Over the weekend, Rameumpton wrote a post urging for government action to break up social media “monopolies” like Facebook, Google and Twitter. He is not alone in calling for such action. Facebook is portrayed as a behemoth that has to be taken down for the good of society. But this argument is both historically and philosophically misguided. I want to respond to and elaborate on three points:
- Facebook is not a monopoly
First of all, it is worth discussing what exactly makes a monopoly a monopoly. There are (at least) two competing definitions of what kind of concentration of power justifies government intervention. One view sees big as bad and aims to break up companies that have too large of a market share. This was the dominant anti-trust paradox until the late 1970s. The other approach which has been dominant since Robert Bork published his seminal work, The Antitrust Paradox, in 1978 is that a big is only bad if it harms consumers by producing anti-competitive results.
This matters immensely when talking about companies like Facebook. Sure, Facebook has a large market share and ubiquitous presence. But unless there is meaningful evidence that it has engaged in anti-competitive behavior that is harmful to consumers, then there is no anti-trust injury and no reason for government intervention.
Previous monopolies have erected barriers that have made it difficult or nearly impossible for free and fair competition. For instance, AT&T had an actual government regulatory monopoly which made it practically impossible for competitors to erect the infrastructure needed to compete. Because it bought into a faulty theory of scarcity, the government handed AT&T exclusive power and regulated AT&T like a public entity. Government intervention was actually what caused the monopoly to exist in the first place, and so government intervention was necessary to break up the juggernaut that it had enabled.
The situation with social media could not be more different. The internet has leveled barriers of entry. Anyone with a computer and coding skill can attempt to create the next big internet phenomenon. Remember that Facebook itself was started by a bunch of college aged kids at Harvard who saw the need for a better networking platform than existed at the time. And anyone arguing that Facebook is immune to free and fair competition will have to recon with the fall of former giants such as MySpace.
- Private Social Media Companies do not violate the First Amendment
Rameupton claims that social media platforms need to be broken up because they are engaged in censorship and are violating free speech principles. But this argument seriously conflates the actions of private companies such as Facebook with government censorship and restrictions on freedom of speech. The First Amendment prohibits only government censorship or speech restrictions. When a private company chooses to restrict speech on its platform, it is not violating the first amendment. To the contrary, the First Amendment protects the right of Facebook to restrict access to the platform that it has created (which is its own private property) for practically any reason. Simply put, Facebook is not required to allow neo-Nazi propaganda, or white supremacist speech, or any other speech that it does not like.
Are there reasons to be concerned when social media sites target conservative voices more aggressively for censorship? Sure. Social media platforms exercise an outsized impact on our culture. And we should criticize them when claim to be unbiased and open but hypocritically go after certain viewpoints.
If we do not like what Facebook does, we have options. We can protest or boycott. We can loudly make the moral case that we should create platforms where sharp differences can be expressed. And if we are really outraged, we can leave and start our own platforms. Indeed, that is what gun enthusiasts did when YouTube began to demonetize gun videos—they created a separate site called Full30.com to promote those videos.
What we cannot do is recruit the government to compel private companies like Facebook to give us a space to express ourselves. That is not within the government’s power to do.
Now, there is a separate but closely related issue concerning whether social media platforms should be held liable for things that users post on their platform. For instance, if I go on Facebook and defame someone, should Facebook be responsible? This is a complex issue that exceeds the scope of this post. But the remarkable success of social media has come precisely because platforms have not been held liable for what users say or do on the platform. And in my opinion it would be an enormous mistake to break down the foundation that has produced immense prosperity and changed the world.
- Regulations are likely to create rather than eliminate monopolies
Rameupton is right about at least one thing, however. We should be suspicious when we see Mark Zuckerberg and others calling on Congress to regulate his company and calling for government led censorship. Could it be that such government action would help to cement Facebook’s position by making it harder for competitors to challenge Facebook? The truth is that when the government steps in, it almost always creates unintentional consequences that harm consumers. We should not rely on the government to fix all of our social media problems.
The problem is, that Facebook is not acting like a platform when it censors, it’s acting like a publisher. Right now Facebook is trying to have it both ways — the protections afforded platforms, but with the freedom afforded publishers. They can’t have it both ways. And while I do agree with you that Facebook is not a monopoly, they do act like it and I do believe they are moving to solidify that position thru government intervention. They don’t want other platforms to exisit, that’s why Zuckerberg wants the govt to regulate his company. To that I say, regulate yourself. I wish these tech giants would have the courage to truly let the market sift things out. I don’t need Facebook to tell me who the loonies are, I can figure that out for myself. I will say this too, with the recent demonitization of Steven Crowder on youtube (not a huge fan, I casually follow him online), that should be a concern to everyone. He didn’t violate their rules, and yet he is still being punished. No one should be ok with that. Companies like youtube and Facebook unfortunately cow-tow to the outrage mobs, because they believe in many of the things these mobs preach. Free speech is important, even the speech that makes you uncomfortable.
Joyce,
Facebook et al are exercising nowhere near the kinds of editorial control that a publisher exercises. A publisher has full editorial control over everything on the platform. Social media by definition s decentralized in the way that content is created and curated. The fact that Facebook might limit the types of content that may be published does not make it the equivalent of a publisher. It would have to do a whole lot more than it does or intends to do. In In my opinion, so long as Facebook lets end users create content, it should not be treated as a publisher.
I’m also not sure what those who want to treat Facebook like a publisher are hoping to accomplish? I think the more likely outcome is that Facebook puts in place much more robust editorial controls to take down anything that could possibly be flagged as defamatory, crude, or offensive. Or else, it will do what Craigslist did recently in light of congressional meddling when it shut down its classifieds section due to fear of liability. It’s hard to see a scenario where amending the Communications Decency Act improves the availability of speech on the internet.
@DO, Facebook’s and Youtube’s editorial control is “crowd sourced” as opposed to top down. As soon as enough drones have flagged something, it either gets blocked/removed, or gets bumped up to a human editor/reviewer.
Also, due to the ubiquitous nature of embedded code (Google’s ads and Facebook’s like/recommend buttons/code), they track everybody, whether or not they have a Facebook/Google account, and whether or not they are logged in.
Perhaps M* should take out the Facebook like/share code that is embedded at the bottom of every page. Via that, FB knows the IP of every person who comes here.
And the gravatar company knows the email/ip of everyone who comments. Do you think they sell that information?
Dan, you said, ” The fact that Facebook might limit the types of content that may be published does not make it the equivalent of a publisher. ”
I disagree with you. I’ve been censored on facebook before. For something that was a joke — totally harmless, and yet I was shut down. They acted like a publisher, not a platform. And the fact that they are very selecttive with who they shut down, reveals their motives.
Just this week it’s been discovered that Pinterest has a “black list” of sorts. Who is on it? Conservatives, prolife advocates, Ben Shapiro. They classify Live Action as pornography, but fail to actually remove actual pornography. Believe me, I’ve tried with them. They’re very one sided. https://dailycaller.com/2019/06/11/live-action-pinterest-porn/
“What we cannot do is recruit the government to compel private companies like Facebook to give us a space to express ourselves. That is not within the government’s power to do.”
Says who?
Surely you realize that EVERY SINGLE business you patronize as well as the infinite number you don’t, has been compelled by government in a variety of ways for the alleged public good.
I think we need less interference in general. Far less. But Google and Facebook have more power over my livelihood than any state in the Union. When they ban advertising or communicating certain types of legal commerce or ideas, they drastically constrain
that commerce or idea. Their size is just so big that it has a disproportionate impact.
Ok, fine, you can still do it, say it, sell it outside of Google and Facebook. But the size and scope of their reach is costing billions of dollars when they ban something because they don’t like it. The marketplace of ideas is affected as well.
I don’t like that we are pushed into this corner. But we are already here. Consider also the many known and unknown ways they have propped up and sustained and protected their companies. It is not a level playing field. As much as I hate the idea of this, I’m increasingly less worried about regulating a nation state sized company than I am about the myriad regulations that small business complies with, even though they lack an army of lawyers and accountants.
Not sure if breaking them up is what’s needed, but certainly the need to be required to be more content neutral once they get a certain size.
“Says who?”
The First Amendment which says that the Government cannot make laws respecting freedom of speech. Part of that freedom is the freedom not to speak or not to associate yourself with speech you disagree with. It is a violation of the First Amendment to force property owners to open up their private property to expression that they disagree with.
This is all fine and dandy, and I agree on principle. But the real question is: how do we get big tech companies to have 1st amendment culture? Something tells me that even new companies will still be bad actors.
Daniel
We require McDonalds to communicate things in the name of public health they may not agree with. We require them to serve ingredients in the name of dogma they may not agree with. The list can go on and on. Forcing compliance on any behavior is regulating speech.
We do so with limitations out of prudence, only when there is a compelling interest and when the business is engaged in commerce.
Armchair lawyers don’t get a free pass in the modern judicial system saying, “the constitution” when it relates to areas that are already being regulated in other much less important areas.
Facebook and Google have created virtual public spaces that the majority of economic activity in the USA is now connected to in someway, either through direct advertising or passive information distribution. They are aggregating, analyzing, ranking and disseminating the majority of the information that gets shared today.
Facebook and Google are selling you, your data, and the above information to advertisers. They are manipulating the data you interact with.
There is no credible danger to the first amendment when we require McDonalds to post calorie counts they they might not wish to communicate (this compelled commination even imposes a cost on them). There is a credible threat to Facebook and Google using resources to manipulate their data and polices to restrict information or trade. They are doing this now, and it’s actually costing then money, and harming some users.
They are confident they can do it precisely because they occupy this major position.
Sorry, 1st amendment is not argument enough. Actually go read it and it only tenuously applies.
Compelling McDonalds to post calorie information is somewhat problematic. But requiring it to post a limited amount of truthful and uncontroversial calorie information (that it prepares) in its stores is categorically different than requiring it to allow access to all kinds of positions and viewpoints that it disagrees with and does not have control over.
Facebook does not control content creation on the internet. Anyone with a keyboard can create whatever content he wants. He can start a website on a number of different platforms. He can conduct searches on about a dozen different search engines. He can find several alternatives to Facebook or Twitter. The idea that Facebook is in control of all of the dissemination of information on the internet just doesn’t accord with reality.
Daniel that was one blasé example to mention calories. But it’s a costly one that communicates a very narrow and heavily biased viewpoint that presupposes a worldview of backstory that’s irrelevant for all of human history until recent cultural norms. It tells you virtually nothing about what’s in your food, while deceiving you with data to make you think you know what’s in your food. How much plastic and hormone and antibiotic residue are you eating with that meal? Does it even matter? I don’t know but let’s pass a costly law requiring this and few raise first amendment issues. We take that silly thing for granted, not an affront to freedom. And even if we did it just gets the analysis wrong at every level.
Facebook and Google are the technological equivalents of someone land grabbing half the Western USA during the Oklahoma land rush and telling you that if you don’t like it, there’s plenty of land in Canada and Mexico.
They were in at the beginning and grew and we all benefited under very little regulation on one hand, and massive financial benefit in the other.
I have no problem saying when a firm reaches a certain size it now has a broader requirement to society.
If you think these firms are private, again your armchair lawyering. They are expressly public firms, required to engage in all kinds of activities and required to refrain from engaging in all kinds of others.
I’m very anti regulatory. Very limited government. I vote constitution party most of the time.
But I’m aware that Facebook and Google should not pretend like they have 1st amendment rights and exceed their other obligations as large, publicly traded companies.
Please reconsider your thoughts on this. In principle I agree with what’s said about competition and choice etc. The reality is Facebook is heavily regulated. We don’t live in a world where they get to say 1st amendment, and get their way. They have all kinds of requirements they have to abide by.
My preferred solution is these internet public utilities need to abide by the same rules as our constitution and case law. That’s that. It’s not a question of Zuckerberg not wanting to bake a stinking cake. The company has far dwarfed the viewpoint of any owner once it has tens of thousands of shareholders and billions of stake holders.
Facebook et al shouldn’t be protected with a libertarian philosophy on one hand in one issue while at the same time heavily regulated everywhere else.
It’s wholely incoherent.
“and exceed”
Should read “that exceed”
More evidence that Youtube is a publisher not a platform. They have deleted all of Project Veritas’ undercover videos showing Pinterest censoring things. Make no mistake, this is a coordinated push to silence conservative voices. I don’t think the govt should get involved other than to make these companies decide what they are: publisher or platform. Clearly, they are publishers. https://www.dailywire.com/news/48387/big-tech-crackdown-youtube-deletes-project-veritas-james-barrett?utm_source=facebook&utm_medium=social&utm_campaign=benshapiro
Libcon, you make some very thoughtful points, but I would urge you to reconsider one very important foundational error in what you wrote.
A company may be highly regulated in our society in countless ways. Government may (unjustly in my opinion) intrude on countless facets of how a business conducts itself. But it is key to remember that this does NOT transform a company into a public entity. Even highly regulated companies remain private and retain full First Amendment and other rights.
If as you suggest calorie signs and a thousand other regulations are overly intrusive, maybe that should lead us to support curtailing government overreach. It should not lead us to support yet more regulation by arguing that they already are regulated in 9,999 ways so what’s one more.
Joyce, requiring social media to accept liability a publisher would probably not violate the First Amendment. I just worry that it would largely destroy the internet.
Daniel O, I agree with your position on this issue. As much as I completely despise the censorship culture at the big tech companies, I also recognize that the day will come, hopefully very soon, when Facebook, Youtube, Pinterest, Twitter, etc will no longer be dominant in their fields. History shows us that it is only a matter of time, and sometimes that time involves just a few years, for near-monopolistic companies to be overcome by new technology. I have no idea yet what that will look like, but I would feel extremely confident that in 10 years these companies will not be dominant in the way they are dominant today. It is ridiculous to think of it now, but just 25 years ago the big concern in the tech world was the monopolistic domination of Novell and IBM. The market changed, and nobody worries about that monopoly anymore. The same thing will happen with Facebook, Google, Youtube, etc.
By the way, there are already forces trying to overcome the social media monopoly. One has been started by Dr. Jordan Peterson and is called Thinkspot. It is still in a beta trial, but you can sign up to get on the waiting list to become a beta tester here:
https://www.ts.today
My bet is that thinkspot will eventually get tens or hundreds of thousands of users, not the hundreds of millions on Facebook. But one way or another, I am absolutely certain that Facebook’s dominance will be destroyed by the marketplace, not government regulation.
Indeed. Technology continues to advance, and the ability to communicate and disseminate information continues to advance, and balkanize. Nobody has a monopoly on the internet simply because such a monopoly is technologically impossible. That will change if government intrudes to “protect” something, in almost exactly the AT&T model described in the OP.
Do I trust big companies like Facebook to help me with my online life? No. But I trust government solutions even less.