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The social media are not only private companies. They are also common carriers…
It is timely, perhaps urgent, to recall John Stuart Mill’s three arguments for freedom of thought and expression: First, an opinion suppressed may be true. To deny this is to assume our own infallibility. Secondly, though the suppressed opinion be an error, it may contain a portion of truth; and since the prevailing opinion on any subject is rarely the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, as Mill puts it, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension of its rational grounds. Mill points out that even the Catholic Church appoints a ‘devil’s advocate’ whose task it is to find evidence and arguments against raising eminent individuals to sainthood.
Censors are Fallible, as are Journalists
I need not accept Mill’s controversial conception of a free society as a gigantic debating club where everything should be open to doubt and discussion to see the strength of his fallibilist position. Censorship means that some fallible individuals are entrusted with the power to suppress opinions, as distinct from the reasonable requirement that the citizens take responsibility for what they have said: if they engage in sedition, defamation, or harassment, they can and should be brought to court. Censors will always be appointed by the authorities, and they will tend to protect those authorities. It is true that freedom of thought and expression can theoretically exist in an autocracy such as the Prussia of Frederick II, although in general rulers will be tempted to abrogate it. But in a modern democracy freedom of speech is crucial, not only for the voters to hear both, or all, sides of an argument before elections, but also for the free press to act as a constraint on government, however popular the rulers may be at any given moment. Yet another argument for freedom of speech is that it enables people to vent off their frustrations in words rather than actions: otherwise they might blow up, like kettles.
Of course freedom of speech is often abused, not least the freedom of the press. Modern journalists are just as fallible as Mill’s censors, and some of them are malicious and ill-informed. But then it is not freedom of speech which is to blame: it is the perpetrator himself (or herself). Here the response of St. John Chrysostom is appropriate: ‘I hear many cry when deplorable excesses happen, “Would there were no wine!” Oh, folly! Oh, madness! It is the wine that causes this abuse? No. … If you say, “Would there were no wine” because of the drunkards, then you must say, going on by degrees, “Would there were no steel,” because of the murderers, “Would there were no night,” because of the thieves, “Would there were no light,” because of the informers and “Would there were no women,” because of adultery.’
Dispersed Ownership Required
It is also true that my right to speak does not entail your duty to listen, or more importantly to put your resources at my disposal. If you own a newspaper, you are not obliged to print my comments, even if they are corrections of untruths which you have published, unless such untruths are found by a court to be in breach of the law. But if you welcome fair comment and facilitate corrections of factual errors, you are a better journalist and deserve praise. Recently, for example, the Finnish Hufvudstadsbladet graciously printed my corrections of a hostile piece on Iceland. The German Süddeutsche Zeitung however did not allow me to set the record straight about some malicious and misleading reports on the same subject. It did not even respond to my letter. So be it. The freedom of the press is also the freedom to reject submissions, even innocous corrections. Again, if you own another kind of platform, for example a big open forum or a meeting hall, you are not obliged to rent it to me. The reason why this is usually not a problem is that in a free and competitive economy there are available many different and diverse platforms. I could publish the comments Süddeutsche Zeitung refused to print here in The Conservative, and if I want to hold a meeting and you refuse to rent your auditorium to me, I will simply go elsewhere.
But what if there is actually nowhere else to go? If freedom of thought and expression is to be more than an empty phrase, it seems to require dispersed ownership of media and other public platforms, unless you put your faith in the basic goodness and tolerance (and, as Mill would stress, infallibility) of monopolists. There is a basic truth in Rosa Luxemburg’s exclamation that freedom is always the freedom of the dissident, ‘die Freiheit der Andersdenkenden.’ How is the freedom of the dissident maintained if one and only one agency controls access to each and any platform that the dissident might need in order to express his or her opinions? With the enormous success of social media, in particular Facebook and Twitter, and of certain kinds of internet platforms, such as Amazon and Storytel (a fast-growing Swedish provider of audiobooks), this has become an urgent task.
Amazon Controls the Book Market
Consider book publishing. Amazon and Storytel do not carry books by some authors if they deem their opinions objectionable. While this may be appropriate in the case of child pornography or terrorist manuals, these companies go much further. For example, Amazon happily offers a book advocating transgenderism for children, Let Harry Become Sally (Hypothesis Press, 2018), by science writer Kelly R. Novak, but it refuses to list a book criticising such transgenderism for children, When Harry Became Sally (Encounter Press, 2018), by philosopher Ryan T. Anderson. Such a decision by Amazon makes quite a difference when the company controls half of the market for printed books in the United States and perhaps two thirds of the ebook market. Likewise, some publishers have had difficulties in getting Storytel to carry books critical of Islamic fundamentalism: they are dismissed as ‘hate speech’.
The Strange Case of Yiannopoulos
Consider the social media, especially Twitter and Facebook. Some people who have built up a following on those platforms have become financially dependent on them. One example is British contrarian Milo Yiannopoulos who used to earn his living by giving lectures, collecting donations from fans and selling articles and books. For a while, he had 300,000 followers on Twitter and more than two million on Facebook. A gay rightwinger (of Jewish origin and married to an African-American male) and avid Trump supporter (he called Trump ‘Daddy’), he enjoyed provoking leftwingers. The angrier they became, the merrier Yiannopoulos looked. But in 2016, Twitter banned him permanently for heaping abuse in his tweets on Leslie Jones, an African-American actress. And in 2019, Facebook banned him. These actions have not only deprived Yiannopoulos of a platform, but also practically bankrupted him.
Were these actions by Twitter and Facebook reasonable? I would agree that Yiannopoulos’ attacks on Leslie Jones were offensive and outrageous. In protest, she left Twitter (before Yiannopoulos was banned). But a public figure like a well-known actress has to get used to unwanted publicity. She should have ignored it instead of dignifying it with a response, however heartfelt it may have been. It would have been altogether a different matter if Yiannopoulos had published her address or phone number or directly encouraged people to harass or intimidate her. That could have been construed as an incitement to violence, as a so-called imminent lawless action, and arguably it should not be allowed on any public platform. The Facebook ban was also unreasonable in my opinion. Although many of Yiannopoulos’ public utterances are extremely uncivil and insulting, he should be met with arguments, or simply ignored. Recall Mill’s point that received opinion should be vigorously and earnestly contested, if it was not to harden into prejudice. It is also somewhat disingenuous to accuse Yiannopoulos of inciting violence, when the violence around him has mostly been produced by his opponents who have tried to bar him from speaking at universities and who have sometimes physically assaulted him.
A President Banned from Social Media
The most controversial move by Twitter and Facebook was probably when they permanently banned the very President of the United States, Donald Trump, after the riot at the Capitol on 6 January 2021, a few days before he left office. Trump’s rise to power was not least because he could through the social media sidestep the Republican establishment and reach out directly to his followers, all 89 million of them. Whereas he lost the 2020 presidential election, he received more than 74 million votes and carried 25 of the 50 states. In other words, Twitter disconnected a politician who had not only been President of the United States for four years, but who had also been regarded as fit by more than 74 million Americans to continue in office. It certainly takes some nerve to drive a force like that from a platform. Or perhaps it was arrogance: Twitter could survive without Trump, but could Trump survive without Twitter?
I have said before that in 2016 I would have voted for Hillary Clinton rather than for Trump, mainly for two reasons: She seemed a safe choice, whereas he did not act presidentially and supported protectionism which I, as a committed supporter of free trade, consider pernicious. But Trump was a better President than I had expected. He deregulated the economy and cut taxes, appointed competent judges, was firm on China and realised early on in the epidemic how crucial it was to develop vaccines (Operation Warp Speed). Trump was however a bad loser. He should have responded gracefully to his defeat, like Richard M. Nixon who could have made an issue out of irregularities in the 1960 presidential election, especially in Illinois, but who chose not to do so. Moreover, Trump was often incredibly rude in his tweets.
A Pretext, Not a Reason
I would not consider Trump’s habitual rudeness and his ungracious refusal to concede the presidential election sufficient to ban him from social media. The official reason was of course that he had incited the shocking riot at the Capitol on 6 January. But this is hardly plausible. It is true that Trump was far too reluctant and slow to condemn the abominable attack but he never encouraged it or praised it, at least not directly. To explain its ban, Twitter referred to two tweets written after the riot. The first one was: ‘The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!’ The second tweet was: ‘To all of those who have asked, I will not be going to the Inauguration on January 20th.’ I cannot interpret these tweets as incitements to violence, and the second one went indeed as far as Trump would go in conceding the election.
It is an interesting question whether the President can be held partly responsible for the actions of his most ardent supporters, and the argument can be made, but it should not be forgotten that it was they who acted, not he. I cannot but conclude that what the social media gave as a reason to ban Trump was rather a pretext. The left-wing management and staff at Twitter and Facebook had long resented how he used these platforms for his own purposes, but they only dared disconnect him after he had lost the election and was on his way out. By comparison, Mahathir Mohamad, former Prime Minister of Malaysia, tweeted after the beheading by Islamic fundamentalists of a French teacher, Samuel Paty: ‘The French in the course of their history has killed millions of people. Many were Muslims. Muslims have a right to be angry and to kill millions of French people for the massacres of the past.’ While Twitter deleted the tweet, it did not close Mohamad’s account.
Biden’s Laptop and the Wuhan Virus
Two other egregious examples should be mentioned. Shortly before the 2020 presidential election, the New York Post published extracts from material found on the laptop of Hunter Biden, the son of Trump’s opponent Joe Biden. This material indicated that the son was using his family connections to make lucrative deals abroad, in Ukraine and China. But Twitter and Facebook banned any mention of the story on the ground that the laptop had been stolen. This was not strictly speaking true. It seems that the hard drive had been copied and then given to the newspaper. Be that as it may: the material was probably obtained illegally. But in the past other newspapers, including Washington Post and New York Times, have not hesitated to publish material which has been leaked to them, or in other words obtained illegally. The New York Post, one of America’s largest newspaper, could not be dismissed, either, as a fringe voice.
Even more embarrassing for the two social media giants was their ban on reports suggesting that the corona virus might have escaped from a laboratory in Wuhan and not jumped from an animal to a person. In the first months of the pandemic, there were frantic efforts by scientists connected to the Wuhan laboratory to silence all discussion about this possibility, and the World Health Organisation, apparently in conjunction with Chinese authorities, also dismissed it. Both Twitter and Facebook played along, for a while not allowing any mention of this possibility. But eventually they lifted the ban, as it became clear that this hypothesis was quite plausible, although the Chinese authorities have made it difficult or even impossible to reach a definite conclusion. Science writer Matt Ridley comments: ‘Finding the origin of Covid matters because the virus has now probably killed an estimated 16 million people, and we owe it to them and their families to investigate. It matters because bad actors—terrorists and rogue states—are watching the episode and wondering what they can get away with in terms of bioterrorism or pathogen research. And it matters because we need to know how to prevent the next pandemic.’
The Social Media as Common Carriers
Some of my liberal friends do not see these examples as freedom of speech issues. They observe that Amazon, Twitter, and Facebook are all private companies which can decide with whom to make deals. After all, it was my argument that my right to speak did not entail your duty to listen, or to put your resources at my disposal. But this is only partly true, I think. These companies are also common carriers, just like phone companies, private roads, or hotels. The difference between a phone company on the one hand and a publishing house or a newspaper on the other hand is that the phone company cannot reject a customer because he or she is speaking nonsense. It has to offer its services to all paying customers. Likewise, the owner of a private road can charge a toll for its use, but he or she cannot prohibit women from driving on it simply because they are women (even if women were only recently allowed to drive in some countries). Again, a hotel owner is not allowed to refuse to serve people of colour (even if this was the practice until recently both in South Africa and in the South of the United States). The point is that discrimination in a public square (as distinct, say, from a private club) has to be material. Of course, a teacher may discriminate between an able and a mediocre student by giving higher grades to the better one. But he or she should not grade students according to their colour or creed. A restaurant owner may require a special dress code in his or her establishment, but he or she should not refuse entry to people simply because they are Asian-Americans.
The difference between today’s social media and private companies in a competitive market is not only that they can be regarded as common carriers or public squares, but also that they enjoy what is almost a monopoly. As I just pointed out, a monopoly means that there is nowhere else to go. Perhaps most people would not be overly concerned by the fact that the two Goliaths can silence a rabble-rouser like Milo Yiannopoulos. But they have the power, as well as the audacity, to throw out the very President of the United States, with more than 74 million votes behind him. Perhaps the story of Hunter Biden’s laptop was not very important (although one can just imagine what the Washington Post and the New York Times would have made out of compromising material obtained from one of Donald Trump’s children). But the social media tried for a while to suppress what is now commonly regarded as the most plausible hypothesis about the origin of the corona virus which has caused a global pandemic, turned the world upside down for two years.
Should the Immunity Be Revoked?
The social media can and should set rules, for example against child pornography, terrorist activities and the incitement to violence. But they have in my opinion gone too far in restricting freedom of speech, at least in the United States. It should be pointed out that under the law of the United States where they are based they are at present not held responsible for what their users say. According to Section 230 of Title 47 of the United States Code, on the Federal Communications Commission and the National Telecommunications and Information Administration, ‘No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.’ If the social media start to censor opinions, however unpopular they might be at the moment, outside what should be regarded as their legitimate concerns, then this immunity could be revoked. The social media can hardly enjoy immunity and act as censors at the same time. I would personally favour as much freedom online as possible, but this would mean that the social media would have significantly to revise their policies and recognise their own fallibility.