Here's How We Stop Big Tech Censorship!

Bari Weiss                  Justice  Thomas

Bari Weiss is a woman of courage who quit the New York Times to commit fully to preserving freedom of speech (see earlier post).

Weiss quotes NYU law professor Richard Epstein’s argument that high tech firms Google (including YouTube), Facebook, Amazon, and Twitter need to be treated as public utilities or common carriers. Just as a railroad can’t refuse to transport a person because they believe the Earth is flat, so these firms should not censor political content.

Weiss says Google’s Search engine accounts for 90% of market share. Can anyone convincingly argue that an outfit such as DuckDuckGo is a competitor? And if Amazon with 80% of the digital books market blocks the sale of an ebook, does the author have a real alternative? 

Weiss and Epstein now have a powerful ally: Justice Clarence Thomas. The thrust of Thomas’s recent written argument: 

Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms. 

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

And:

If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. This Court long ago suggested that regulations like those placed on common concurring carriers may be justified, even for industries not historically recognized as common carriers, when “a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.”

Find Justice Thomas’s full presentation here.

David Sacks is a venture capitalist. He believes that when speech got digitized, “the town square got privatized and the First Amendment got euthanized.” When a handful of companies control one’s ability to speak online absent any due process protections — how does free speech survive? Sacks like Thomas favors using the common carrier obligation to prevent Big Tech from discriminating based on politics. 

Weiss sums up:

  • When Dr. Seuss’s estate discontinued six of his titles over apparent racism, that’s one thing. When eBay decided they would not allow the reselling of those titles? That’s something else.
  • When 60 Minutes decides to selectively edit an interview with Florida Gov. Ron DeSantis, that’s one thing. But when YouTube decides to delete a video of the governor criticizing the various Covid-19 policies with physicians and scientists? That’s something else.
  • When every single major tech company is making the exact same decision over who to deplatform and what to ban, doesn’t that seem like the behavior of a cartel? Why should a handful of billionaires have the power to decide that some Americans’ speech rights are more sacred than others?

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