Left and right take aim at Big Tech — and the First Amendment

It’s open season on America’s digital media marketplace, with both the left and right lining up to take regulatory shots at tech platforms, but for very different reasons. If both sides get their way, the result will be a more politicized media sector and unprecedented government interference with freedom of speech.

Facebook, Google, Twitter, Amazon and Apple have all become political pinatas for federal and state policymakers, with legislation and lawsuits launched seemingly on a weekly basis. But there is considerable confusion in the complaints both parties make about “Big Tech.”

Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

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The only thing unifying both sides is a desire for greater regulatory control of media. In today’s hyper-partisan world, tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day – like property rights, free speech and editorial independence – become disposable. These are things we take for granted until they’ve been chipped away at and lost.

Is there any way to make both sides happy without undermining the digital economy, which has been dominated globally by American firms for over a quarter century? 

That’s unlikely, but it hasn’t stopped lawmakers from introducing a flurry of bills to weaken or eliminate protections afforded by Section 230, which limits liability for platforms that host user-generated content. Implemented in 1996, it has served as the cornerstone of America’s ascendancy in the digital world and helped spur an avalanche of innovation. Gutting it would put all that at risk. 

Without admitting it, both sides are really at war against the First Amendment, which protects the editorial decisions made by private companies. To be sure, there is problematic content to be found on digital media platforms, and there are some legitimate complaints about overzealous takedown policies and lack of transparent standards. That does not mean there is an easy policy fix to those problems, however. But courts have held repeatedly that the First Amendment protects efforts by private media firms to devise their own approaches. Just last week, a Texas judge blocked a law that sought to limit social media platforms’ editorial freedoms. That followed a court in Florida enjoining a similar law this summer. 

Critics like to paint large tech companies as nefarious overlords out to destroy civilization. In reality, the problems we see and hear on modern platforms reflect deeper problems in our society. If these companies are to be blamed for anything, it’s making human communication so frictionless that every person now has a soapbox to speak to the world. That’s both a blessing and a curse. With unbounded speech comes many wonders but also many problems.

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Now, large digital intermediaries are expected to make all those pathologies go away through some magical Goldilocks formula whereby they get content moderation “just right.” It’s an impossible task with billions of voices speaking. Bureaucrats won’t do a better job refereeing these disputes, and letting them do so will turn every content spat into an endless regulatory proceeding. 

It is particularly surprising that some conservatives are joining the chorus calling for common carrier regulations or Fairness Doctrine-like speech mandates, which would let government micromanage speech platforms. In this debate, they are inviting comprehensive political control of communications platforms, which is antithetical to a limited government philosophy.

Moreover, why would conservatives believe they’ll benefit from more regulation? Even if one accepts the notion that social media platforms discriminate against conservative speakers or viewpoints, will freshly empowered bureaucrats really help them push private platform content moderation decisions in a more pro-conservative direction? The administrative state historically has not been the friend of conservative viewpoints, and regulators are not suddenly going to become more sympathetic to them.

They’d more likely be shooting themselves in the foot. There has never been more opportunity for conservative viewpoints than right now. Each day on Facebook, the top-10 most shared links are dominated by pundits such as Ben Shapiro, Dan Bongino, Dinesh D'Souza and Sean HannitySean Patrick HannityTucker Carlson extends influence on GOP  McCarthy says he won't cooperate with 'illegitimate' Jan. 6 probe Jan. 6 panel fires back at Jordan over refusal to cooperate MORE. Right-leaning content is shared widely on Twitter each day. Websites like Dailywire.com and Foxnews.com get far more traffic than the New York Times or CNN. 

Conservatives should push for more competition and choices, not more regulation and litigation. They should again embrace the vision President Reagan set forth in 1987, when he vetoed a bill to reestablish the Fairness Doctrine: “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.” 

It remains the principled path forward.

Adam Thierer is a senior research fellow at the Mercatus Center at George Mason University and author of “Evasive Entrepreneurs and the Future of Governance.”