Backlash Against Big Tech was a Long Time Coming | Opinion

Last week, social media websites prevented users from sharing a bombshell report from the New York Post outlining how the son of Democratic presidential nominee Joe Biden had personally enriched himself by connecting international interests to the Obama administration. The Post had obtained details about Hunter Biden's business dealings with a Ukrainian energy firm, as well as a library of images depicting his controversial lifestyle and substance abuse, from a computer repair center in Delaware.

In subsequent stories, the public learned of additional credible allegations about Hunter Biden, including that he used his family connections to arrange meetings for Chinese Communist Party officials and business associates with the Obama administration, which his father, then the vice president, attended. All of these demonstrate the very real benefit Hunter Biden, and possibly his father, derived from the political access he enjoyed. As the country approaches election day, such corruption is important for the American voter to consider, especially as Joe Biden pursues the presidency.

Unfortunately, the mainstream media don't seem to agree. Following the publication of the New York Post story, they worked overtime to insist that it could be Russian disinformation for the purposes of election meddling—a claim the FBI and DNI have both fervently denied. Media figures also insisted that Joe Biden's fatherly response to his son's persistent addiction issues made him likable and relatable, especially as America continues to grapple with an opioid epidemic.

But big tech, particularly Twitter and Facebook, took things a step further, deciding to ban sharing the story altogether. Twitter suspended and blocked the accounts of those who tweeted links to the New York Post exposé, even limiting the ability of the users they'd reprimanded to distribute the story via direct message. When called out for their censorship, the outlets didn't dispute the veracity of the Post's reporting. Instead, they said the outlet obtained the content illegally, not apologizing for censoring public discourse on an important issue but lamenting they had done a poor job explaining why they had done so.

Never mind that Hunter Biden's refusal to pick up his laptop after repair transferred legal ownership to the computer store, making it the proprietor's own property to do with as he saw fit. The notion that social media outlets like Facebook and Twitter suddenly cared about the legality of the origin of information is laughable.

Just a few weeks ago, both platforms hosted a huge number of social media posts concerning the New York Times' report on President Trump's tax returns—confidential legal documents that had been obtained illegally. They also saw no problem in circulating covertly recorded audio of Melania Trump's private conversation with a then-employee in which the first lady expressed frustration about her treatment by the media. Both stories easily went viral, dominating mainstream news coverage thanks to their ubiquity on social media. Thus, Facebook and Twitter's sudden propensity for defending information integrity seems politically convenient and contrived.

Jack Dorsey
Twitter CEO and co-founder Jack Dorsey gestures while interacting with students at the Indian Institute of Technology (IIT) in New Delhi on November 12, 2018. Prakash Singh/AFP/Getty

It's also par for the course for those two social media sites, whose progressive bona fides are well documented and well understood by the public. When they aren't stopping the spread of information disadvantageous to the left, they're employing dubious "fact checks" to undermine legitimate news coverage by slapping disclaimers on stories that don't fit their left-wing narrative.

Even making factual statements contrary to the whims of progressive activists can result in censorship on social media. The website I run, Legal Insurrection, discovered this first hand when we posted about arsonists causing the recent Australia wildfires—wildfires that were exacerbated by long-term failures in land management. Our statement was demonstrably true—24 people were arrested for starting the fires—but that didn't stop Facebook from marking our story, which was largely a reprint of news covered in mainstream outlets, as "false information." Their rationale? A Facebook fact checker said we should have included climate change as a factor contributing to the intensity of the blazes.

Alarmingly, the facts don't matter to the social media behemoths. Since their companies are non-governmental, social media platforms claim to enjoy discretion to police speech, no matter how true or valuable, as they see fit. Meanwhile, the courts have ruled that for the most part such companies are not responsible for content that users post. These conditions have allowed social media platforms to thrive, unconstrained by legal liability, while enjoying broad latitude to suppress the speech of their users. With mounting pressure from the liberal media to silence conservative speech, social media platforms have only begun to ramp up repression.

For a long time, they've been successful. But a growing contingent of lawmakers and public figures are calling for governmental action to thwart what they say are active assaults upon the freedom of speech. In response to the blatant censorship of the Hunter Biden story, several Republican lawmakers, including Senate Judiciary Committee chairman Lindsey Graham, vowed to investigate these companies' practices, with Texas senator Ted Cruz calling it "election interference" and promising to subpoena prominent social media platform executives. Meanwhile, Federal Communications Commission chairman Ajit Pai also announced he will advance an FCC rule clarification to clean up ambiguities in Section 230, which governs how internet-based platforms are treated under the law.

It is certainly encouraging that people with power are considering thoughtful, lawful ways of addressing the unintended consequences of Section 230—a statute once meant to absolve internet service providers of liability associated with how their utility was used, but that now gives social media companies carte blanche to censor speech they find politically disagreeable. The chilling effect it has imposed on free speech is unmistakable, intimidating those who hold views they fear could result in exclusion from the social networking they use to maintain personal relationships and professional contacts. So they cower in silence, afraid of both the online mob that carries out missions for the cancel culture and the platforms that are complicit in the bully tactics.

As a free market advocate, my strong preference would have been for public pressure to convince these companies to change their behavior. Unfortunately, public pressure from the people censored—conservatives—only made these companies dig in their heels. Self-correction does not appear likely. Moreover, as these sites control more of the digital frontier, it is harder for competitors to have a shot.

The social media oligopolies appear to believe they can act with impunity. The public and now government backlash may end up destroying their business models, and they will have no one but themselves to blame.

William A. Jacobson is a Clinical Professor of Law at Cornell Law School, as well as the founder of Legal Insurrection Foundation.

The views expressed in this article are the writer's own.