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Regulating Facebook or Twitter is a Constitutionally Unsound and Short-Sighted Policy

Here is the real slippery slope. All the major news outlets post on Facebook. If the government starts regulating Facebook or Twitter, what's to stop them from deciding that a Fox News story is not real, but an ABC News story is? Nothing. I'd rather have Facebook carry that burden, and let the market decide where they want to get their news.

Remember Prodigy? Compuserve? Decades ago, they were competitors for your news/social media/Internet access. Remember AOL? Back in the screaming 1990’s, when dial-up modems ruled, AOL was a god. When Verizon bought the picked-over bones of AOL in 2015, not so much remained.

In just 20 years, AOL went from king-of-the-heap, with 23.2 million subscribers and 64 percent of the market, to essentially zero. Contrast this with Facebook, which sports 2.3 billion (with a “b”) users as of the end of Q1 2019. However, Facebook’s growth has been rather flat of late, growing only 8 percent since Q1 2018, versus 22 percent since 2017.

What’s more, as a free service, where the users are the fungible product being sold to advertisers, one report claims up to 50 percent of Facebook monthly active users could be fake accounts. With AOL, essentially all of its users were paid, real people.

In the end, Facebook is nothing more than a website–a destination on the World Wide Web, like Twitter, or the New York Times. The fact that Facebook pays advertisers and gathers exabytes of data from websites that run its analytics package makes it more than just a destination, however.

Facebook has taken it upon itself to ban certain users it deems “dangerous” in the sense that they are somewhat popular figures with social media presence on Facebook’s site that promote conspiracy theories and various other garbage that some of Facebook’s other users eat up with relish, and sometimes act upon.

Surely this should be illegal, some argue. Kevin Williamson brought up the “slippery slope” argument writing in the New York Post.

Why should people with unpopular political views be allowed to have jobs?

Why should we sell them houses or rent them apartments?

Why provide them with medical care? A medical practice is a private business, too.

True, there are laws protecting people from discrimination on the basis of various factors, when buying homes, renting apartments, or using health services. Should there be laws preventing discrimination on online platforms?

In short: No.

See, property, medical care, and employment are supply-limited items. And where you live really doesn’t affect thousands of other people (unless you host giant rave parties or build a 50,000-light Christmas display, in which case your homeowner covenants or landlord rental contract governs). In dealing with supply-limited items, it’s in the government’s interest to promote fairness as much as possible, to prevent class discrimination.

But when your product is words on a website? When your product is delivering clicks, views, and analytics for money? Where’s the supply limit? Where’s the unfairness of limiting someone with whom the website doesn’t agree?

Sure, if Alex Jones or other banned people suffered economic harm because they’ve been collecting money using Facebook’s platform, and Facebook unceremoniously and without warning cut them off, they could sue. But that’s a civil matter for lawyers and a jury to decide.

Facebook is a private company and can in fact do as it pleases with its users. There is no slippery slope between limiting someone’s Facebook access and denying them a cell phone or medical care. There is, however a slippery slope for government to step in and regulate social media as a “fair playing field.”

First, it’s incredibly short-sighted. As I mentioned above, in just 20 years, AOL went from first to worst. They didn’t maintain their market advantage because others (like Facebook and Google) managed to ride a new wave of technology that leverages high-bandwidth last-mile services and the introduction of the iPhone and other smartphones.

Who knows what will rule 20 years from now? I don’t know, and you don’t either. I can tell you this, however: whatever social media that exists in 20 years will likely have much more robust protection against fake accounts, and accounts set up for the sole purpose of promoting made-up news items. That landscape might include different pricing models, economic models, and technology. Either Facebook (and Twitter, Snapchat, et. al.) will keep up, or they’ll lose their market.

But if we regulate today, we are spraying government super-glue all over the market’s Lego pieces, and freezing things exactly the way they are. We will end up with Leviathan Facebook and Twitter and Google, and will have built a giant moat around them.

In fact, this is what Facebook would prefer.

Meanwhile, if the government instituted new rules for tech platforms collecting persona information going forward, it could effectively lock in Facebook’s lead in the data race. If it becomes more cumbersome to gather this kind of data, no competitor might ever amass an index of psychographic profiles and social graphs able to rival Facebook’s.

Regulation could protect Facebook, not punish it, TechCrunch, March 25, 2018

Second, this goes counter to the First Amendment, and the founding fathers were, if nothing else, long-view thinkers. They weren’t thinking about simple printing presses, horseback and muzzle-loading muskets when they wrote the Constitution and the Bill of Rights. They were thinking about an America they couldn’t imagine, but understood that the rights of citizens and obligations of government would not change over time.

The First Amendment guarantees free speech, unimpeded by the government. The government is constrained, at all levels, from abridging the freedom of speech, or of the press. This means the government can’t shut down a media website simply because the government disagrees with its message. Even if the message is a lie.

Regulating Facebook is giving a corporation, that is protected by the First Amendment in that it can promote or prevent whatever speech it wants, the imprimatur of government to engage in approved censorship. This has nothing to do with government indecency laws for television stations and networks. Again: transmission frequencies used by television and radio stations, and cellular providers, are a supply-limited asset of the federal government. Keeping the public free from harmful images or fraud is a valid government interest.

Keeping a website from sharing fraudulent opinions of others, apart from regulating trade or combatting sales of illegal items, is not anywhere near the government’s purview.

Facebook (or Twitter) can ban whomever it wants, and the government (and the President, mind you) should be silent on it. If users want to select a different website to use, they should be free do vote with their keyboards and touchscreens. The fact that Facebook is a Silicon Valley Giant™️ is irrelevant. Giants fall.

I happen to agree with Kevin Williamson that Mark Zuckerberg’s “hate ban” is mostly virtue signaling. But I also know that Facebook takes great pains to fight actual attacks upon our national psyche via online manipulation. They fight it worldwide, to the extent they are allowed by foreign governments. Facebook removes millions of fake accounts every hour. They are trying.

But when a platform like Alex Jones Infowars is followed by genuine real people who believe his weird (“gay frogs?”) material, what can Facebook do? They can either put up with it (like they did for years), or cut it off. They chose to cut it off, which is their right and privilege.

Sites like 8chan and gab are filled with radicals, white supremacists and anti-Semites. Facebook has banned these groups, along with black separatists and other shameful idiots. Fine, I agree with it. I also believe the police should be combing sites that give anonymous access to people who sometimes end up committing heinous hate crimes and murders. And they in fact do. But sometimes, it’s not enough.

Just like government agents could track down seditious material printed from underground printing presses, or propaganda films distributed by foreign governments, they can also track down the Internet Agency. That’s what counterintelligence is for. But we don’t gain anything when the government gets to decide what is, and what isn’t, “real news.”

As much as I abhor the information war being waged against Americans and our interests using social media, it’s not necessarily any worse than the headline-bending and race-to-be-first inaccuracies reported in the mainstream media every day. Just look at how much of the media reports on Israel, and tell me it’s not worse than a James Woods tweet.

Here is the real slippery slope. All the major news outlets post on Facebook. If the government starts regulating Facebook or Twitter, what’s to stop them from deciding that a Fox News story is not real, but an ABC News story is? Nothing. I’d rather have Facebook carry that burden, and let the market decide where they want to get their news.

If conservatives find our voices are unfairly deplatformed and muted or silenced from existing social media sites, then we should raise up other social media sites to be heard. If a conservative or Christian organization is overly-dependent on Facebook or Twitter for their messaging and financing, then they have placed themselves on very shaky ground. They know these Silicon Valley companies lean far-left and should not trust their fate to those who disagree with their worldview.

Sorry, but it’s not a fair world when words, popularity, celebrity, or personal appearance are your currency. But it can only be made more unfair when the government shoves in its iron-gauntleted fist attempting to make it fair.

In 20 years, none of this will matter if we let technology and competition do its thing. But if we’re shortsighted and willing to subvert constitutional rights, then we can really screw things up.


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