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.