There appears to be common ground between Senators Elizabeth Warren and Ted Cruz, and it isn’t only their Harvard connection. No, both appear inclined to regulate internet and tech companies in the name of free speech. The other common ground they share, actually related to their Harvard connection, is they both should know better.
The Differentiating Factor
However, in most any circumstance, free speech protections are against governments, not private entities such as individuals, churches, social clubs, or even cutting-edge tech companies. Both Warren and Cruz act as if government regulation on tech companies will preserve free speech when it is government action that is the threat. Key to free speech is the ability to choose your speech, or similarly, choose not to speak. Speech may be exercised in a variety of manners, including electing someone to speak on your behalf or by disassociation.
If companies like Facebook and Twitter elect to disassociate from Elizabeth Warren or Ted Cruz, that is their prerogative. This is simply what it means, in a very basic sense, to exercise free speech. By regulating associations of private enterprises and individuals, the government would violate free speech in the name of protecting it.
The Supreme Court has recognized the deep connection to freedom of speech with rights to association, most famously in NCAAP v. Alabama, where Justice Harlan II observed,
Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close Nexus between freedoms of speech and assembly.
The First Amendment explicitly prohibits Congress from “abridging the freedom of speech,” a protection that has also been imposed on state governments via the 14th Amendment. There is no power Congress can call upon to impose its own vision of free speech on private entities, acting individually or in concert. Nor are they free to impose associations on these entities in the name of preserving free speech.
Freedom of the Press
There is also a second protection for these high-tech speech platforms, that of the free press. Often mistaken as a class protection for those specially labeled “the press,” the free exercise of the press is the right to the means of the press. As Eugene Volokh has explained, this includes modern-day analogs to the founding era printing press. Platforms such as Facebook, Twitter, or Instagram may be included as modern descendants of the printing press, as can also be argued for the technology of distribution such as internet service providers or even cell phone carriers.
These technologies are protected by the Constitution from government interference, and for good reason—the ability to speak free of government restraint is of little value if the government can then erect obstacles at every corner, whether that be limiting access to public forums or the property necessary to create and distribute speech.Freedoms of speech and press do not override the interest of the government in protecting against the alleged harms.
Overall, but with a few exceptions, the Supreme Court has been reticent to permit restrictions on speech, and even where they were once more permissive to governments, they have shown in the last couple of decades increased skepticism toward government rationales permitting speech restrictions.
The weakest areas of speech protection have historically involved economic activity and election law, but even those areas appear to be moving in a more liberal direction, with increased skepticism over government motives. This is not to say this route is inaccessible to the Warren and Cruz ilk, as this or a trust-busting justification may be the most likely route to regulate the tech industry.
This line of thought would contend that freedoms of speech and press do not override the interest of the government in protecting against the alleged harms. Constitutionally speaking, the government must show a legitimate or compelling interest with a narrowly tailored remedy when protected rights are concerned, and it is not entirely clear either condition could be met in the circumstances outlined by Warren and Cruz, in part because they mislead regarding the power of these firms.
Warren complained that Facebook pulled her video for suggesting they have too much power, all while claiming Facebook was dominating the market “as a single censor.”
This is because the conditions of the market do not evidence any serious concern. The reality for tech companies, such as social network platforms or other internet services that are inherently speech-based activities, is they exist in a market that is very disruptive. Unlike the Bell-era monopoly, which was mostly government-created, today’s tech firms appear unable to maintain any sort of dominant market position for an extended amount of time.
As Warren kindly pointed out, “Twenty-five years ago, Facebook, Google, and Amazon didn’t exist. Now they are among the most valuable and well-known companies in the world.” Then why the hullabaloo? If these firms are this new, why are we so certain of their continued market dominance or their monopoly on the market?
In an amusing twist, Senator Warren took to Twitter to complain that her video was pulled by Facebook for suggesting they have too much power, all the while claiming Facebook was dominating the market “as a single censor.” Amusing, but blind to the reality that she had instant access to a competitor to voice her opinion.
Government Intervention Is Worse Than a Monopoly
What is more worrisome than a potential natural monopoly, though one does not appear to exist, is the impact government regulation could have on speech and the corresponding tech market. Government intervention often imposes costs on companies while also granting prolonged staying power. The result is that even when there is a natural monopoly, the life of that monopoly is extended by government intervention at a cost to consumers.
Warren’s comparison to utilities is more than apt, as this regulatory bargain often creates a “monitor but protect me” environment for utilities. This impacts the experience for consumers, who ultimately bear the cost of regulation and decreased competition with an inferior product or higher prices.
Twitter and Facebook's speech policies are a mistake, but a mistake they should be allowed to make as, in the end, they must serve the consumer.
Even though there may be some barriers to entry, such as first-mover advantages or network effects, it is not obvious that these companies are destined to remain, and if they do, it will only be through consumer satisfaction. Current research suggests the supposedly dominant Facebook may be losing customers, and much like MySpace before—also once declared a monopoly with no competitor—Facebook faces the competitive realities of the market, which threaten to supplant it with another product. This means not only that are firms concerned with current competition, but also with future competition, as well.
The real threat to free speech does not come from a varied set of tech firms but from government actors who assume they know best. Of course, tech companies will not always get everything right. I think much of the speech policies adopted by Twitter and Facebook are a mistake, but a mistake they should be allowed to make as, in the end, they must serve the consumer.
There is wisdom in the First Amendment protections to free speech and a free press—wisdom that encourages adaption to new circumstances and technologies and hopefully thwarts politicians who really should know better.