A Fairness Doctrine for the Internet?

Attorney General Jeff Sessions is convening a meeting of state attorneys general to consider whether Facebook, Google, Twitter, and other social-media companies are “intentionally stifling the free exchange of ideas.” The honorable gentleman from Alabama should stick to his brief.

Two quick questions asked and answered. One: Do these companies treat conservatives unfairly? Yes, they do. Two: Is that any business of the attorney general of the United States of America? No, it isn’t.

A funny thing happened on the way to the counterrevolution. Conservative media have become a constituency of the Republican party. Conservative media have had many different relationships to the Republican party over the years: sometimes a megaphone, sometimes a critic, sometimes a talent scout, sometimes a friendly forum for working out in-the-family disagreements. But its emergence as a political constituency with interests and demands of its own is something new. It is no longer merely a voice for conservative interests but an interest group of its own, and for the moment its attention is focused on Silicon Valley.

Our friend Dennis Prager has played a role in this. He unsuccessfully sued Google (the firm is officially known as Alphabet, and it owns YouTube), claiming that the company has violated the First Amendment by engaging in viewpoint discrimination as it restricts certain videos, including his PragerU presentations, which cover a wide variety of topics: At this writing, the top three videos on his site are “What Is Net Neutrality?”, “Left Or Liberal?”, and “Make Men Masculine Again.” Some of the videos touching on religion and sexuality have been restricted, even while comparable videos from nonconservative sources are left unmolested.

The restrictions are ridiculous. Prager is one of the Americans least likely to produce videos that are obscene, that incite violence, or that in any other way pose a risk to “safety,” which is the theoretical justification that most Internet companies use to restrict content. Agree or disagree with him, it is hard to argue that Dennis Prager is somehow outside the mainstream of American life. But that does not seem to matter: Videos from Hillsdale College have been restricted as well; if there is an institution less likely than Hillsdale to coarsen public discourse, I cannot think what it is.

But this is not about political content, and it isn’t even really about political bias: Facebook, Google, et al. operate in an almost uniformly Left-Democratic culture, and they heard a great deal from both organized and semi-organized efforts from progressives and left-wing organizations whose sole purpose in life is trying to discredit conservative figures and exclude conservatives from public discourse. But they are not responding to concerns about “safety,” and they are not ordinarily responding to concerns about possible legal issues. They are responding to peer pressure. What the Left has discovered is that the bosses at Facebook and Google and Twitter can be embarrassed, and that figures such as Alex Jones embarrass them in a way that figures such as Louis Farrakhan do not. This is a crutch, a strategy that is going to play itself out eventually: Pointing the finger Invasion of the Body-Snatchers–style and screaming “Racist!” at Ben Shapiro is ridiculous, and eventually it will be seen as such.

Peer pressure is not a problem that is likely to be effectively solved through the careful ministrations of the U.S. Department of Justice, or by the attentions of state prosecutors. And Republicans here are coming dangerously close to the Democrats’ game: abusing prosecutorial powers to bully their political opponents on issues such as climate change, under the transparent and risible pretense that they are investigating securities fraud or consumer-safety laws.

Earlier this year, I sat on a panel with Pete Wilson and a few other conservative activists. Wilson was part of Prager’s legal team. With me as the sole exception, the panel was unanimously in favor of regulating social-media companies in such a way as to keep them from disadvantaging conservative-leaning content. On what constitutional grounds? Somebody will think of one, I am sure. It was quite something to hear Republicans sounding like Elizabeth Warren on a trust-busting bender, but it is difficult to take seriously the proposition that what’s at work here is concern about monopoly power, Supreme Court precedents, or anything of the sort: This is about friends and enemies, and Republicans have decided that Silicon Valley is the enemy.

Silicon Valley has more than returned the favor. To some extent, this is a question of politics on the ground: Internet companies tend to be located in places that do not love Republicans — and places that Republicans do not love. Republicans apparently have decided that instead of trying to win votes in California or New York City, the best thing to do is to use those parts of the country as piñatas to be beaten for the amusement of Republican stalwarts in Kansas and Wyoming. It is not obvious that this is the right path for Republicans: As our friend J. D. Vance points out, three states — California, New York, and Massachusetts — account for the vast majority (about 75 percent) of venture-capital investment in the United States. And for “three states” you can read “three metropolitan areas,” those being the Bay Area, New York City, and greater Boston. A Republican party without a business constituency is an unviable thing, and promises of tax cuts followed by more tax cuts probably will not do the trick.

Republicans might try the carrot before the stick. (Especially since the stick is unlikely to survive judicial challenge.) Silicon Valley is indeed full of insufferably puritanical progressives, but get them talking about protectionism in the Asian markets or European tax challenges, and they sound like Milton Friedman. (Kids: Milton Friedman is a very famous economist whose opinions Republicans used to value back when they believed in things like capitalism and free trade.) There have been some recent efforts to help with some of this, for instance improving the outdated portions of NAFTA covering online commerce and international trade in digital services. Republicans are going to need to make inroads there eventually, and they should want to have a fruitful relationship with America’s most successful industry. Treating social-media companies like a 1930s telephone company is not going to get that done.

The judge in the case wisely threw out Prager’s lawsuit on the grounds that the First Amendment is a restriction on the state, and Google is a private business, not a state or an arm of government. There is some Supreme Court precedent on Prager’s side, including the 1945 case of Marsh v. Alabama, which held that Jehovah’s Witnesses proselytizers had a First Amendment right to distribute their propaganda in a town that was entirely owned by a private corporation. (Chickasaw, Ala., was a company town under the ownership of the Gulf Shipbuilding Corporation, now defunct.) But that case was subsequently limited by Lloyd Corp. v. Tanner, which held that the owner of a shopping mall could pick and choose what to allow on its own premises. The difference, as Justice Lewis Powell saw it, was that in the case of the company town, there was no public space for the missionaries to use, whereas the privately owned mall was surrounded by the very public streets of downtown Portland, Ore. In the Prager suit, the “defendants are private entities who created their own video-sharing social media website and make decisions about whether and how to regulate content that has been uploaded on that website,” the judge wrote. “Numerous other courts have declined to treat similar private social media corporations, as well as online service providers, as state actors.”

That is, I think, how conservatives should want things. We believe in property rights, limited government, skepticism regarding grand and effectively unlimited interpretations of government power, and the like.

We also believe that we get hosed by California-based media companies.

A few questions: When you read a few weeks ago that a Cambodian-American candidate for public office was running ads that touched on the horrifying history of her native country, and that those ads were being suppressed by Facebook, did you even have to ask whether the candidate was a Republican? No, of course not. And as much as we conservatives might lament the fact, conspiracy nut Alex Jones is, broadly speaking, a creature of the Right. Is anybody surprised that he was the target of an obviously coordinated action by Apple, Facebook, and YouTube, while much more dangerous conspiracy nuts such as Louis Farrakhan are permitted to operate without interference? Of course not. If Louis Farrakhan is good enough for Barack Obama, you can bet he’s good enough for YouTube CEO Susan Wojcicki, Jew-hating weirdo though he is. There are some important differences, of course: Minister Farrakhan has been complicit in at least one political assassination, and Alex Jones, whatever his transgressions against truth and taste, has not.

Silicon Valley is hardly without blame here. It is full of Little Suppressors. And while the bosses sometimes talk a good game about addressing their epidemic bias problems, one of the problems with bias is that biases are usually invisible to the bias-holder. That’s going to be a long conversation — a lot of long conversations.

But it’s a job for persuaders, not prosecutors.