Freedom of speech has long been a core value of the liberal democracies, and nowhere has it been more strongly protected than in the United States, with its constitutional First Amendment.

Could the rise of digital media, especially social media, be creating conditions where this provision could be turned into a dead letter? 

Until recently, it was generally assumed that the main threats to free speech would come from governments. But is that still the case, as social media corporations with overwhelming market dominance repeatedly censor political expression by outright banning it, or taking other measures to restrict its audience?

Up until now, the First Amendment has seemed powerless to prevent this, as its remit does not extend to private sector actors, however powerful. Indeed, some legal authorities view curation of content by social media—including banning of both viewpoints and speakers—as actually protected by the First Amendment.

Are there remedies for this? A class action has recently been launched claiming that where the US government pressures or coerces private corporations, such corporations effectively become “state actors”. Could such an action, even if successful, prevent this exercise of arbitrary corporate power over speech?

Which of the world’s democracies has the strongest protection of free speech?

Certainly not Australia, with our federal and state “hate speech” statutes, our Human Rights Commission star chambers, our federal court populated by the likes of Justice Bromberg, not to mention our appalling defamation laws that make it distinctly risky to engage in robust criticism of public figures. And don’t get me started on Europe, with its growing array of speech constraints enforced by its wretched European Court of Human Rights.

No. When it comes to the “gold standard” of free speech protection, we immediately think of the United States and its magnificent First Amendment: “Congress shall make no law … abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble…”

Such words could be a dead letter, obviously. After all, the notorious 1936 “Stalin Constitution” also guaranteed (in Article 125) freedom of speech, the press and assembly. Anyone who seriously exercised these rights could expect a one way trip to the Gulag or a bullet in the back of the head.

Then there is Article 35 of the current Chinese constitution, which asserts Chinese people enjoy “freedom of speech, of the press, of assembly, of association, of procession, and of demonstration”. This brings to mind that adage about hypocrisy being the homage that vice pays to virtue.

So words on a page do nothing if not brought to life by institutions and practices that consistently affirm them, with independent judiciaries, legislatures and media that hold governments to account in the way we are familiar with in the democracies.

In the US, the Supreme Court has consistently upheld a strong interpretation of the First Amendment, even protecting what most other Western nations deem to be hate speech, unless it poses a direct and immediate threat to public safety. It has also extended the Amendment’s remit to all levels of government—federal, state and local.

So hooray for all that. But the rise of new digital media, especially social media, has exposed a grave flaw in the US schema—it is founded on the premise that the main threats to free speech come from government and its agencies.

The private sector, including some of the most powerful and influential corporations in the world, are explicitly excluded. This raises some fundamental issues in our age, with social media companies that enjoy near-monopolistic market dominance possessing arbitrary power to restrict or ban any speech on their platforms they deem objectionable for any reason—a prerogative they have become increasingly willing to exercise to suppress political viewpoints they disapprove of.

This power is actually codified in statute, specifically Article 230 of the Communications Decency Act (CDA). This legislation has two important effects. Firstly, it stipulates that the operator of a social media (or similar) platform is not to be treated as the publisher of any content posted by its users, effectively exempting it from civil liability for defamation and other civil actions.

Secondly, it grants them the right, subject only to a good faith test, to:

…restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

This gives them the legal right to do pretty much what they like in the way of curating, censoring, restricting or selectively promoting content on their platforms. They can, and increasingly do, act in unison to exercise this power to exclude organisations and individuals—including a former President of the United States with tens of millions of followers—from their platforms.

A regular refrain, not just from big tech and their woke Left apologists but also from some right-wing libertarians, is that there is no problem with that. After all, they say, these are private sector entities. If you don’t like the “community guidelines” of some platform, then go to another—or set up your own in competition.

This glib response ignores the importance of what economists term network effects to businesses of this type, the fact that the utility of a networked product grows more than linearly as the number of users grows, with the business only becoming viable when a critical mass is achieved. According to one author:

Network effects generally kick in once a certain “critical mass” has been reached: before this point, the product remains quite vulnerable and may not have much value to users. And conversely, from this point onwards, the value produced by the network exceeds the value of the product itself and of competing products. The famous “chicken or egg” problem refers to the challenge of getting to this Minimum Viable Critical Mass to trigger a positive feedback loop.

This accounts for the difficulty of many pro-free speech alternatives breaking through and mounting a significant challenge to the existing social media order. Even many users who would be delighted to patronize these platforms (Gab, Rumble, BitChute etc) hesitate to move to them because of their much lower audience reach and the prospect of losing large numbers of existing subscribers.

The one exception to this in recent times, the Twitter rival Parler, founded in 2018, took off in late 2020 and early 2021 in response to the censoring of conservative and other non-Woke voices by Big Tech, becoming the most downloaded app on the Apple store for a period and achieving around 15 million users.

This all came to a shuddering halt when big tech moved, in concert, to deprive Parler of key infrastructure and marketing services. After pressure from Democrat members of Congress, both Apple and Google removed Parler from their app store; but the fatal blow came when Amazon denied them of the cloud computing services they had been using.

Parler faced a brick wall of rejections when they approached the other major providers of such services (Google, Microsoft Azure). The dissident left-wing journalist Glen Greenwald has provided a comprehensive account of these developments.

Parler eventually managed to crawl back online, but had lost the crucial momentum that might have enabled it to become a significant social media force.

This outrageous anti-competitive behaviour was justified by the social media companies and their apologists in mainstream media by the demonstrably false claim that the 6 January riot was orchestrated on Parler (Facebook and YouTube were more significant).

So, what are the consequences of this for free speech and open debate in the US—and the wider world?

Defenders of the social media status quo, which few seriously deny has a pronounced pro-Woke Left bias and an ideologically repressive internal culture (exemplified by the James Damore case at Google) might point to the many contrarian voices (YouTube channels, Facebook pages, Twitter accounts etc) that remain on their platforms.

Many of these, while tolerated, are subjected to a variety of other measures to reduce their audience reach and virality. Some of the tactics employed, such as shadow banning, also knows as stealth banning, limit access to channels and accounts without the content creator even being aware of it. Another tactic favoured by YouTube is demonetization, depriving the owner of a video channel of a slice of advertising revenue, a vital income source for many content creators.

A common reason cited for these actions is to counter “misinformation”, and promote truthful information. So who is to be the arbiter of truth or falsehood? And how to insure that such arbiters are themselves not tainted of bias—what some philosophers term the “neutral epistemic arbiter” problem? 

In practice, social media overwhelmingly leans on entities with clear Woke progressive leanings. When it comes to “hate speech” for example, the go-to source is the list compiled by the Southern Poverty Law Center, which has morphed from its early admirable work countering genuine racism in the American south into a progressive activist group.

So what happened to the idea that the best way to safeguard truth is to allow contrary positions to be argued out? So old hat! In testimony to a UK parliamentary committee, a senior Twitter executive laid out the new corporate position:

I look back over last 5 1/2 years, and the answers I would have given to some of these questions five years ago were very different. Twitter was in a place where it believed the most effective antidote to bad speech was good speech. It was very much a John Stuart Mill-style philosophy. We’ve realised the world we live in has changed. We’ve had to go on a journey with it, and we’ve realised it’s no longer possible to stand up for all speech in the hopes society will become a better place because racism will be challenged, or homophobia challenged, or extremism will be challenged.

Some years ago Vladimir Putin made the point that it is not necessary to eliminate all dissenting voices to achieve a pretty much unassailable position of power. For social media to remain credible, it needs to have diversity of opinion on its platforms.

However the key point is that, with the current legal framework in the US, big tech has the power to suppress voices as it chooses in what is increasingly the main vehicle for communication and discourse around the world. Power that is unanswerable, unappealable, arbitrary power. They may deign to inform someone banned or restricted why they did it; they may even occasionally uphold an appeal against its censoring decisions. But it is their decision alone—power over speech without accountability.

And they may choose to use it strategically. In October 2020 the New York Post, a newspaper with a lineage dating to the war of independence, and with the fifth largest circulation in the country, published an extraordinary story (one of the authors being the Australian journalist Miranda Devine) based on the contents of what they alleged was Hunter Biden’s laptop computer. According to the story, the laptop was left at a computer repairer, and never collected. The repairer later provided it to the FBI as well as to Trump lawyer Rudy Guiliani.

The emails and other documents on the laptop implicated both Hunter and Joe in dubious business arrangements with a Ukrainian natural gas company—and far more significantly with China’s largest private energy company. In effect, Hunter was selling access to the then Vice-President, with the knowledge and complicity of his father.

The story broke in October 2020, with the potential to be a genuine bombshell revelation on the eve of the Presidential election. Whatever you think about Trump, and Giuliani, it was a story the veracity of which deserved urgent investigation by the media.

We now know, beyond reasonable doubt, that the laptop and emails were genuine. Even the Washington Post has conceded as much. In a recent interview Hunter made the remarkable claim he didn’t know if the laptop was his, but when pressed about whether it could have belonged to him replied “certainly”.

Furthermore the FBI was supplied with the hard-drive, and has issued no denial of its authenticity. Indeed, the Department of Justice initiated an investigation of Hunter Biden for tax offences based on material on the computer.

At the time of the revelations, if they were a fabrication you would expect the Bidens to immediately call a press conference and deny their authenticity. They never did this—instead they went into hiding, studiously avoiding any uncontrolled contact with the media. The former CEO of Hunter Biden’s company actually went public corroborating the emails, as well as confirming Joe’s involvement in Hunter’s influence-selling operation.

Definitive proof of the laptop’s veracity was provided by author Peter Schweizer in an article posted on the Gatestone Institute website, after Schweizer was approached by one of Hunter’s former business partners. He writes:

I was approached in 2019 by a man named Bevan Cooney, who had been a business partner of Hunter Biden's but was convicted of fraud in another deal and was at the time in prison. I did not respond to him then, but late in 2020, Bevan Cooney reached out to us again and gave us written consent to directly access his personal Gmail account, which contained 26,000 emails relating to his business dealings with Hunter Biden.

What we have is not printouts, PDF files or screenshots purporting to be genuine. It is the email account itself. We have been poring through its contents and cross-checking them against other sources to confirm their authenticity and accuracy. We have cross-referenced the Hunter Biden emails with the Bevan Cooney emails, with Secret Service travel logs, materials provided by another former associate of Hunter Biden's named Tony Bobulinski, and Senator Ron Johnson's committee report on these matters. They all match up perfectly. For example, where the emails reference Hunter Biden being in a certain location, or out of town until a certain date, we found perfect correlation with the Secret Service travel logs.

The behaviour of the media throughout this episode was remarkable. Not once, at any of Biden’s carefully orchestrated press conferences in the leadup to the election, did any of them even ask about the laptop, with a single exception who was roundly denounced for doing so.

They relied on a letter released in the lead up to the first presidential debate, when the issue was certain to be raised, signed by fifty former intelligence officials, including the serial liar former CIA director John Brennan, claiming the laptop had “all the earmarks” of a Russian disinformation operation. Thereafter mainstream media either ignored the story or echoed the “Russian plot” narrative.

Social media immediately joined this effort to suppress the story, including denying the New York Post access to its own Twitter account. The journalist Glen Greenwald, a life-long leftist, though one prepared to depart from the prevailing groupthink, sums up what happened:

But the Post, for all its longevity, power and influence, ran smack into two entities far more powerful than it: Facebook and Twitter. Almost immediately upon publication, pro-Biden journalists created a climate of extreme hostility and suppression toward the Post story, making clear that any journalist even mentioning it would be roundly attacked. For the crime of simply noting the story on Twitter (while pointing out its flaws), New York Times reporter Maggie Haberman was instantly vilified to the point where her name, along with the phrase “MAGA Haberman,” were trending on Twitter.

Twitter’s suppression efforts went far beyond Facebook’s. They banned entirely all users’ ability to share the Post article — not just on their public timeline but even using the platform’s private Direct Messaging feature.

Early in the day, users who attempted to link to the New York Post story either publicly or privately received a cryptic message rejecting the attempt as an “error.” Later in the afternoon, Twitter changed the message, advising users that they could not post that link because the company judged its contents to be “potentially harmful.”

The effect of all this was that on the eve of the presidential election, a factually true story that implicated candidate Joe Biden and his son in dubious business dealings with overseas entities, including the democratic world’s most significant geopolitical adversary, one intent on becoming the global hegemon, was occluded from the view of a large part of the American electorate. Subsequent polling indicated that, had they possessed this knowledge, a significant proportion of those denied this information could have changed there vote.

This would have to count as one of the worst, and most consequential, instances of mass journalistic malfeasance in living memory, only made possible by the arbitrary power of the social media giants.

Can the class action launched in early July by Trump supporters succeed? Some have argued that it could, based on a body of Supreme Court jurisprudence that prohibits governments from coercing or pressuring the private sector to give effect to speech suppression that they are constitutionally precluded from doing themselves.

Actions like members of Congress threatening to withdraw the liability protection conferred by Section 230 of the Communications Decency Act if they fail to take sufficient action against “hate speech”; or demands by some of the same members that providers of key web infrastructure services like web hosting, payment systems and communication networks ban certain programs on Fox News.

Whether these pressures a sufficient to turn social media companies into “state actors” is the key point to be tested. The liberal Harvard law professor Noah Feldman argues not:

Current constitutional doctrine doesn’t clearly lay out how much government coercion of a private actor’s speech decisions it would take to constitute a First Amendment violation. A background threat of new legislation, such as the one Trump alleges in his lawsuit, certainly doesn’t qualify.

The prominent Democratic Party aligned lawyer Alan Dershowitz points to the paradox at the heart of this issue—that social media censorship is actually protected by the First Amendment—unless, of course, the Supreme Court accepts they are pressured into becoming “state actors”:

The danger of this “new censorship”—not by government but by private companies that effectively control the marketplace of ideas — is precisely that it may well be protected by the very amendment designed to keep the marketplace of ideas open to diverse views. Hence the paradox — and the uphill battle that Trump may face in persuading the courts that his non-constitutional free speech right to communicate with his millions of followers should trump the constitutional right of social media companies to censor.

The conflict between free speech and the First Amendment arises when these private companies use the First Amendment as both a shield and a sword selectively to censor free speech. The conflict becomes most acute when a small number of private companies are powerful enough to essentially shut down the marketplace of ideas — which the First Amendment was designed to keep open — to certain views.

CONCLUSION

Defenders of modern political censorship often argue that freedom of speech does not imply the right to use any specific platform—especially if that platform is owned and operated by the private sector.

But to be meaningful free speech must mean more than the right to shout into thin air, or to harangue people on street corners. In an earlier age, it would be very hard to shut people down by denying them access to pens, paper and printing, by their nature small-scale and highly decentralized technologies.

Nowadays it is different, with an increasing share of public discourse taking place in the “digital public square” dominated by a handful of huge global corporations with near-monopolistic market dominance. The growing recourse to political censorship by private actors with arbitrary power to act is a new development, and a profoundly disturbing one.

Legal efforts to show that social media is being coerced into becoming a de facto state actor may or may not succeed—my guess is not. However the reality is, if anything, more sinister. What we seem to have is an increasingly dominant ideological hegemony extending across government, the education systems at all levels, the media and entertainment industries, the big corporate sector, the national security establishments, and even the military.

The aforementioned left-wing journalist Glen Greenwald puts it this way:

One might think of tech companies, the corporate media, the U.S. security state, and Democrats more as a union — a merger of power — rather than separate and warring factions. But whatever framework you prefer, it is clear that the power of social media companies to control the internet is in the hands of government and its corporate media allies at least as much as it is in the hands of the tech executives who nominally manage these platforms.

I don’t think this is quite correct. I don’t believe that social media needs to be coerced by government to engage in viewpoint censorship—they, and the Woke “progressive” elites in government just think alike, a situation brought about by the overwhelming dominance of identarian ideology in the education systems, flowing through to other areas of society as graduates pass through into them.

What we have, in my view, is not coerced censorship, but a situation where those controlling the levers of power across sectors just think alike. A mind-meld, the realization of Herbert Marcuse’s totalitarian dream in his notorious 1965 essay Repressive Tolerance where “liberating tolerance”, tolerance of left-wing ideas, is celebrated, and “right-wing” views are suppressed.