Facebook CEO Mark Zuckerberg (AP Photo/Marcio Jose Sanchez, File)
Sen. Lindsey Graham, R-S.C., took over as chairman of the Senate Judiciary Committee this month, which has jurisdiction over federal antitrust law. How will he handle social media giants like Facebook, Google and Twitter, which have become the new restrictive, oppressive robber barons of today?
The problem today is not monopolies charging high prices for essential goods and services like oil and gas. Facebook, Twitter and Google are free. But they are also three of the biggest, richest companies in world history – and, as a result, three of the most powerful.
Facebook founder and CEO Mark Zuckerberg inadvertently revealed today’s problem in a Wall Street Journal editorial published last week, which he mistakenly thought would address the issues. He wrote:
“Another question is whether we leave harmful or divisive content up because it drives engagement. We don’t. People consistently tell us they don’t want to see this content. Advertisers don’t want their brands anywhere near it. The only reason bad content remains is because the people and artificial intelligence system we use to review it are not perfect – not because we have an incentive to ignore it.”
“Harmful or divisive” content is awfully vague and broad for Mark Zuckerberg to have the power to prohibit in public discourse.
To a Protestant, a Catholic sermon can be divisive, if not outright harmful, and vice versa. A standard Muslim sermon can similarly be considered divisive, if not harmful and threatening, to both.
A vigorous defense of the right to keep and bear arms can sound divisive, harmful and threatening to a pacifist. These days, a standard Republican argument for an across the board tax cut can sound divisive to a Democrat. Ditto for a speech calling for a 70 percent tax rate in the ears of a free market Republican. Same for a “wealth” tax.
The wisdom of the ages gave us freedom of speech, embodied in the First Amendment, to deal with these issues. If you disagree with something you hear, your proper response is to exercise your right to explain your viewpoint, not to ban whatever has offended you. As part of the modern public square, Facebook should allow its users to have these debates rather than shut them down.
Who elected Mark Zuckerberg to referee these issues? Nobody.
The wisdom of the ages gave us freedom of speech, embodied in the First Amendment, to deal with these issues. If you disagree with something you hear, your proper response is to exercise your right to explain your viewpoint, not to ban whatever has offended you. As part of the modern public square, Facebook should allow its users to have these debates rather than shut them down.
I am sure Facebook has lots of market research where users tell them they don’t want to see “harmful or divisive” speech. And advertisers I am sure tell them all the time that they don’t want their ads anywhere near such speech.
Then again, Facebook’s artificial intelligence once removed an extensive passage of the Declaration of Independence as hate speech. Everyone should agree that this labeling should be considered a mischaracterization, but everyone should also recognize that these misfires happen on the regular when big tech is in full control.
Some might argue that Facebook is a private company free to do what it wants with speech on its platform, just like any newspaper can refuse any op-ed from anyone whose speech it does not want to support.
That is where properly understood antitrust policy comes in. Breaking up a big company is not the only remedy under antitrust.
If a company has accumulated too much market power, as Facebook has, it can be found guilty of violating antitrust law. The remedy can be a binding federal agreement, known as a consent decree, requiring the company to follow the policy of viewpoint neutrality – that is, to protect the First Amendment by prohibiting the singling out or freezing of one set of opinions and perspectives.
Critics argue that antitrust action would be ineffective, but as a veteran of the Senate Judiciary Committee, Lindsey Graham should know this isn’t true. Consent decrees almost always work spectacularly in fumigating abusive tendencies.
All consent decrees do is establish rules of the road that must be adhered to, leaving private organizations alone except in the cases where they ignore these federal agreements. In these instances, the courts typically intervene swiftly and effectively, imposing hefty financial penalties that disincentivize the bad behavior from occurring again.
For example, the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI), two companies which hold a duopoly over the music performance licensing industry, agreed to federal consent decrees back in 1941. In 2016, the Justice Department completed a periodic review of them and rightly determined they should be kept in place undisturbed because of how effective they have been at regulating these companies’ behavior.
While these music behemoths have occasionally acted up over the last seven decades, they have mostly behaved out of fear of being slapped with million-dollar-plus fines for noncompliance. These decrees have been tremendous at stopping ASCAP and BMI’s exploitative instincts and will remain successful for as long as the DOJ allows them to remain in place.
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Creating consent decrees mandating an adherence to viewpoint neutrality would be the most appropriate remedy for Facebook, Google, and even the less menacing Twitter. No serious advocate of limited government believes that the government needs to immediately break up private companies by force. But protecting free markets and free speech requires agreements in place that stipulate what’s acceptable and unacceptable behavior.
Antitrust consent decrees can get the job done here just as they have in the music industry for the better part of a century – protecting these businesses’ market share and autonomy, while simply taking a light-handed regulatory approach to police and prohibit predatory behavior.
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