A Tragic Mistake – Responding to Private Censorship with Government Censorship

Conservatives, firmly in power, hold the whip hand over their long-standing tormentors, including those who for years privately censored their speech. The Trump administration is now exploring ways to use its regulatory power to punish Silicon Valley and social media companies for suppressing conservative voices on private platforms.

• But punishing people who refused to associate their platforms with conservative speech by using government to infringe on their speech and associational rights threatens to permanently degrade the First Amendment.

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• Conservative regulators should also realize they are publicly toying with the very weapons that will almost certainly be used to silence them again, only in more effective ways, if another progressive president is elected.

Consider Federal Trade Commission Chairman Andrew Ferguson, who is threatening to use Section 5 of the FTC Act – which outlaws unfair or deceptive practices – to target social media companies for selective enforcement of their terms of service. Chairman Ferguson also contemplates using antitrust law to “prosecute any unlawful collusion between online platforms, and confront advertiser boycotts which threaten competition among those platforms.”
 
Ferguson told an audience in March: “I’m not looking for censorship qua censorship. I’m looking for exercises of market power that might reveal themselves in censorship.”
 
Conservatives, bruised by rough treatment at the hands of big social media companies, understandably exult in this role reversal. Discrimination against conservative speech clearly happened, from Facebook’s efforts to exclude the conservative Prager University from its digital audiences, to crackdowns on posts that asserted that COVID-19 originated in a lab in Wuhan, China (which the FBI and CIA now believe it probably did), to efforts by secret entities within the State Department to persuade advertisers to defund conservative and libertarian publications.
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Are consumer-protection complaints about companies’ editorial judgments, which would put the government firmly into the business of managing speech, a legitimate approach to reform? Section 5 allows the government to go after a company selling an ointment that it falsely claims prevents COVID-19 infections. That would not be a “speech” issue. It would be fraud enforcement. But should the government be able to tell a private company it must post a conservative or a progressive political statement, or be in violation of the law?
 
Labeling such editorial choices as supposed “evidence” of collusion inevitably carries the risk of government manipulation of private speech.
 
It would in fact be a violation of the First Amendment for the government to tell private actors – whether a network news organization or a social media platform – what to say or not say. The U.S. Supreme Court held in Moody v. NetChoice that social media companies have a First Amendment right to select, order, and rank third-party posts as they see fit. Prosecuting content and its moderation under unfair or deceptive trade practices would install government as a national content manager and editor-in-chief.
 
This is worse than overkill. The essential problem of content management censorship was, after all, driven primarily by government. Meta’s Mark Zuckerberg told Joe Rogan that he received calls from White House staffers who screamed at him about Facebook’s content decisions. The FBI had 80 agents assigned to evaluating social media posts as possible disinformation. Agencies from the IRS, to the Department of Homeland Security, to the State Department, pressured platforms on their posts. All of them have enormous regulatory power over Silicon Valley, making their “jawboning” for editorial changes far stronger than polite suggestions. Changing the jawboner to the FTC is just a new version of this regulatory game of three-card Monte.
 
The application of laws about fair trade practices and antitrust enforcement to speech would be an abusive extension of Washington’s power. It is easy to imagine this power being misused in myriad ways. Conservatives above all need to keep in mind that the weapons used now to punish their progressive opponents will surely one day be in their opponent’s hands as well.
 
The better way forward is to renounce the tools of punishment and restore respect for the First Amendment. With a few social media platforms making up so much of the nation’s townhall, social media companies should live up to a civic – even a moral – obligation to not discriminate against the right or the left. But it is ultimately up to the public to enforce such standards with what they click and what they purchase.
 
If this sounds naïve, take stock of how companies are already listening and responding to public pressure. X pioneered the freeing of moderation from government control and developed “community notes” to crowdsource fact-checking. Meta is testing this crowdsource technique for Facebook, Instagram, and Threads. Meta also got rid of its notoriously biased “fact checkers.” Google is standing up to political demands by activist-employees. Such market-driven reforms are the way to go, not speech regulation from Washington regulators.
 
Conservatives would do well to remember Marcus Aurelius, who wrote that the “best revenge is to be unlike him who performed the injury.”

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