Law & the Courts

Social-Media Censorship Is the Product of Culture and Commerce

(Jon Nazca/Reuters)
Free choice has created a challenge the law can’t overcome.

If you pay any attention to conservative Twitter, you’re aware of this week’s incident in social-media censorship. YouTube has “demonetized” conservative comedian Steven Crowder’s YouTube channel. He’s not banned, but he’s lost one of his income streams. His offense was targeting a Vox journalist, Carlos Maza, in his bits, including calling him names like a “lispy queer” and a “sprite.”

I’m not going to spend too much time on Crowder’s case. Many of these social-media controversies share a dreary sameness. A right-wing speaker says something outrageous and faces consequences, while multiple left-wing speakers seem to spew venom with impunity, including at people (like, say, conservative Christians) who are also ostensibly protected by various social-media anti-harassment and anti-discrimination policies.

The regularity of the controversies — combined with the persistence of the overt viewpoint discrimination — is resulting in a demand that government “do something” to solve the problem. But the problem is far too complex and deep-seated for the government to solve. And if the government tries to step in with too heavy a hand, it’s going to violate the law. It’s past time for an honest, realistic look at the true cultural, commercial, and constitutional challenges to social-media fairness.

Let’s deal with the most serious issue first. The American tech industry — especially in Silicon Valley — exists in a largely common ideological culture. While there of course exists some degree of overt discrimination against conservatives, the reasons for the monoculture reach well beyond overt discrimination. At elite levels tech is young, coastal, and disproportionately drawn from elite academies. In other words, it’s located in the most blue parts of America, is comprised of the most blue age demographic, and draws its workers from the most blue educational institutions.

Even then, however, the market in theory can rather easily correct the problem. Social-media companies have national (and global) ambitions. They became (and remain) economic titans in part by serving tens of millions of Americans who voted for Trump in 2016 and will happily vote for him in 2020. If Trump supporters en masse chose to punish even one social-media platform, it would suffer a colossal economic setback.

Here’s the blunt truth, however — most red Americans either don’t know or don’t care about social-media censorship. They certainly don’t care enough to delete their apps. This isn’t a market failure; it’s a market verdict. Apathy rules, and this apathy is sustained in part because social-media companies have chosen their targets carefully. There are few normal Americans who want to jump off their favorite app because YouTube censored someone who uses phrases like “lispy queer” or because Facebook ditched Alex Jones, a man who claimed the Sandy Hook shooting was a hoax.

Those who do truly care about censorship are a rounding error in the market. They’re part of the tiny slice of American citizens who are not only engaged in online conservative politics, they’re motivated enough to do something about censorship. This small group has no meaningful market impact, but it does punch above its weight in one key area — access to government power. They know senators. Senators know them.

But that brings us to the rather important topic of the United States Constitution. The First Amendment limits the government’s power to force a private corporation to provide a platform for speech it despises. Government regulation of media is an almost impossibly complex topic (if you want to dive into the topic in the social-media context, I can recommend this March 2019 analysis from the Congressional Research Service), but here’s a general principle — the more any social-media company curates its content, the more First Amendment protection it is likely to enjoy.

In a very direct way, as Facebook or any other social-media company works on its algorithms, tries to filter out fake news, and refines its community standards, it’s staking out its identity as a private actor making specific speech and membership choices to build a specific kind of private community.

Moreover, if the government launches other action (like, say, an antitrust investigation) in reprisal for social-media companies’ exercising their constitutional rights, then even that other action may well be shut down by federal courts.

But to say that there is no easy way to combat the challenge of social-media censorship is not to say there is no way at all. Persuasion, engagement, and market pressure are preferable to attempts to recruit the government to erode First Amendment protections that, in other contexts, stand as a firewall protecting conservative causes and conservative speakers from the emerging culture of coercion.

To rebuild a culture of liberty online, conservatives have to engage two audiences, first and most directly the small audience of men and women who hold the levers of corporate power. Do not presume bad faith. Do not presume that every key executive in every social-media company has closed his or her mind. In fact, we’ve seen persuasion work. We’ve seen accounts reinstated and apologies issued. It happens.

At the same time, conservatives need to reach the very large audience of indifferent Americans who either don’t see the problem with demonetizing a comedian they don’t know or don’t fear the slippery slope enough to take any meaningful action. This is the longtime challenge of the free-speech advocate, to convince people to care about free speech even when the relevant speaker says words they don’t like. This is an old problem, but free-speech advocates have won that argument for a very long time. They can win it again.

Then there’s also the matter of our own, individual commercial ambitions and our own entrepreneurial energies. It is foolish to presume that the companies that dominate the marketplace today will do so indefinitely, and it’s foolish simply to cede the halls of Facebook or YouTube to ideological opponents. Just as conservatives need to send philosophers into Stanford, we also need to send our programmers into Menlo Park and our entrepreneurs to San Jose.

But what conservatives cannot and should not do is use the government to erode freedom for the alleged purpose of saving freedom. The alleged “easy” solution — the fast fix of federal legislation — is likely blocked by the First Amendment. Moreover, there’s something fundamentally entitled and not-conservative about claiming that you should have government-mandated access on terms you prefer to a platform you didn’t create, that’s maintained by people you oppose, and that you should have that access for free.

Even if the Supreme Court allows intrusive regulations to take hold, the resulting new legal doctrines will create the sharpest of two-edged swords. One party never holds the permanent levers of power, and so censors must always ask, “Will my monster turn on me?” And with the impulse to censorship on the rise, the answer to that question will be “yes.” The government does not exist to correct market outcomes that well-connected conservatives do not like.

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