James Taylor, president of The Heartland Institute, offers a compelling argument for viewing social media as censorship, a term normally reserved for government. Private individuals and businesses can violate our rights and freedom. And communication has political consequences: protecting our fundamental rights requires communication among citizens. Content suppression by dominant social media companies has political consequences.
Numerous free-market economists have blown holes in the economic argument for regulating social media. Each major social media platform has competitors; none is a pure monopolist; technological barriers to entry seem modest. Social media does involve network effects—being on Twitter is valuable only because others are as well—yet entrants have often overcome network effects. Taylor correctly identifies the case against social media censorship as political, not economic. Despite the consequences, however, I believe that market forces may resolve this problem without legislative action.
As the pandemic demonstrated, politicians and bureaucrats willingly overstep limits on government. These limits must be enforced, and enforcement entails more than just voting. Litigation is one tool, and business closures, stay-at-home orders, the eviction moratorium, and the OSHA workplace vaccination mandate have been challenged. Taking to the streets also plays a role, as Canada’s Freedom Convoy illustrated. Limiting government may require all forms of civil disobedience.
No citizen can bring about political change alone; effective protest requires coordination. Although we might just envision citizens as unwilling to tolerate government excesses, turning sentiment into effective action requires coordination, which requires communication. Communication requires physical capital. Social media “censorship” denies access to this physical infrastructure, impairing the protection of rights.
Consider an historical example. On the night of April 18, 1775, Paul Revere, William Dawes, and Samuel Prescott warned that the British were coming. The Minutemen showed up on Lexington Green the next morning and the American Revolution began. Mr. Revere et al. rode horses down roads to communicate this message. What if Facebook had owned those roads and banned the Sons of Liberty?
Economics predicts that conservatives will migrate to (or create) new social media platforms in response to blocking by Facebook, Twitter, and Google. Donald Trump recently unveiled his. But this response takes time, and serious harm can occur in the interim.
Short-run harm may not be repaired, for two reasons. First, unprecedented government infringement of freedom provides a focal point for organizing citizen protest. Enforcing limits on government is an economic public good: we all benefit when government obeys the Constitution, regardless of whether we help enforce the limits. Citizens will want to exploit natural advantages to offset free riding. As economist Thomas Schelling demonstrated, focal points help spontaneously organize cooperation. Short-term disruption of communication can deprive citizens of a natural focal point in defending our rights.
Second, a Leviathan government may no longer tolerate dissent. Conservatives will not get to start new social media platforms if the government no longer permits dissident media.
The economics argument is compelling; however, it ignores the political issue. I think that the political threat animates much conservative anger against social media.
As a free market economist, I am extremely skeptical of government regulation. Regulatory capture offers the most likely way for today’s social media big players to entrench themselves. Any intervention to protect the constitutional interest in communication should be as narrowly targeted as possible.
Targeting intervention requires identification of the threat. Problems ensue from disrupted expectations. Americans expected they could use Twitter, Facebook, and YouTube in case of emergency. An unexpected denial of service left no immediate recourse, and this must be avoided in the future.
Georgetown Professor Randy Barnett suggests that the public accommodation doctrine might offer a minimally invasive solution. This doctrine requires gas stations and motels to serve civil rights leaders; race-based denial of service would have prevented the organization of opposition to Jim Crow segregation. Beyond this, “open to the public” has a specific legal meaning even under the common law. Making a platform “public” may offer sufficient protection, but I will refrain from legal speculation.
Alternatively, coverage under Section 230 of the Communications Decency Act may be used as an inducement. Section 230 shields platforms from liability for user-posted content, and conservatives have proposed its repeal as a response to social media bias. Perhaps only platforms committing not to ban users based on the political content of posts could qualify for Section 230 protection. A politically granted legal exemption need not be extended to censors.
Despite the political danger, economics suggests that the threat may not recur. Personal responses may render policy intervention unnecessary.
The political impact arises from an unexpected denial of access to social media. Yet, the expectation of continued use was implicit, not based on an explicit contractual guarantee. Conservatives should now insist on more explicit protection; indeed, such an assurance is implicit in the idea of a “conservative” Twitter or Facebook.
Incomplete contracts result from costs of writing and enforcing contracts. The cost of lawyers weighs against drafting contractual remedies for every conceivable circumstance. New circumstances can create confusion about which contractual provision applies. Finally, it may be impossible to identify every conceivable circumstance.
Austrian economics emphasizes the role of discovery in social affairs. Discovery implies that everything we know must first be learned. Knowledge cannot shape our thinking, behavior, or contracts until discovered. Discovery helps us understand both why contracts must be incomplete and why certain problems will not recur. People relied on phones for decades. Calls could not easily be blocked due to content or a caller’s identity, and pay phones and disposable cell phones allowed anonymous communication. We have just discovered the potential for selective blocking of social media communication. Conservatives will now insist on assurances of continued access from social media networks.
Mechanisms ensuring credible commitment will emerge through negotiation. Allowing recovery of damages may not suffice, because money may inadequately compensate for lost freedom. Media ownership or funding may need to differ to avoid pressure from advertisers or investors; conservatives might insist on cooperative ownership or subscription funding to avoid this. But perhaps something simple, a 90-day notice of account suspension, might suffice to allow migration to a new platform.
The unexpected denial of service by social media, given the role of communication in society, creates a political threat worthy of potential government intervention. Yet, consider the saying, “Fool me once, shame on you. Fool me twice, shame on me.” Conservatives will now demand credible assurances of access to communication during crises. Markets may resolve the danger from social media censorship without government intervention.