It’s still censorship (even if it doesn’t violate the First Amendment)
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
One of the dumbest, shrewdest tricks corporate America ever pulled was teaching us all to reflexively say, "If a corporation blocks your speech, that doesn't violate the First Amendment and therefore it's not censorship":
Censorship isn't limited to government action: it's the act of preventing a message from a willing speaker from reaching a willing listener. The fact that it's censorship doesn't (necessarily) mean that it's illegitimate or bad: there may be times when it's totally reasonable to prevent a willing speaker from reaching a willing listener. If you own a speech forum (say, a restaurant), and a patron stands on a table and starts declaiming about "illegals ruining America" and you 86 that racist fuck, that's totally OK with me – even if there a few other racists in the booths are shouting, "Right on, brother!"
But don't pretend it's not censorship. You are managing a speech forum by preventing certain consensual communications from taking place because of your views. Which is fine. It's even fine if you support doing this only in some cases, for example, if you support the right of protesters to disrupt a Klan rally without being removed, but not the right of a racist to ruin everyone's dinner by shouting racist garbage in a restaurant.
That doesn't make you a hypocrite, it just makes you someone who rejects the legitimacy of some viewpoints and believes that it's tactically sound to prevent those viewpoints from being aired. That's a common perspective, and it's a rare "free speech defender" who won't grudgingly admit that there are some protesters whose right to disrupt others' speech they will defend; and some whose disruptions they'll condemn.
State censorship – the kind that violates the First Amendment – is also censorship, and it's a particularly pernicious form of censorship, so much so that the First Amendment to the US Constitution broadly prohibits it, and most other countries put some limits on it (for example, Canada's Charter of Rights and Freedoms prohibits the government from interfering with "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication").
First Amendment protections for speech seek to prevent the government from limiting speech because when the state interferes with a speaker, they can potentially snuff out that person's message altogether. The racist who gets 86ed from a restaurant can find a Trump rally (or a Klan rally) to mouth off at – but if the state bans their speech altogether, they have to leave the country to find somewhere safe to speak.
The argument goes that even if you don't want racist speech to have a home anywhere, a ban on government censorship protects your views, too. Rather than letting states choose winners in the "marketplace of ideas," we ask them to act as the speech forum of last resort, and we preserve the right of anyone to speak in any public place, with (almost) no limits on what they can say (in theory, at least).
Let's stipulate to this – that doesn't mean we must also stipulate that all private censorship is justified. Nor do we have to agree that it is harmless. Private actors can amass enormous power, and use that power to suppress speech that would weaken their power. In other words, they can turn the marketplace of idea into a command economy where arguments about their unfitness to govern our speech choices are stifled.
A good example here is Facebook. Earlier this year, the whistleblower Sarah Wynn-Williams published Careless People, a tell-all memoir recounting the callous, vicious acts of Facebook's top executives, especially Mark Zuckerberg, Sheryl Sandberg and Joel Kaplan:
Facebook doesn't allege that Wynn-Williams's book is factually inaccurate. Rather, they say that her employment contract prohibits her from warning the company's billions of users about its defects so that they can make better choices about whether to trust it to manage their main speech forum.
One interesting (terrible) wrinkle here: Facebook didn't even have to go to court to bring Wynn-Williams to the precipice of financial ruin. They were able to get a private arbitrator (a random dude in Facebook's pay) to hand down a "judgment" fining her $50,000 every time she criticizes Facebook. That's because Wynn-Williams's employment contract contains a "binding arbitration" clause that says that she can't ever have her case heard by a judge:
Binding arbitration clauses were once a rarity, their use legally restricted to resolving contractual disputes between giant companies of equal power. Then, Antonin Scalia changed the law and opened the floodgates, so that today, everyone from your physiotherapist to your solar installer to your boss requires you to give up the right to a hearing in order to transact normal, everyday activities:
Wynn-Williams isn't the only person to face private censorship that limits the ability of the public to hear multiple points of view and make up their own minds about the issues of the day. A host of media figures have been forced out of their jobs for republishing Charlie Kirk's own views on issues like gun control, race, and the acceptable nature of public, lethal violence.
Some of this censorship comes directly from government sources. Take Louisiana Congressman Clay Higgins, who has pledged to "use Congressional authority and every influence with big tech platforms to mandate immediate ban for life of every post or commenter that belittled the assassination of Charlie Kirk":
But even if lawmakers like Higgins stopped bellowing the quiet part out loud, that wouldn't be the end of the government's involvement in censorship. As we see in Sarah Wynn-Williams's case, government changes to contract law can have far-reaching implications for free expression.
Government action also plays an important role in the wave of neo-McCarthyite deplatformings over Charlie Kirk's killing. There's nothing natural about the collapse of the media ecosystem into an inbred collection of hyperscaled giga-conglomerates. The transformation of the internet into "five giant websites filled with screenshots of the other four" wasn't inevitable.
After the Trump I election, progressives were aghast over the photos of the leaders of all of the major tech companies seated around a table atop Trump Tower:
The outrage was over the fact that these titans of industry were willing to normalize Trump. Boy, did that ever miss the point. The real issue was that all the leaders of the tech industry fit around a single table. Eight years later, the industry had grown so consolidated that the tech industry's top bosses could all fit in a semicircle of folding chairs on Trump's inaugural dais:
It's a terrible mistake to think that the societal risk of these terrible billionaires comes from their individual moral failings. The danger to society comes from the existence of billionaires – from the transfer of power (to decide who may speak and who may be heard) into the hands of a few very rich men whose collective cowardice can erase whole swathes of public discourse.
The power of those billionaires didn't come from the billionaires themselves. They weren't born billionaires – the government made them billionaires. These oligarchs owe their existence to presidents like Ronald Reagan, but also (especially) to Democrats like Bill Clinton and Barack Obama.
Take Facebook. In 2012, the company faced a serious threat from Instagram, a tiny company that had grown at unheard-of speed, primarily by luring Facebook users to quit the platform and join Instagram instead. Zuckerberg bought the company for $1b. It's not necessarily illegal for a large company to acquire a new competitor, but if the acquisition is an attempt to reduce competition, then it is radioactively illegal and the government is legally required to halt the transaction.
When the Obama administration considered Facebook's Instagram acquisition, it had to decide whether Facebook was motivated by the desire to reduce competition. Lucky for Obama's enforcers, Mark Zuckerberg sent his CFO a memo explicitly stating that he was buying Instagram to neutralize a competitor. For antitrust regulators, this is the equivalent of a signed confession: "This killing was definitely a murder, and I totally premeditated it." That wasn't exactly a surprise – after all, Zuck's motto (also committed to writing), is "It is better to buy than to compete." Despite this, the Obama administration waved the merger through:
Obama served as Enshittifier-in-Chief, presiding over an orgy of illegal, anticompetitive mergers that transformed the internet as a handful of manifestly terrible men seized near-total authority over who could speak and what we could hear.
We know how the internet collapsed into strangled Habsburg gargling. But how did we end up in a place where a handful of media bosses get to decide who we hear on the radio and see on cable, broadcast and satellite TV?
Thank Bill Clinton, whose 1996 Telecommunications Act eliminated New Deal-era restrictions on media consolidation, paving the way for media companies to corner regional markets, for example, by buying your town's newspaper, radio station and TV station (or to buy the major radio stations in every city, as Clearchannel did).
The effects of the Telecommunications Act on public discourse became evident almost immediately. As Matt Stoller writes, after 9/11, Republicans got the media barons (that Clinton created) to fire popular media figures for opposing George Bush's catastrophic, illegal, blood-soaked invasion of Iraq:
The reason the First Amendment singles out government restrictions on speech, rather than private speech restrictions, is that governments have monolithic power to shut down speakers in ways that private actors (supposedly) can't. But when governments allow a handful of firms to seize control over our speech forums, they vest state-like power in these unaccountable private actors.
If you care about free expression, you have to take notice of private censorship, and not confine your scrutiny to state action. That is especially true when the government is allied with a class of media oligarchs who have sewn up our communications channels.
But even when the government isn't in bed with the media barons, the mere existence of media barons are an existential threat to communications, and not just because the owners of media conglomerates routinely abuse their power over our speech. Once the communications industry has been crushed into to a handful of bros who fit comfortably on Trump's dais, they become the proverbial "one throat to choke" – a tractably small group of people who can be arm-twisted into serving as off-the-books agents of state censorship:
If you care about free expression, it's not enough to ask yourself whether the government is violating the First Amendment. Any law that lets powerful people enlist the state to silence their enemies, from Scalia's changes to contract law to Clinton's changes to media ownership law, have a profound, detrimental effect on our free speech.
The pandemic shortages forcefully reminded us that any industry with a single point of failure is liable to fail. Billionaires are a single point of failure in our speech regime. What's the point of defending the First Amendment to prevent elected officials from silencing their political opponents if you're willing to let the government give a handful of unaccountable oligarchs that power?
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