Against Government Regulation of Internet Speech

The government doesn’t have the constitutional power to regulate internet speech, but then the FCC was once given the power to regulate interstate communications (the fairness doctrine). Of course, its application was anything but fair and it contradicted the First Amendment and the natural right to use one’s property freely as long as one didn’t initiate violence against others.

Our government’s essential good points are on a long path of destruction. Regulating internet speech will speed up that process.

Once again a notable Big Tech player is calling for government regulation, Facebook co-founder Chris Hughes. If speech regulation is ever written and enacted, it places Facebook at the apex of a government-created cartel.

Speech can’t be limited by government without destroying the freedom thereof.

Government limitation places speech in the political arena of constant controversy. It removes speech from being an unhampered and morally-based right.

Hughes argues

“Finally, the agency should create guidelines for acceptable speech on social media. This idea may seem un-American — we would never stand for a government agency censoring speech. But we already have limits on yelling ‘fire’ in a crowded theater, child pornography, speech intended to provoke violence and false statements to manipulate stock prices. We will have to create similar standards that tech companies can use. These standards should of course be subject to the review of the courts, just as any other limits on speech are. But there is no constitutional right to harass others or live-stream violence.”

Hughes invokes the ghost of Oliver Wendell Holmes when he should be invoking the spirit of Murray Rothbard. Free speech doesn’t include misuse of a theater owner’s property, who rents you space for a limited time and purpose while you obey his rules of courtesy and behavior. Free speech doesn’t include using children, who are innocent and require protection, for one’s own sexual purposes. This initiates violence against them, and sexual photography of them is included as such an awful crime. If parents permit this, they are guilty too. Isn’t this crime obviously remote from free speech? Inciting a riot is currently covered by existing law. It doesn’t need a new law to be applied to behavior over the internet, and neither do stock manipulation and harassment. If people are committing these crimes on or off the internet, there is no need for new laws. The old laws require enforcement. That is all.

Not one of the cases argued by Hughes is either relevant or pertinent to regulation of internet communications. Not one of them supports the conclusion that the government should get together with social media platform companies and impose uniform standards. Notice that Hughes is calling for an agency “to exercise effective oversight over time. The agency should also be charged with guaranteeing basic interoperability across platforms.”

This “solution” creates the cartel by demanding uniformity of operations. It creates a new form of government, a new agency. The administrative state grows to cover speech. This totalitarian direction is hardly to be commended. It’s hardly the case that enforcing already-existing laws against crimes like child pornography, stock manipulation, incitement to crimes and harassment requires creation of a new bureaucracy that regulates speech in general. The “solution” is incommensurate with the objective, which is to control certain crimes. Enforcement does that, not new rules and administration that go much further than protection demands.

Hughes accuses Facebook of monopoly. It isn’t, apart from the extent to which it’s now being protected by government favoritism. Getting rid of such privileges should be first on the agenda, whereas regulating the company and current industry simply confers a new big privilege on this company by raising the cost of entry of new types of product innovators and making it less worthwhile for such innovation to be tried.

People of all sorts, politicians, laymen, economists and legal scholars, and Hughes mentions a bunch of them by name, are bewitched by big companies that have large market valuations. Embracing false economic doctrines, they fear the ogre of monopoly, but these companies typically have created much or even most of their value by supplying a good in demand that previously was more costly or didn’t exist. It is true that large companies often benefit from costs paid for through taxes, and would be smaller if this were not so; so may their competitors, however.

It is striking that new competition often takes the form of entirely new and different ways of doing things. New industries arise. Cars replace horses. Stores refrigerate milk and replace the milkman. Computers replace typewriters and paper files. This entry of the new is what checks the older industries. As long as entry is free, monopoly is held in check.

Government regulation prevents free entry. It supports monopoly and cartels. It prevents competition from arising. This is the bad outcome to be avoided. This is what will occur if internet speech is regulated, and worse, much worse. Regulating speech is bound in this case to crimp political competition and idea competition.

Facebook has every right to limit speech on its own company-owned platforms, but it should not go in with government to limit the speech of its competitors, now or future unknown. Government doesn’t have that power and never should have that power. That power is a totalitarian threat.

Does it make any sense to allow such a monstrous totalitarian threat in order to remove the kinds of sites and commentators now being removed? Usually the pretext is that they are using hate speech or spinning conspiracy theories or failing to say politically-correct things about people and events in various categories. Again, the “solution” of government control of speech is invoking an elephant to kill a flea. The targets of control are actually non-problems. Alex Jones is not a problem. If he were breaking any laws, see to it that he’s indicted.

There is now a truckload of people tossed off Facebook and YouTube and Twitter who are actually non-problems and are breaking no laws. Tossing them off has created an outcry. The outcry now allows Facebook and others to call for regulation, which they desire and benefit from. But there is a huge downside for our system because it means government censorship becomes legal. Don’t do it.

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9:34 am on May 10, 2019

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