On Tuesday at 4 p.m. Eastern, the Free Speech Project will hold an online event titled “Should We Think Twice Before Limiting Political Advocacy?” For more information and to RSVP, visit the New America website.
“Facebook is looking a lot like the government,” the Washington Post editorial board declared in February.
And in 2017, New York Times columnist Farhad Manjoo wrote that the “frightful five” (Amazon, Google, Apple, Microsoft, and Facebook) have “become kind of more like governments than companies with the amount of money they have, with the kind of power they have over democracy in society.”
These types of broad claims about the governmentlike role of technology companies have become commonplace. Proponents point to the size of these firms, their power, their rapid growth, and their importance in our daily lives as proof.
But it is a mistake to say that large tech companies are effectively the government. Unlike the government, they are privately held and run. Tech companies cannot tax you. They cannot deprive you of liberty or property. They cannot use legitimate force against you.
Not only is this idea that Big Tech is the government incorrect, but the rhetoric masks a serious issue. It is because these companies are not the government, with checks and balances, that they are so susceptible to lobbying and threats—a dynamic that everyone, even those most concerned about the power of Big Tech, should be wary of.
Perhaps no better example of this played out when Twitter fact-checked President Donald Trump and added warnings labels to his tweets. The president was furious. Other Republican politicians weighed in almost immediately to denounce Twitter’s move. There were news stories, cable TV segments, and a backlash from the American public. All of this media pressure was, in effect, a lobbying effort to pressure Twitter to back down and a warning to others not to follow their lead.
The president also issued an executive order, but it ended up being more rhetorical bark than legal bite. The actual legal effect of the executive order was minimal: suggesting the government pull advertising, ordering rulemaking processes that have dubious merit, creating a working group with the Department of Justice and state attorneys general to find ways to harass these companies, and urging the Department of Justice to lobby Congress to change the law. Yes, this executive order has an effect, but the tools available are relatively modest. More importantly, there is a process by which other stakeholders can weigh in and challenge this effort. Civil society groups, businesses, academics, and other politicians all have an opportunity to express their views. The executive order, any new regulations, and any laws passed by Congress can all be challenged in court. Different branches of government check each other. But the point of the executive order was not to change the law. The point was for Trump to make clear that he was upset with Twitter’s fact-check of his claims and to warn other companies against similar moves.
Trump is hardly alone in trying to jawbone tech companies to change their policies to suit his political interests. Take Democratic Federal Elections Commission Commissioner Ellen Weintraub, for example. Weintraub has long sought stricter limits on political speech. She has repeatedly called for bans on “microtargeted” political ads. Her agency administers and enforces federal elections law. But Weintraub is not using her powers as a regulator. In January, after Facebook announced that it would not put limits on political advertising, she tweeted, “I am surprised that Facebook would put out such a weak proposal that it virtually invites Congress to re-examine Facebook’s Section 230 exemptions. I strongly urge Facebook to go back to the drawing boards and come back with something much more robust.” That statement is a political threat.
Targeted ads are not her only concern. Like many Americans, Weintraub is concerned about misinformation, but as she told Politico’s Nancy Scola in March, “I doubt if it would withstand First Amendment scrutiny if we were to say to the platforms or to broadcasters or anyone else, ‘You have to take that ad down because it contains inaccurate information.’ ” Instead, she is pursuing a strategy that Scola describes as “gently or not-so-gently encourage the big platforms, like Facebook and Twitter, to figure out their own ways of what addressing the issue.”
These are not isolated incidents. Politicians lobbying technology companies has become one of the few bipartisan sports in Washington.
• The Trump and Biden campaigns both furiously lobbied Twitter over whether the platform should label as manipulated media a Trump campaign video that took a quote by the former vice president out of context to suggest that he was endorsing Trump.
• A group of Republican senators led by Josh Hawley, a Republican from Missouri, sent a letter to Mark Zuckerberg to protest the fact-checking a pro-life video.
• Democratic members of the House used tweets to lobby Twitter and Facebook to remove an edited video of Speaker Nancy Pelosi ripping up Trump’s State of the Union address.
• Sen. Ted Cruz, a Republican from Texas, used his opening remarks in a hearing to scold tech executives. He argued that the lack of transparency offers “big tech the power to silence voices with which they disagree” and painted himself as the champion of free speech.
• At the same hearing, Rep. Mazie Hirono, a Democrat from Hawaii, encouraged tech companies to increase their use of content moderation to combat anti-vaccine conspiracy theories, hate speech, videos of mass shootings, and other forms of repugnant speech.
Whether they want more speech or less, more fact checks or fewer, videos to stay up or come down, the one thing all politicians seem to demand is that these companies need to do something.
But rarely (Trump’s limited executive order being an exception) have these politicians or regulators turned to the most direct tools at their disposal. There is no serious bill to regulate how Facebook conducts fact checks, or remove political ads with misleading editing, or to ban alleged bias against conservatives, or anti-vaccine conspiracy theories, or hate speech, or videos of mass shootings.
There’s a reason these legislators and regulators haven’t tried to use the powers of government directly to achieve their speech goals online: They would fail. The bills would likely not pass, and if they did, they would be quickly challenged in court. Rather, they make it clear to companies: Do what we want or else. The “or else” takes the form of bills on privacy, antitrust, and legal liability for speech, fake products, or any other set of harms. As Trump tweeted: “Repeal 230.” Indeed, the point of these bills is usually not to pass but to cajole. The politicians are working the refs. Because if a powerful politician can convince a company to simply change their internal rules, that decision is not subject to the normal checks and balances of our democratic process.
If the politicians are now playing lobbyists, what should be done in response?
First, companies should define a set of principles and stick to them. Apple has chosen to define themselves based on their commitment to privacy. Facebook is increasingly defining themselves as defenders of free expression.
Second, companies can improve how they govern themselves. Developing internal rules and norms can diffuse power and limit the ability of outside lobbying by governments (and other actors) to derail companies from their mission. Facebook’s proposed oversight board is an intriguing, if nascent, step in that direction.
Third, companies can and should be transparent about when and in what circumstances they are subject to what seems like an undue government pressure campaign. When France attempted to ban free shipping of books, Amazon responded by charging 1 cent and adding a note objecting to the ban to packages containing books. When New York City attempted severely restrict ride sharing, Uber responded by launching “de Blasio” mode that featured a 25-minute wait time and offered a way to email the mayor.
Fourth, we need to be stronger. The publication of distasteful, uninformed, or even malicious speech will not destroy us, and we—and our politicians—should stop thinking it will.
Liberal democracies in general, and the United States in particular, have long resisted top-down speech regulations for good reasons. Such regulations are easily abused. Tom Hazlett, the Clemson economist, has detailed this bipartisan history of abuse in the broadcast industry at length.
Today, the internet provides unprecedented access to wide variety information sources, for good and for ill. We have access to more information at our fingertips than at any other point in human history. The question that we are left with is: Will we now choose to limit that speech? Worse, will political leaders limit that speech by going outside of the Constitution (and legislative and regulatory processes) by leaning on companies?