Break Up the Social Media Companies to Protect Free Speech

If they want to target conservatives, unleash antitrust until they're too small to censor.

By PETER VAN BUREN

Donald Trump is preparing to unleash the Department of Justice and the Federal Trade Commission as antitrust warriors against the tech giants. And good on him. Breaking up the monopolies on speech might save us—particularly anyone right-of-center—from encroaching online deplatforming, and preserve our ability to hear ideas outside echo chambers of bullied consensus.

The First Amendment doesn’t restrain censorship by private social media companies. Thus have progressives today reveled in their newfound power to enforce their own opinions through deplatforming. That only works because the platforms matter as near-monopolies; no one cares who gets kicked off MySpace. If you end the monopolies, you defang deplatforming.

What to do? Efforts to extend the First Amendment to entities like Facebook, arguing that they are the new public squares (seven of 10 American adults use a social media site), have been unsuccessful.

Trying to classify social media companies as “publishers” has also been unsuccessful because they insist that they are “platforms.” They say they are like the phone company, which lets you talk to a friend but exercises zero control over what you say.

Being a platform is desirable for Facebook and the others, as it allows them to have no responsibility for the content they print, no need to create transparent rules or appeals processes for deplatforming, and users have no legal recourse. Publishers, on the other hand, are responsible for what they print, and can be taken to court if it’s libelous or maliciously false.

Social media’s claim to be a platform and not a publisher is based on Section 230 of the Communications Decency Act. That section, however, was predicated on social media companies being neutral public forums in return for legal protections against being sued over content they present. Now Twitter wants it both ways—they want the protection of being a platform but the power to ideologically manipulate their content as publishers do.

Breaking through the platform-publisher question will require years of court battles. The growth of much of the web has been driven by the lack of responsibility for the content third parties chuck online. It is a complex situation that applies to everything from knitting site hosts to Nazi forums, and across international borders.

Yet social media entities’ control over speech is so significant that a more immediate solution is demanded. Google owns 90 percent of the search market, three quarters of mobile browsing and 70 percent of desktop, and, along with Facebook, 50 percent of online ads. YouTube dominates video. Facebook makes up two thirds of all social media, with Twitter holding down most of the rest. Large enough on their own, the platforms also work in concert. One bans, say, Alex Jones, and most of the others follow. And then whomever is last is chided into action by the mob and threatened with advertiser boycotts. Eventually, even Venmo and Paypal cut Jones off.

With legal and legislative solutions ineffectual for preserving free speech online, enter the major antitrust enforcement agencies of the executive branch. The Department of Justice is preparing to investigate Google’s parent company, Alphabet, while the Federal Trade Commission is doing the same for Facebook. The goal may be to break the tech giants into multiple smaller companies, as was done at the dawn of mass electronic communication in America.

The end of social media mega-companies, with none big enough to effectively silence any significant amount of speech, would be a clumsy fix for a problem the Founders never imagined—citizens demanding corporate censorship because they don’t like the results of an election. It is nowhere near the comprehensive solution of an expanded First Amendment that a democracy should grant itself. But in a world where progressives fail to understand the value of free speech, it may provide enough of a dike to hold back the waters until reason again takes hold.

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