A Modest Proposal for Starting to Rein In Big Tech

The art of statesmanship entails balancing competing considerations in such a way as to solve a problem without creating new ones, and win enough support to actually happen.

Arguably no current issue tests the tension between conservatives’ limited-government philosophy and their immediate self-interests more than persistent discrimination against conservative views by the world’s most powerful online information and communication platforms. For years, the Republican grassroots have demanded that leaders “do something” about Big Tech’s bias, yet any government response—particularly at the federal level—is complicated by fear (or at least the pretense of fear) of infringing on tech giants’ legitimate rights as private companies.

There is no doubt that the problem is real, from leaked private video of Google executives declaring their intentions to use their vast influence to ensure former President Donald Trump’s 2016 election was no more than a “hiccup” in the “moral arc of history,” to Facebook abusing its “fact-checking” powers to attempt to discredit truthful yet politically-inconvenient stories on Covid-19, election fraud, Democrat corruption, and more, to platforms classifying the use of accurate pronouns as “hateful,” to all of the dirty laundry Elon Musk aired from the old management of the platform formerly known as Twitter.

The real confusion surrounds the question of what can be done about it. Musk’s purchase of Twitter last year was a godsend, but waiting for iconoclastic billionaires to come along and buy all our problems away is not a plan. And, while some self-described “post-liberal” populist types might like to believe otherwise, it cannot simply be ignored that much of what these companies have been doing is making decisions about the use of their own property, which anyone who respects the rights of others has to take into consideration.

Several ideas to balance these competing interests are worth exploring: amending Section 230 of the federal Communications Decency Act, which immunizes social networks from being held personally liable for content posted by individual users, to make that immunity conditional on the platform exercising true political neutrality (because acting on subjective disapproval of some messages implies some degree of approval for other messages the platform chooses to let stand); defining Big Tech’s de facto aid to Democrats (such as “shadow-banning” the accounts of Republican candidates but not their opponents) as in-kind contributions under campaign-finance law; and acting on judicial precedent which holds that private censorship actions cease to be private when undertaken at the behest of government (the Biden administration has not only been caught urging platforms to suppress certain messages, but has at times openly admitted it—and just this week, a bombshell report shed even more light on government collusion with private censorship). The Supreme Court is slated to weigh in on that last one next year.

Other proposals raised by some on the Right are thornier from a limited-government perspective, such as effectively transforming social networks into public utilities, with government directly dictating what they must allow. No less a conservative legal mind than U.S. Supreme Court Justice Clarence Thomas has suggested the precedents under which the phone, telegraph, and railroad industries were deemed “common carriers” obliged to “serve all comers” might similarly apply to social media. But however sound the constitutional theory may be, as a practical matter trying to craft it into an actual policy would inevitably come into conflict with different conservative factions’ varying degrees of comfort with directly regulating private companies (not to mention the question of how much could be done at the federal level within Congress’s enumerated powers).

The art of statesmanship entails balancing competing considerations, in this case free speech and property rights, in such a way as to solve a problem without creating new ones. It also entails finding solutions that can garner enough support to actually happen. So until those who want to defend online speech can agree on a more comprehensive plan, it would be prudent to start simple, focusing on whatever can be done within already-settled legal principles. And on that score, this observer posits, the most promising starting point is defamation law.

Virtually everyone recognizes that free speech does not extend to knowingly, intentionally inflicting demonstrable harm on others through objectively false factual claims. Consider InfoWars crackpot king Alex Jones, who faces over a billion dollars in fines for insisting the 2012 Sandy Hook school shooting was a hoax. While many who otherwise detest Jones have rightly questioned the size of the damages, given the unlikelihood of sane people believing his lies and the far smaller penalties imposed on other public figures for doing far worse (such as the $33.5 million judgment against O.J. Simpson for killing two people), most reasonable people recognize that Jones should have to pay something.

Can anyone honestly say that a story that a bunch of dead children are secretly alive and their grieving parents are really actors, from an obvious huckster best known for ranting about gay frogs and “interdimensional psychic vampires,” is more persuasive to the average person than “fact-checks” that falsely label public figures as promoters of lies, violence, and bigotry, coming from online services which are used by millions and blessed as impartial and trustworthy by government and media? Or that people falling for the latter type of hoax is any less harmful? Of course not; lies deployed from a veil of respectability are vastly more dangerous than those that come from obvious clowns on the fringe.

It's long past time for conservative attorneys to take Big Tech to court over defaming conservatives, for the election and/or appointment of judges willing to take such cases seriously, and for policymakers to reform whatever hurdles stand in the way of correct verdicts. Let’s first see what insisting on truth does for the problem, then decide how many additional, more complicated actions we need to consider.