Speech Commoditized, Speech Concealed:
A Case for Ensuring Free Speech on Big Tech Platforms
Chris Coffey | June 2021
(Clockwise) Justice Clarence Thomas, Google CEO Sundar Pichai, Facebook CEO Mark Zuckerberg speaking with former President Donald Trump in 2017, Amazon CEO Jeff Bezos
he English philosopher G.K. Chesterton once wrote that “there is a thought that stops thought. That is the only thought that ought to be stopped.” The American tradition of free speech, with some categorical exceptions including sedition and obscenity, has largely adhered to Chesterton’s idea. As Supreme Court Justice John Harlan noted in Cohen v. California, speech in this country has historically been unimpeded by government interference so as to protect a “marketplace of ideas.”
Our Founding Fathers, for all of their prescience, could not have foreseen or contrived a solution for some free speech questions as they exist today. With the relentless advancement of technology, extraordinary amounts of political, cultural, and other speech take place in the digital or virtual world. A handful of oligopolist corporations wield wildly disproportionate degrees of market power. Five companies – Amazon, Apple, Facebook, Microsoft, and Alphabet – alone account for nearly one quarter of the value of the S&P 500 index. These private platforms, along with their subsidiaries and affiliates, provide and regulate the forum wherein today’s public discourse takes place – for better or worse. These companies’ founders and employees harbor a noted bias against conservatives.
Though difficult to quantify, they impose speech standards that reinforce the leftist consensus and ostracize conservatives. Big Tech companies have been consistently rated as leaning heavily leftward. The tired “conservative” argument that these platforms are private corporations, and therefore entitled to regulate speech in the modern “town square” without any oversight, no longer seems to hold water. Individuals around the world are spending an increasing amount of time on social media each day, and it is evident that speech and expression are becoming increasingly difficult to separate from mere “posts” and “likes.” Recent legal arguments illuminate how the American tradition of free speech can still be protected in the modern paradigm.
Vindicating the Common Carrier Approach
In a concurring opinion in Joseph Biden v. Knight First Amendment Institute at Columbia University, Justice Clarence Thomas argued that “Big Tech” companies should be legally construed as common carriers in order to limit the ability of private platforms to censor what many deem to be speech. Under Justice Thomas’ interpretation, platforms such as Twitter and Facebook would be recognized as akin to “telegraph and telephone companies, a legal status that entails a duty to serve anyone.” Justice Thomas’s reasoning is hardly legal gymnastics. It rests on precedents from colonial English common law through the whole of American legal history that have defined the responsibilities of common carriers – a term that could easily include Big Tech.
A landmark English case, Coggs v. Bernard (1703), laid out the responsibilities owed by a bailee (the early-18th-century counterpart to today’s common carrier) to the general public. While the facts of that case – in which the reviewing court held that one is liable for damages caused by negligence if they agree to undertake a certain act – scarcely relate to Big Tech today, Lord Chief Justice Sir John Holt’s analysis of common carriers remains instructive. Holt wrote:
“This [rule] is a politik establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons [i.e. carriers], that they may be safe in their ways of dealing: for else these carriers might have an opportunity of undoing all persons that had any dealings with them, by combining with thieves etc; and yet doing it in such a clandestine manner, as would not be possible to be discovered. And this is the reason the law is founded upon that point."
Holt’s point about the “clandestine manner” in which firms might engage in illicit activities is near-prophetic for the digital age, in which social media giants can hypothetically limit the influence of conservative public figures on their networks, all through “under-the-hood” and invisible algorithmic techniques. It can also be understood that Big Tech corporations wield such a commanding degree of market power that there is no feasible alternative for public dissemination of political opinion.
According to the Pew Research Center, 69% of American adults use Facebook, while 74% of American adults use YouTube. Twitter enjoys a lesser, but still substantial, audience of 22% of American adults; Instagram has 120 million US users.
By any measure, a massive amount of traffic on these platforms, most notably Twitter, concerns politics, culture, and public affairs. As such, it is incumbent upon the “politik establishment” to ensure that “for the safety of all persons” Big Tech companies, hypothetically as common carriers, do not “have an opportunity of undoing all persons that had any dealings with them.” In other words, the supposed free market utopia prized by so many modern “conservatives” must yield to the necessity of refusing to allow standards of speech, thought, and morality to be set by billionaire oligarchs. This, in essence, is what Justice Thomas is suggesting.
As Thomas explains, corporations privileged with a dominant market position can play a unique role in society. Those defined as common carriers, such as telephone companies, have a public duty as well as a private one. Under this arrangement, Thomas argues that “governments have tied restrictions on a carrier’s ability to reject clients to ‘immunity from certain types of suits’ or to regulations that make it more difficult for other companies to compete with the carrier.”
Necessary Infringements upon Fundamental Rights
Part of Thomas’s argument is that Big Tech corporations ought not be permitted to act contrary to “natural law” (in this case violating the freedom of speech), even if this requires government intervention in the free market. As in Coggs v. Bernard, the legal obligations of common carriers and natural law predate our Republic. For many years, American laws and rulings have suggested limitations in the public and private spheres are warranted if the Bill of Rights is violated (see Footnote Four in United States v. Carolene Products).
For instance, public accommodations and private companies have had to make “concessions” in the name of civil rights. The freedom of association was recognized by the Supreme Court in cases such as NAACP v. Alabama. Despite this right to interact and engage in commerce with people of one’s choosing, racial discrimination, even when done in the name of one’s “right to association,” is rightfully prohibited in both the public and private spheres under the Civil Rights Act of 1964. This legislation is an example of a valid government restriction imposed on a constitutional right. Big Tech’s claim today that, as private companies, they have an unlimited right to regulate and define free speech, given their market power, is similarly ill-founded.
Defenders of Big Tech may correctly point out that online speech may be “hateful” or “fringe,” and is not an innate quality deserving of protection in the manner that race is. I would answer that Americans also enjoy substantial protection from religious discrimination. Religion is not an innate quality. Like speech, religion can be chosen and sincerely held. Big Tech companies cannot easily define a “mainstream” or “acceptable” religious practice, so why should they be permitted to define what speech is “mainstream” or “acceptable?”
The laudable impulse to foster an unfettered free market of ideas is occasionally mistaken. Free markets, while preferable, are merely tools to propel society in the right direction, and should not be our sole aspiration. For the objective is something greater, to form a nation in which truth may be spoken and heard, a nation wherein one form of speech is not given precedence over another by a digital overlord, a nation in which We the People may engage in unrestricted discourse.
Justice Thomas’s opinion demonstrates a potential legal basis upon which to reject this mistaken impulse towards an unrestricted, laissez-faire approach to private speech regulation. The future of this country’s robust political discourse might just depend on it.