I guess it is time for our annual reminder. There is a big difference between what government can do to citizens and what citizens can do to each other. In fact, this is perhaps the key idea running through all of constitutional law.
Last year at this time, I wrote:
What this means is that the First Amendment will have no bearing on, for example, how Facebook punishes or regulates the speech of its users, or how Walmart punishes or regulates the speech of its employees. In fact, if Facebook or Walmart want to take a political stand on an issue and censor users or employees that disagree, the government and the courts typically cannot intervene because that would infringe the free speech rights of Facebook or Walmart.
Let's remember this: Facebook sells a product. The product is your speech. If it doesn't like the product you are making for it, it can reject it, and
deplatform you, or anyone it wants, for any reason or no reason at all. It owes you no explanations for any of these basic business decisions.
Do I like this? Not really. I personally think it worth considering whether our major platforms should be truly public. The government could operate social platforms like a utility. You want to end censorship and preserve free speech on the internet? The only way really is to put the government in charge. Then censorship will be restricted by constitutional principles and subject to court oversight to safeguard our freedoms. Otherwise
free speech will actually mean the freedom of the owners of the platforms and portals of the internet to completely control its content.
This is the basic intellectual emptiness at the heart of libertarianism. Freedom as we usually understand it - lived freedom - requires the affirmative creation of public
spaces and the means for the exercise of freedom. And that means that either government must heavily regulate private enterprises that create those spaces, or it must create the spaces itself. Otherwise, the only freedom will be the freedom of the owners of real and virtual spaces to crush and control the opposition.
Which I guess everybody is cool with when they are in charge. But guess what, friends... there's always somebody bigger than you out there. Maybe we shouldn't be so quick to assume that government is the bad guy. Government can at least be reined in with our robust public oversight institutions. And sometimes it is our only chance to create any playing field at all, let alone a level one.
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