Traditionally, conservatives look to free markets to provide for human needs. They place a great deal of trust in decentralized knowledge, private property, and the incentives for profit. Those on the left typically put more faith in experts and their centralized government solutions. Accordingly, calls from the left for more political control over so-called “Big Tech” are unsurprising, but it is far more surprising to hear the political right clamor to regulate business practices and the flow of information across private networks. This constitutes a crisis of confidence in markets’ ability to solve problems.
In today’s debate, there is also a pervasive tendency to conflate antitrust policy questions with content moderation issues. Recently introduced legislation highlights both the distinctness of the two concerns, and the way that they tend to bleed into each other. The American Online Innovation and Choice Act is at the heart of the effort to rein in Big Tech with expanded antitrust efforts. But the bill stalled in the U.S. Senate, in part because of what it might inadvertently mean for content moderation online. It seems that nearly every conversation about antitrust efforts aimed at Big Tech inevitably turns to criticisms of those firms’ content moderation decisions. Even though antitrust and content moderation are distinct policy questions, the issues have become hopelessly intertwined in the minds of many Americans.
For the antitrust portion of the debate, it should suffice to say that all the same principles conservatives would apply to any regulatory intervention should apply to these tech companies, too. From Isabel Patterson to Frederick Hayek, Judge Bork and eventually Milton Friedman, writing in 1999 that he had, “gradually come to the conclusion that antitrust laws do far more harm than good and that we would be better off if we didn’t have them at all, if we could get rid of them.” It’s mostly a settled matter that conservatives have been, to varying extents, antitrust skeptics. After all, economic liberty is a hallmark of a free society and this remains true with Big Tech. Innovating new business arrangements, including those stemming from two-sided markets or the rise of digital platforms, are essential to progress and prosperity.
Accordingly, present-day criticism of tech companies from the right is rarely spurred by reduced output, artificially higher prices, lack of innovation, or monopoly market shares. This suggests that those calls to punish Big Tech with competition regulation is about something besides typical antitrust concerns. Indeed, when you ask otherwise-conservative advocates of antitrust regulation against tech companies, it usually turns quickly to the alleged political bias of online platforms.
Antitrust was the tool many on the right grabbed for in their groping effort to address perceived discrimination against conservative content online. In the panic to preserve right-leaning third-party material on social media platforms, some conservatives have lost their faith in markets, forgotten their first principles, and turned a blind eye to the empirical evidence of past regulatory failure.
Advocates of free markets know how to defend Constitutional principles and the free market when the property is tangible and the markets are familiar. But we have faltered when property becomes long and skinny, as evidenced by years of muddled common carrier regulation in telecom, electrical grids, and rail. Government-granted exclusive franchises to electric utilities kept customers captive to one firm and made vast swaths of infrastructure obsolete—thus dampening the prospects for consumer choice, competitive innovation, and lower consumer costs. Common carrier status of telephone infrastructure produced extensive, distorting subsidies into the regulatory system that burdened taxpayers and benefited AT&T. Similarly, with freight rail, former Interstate Commerce Commission member and economist Marcus Alexis describes the shape that regulations took as “a classic in terms of the pursuit of economic interests, or rent-seeking behavior.”
And now, when the property is digital and the market arrangements are novel, some conservatives have completely lost the thread of carrying private property principles into the future.
Nowhere is this deficiency more pronounced than in calls for government regulation of “free speech” online. Panic that conservative thought will cease to exist without the coerced cooperation of Facebook and YouTube has short-circuited the brains of many who would be very wary of government intrusion in other economic areas. They seem to care little for process and instead are willing to sacrifice well-established principles of limited government to use whatever regulatory means necessary to achieve their desired result, including turning private networks into quasi-government common carriers. Suggestions of eventual market solutions are often met with something akin to, “in the long run, we’re all dead.” Conservatives could be cheered by Elon Musk’s purchase of Twitter, the rise of Truth Social, and the potential for the next generation of social media to be decentralized with content moderation in the hands of end users, but nothing seems to damper the enthusiasm for government intervention.
The seemingly bipartisan nature of calls to regulate content moderation online makes it necessary to briefly address those coming from the left. As mentioned above, the political left is fundamentally distrustful of markets and prefers top-down government control, so their enthusiasm for regulating speech online is unsurprising. It’s also no surprise that their regulatory goals differ from the right’s in that progressives seek the removal of more content they deem “dangerous misinformation.” But a citizenry gifted with the inalienable right to vote does not need government to tell them what is and is not true. To imply otherwise has troubling implications for a healthy republic. In a free society, the individual is the only proper arbiter of speech.
Few on the political right would deny the foolishness of certain content moderation decisions, and reasonable people can disagree on the merits of the broader content moderation policies at the biggest American tech companies. But it shouldn’t necessarily follow for conservatives that government intervention is the best solution. Advocates of capitalism do not claim that problems don’t exist in markets, only that problems are most efficiently solved by market forces. By letting market reactions emerge tomorrow in reaction to dissatisfactory outcomes today, free-enterprise principles are preserved and future corrections and improvements can be expected. This is not so with regulatory interventions that often inadvertently freeze market circumstances in place in order to control them.
The correct response to objectionable content moderation is not government policies that prohibit any and all content moderation by privately owned platforms. That is the approach of the laws passed in Florida and Texas, which may not survive constitutional challenges at the Supreme Court. The goal of this approach is to curb conservative content removal, but it inadvertently tramples the private property and First Amendment rights of social media platforms.
The practical implementation of these ‘common carrier’ style regulations will bring about harmful unintended consequences. To destroy or curtail a private property owner’s right to remove content it finds objectionable, for whatever reason, is to guarantee more unsavory content remains. The user experience will certainly be degraded by what’s called, ‘lawful, but awful’ material. This may include violent, racist, anti-Semitic, or pornographic content. It will almost surely include annoying spam and junk. As a parallel, one might not be injured by all the bad art at a museum if curating the shown collection was made illegal, but it might make it a sufficiently unpleasant experience that you wouldn’t bother going at all. That could be the same conclusion people come to on platforms unable to curate the user experience. That’s a death sentence for a social media ecosystem powered by eyeballs and the resulting advertising revenues.
The First Amendment protects us all (corporations included) from the government infringing on our right to speak. It does not guarantee anyone’s right to speak on another’s private property or for someone to carry another’s speech if they do not wish to do so. The United States government cannot jail me for expressing my opinion, but neither can they force my neighbor to let me host a political rally in his home without his permission. The government cannot deprive me of my free speech because I am saying lewd things, but it also must allow Disneyland to kick me out of its theme parks if I start screaming profanities in line for the Matterhorn. Forcing speech to be carried by private online platforms that don’t wish to do so, for whatever reason, is a violation of freedom of expression.
No matter how much one might disagree with the individual moderation decisions themselves, it is fundamentally unprincipled to ignore or deny the Constitutional rights that allow those decisions by private actors.
Similarly, the answer is not government-certified neutrality of content moderation in order for platforms to keep legal liability protections essential to their business models. This approach was introduced by Republican U.S. Senator Josh Hawley in his Ending Support for Internet Censorship Act. It would require platforms to prove they’ve been neutral in moderating political content on their sites in order to retain the legal liability shield known as Section 230. Government sanctioning of speech is the dead opposite of the text of the First Amendment: “Congress shall make no law…abridging the freedom of speech.”
And with good reason. It is impossible to establish objective criteria for the government to use in evaluating “fairness.” One man’s conspiracy theory is another man’s healthy skepticism; one person’s bullying is another’s humor; one woman’s high art is another’s pornography; and a journalist’s documenting of injustice is unacceptably violent content to a sensitive soul. The commitment to protecting nonconformist expression is a mark of an open society, but what reason is there to believe that government agents will be those protectors? FTC commissioners have no superhuman ability to be objective. Shifting control from the marketplace of ideas to the political elites would be a regression to a pre-Enlightenment time when kings, oligarchs, or those with administrative authority decided what was up for debate and when the debate was over.
And there is little justification to be found in accusations of “monopoly power” for this curtailing of rights. Facebook, YouTube, and the rest are not monopolies of speech or property. They all face competitive threats from other firms. Those competing or nascent firms stand ready to offer different content moderation policies, providing an alternative for consumers and a competitive advantage for themselves. Just this year, Facebook dropped below the market cap value minimum for covered platforms in the leading legislative antitrust proposal. TikTok is the fastest-growing social media app, passing Instagram, YouTube, Twitter, and Facebook in its rate of adoption. Those shifts are not indicative of a market controlled by a monopolist.
Furthermore, these social media platforms are built on top of all the sources of information that existed before them. The reach of the biggest digital communities is undoubtedly large, but newspapers, talk radio broadcasts and remote and in-person lectures, cable and broadcast television news, magazines, and books all provide alternative information flows. All of that sits alongside those entities’ own websites, blogs, and email newsletters (Substack most prominent among them), news aggregation sites like Reddit, digital-native news outlets and whatever is next to be built online. Particularly promising are the still-embryonic decentralized social media platforms with their potential to give individual users more control over what content they see.
Unlike these value-generating, voluntary market solutions to the challenges of content moderation, government regulation to preserve and disseminate conservative speech online involves sacrificing core conservative principles. Conservatives know that liberty expands and societies prosper when property rights, free speech, and the personal incentives of free markets are protected by government institutions. We also know what happens when governments overstep those bounds in violation of first principles and seek instead to produce a certain outcome. It is rarely a success and never one without harmful, unintended consequences. Regulating the business decisions, private property or free speech rights of tech companies would be no different.