The Government Alone, Not Private Companies, Should Regulate Free Speech

I feel that in 2019, when the Times Square ball drop was in honor of “protecting journalists,” we’re going to be hearing a lot about the deleterious effects of “fake news.” I suspect that people like California Democrat Rep. Ted Lieu are going to be heard from a lot on certain news outlets.
Lieu, on CNN a few weeks ago, said “I would love to be able to regulate the content of speech.” But “the First Amendment prevents me of doing so,” he complained, before finally admitting “over the long run, it’s better that government does not regulate the content of speech.” Then he urged private companies to “regulate better themselves.”
This effectively gives carte blanche to large companies in the (social) media and communications business to stifle speech they believe is harmful in some way. Let me take the opposite position from Rep. Lieu here. I believe the government should be the regulator of free speech, and should be the only regulator thereof. In fact, I believe the government should restrain private companies from being their own arbiters of what they consider to be harmful.
Follow me here for a bit.
The government already regulates free speech. The First Amendment protects private citizens and corporate citizens from government interference with free speech. But the government does have the authority and responsibility to defend the truth and to punish liars whose lies harm others.
For example: the SEC sued Elon Musk for tweeting, with little evidence, that he intended to, and had financing for taking Tesla Motors, a publicly traded company, private. They had a strong enough position on this to force Musk from his chairman seat on the Board, to extract tens of millions in fines, and for Tesla to agree to some restructuring to prevent this from happening again.
That’s for a single tweet.
The Federal Trade Commission regularly fines companies and prosecutes individuals for making fake or unsupported claims about products and financial schemes. Prosecutors go after corporations and insurance companies for fraud.
What people and companies say in the public square does matter. People are harmed when others lie to them. The government constantly and without challenge regulates this form of free speech.
Now let’s move that model to the political realm. It’s certainly not appropriate for the government to go after then-candidate Donald Trump for suggesting that his opponent, Hillary Clinton, was physically ill. Or to punish him to (as a candidate, and later as president) for him to lead chants of “lock her up.” That’s political invective.
It’s not proper for the government to outlaw skeptics of global warming. But in 2016, California nearly authorized prosecutors to sue fossil fuel companies, among others, who they said have “deceived or misled the public on the risks of climate change.”
State attorneys general have pursued this strategy, subverting others’ rights to voice their own opinions on the degree of risk, the factual basis, and the causes of climate change.
The government has no right to punish free speech, but it does have an obligation to protect citizens from harmful lies, and to protect our right to free speech. But where do we draw the line?
First, we draw the line that the government should not outsource its responsibility to private companies, or to anyone else. Putting the onus on Facebook or Google or Disney to police “fake news” is far worse than the government overstepping its bounds.
Our republic includes safeguards against government tyranny: we elect our executives and legislators. We can impeach and sometimes recall those officials. We (the people) elect, appoint, or otherwise approve judges (depending on state or federal jurisdiction). But who gets to elect Facebook’s executives? Who gets to decide who’s on Google’s board? Who gets to determine if Disney can buy another studio?
Yes, sometimes the government gets to determine if a private or corporate merger is in the public’s interest. But that’s always in the narrow context of preventing damaging monopolies. Nowhere does the government get to decide whether two companies joining together is simply a bad idea because someone will win and someone else will lose.
This is the problem with private companies self-policing free speech. Those companies inevitably act in their own best interests, or in their executives worldview. As long as Howard Schultz ran Starbucks, he could tell investors where to stick it if they didn’t like his politics. But we had no voice in when he left. There’s little difference in that decision and how Facebook, Google, Apple, Twitter, or Amazon–or the Washington Post for that matter, owned by Jeff Bezos, who also owns Amazon–deal with their considerable public power to suppress free speech.
Yes, they are private companies. Yes, they can do as they like. If Amazon says they’ll no longer allow anyone who has ever purchased a gun to sell on their platform, we cannot stop them through government power. If Twitter says they will ban or mute any user who won’t properly address transgender individuals by their preferred pronoun, government cannot force them to stop.
But if private companies promote lies that harm others, or systematically engage in strategies to subvert or induce government to abridge free speech, then I do thing the government has a duty to deal with them.
And if government, as Ted Lieu suggests, transfers its responsibility to those very companies, then government has rendered itself–and us–powerless to counter actual and damaging lies.
When sports organizations force young women to compete with biological men, that’s harmful. When universities force those accused without evidence of sexual crimes to prove their innocence without due process, that’s harmful. When foreign nations pump wholly fabricated news through social media, while the companies who publish it profit, that’s harmful.
Should we full-bore regulate Facebook and Twitter? I think that would be a bad idea in the long run. But should we have the government sit back and offer no punishment at all for even egregious and outrageous behavior? Should government allow Google to cherry-pick fact checkers, or to skew Internet search results based on ideology without any penalty?
I say no.
The First Amendment guarantees free speech to citizens. It also gives the government a special responsibility to preserve that right from being taken away by others. Otherwise, we might find ourselves censored day by day, by our own phones, or our government subject to tyranny by proxy.
I’d rather have the government do stupid things that can be repealed than have government do nothing while others do evil things. Ideally, I’d rather have government do nothing while we all do the right thing.
As James Madison wrote in Federalist 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
First, government must be enabled to control the governed. It must not give up that responsibility.

About the author

Steve Berman

The old Steve cared about money, prestige, and power. Then Christ found me. All at once things changed. But the Holy Spirit produces this kind of fruit in our lives: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control. There is no law against these things!

I spent 30 years in business. Now I write and edit. But mostly I love. I have a wife and 2 kids and a dog and we live in a little house in central Georgia.

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