What government wants to do but cannot, it can require corporations to do for it.
If you’ve read the Parable of the Seasteader, you’ll already know that at sufficient scale the public/private distinction collapses — a private entity of sufficient size can have all the power of a public entity. It is certainly arguable that Facebook and Google have reached such size. Here, however, I want to discuss a different dilemma - government’s use of private entities to regulate freedoms it cannot directly abridge.
We’re going to look at one specific right (the right to free speech) and one specific set of Federal regulations (§ 1604.11) but the pattern I’m describing here has become ubiquitous in our country. Nowadays, almost anything government is forbidden to regulate, it can require corporations to regulate for it. The government has outsourced tyranny. Let’s see how this black magic is performed.
Expression of Viewpoints is Guaranteed to be Free from Government Abridgement, Even if the Viewpoints are Hateful…
The First Amendment to the United States Constitution is a remarkable provision that has, for centuries, protected Americans from the abridgment of their freedom of speech by their government. Even so-called “hate speech” is protected.
The relevant provision states that “Congress shall make no law abridging the freedom of speech.” As written, the guarantee of free speech originally applied only to the federal government. However, the Supreme Court ruled in Gitlow v. New York that the guarantee had been “incorporated” in the Fourteenth Amendment and the guarantee is now applied to all state and local governments as well.
Now, in practice, there are laws regulating speech (you cannot shout “fire” in a crowded theater, and so on), but such regulations are generally “time, place, and manner” restrictions. Our Courts have universally frowned on what is called viewpoint discrimination:
Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.
And, yes, viewpoint discrimination explicitly includes hateful, hostile, and offensive viewpoints. This position was unanimously upheld by the United States Supreme Court in Matal vs. Tam. Justice Samuel Alito wrote:
Speech may not be banned on the ground that it expresses ideas that offend.
The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group… That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint.
Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’
A more explicit statement could not be made. Speech may not be banned for being offensive or hateful. Giving offense is a viewpoint. There is no “hate speech” exception to the First Amendment.
But Expression of Viewpoints is Not Guaranteed Against Private Abridgement
Government cannot regulate your expression of your viewpoint - but corporations can.
Most people understand that the First Amendment does not apply to private actors on their private property. A person or corporation can choose to allow free speech in their home or business, or can choose to regulate free speech, even viewpoints, as they deem. This “exception” to the First Amendment has been the case since the foundation of Anglo-American law, and it is absolutely necessary to protect the rights of property owners.
For instance, if I am running a bicycle shop, I am absolutely permitted to prevent my employees from putting up posters that say “bicycles suck” or telling my customers to “buy a scooter.” Likewise, if I am running a video game news site, I am absolutely permitted to tell my journalists not to write about the beauties of Sistine Chapel instead. And if I invite you to my home to binge-watch Babylon 5, and you express the offensive viewpoint that Star Trek is better, I am altogether within my rights to make you leave.
Admittedly, there have been occasional exceptions to this rule under the so-called state actor doctrine. Most notably, the US Supreme Court ruled in Marsh v Alabama (1946) that the First Amendment fully applied to expressive activities on the company-owned sidewalks and streets of a company-owned town. The precedent of Marsh v Alabama was expanded in Amalgamated Food Employees Union v Logan Valley Plaza (1968) then overturned in Hudgens v NLRB (1976). Since Hudgens, the state actor doctrine has waned in importance, despite numerous conservative efforts to sue online platforms.
We will put aside the so-far toothless Section 230 for a discussion another day. In general, private corporations can regulate the expression of viewpoints, even though government cannot, and that’s the law.
In Fact, Private Abridgment Is Often Required!
What most people don’t understand, however, is that private actor aren’t just free to regulate viewpoint. They are required by government to regulate viewpoints. What a paradox! Government can require a private actor to undertake regulation over speech that the government couldn’t itself take? Yes!
Let’s look at one of many examples. Title 29 of the Code of Federal Regulations covers labor law. Chapter 14 of Title 29 regulates the Equal Employment Opportunity Commission, and Part 1604 of Chapter 14 provides guidelines on discrimination because of sex.
§1604.11 is of particular interest. You can read the entirety of § 1604.11 here. Below I have excerpted just the key points, with emphasis added in italics:
(a) Harassment on the basis of sex is a violation…. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when… such conduct has the… effect of… creating an intimidating, hostile, or offensive working environment.
(e) An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(f) Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under title VII, and developing methods to sensitize all concerned.
Now, scanning the above, there doesn’t seem to be much to be alarmed about. Ending sexual harassment in the workplace has been a noble goal for every developed country. Sadly, noble intent can often result in pernicious outcomes, or, worse, disguise pernicious motives. Let’s simplify the above into even plainer language:
· Sexual harassment is a violation of Federal regulation.
· Sexual harassment occurs when conduct has the effect of creating an intimidating, hostile, or offensive working environment.
· An employer can be held liable for non-employee conduct that it knows or should have known about.
· To avoid liability, the employer should take all steps necessary to stop the offensive conduct.
Now keep the above in mind as we put the pieces together.
Let’s imagine a scenario as follows. A social media company builds a platform to enable users to create discussion groups where they can share links and content - something like Reddit, perhaps. We’ll call it Talkish.
Let’s further imagine that some Talkish users establish a discussion group called “Women Don’t Exist.” On this group, forum trolls post long diatribes explaining why, in their view, the female sex simply doesn’t exist. They’re like Flat Earthers but for an entire sex. Some typical posts:
“If breasts are really part of human anatomy, why do plastic surgeons have to install implants, then, huh?! OWNED.”
“u want me 2 believe u have a vagina? then let me inspect it cuz i have never seen 1 irl and dont think they exist”
Now, it seems self-evident that “women don’t exist” is a ridiculous and ignorant viewpoint that is indefensibly stupid. But, nevertheless, it’s a viewpoint. People are allowed to say things that are ridiculous, ignorant, and indefensibly stupid. Viewpoint discrimination is forbidden by the 1A guarantee of freedom of speech. As we saw in Matal v Tam, a government couldn’t pass a law making this viewpoint illegal.
However, it also seems self-evident that “women don’t exist” is a viewpoint that will cause offense to a great many people, particularly to, well, women.
So let’s imagine that you are the CEO of Talkish. You are a hardcore libertarian who will stop at nothing in your relentless promotion of FREEDOM!!! Every day you look at the wide range of viewpoints on your website in satisfaction and wave your Gadsden flag with pride before saying your prayers over Atlas Shrugged.
Then one day your Vice President of Human Resources comes in with a stern look. “The ‘Women Don’t Exist’ discussion board is generating a lot of offensive content,” she says. “It’s reached the point where journalists are writing about it on other sites. Our employees are sharing lots of upset messages. Two of our female employees were so offended we allow it to be published that they had to take paid time off to process it. We need to take steps to address the situation, or we’ll risk liability.”
Then she runs you through the checklist:
· Sexual harassment occurs when conduct has the effect of creating an intimidating, hostile, or offensive working environment. Check!
· An employer can be held liable for non-employee conduct that it knows or should have known about. Check!
· Sexual harassment is a violation of Federal regulation. Check!
· To avoid liability, the employer should take all steps necessary to stop the offensive conduct. Uh-oh!
When she finishes, you realize that if you maintain your support for freedom of speech, your start-up could get sued for millions of dollars. In order to protect Talkish, you need to take “all steps necessary.” Being a rational egoist devoted to the pursuit of profit for free enterprise, you spring into action! You quarantine the group, ban half the users, flag the posts as offensive, and, eventually you delete Women Don’t Exist.
Now, note that I’m assuming you were a libertarian CEO here. You wanted to run a free speech platform. But you couldn’t. The Federal government’s regulations forced you, on pain of significant monetary fines, to abridge the freedom of speech of your users, even though the Federal government itself couldn’t have passed those regulations. Sorcery!
This Is Not Just a Hypothetical, It’s a Trend
The thought experiment above is just a hypothetical, but the fact pattern it describes is real. The potential conflict between employer liability law and freedom of speech has been known for decades.
25 years ago, Eugene Volokh, in “How Harassment Law Restricts Free Speech,” 47 Rutgers I. Rev. 563 (1995) argued that hostile environments law should be limited to face-to-face verbal harassment directed at particular individuals because otherwise it would impinge on freedom. Had Volokh’s view held, we wouldn’t be in this situation. But it didn’t win the day.
J.M. Balkin’s did. In “Free Speech and Hostile Environments,” Columbia Law Review, Vol. 99, No. 8 (Dec., 1999), pp. 2295-2320, Balkin argued in favor of employer liability for hostile environments, even at the cost of free expression. Balkin’s views are now mainstream. Most jurists, certainly all progressive ones, argue that it is a good thing, a just thing, for speech to be regulated by private actors.
And Volokh and Balkin’s debate took place a decade before social media existed. The stakes are much higher now. The leading jurists of our day openly argue that private corporations should be, must be, and are legally and ethically obligated to censor offensive viewpoints. Consider this article at Lawfare:
The ever-increasing centrality of social media as a public space for exercising basic rights is likely to prompt more and more demands that platforms depart from their traditional “hands-off” approach and adopt new human rights-based content moderation policies. Furthermore, once online platforms begin to engage in extensive content moderation, the public may expect them to incur responsibility for harm caused by offensive content that they could and should have blocked. Put differently, nce social media companies have become in practice “arbiters of speech,” including in difficult cases that raise sensitive questions about freedom of expression, there are good reasons to subject their power to moderate content to legal checks and balances.
Put simply: Since our government cannot regulate content for being offensive, private corporations can, should, and must do so!
I chose the First Amendment and sexual harassment law for this example simply because it would be easy to understand for every reader. But §1604.11 is just one of many weapons in the arsenal of censorship.
For instance, Title IX prohibits discrimination on the basis of sex by universities. This law had noble intent, too. But in Feminist Majority Foundation v Hurley, the Fourth Circuit held that the University of Mary Washington could be held liable under Title IX because it permitted its students to post offensive messages on a social messaging platform. The President of UMW argued that the university would have abridged the student’s rights to free expression had it undertaken action. No matter, said the court - not only could UMW have taken action, it was required to do so:
The majority opinion agrees and would hold a public university and its officers liable for an allegedly inadequate response to anonymous messages posted by unknown persons on a third-party social media app unrelated to the university.
Meanwhile, H.R. 1865, the “Allow States and Victims to Fight Online Sex Trafficking Act of 2017” (commonly known as “FOSTA”) holds private platforms liable for other people’s content if it promotes prostitution. That also seems like a good law, but the Electronic Frontier Foundation has pointed out that it inevitably censors the opinions and viewpoints of sex worker advocates that are seeking to help or improve their condition. Again, the same trend: The government can’t make it illegal to advocate for sex worker’s rights - but it can make it illegal for private companies to permit you to advocate for them.
Nor is free speech the only right that is under siege. For instance, in District of Columbia v Heller (2008), the Supreme Court held that the Second Amendment guarantees an individual right to keep and bear arms. In response, according to Cato Institute, gun control advocates have begun efforts to “attack Second Amendment rights through a never‐ending series of lawsuits against manufacturers and retailers of firearms to hold them financially responsible for crimes committed using the weapons they make and sell.” This effort was temporarily stalled by 2005’s Protection of Lawful Commerce in Arms Act, but that law has proven relatively toothless — the Supreme Court decided to permit litigation against Remington for marketing the AR-15.
Already US citizens have a right to say things that no one is able to permit them to say. Now, US citizens will get a right to own firearms that no one is able to manufacture and sell to them.
By such methods, the Bill of Rights can be castrated. Government, instituted to defend our rights, can pretend to be our protector, while ordering its corporatist agents to control us.
Allowing Tyranny to be Outsourced is the Road to Serfdom
This essay has only scratched the surface of a very deep topic. The mechanisms by which tyranny is outsourced are ubiquitous. And it’s not just bypassing the Bill of Rights. Outsourcing of tyranny is used everywhere to bypass the checks and balances placed on our government. Whether it’s accepting control over our currency from the Treasury, offering private mercenaries unconcerned about the laws of war, or monitoring and recording all of your private data, Tyranny Inc. is ready to do the dirty job that government isn’t supposed… but really wants… to do.
One of the most astute points that F.A. Hayek makes in The Road to Serfdom is that socialism and fascism lead to the same place (serfdom) by different means. In socialism, the government controls your labor and capital directly. In fascism, the government controls the corporations, and the corporations control your labor and capital.
What I’ve described above is similar, but broader in scope. The government controls the corporations, and the corporations control you.
Arguably, it’s even worse than that. Arguably the corporations control the government. They then inform the government how they’d like to control you. Then the government dutifully passes the necessary laws, which the corporations use to control you. If you complain to the government, they say that the Bill of Rights doesn’t apply to actions taken by corporations. If you complain to the corporations, they say they’re just following the law laid down by government. It is as sublime as it is evil.
Contemplate this on the Tree of Woe.