The Trump riots have stimulated a wide-ranging public debate about the meaning of free expression in the age of social media. A quick survey of the various sides and positions leads to a simple conclusion: in a political world, control of speech is not about basic rights or impersonal rules and procedures, and it is not entirely about what you say. It is mostly about who has the power to silence whom.

Almost everyone’s position changes depending on who is being silenced, suppressed or de-platformed, and who is doing the silencing. Those of us who support free expression and its legal underpinnings on a consistent basis are few and far between. Three examples serve to make this case.

Defining opponents as terrorists

The coalition of ideologies and interests known as the Democratic Party is seeking to capitalize on the power advantage it has obtained from the defeat of Trump and the Capitol riots. They are applying the term “domestic terrorists” to their political and ideological opposition, knowing full well the legal and militaristic implications of doing so. CNN is drumming this terminology into our heads hundreds of times a day, while massively exaggerating the danger posed by conspiracy theories and organized violent attacks. By doing so, it seeks to enable suppression of rightwing and conservative speakers and groups, regardless of whether their behavior is violent or unlawful (because, it might eventually become so). For example, it is easy to find calls to “regulate” or even banish Fox News in this crowd. Pushing the terrorism analogy further, Hilary Clinton even tweeted that “Congress needs to establish an investigative body like the 9/11 Commission” to reopen the Russia collusion investigation. Just as Trump categorically defined all Muslims and Mexican immigrants as dangerous, Trumpism is now in the same boat. But it is the loss of power, not the character of their speech per se, that determines the degree to which members of either group will be suppressed.

A Born-Again Net Neutrality Advocate

On the opposite side of the spectrum, Richard Epstein, the NYU law professor associated with conservative free market thought, told us the whole solution was simple: we needed to apply common carrier rules to the internet platform monopolies. In other words, now that conservatives are in danger of being discriminated against in the distribution of messages, we should apply the common-law rule that “no private monopoly has the right to turn away customers.” It must take them all on “fair, reasonable and nondiscriminatory” terms. So Epstein proposes that platform operators (none of which are really monopolies, but never mind that for now) should be subjected to a nondiscrimination principle. But this, ironically, is exactly what net neutrality regulations of a decade ago were trying to do. And as a good free market conservative, Professor Epstein only 6 years ago rejected President Obama’s net neutrality rules and told us how bad an idea it was to regulate ISPs as common carriers. His description of the rationale for net neutrality back in 2014 corresponds almost exactly to his 2021 case for applying common carrier rules to platforms. Quite a remarkable flip flop. But quite predictable if one follows the “who’s silencing whom” theory of speech regulation.

The platforms and power

The power theory of speech regulation also goes a long way to explain the behavior of the platforms themselves. While the riots demonstrated concretely the danger that could come from allowing the President to continue to use their platforms, the question of why the de-platforming happened when it did begs for an answer. The answer is that American voters disempowered the president in November, and gave the Democratic Party control of both houses of Congress shortly thereafter. The riots and Trump’s phony but persistent challenge to the election results also thoroughly discredited the President, even among many Republicans. So the cost-benefit ratio of suppressing and even de-platforming the President shifted radically in favor of de-platforming. Only the loss of power can explain when it happened and how quickly and thoroughly it happened. If you don’t want to be suppressed, don’t lose power.

How to constrain power over speech

Lest one conclude that we are completely cynical in our approach to this issue, the power theory does lead in a constructive and coherent direction. The best protection for free and robust speech and association, the best antidote to abuses or problems with power-based suppression of speech, is to decentralize and diversify the decision making authority. A liberal regime of private property and open, competitive media/internet markets, coupled with first amendment-style limits on state action, are just about the best solution that can be achieved in an imperfect human society. Private actors can exercise their own editorial judgment and make their own decisions about what norms to enforce in specific cases, even when they are suppressing or moderating legal speech. Insofar as society and the economy itself are diverse, those decisions will reflect the diversity of motives, perspectives, and interests, and allow room for minority viewpoints to gather support. Yes, there will be unfair decisions from time to time. Yes, there will be bizarre or irrational viewpoints that will gain credence among some groups. But nothing can prevent that. Groups that are truly lacking in any market power or presence will have a hard time. But those kinds of views will have a hard time in any regime. It is an iron law, people who have less power will have their freedom of expression and assembly suppressed if those who oppose them or feel threatened by them have the power to do so and there are no structural or constitutional constraints.

We can only laugh at Angela Merkel’s protestation that only the government should be making the kind of decisions that Twitter and Facebook made. A single, supreme political authority is absolutely the worst entity to be making those kinds of decisions. Imagine who and what would have been suppressed if a Trump government (freed of the first amendment) would be making de-platforming decisions.

There is no Archimedean lever by which some impartial, God like decision maker can stand outside of society and its politics and determine which speech is good and bad. Restrictions on speech and assembly, because they affect politics so directly, will always be politically mediated and politically influenced. The more one concentrates economic and political power over the media, the more media regulation will simply reinforce the agenda and interests of those who already dominate in power. There are so many authoritarian states actively demonstrating that principle that we should not have to say this, but apparently we do.

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