Big Tech’s War on Free Speech by Christians & Conservatives Violates Our Civil Rights

We need to get behind a law making "platform access" a civil right.

By John Zmirak Published on May 12, 2019

There’s an exciting new conservative publication out there. Actually, it’s a revival of one of the great, historic venues for pro-market, socially conservative, patriotic opinion, Human Events. Restarting it are the savvy, always readable Raheem Kassam and Will Chamberlain. Proof that it’s going to be good? In its very first weeks, it ran the single best proposal for rescuing free speech from the Silicon Valley Stalinists. The piece came from Human Events publisher Chamberlain. His idea was so cogent, I decided to interview him on it.

The Escalating Censorship of Christians and Conservatives

The Stream: The crackdown on free speech in social media seems to be escalating. Far from responding to critics’ concerns, companies like Facebook and Twitter seem to be doubling down. They’ve moved from silencing outliers with extremist views to merely “edgy” conservatives. And now they’re targeting perfectly mainstream people like James Woods and David Horowitz. What’s happening inside those companies that’s driving this, do you think?

Will Chamberlain: I think there are devoted cliques of left-wing activists inside these companies. They are seeing what they can get away with. Many people want to blame Jack Dorsey for all the Twitter censorship. Yes, we can blame him, in the sense that CEO’s stand ultimately responsible for what happens with their companies. However, I think he genuinely wants Twitter friendly to conservatives. But Twitter, Facebook, et al, are staffed top to bottom with progressives and leftists. And personnel is policy.

 

WIll Chamberlain

Do we see any endpoint in sight? Will the left soon de-platform people like Jeb Bush and Nikki Haley, too? The left waxes so intolerant, it regards any disagreement at all as implicitly “racist” and therefore subject to censorship.

I don’t think Jeb! or Haley will get banned anytime soon. Traditional, establishment Republicans have very little to fear from our Silicon Censors. Just as the Harlem Globetrotters needed the Washington Generals, Democrats need Republicans like Jeb.

It’s quite obnoxious to hear lectures from billionaire Republican donors — or those funded by them – telling normal citizens who have had their accounts banned to go compete with Facebook. If that’s such a brilliant business idea, why haven’t they done it?

The Crackdown Can Only Get Worse

These social media companies take advantage of legal loopholes. They pretend to serve as neutral platforms like the telephone company. But Sprint doesn’t listen in on my calls. Then hang them up and deny me phone service if I say something “offensive.” Instead, these companies act like editors and publishers. But they stand exempt from libel and defamation laws. They’re de facto monopolies, but almost totally unregulated. The First Amendment doesn’t apply to them since they’re “private.” But the government outsources all sorts of State functions to them. Why are so many conservatives unwilling to see President Trump attempt a fix, while it’s still possible? Imagine how bad it will get if we have a President Kamala Harris….

This is the product of thirty years of successful institutional capture by wealthy Republican donors. Their ideological work has been so effective that conservatives have a knee-jerk revulsion to any kind of regulation on a private company. Not even when such regulation is a prerequisite to Republicans’ winning elections!

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Many establishment conservatives worry about taking action against Big Tech. That’s on the theory that a President Kamala Harris might turn those regulations against conservatives. The real concern is – how would the tech companies themselves behave in a Harris administration? Right now, Facebook and Twitter are at least somewhat constrained. That’s because of the possibility of adverse action from the Trump administration. If a President Harris gave them a wink and a nod? They could censor with confidence that the government would not intervene.

Conversely, government regulation of speech is a one-way ratchet. It’s settled First Amendment law that the government can’t restrict your access to the public square. Democrats don’t want to use government to silence conservatives because of the legal challenges involved in doing so. It’s far easier to let Facebook and Twitter do it for them.

 

Shouldn’t We Just Compete with Big Tech?

What do you say to the argument, “Go start your own Facebook, or use Gab or something?” Should that be what wealthy conservatives spend their money on, instead of electoral politics?

It’s quite obnoxious to hear lectures from billionaire Republican donors — or those funded by them – telling normal citizens who have had their accounts banned to go compete with Facebook. If that’s such a brilliant business idea, why haven’t they done it?

And the answer is obvious – competing with Facebook or Twitter is akin to setting money on fire. These companies are in winner-take-all markets with massive network effects. Conservatives shouldn’t waste money competing with them. They should take that money and lobby for new laws that put a stop to Facebook and Twitter’s censorship.

A Bold New Idea for Reform

In the past, I’ve argued for removing the social media companies’ immunity to libel suits. Let people like Nick Sandmann’s lawyer go after Facebook and Twitter. Soon enough you’ll see them becoming amazingly neutral, to get their immunity back. But you have a different solution. You outline it in an essay at Human Events. Can you please briefly explain your proposal?

There are two components to my approach: framing, and policy specifics.

First framing. Conservatives should frame access to large social media platforms as a civil right. In 2019, you don’t have meaningful free speech if you can’t speak on Facebook and Twitter. Sure, you could go to a public park and scream into the ether. And black people who were turned away from motels in the Jim Crow South? They could always sleep in their cars.

Now policy: I think the idea of exposing Facebook and Twitter to defamation lawsuits is too distant from the problem we are actually trying to solve. Which is censorship. Instead, we should focus on passing laws – at the state and federal level – that codify platform access as a civil right.

You do that by creating a private right of action (a new type of lawsuit) for users who get banned for lawful speech. Let’s say Facebook takes away your account without demonstrating that you broke the law. You should be able to walk into court the very next day. Then walk out with an immediate injunction that forces Facebook to give you your account back.

 

We make exceptions to freedom of contract and freedom of association to fight racial discrimination. For the greater good. So we should do the same to preserve diversity of viewpoints? Even religious liberty. Faithful Christians are among those hurt worst by social media censorship….

Precisely.

How We’d Regain Our Rights

How would a person de-platformed by social media use a law such as yours to seek legal relief?

The de-platformed user could retain a plaintiff’s lawyer who specializes in civil rights cases. (As a lawyer myself, trust me, there are plenty of civil rights lawyers and most are underemployed). That lawyer could file a complaint against the platform. He’d demand a temporary restraining order forcing the platform to restore a banned account. If the law was drafted properly, and Facebook couldn’t prove the user broke the law? The judge would have to issue such an order. (Jack Posobiec has suggested calling this device a “restoration order.” I’m open to suggestions).

In addition, the law I propose would include a “fee-shifting” provision. That would allow a victorious plaintiff to seek attorney’s fees from the defendant. This is common with civil rights statutes. Otherwise, few people would bring cases.

Combine the right to an immediate injunction, with the right to attorney’s fees. That should make these cases very profitable for civil rights lawyers, and very unprofitable for Facebook.

When in the Course of Human Events….

I remember Human Events from the 1980s. Back then it was a tough, conservative, newsprint publication. Now you and Raheem Kassam are reviving it. Please tell Stream readers its mission. Why do we need it? What sets it apart from, say, National Review, The Federalist, American Greatness?

We want to serve as the intellectual vanguard for nationalist conservatives. And do so with an outlet that offers thoughtful, well-researched, and provocative writing. In addition, we think too many sites give aesthetics a short shrift. Human Events will always have beautiful web design and feature beautiful photography.

National Review has simply lost touch with the conservative base. It isn’t the vanguard. There are a few good authors like Andrew McCarthy. But for the most part, we see them whining about the fact that the conservative movement has left them behind.

The Federalist and American Greatness are both excellent. Raheem and I are good friends with a number of the contributors at both outlets. I think we will produce work at their level of quality. We’ll also offer a distinct aesthetic and a tighter integration with the Twitter ecosystem.

For example, we aggressively covered the recent Facebook purge of Paul Joseph Watson and others. We were lucky enough to have the chance to publish his op-ed. We also ran an hour-long Periscope discussing the situation with Watson himself.

Take And Read

Point our readers, please, to a few more can’t-miss pieces at the new Human Events.

Checkmate,” my article about how Trump’s lawyers outfoxed Mueller.

Paul Joseph Watson’s op-ed on his purge from social media.

Raheem Kassam’s op-ed on the fall of UKIP.

 

Thanks so much!

Thank you!

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