Justice Thomas Echoes SWP, But Alas Our Proposals Regarding Tech Companies Are Futile In Today’s Corporatist State

Over four years ago, to address social media platforms’ exclusion on the basis of viewpoint (i.e., censorship) I advocated treating them as common carriers subject to a non-discrimination requirement. The thrust of my argument was that these platforms have substantial market power and are subject to weak competitive discipline due to network effects and other technological factors.

In concurring with a Supreme Court decision to deny cert in a case that found Donald Trump violated First Amendment rights by blocking users on Twitter, Justice Clarence Thomas came out strongly in favor of the common carrier approach to regulating Twitter, Facebook, and Google.

Justice Thomas’ reasoning follows mine quite closely:

It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today’s digital platforms, nothing is.

Justice Thomas also notes, as I did, that limiting common carriers’ right to exclude is a longstanding element of the American and British legal systems: “our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers.” To this, somewhat more perfunctorily Justice Thomas adds more modern public accommodation laws as a restriction on business’ ability to exclude. Common carriage is a narrower conception because it generally requires some market power on the part of the company, and for this reason I find it a superior basis for regulating social media companies. But regardless, this is hardly a radical proposal, and is in fact deeply embedded in law dating from a classical liberal–i.e., laissez faire–period.

Thomas notes that imposing such a restriction is up to the legislature. Alas, that’s not likely, especially given the influence the social media and tech companies have on the legislature, and more ominously, the clearly expressed interest of the party in power to use the social media and tech companies to exclude and censor speech by their political opponents–whom I daresay they consider political enemies, and indeed, beyond the pale and deserving of banishment from the public sphere.

The leftist party in power cannot restrict speech directly–that would violate the First Amendment. And this is where Twitter, Facebook, Google, Amazon etc. can be quite useful to the leftist party in power. As private entities, their exclusion of speech from their platforms does not facially violate 1A. So note with care the pressure that leftist legislators are putting on these companies to police speech even more than they do already. These members of the party in power are outsourcing censorship to ostensibly private entities as a way of circumventing the Constitution.

As their previous behavior indicates, moreover, these companies do not necessarily need much prompting. They are ideologically aligned with the party in power, and are implementing much politically-slanted censorship of their own volition.

This symbiosis between the private businesses and the governing party is the essence of the political-economic model of fascism. At times, the relationship looks like an Escher etching. Like this one in particular:

Which hand is the Democratic Party, and which one is Twitter et al? That is, is the Democratic Party driving social media companies, or are social media companies pulling the strings of the Democratic Party?

The answer is both–like in the Escher. And that is the essence of the political-economic model of fascism. Corporations are acting as political actors, and politicians and those in government are using corporations to advance their political agenda. This is true in any political system, but the symbiosis is far, far stronger in fascist ones, and the antagonisms far weaker than in more liberal polities.

And as we’ve seen in recent months, it’s not just social media and tech companies that are involved. Corporate America generally has adopted a leftist political agenda, is advancing this agenda, and is attempting to pressure governments–especially state governments–to do so as well.

The injection of companies like the major airlines–all of them–and Coca Cola into the Georgia (and now Texas) voting law controversies is the most recent example. But entertainment companies–including professional sports as well as Hollywood, music businesses, etc.–are also exerting substantial political muscle.

Corporatism–a strong symbiotic relationship between government and powerful economic entities, especially corporations–is the essence of fascist economic systems. That is exactly what “capitalism” in the United States is today.

In such a system, the public-private dichotomy does not exist, and libertarians/classical liberals who act as if it does are useful idiots for the corporatists.

This model is also a good characterization of the Chinese system, which although is ostensibly communist, has become clearly corporatist/fascist in the post-Deng era. Interestingly, the main struggle today in China is between the state/Party and large corporations that Xi and his minions believe are too powerful and hence too independent of the state. Even in symbiotic relationships, there is a struggle for power–and for control over the rents.

So while I applaud Justice Thomas for advocating legislation to impose common carrier status on tech behemoths, it must be acknowledged that this proposal is naive in the current environment. The mutual interest between the current party in power and corporate interests in advancing political agendas generally, and suppressing speech in particular (in part because it also helps advance those agendas), is so great that such legislation cannot come to pass today. It is doubtful that it would have come to pass even had Trump won reelection. The slide into corporatism/economic fascism has progressed too far to hold out little hope that it can be reversed, absent some social convulsion.

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