and we must now reform the “quo.” We should statutorily replace the language in § 230 (c)(2)(A) to implement a First Amendment standard, thereby conditioning the receipt of the (c)(2) extra-legal immunity on the idea that the tech platforms cannot censor any speech that would be protected from government censorship if it were said on a public sidewalk.
Consider also the so-called “Good Samaritan” provision in § 230 (c)(2)(A): “No provider or user of an interactive computer service shall be held liable on account of 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.” (Emphasis added.) Many courts have read “otherwise objectionable” to have a sweeping meaning, effectively giving Big Tech carte blanche to censor at-will, but that cannot be right. “Otherwise objectionable” must necessarily have a narrower meaning than the sweeping immunity courts have typically read into it, following, as Eugene Volokh and Adam Candeub have argued, the well-accepted ejusdem generis canon of statutory construction.
The inclusion of the “whether or not such material is constitutionally protected” language is also unconstitutional, and the federal courts should hold as much. “It is axiomatic,” the Supreme Court said in 1973’s Norwood v. Harrison, that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” From that perspective, the “whether or not such material is constitutionally protected” language is extremely dubious, and the constitutional avoidance doctrine ought to militate against the platforms’ preferred sweeping interpretation of the “Good Samaritan” provision in (c)(2)(A).
When it comes to the unfolding of the antitrust debate, the key point, as I recently phrased it, is that the debate now “is not an academic one about the continuing relevance of Robert Bork’s ‘consumer welfare standard’; rather, it is about securing the very ability of half the citizenry to conduct their lives with access to the most basic means and institutions of civil society. The debate is less about economics and more about dehumanization.” Again, we must be able and willing to act, wielding power to break up natural monopolies that clearly resemble the old robber barons, such as Google and Amazon, to protect our voters from invidious corporate tyranny.
It is also crucial that we recognize that common carrier regulation is now the Right’s friend. Common carriage is an English common law doctrine going back at least as far as the fifteenth century; as summarized by the great common lawyer Sir Matthew Hale, it states when a private company’s business activity is so “affected with a public interest” and the business carries itself as serving the public, then we must require a nondiscrimination principle (sometimes in exchange for some sort of extra-legal immunity). In the U.S., industries as wide-ranging as railroads and telephone companies are regulated as common carriers. Conceptually, the framework of the 1964 Civil Rights Act, with its sweeping nondiscrimination requirements for innkeepers and restaurateurs, can be functionally thought of as common carrier-analogous legislation.
It is now overdue to regulate the Big Tech platforms as common carriers, either via direct Title II regulation under the 1934 Communications Act, or via new legislation such as Bill Hagerty’s proposed bill last year, “21st Century FREE Speech Act.” Notably, Clarence Thomas is on board, as he discussed in his April 2021 concurrence in Biden v. Knight First Amendment: “There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.”
Last month, in an important majority opinion in the Fifth Circuit case NetChoice v. Paxton, Judge Andrew Oldham upheld Texas’ H.B. 20, which should be model legislation in directly applying a viewpoint-neutrality nondiscrimination requirement to the Big Tech platforms. H.B. 20, as Judge Oldham summarized it in a tour de force opinion that digs deeply into the common law roots of the doctrine of common carriage, “generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker.” Legal scholar Philip Hamburger is widely reported to be the brain behind H.B. 20; he should be widely consulted for other states’ similar common carrier-style laws for Big Tech.
The idea for common carrier regulation is straightforward: companies that hold themselves out as open to all should be legally treated as such, possibly in exchange for some sort of extra-legal immunity provisions. (Crucially, for Big Tech, Section 230 is already that extra-legal immunity.) Common carriage as a remedy for the Right’s two-tiered/dehumanizing woes should not be limited to Big Tech, either; we should certainly legislate and regulate in this regard when it comes to Big Banking, too.
Antitrust, and even more so, common carrier regulation, naturally represent our best path forward of stopping the state-corporate fusion assault on our people and our way of life. We must legislate more civil rights protection based on point of view, prudentially apply existing doctrines to new areas, and judicially interpret existing protections much more modestly, lest they further abet invidious discrimination against the “deplorables.”
The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.