End Social Media's Political Discrimination | Opinion

At dawn on January 8, 2021—a Friday—one of Twitter's few competitors, Parler, faced a problem that bedevils all social media upstarts. It needed many users active all at once to be interesting. But it wasn't interesting. So few users engaged. Fortune turned by afternoon: Twitter banned President Donald Trump. As if set off by a starter pistol, hundreds of thousands of Trump-supporting Twitterers signed up for Parler. Right away, downloads of Parler's app multiplied tenfold. Parler, founded by a Trump donor, had surmounted the start-up's curse: it became interesting.

Twitter's stock crashed by more than 12 percent in heavy trading the following Monday. What the internet gives, the internet takes away.

And what Amazon gives, Amazon takes away. Parler ran on Amazon's web servers, and before markets closed that Monday, Amazon killed Parler. By the time the social media platform could get back online weeks later, it was too late. Enthusiasm had waned. The curse returned.

Amazon deflected blame. It claimed that it killed Parler because of app users' alleged involvement in the January 6 Capitol protest. Yet those charged in the protest used Facebook far more than Parler. And no one took Twitter offline when, during the campaign, it let a major leftist group plan a 50-day "siege" of the White House—in the very city that was boarding up for fear of left-wing riots in the event Trump won. Leftists had been rioting all summer at protests put on by Black Lives Matter. Amazon didn't kill BLM. It gave it money.

Amazon killed Parler for another reason. The artificial aristocracy has well-documented and rather profound fears. One is that liberals and Trumpists will work together to pass laws it doesn't want and cannot stop. So social media algorithms feed liberals mendacious bile that makes sure they hate Trumpists too much to work with them on anything. Amazon killed Parler to keep the machine going.

Consider George Floyd. In May of 2020, a video of Floyd's death began trending on Twitter about 12 hours after it took place. About a day later, Floyd began trending on CNN.com. He became CNN's top story only after trending on Twitter for nearly three days straight.

Videos of policemen fighting citizens show up on Twitter all the time. They fizzle out. Just last month, a video hit Twitter of a white man dying the same way as Floyd—high on methamphetamine, pinned by policemen and screaming "I can't breathe." Few cared.

Social media apps
In this photo illustration the logo of US online social media and social networking service Facebook (C), the US instant messaging software Whatsapp's logo (L) and the US social network Instagram's logo (C) are displayed on a smartphone screen on October 05, 2021 in Glastonbury, England. Last night social media services including Facebook, Instagram and WhatsApp were hit by a massive outage impacting potentially tens of millions of users. Getty Images

But Floyd was black and May of 2020 was campaign season. Joe Biden lacked enthusiastic support. Meanwhile, President Trump threatened Twitter with federal regulation in an executive order. By stoking left-wing outrage online, social media platforms could get Biden's voting bloc fired up and terrified of Trumpists again.

What trends on Twitter gets picked by Twitter. It's foolish to think the site runs on a neutral, self-balancing algorithm. No such thing exists.

Twitter and Amazon are servants of the same frightened aristocracy. Twitter employees' money went to Biden over Trump 64 to one. Amazon money goes to Democratic Party honchos in Washington, D.C., to fight Amazon workers in Staten Island trying to unionize. This aristocracy runs a rigged horserace on a rickety horse. Its jockey's sharpest whip is political discrimination.

But there is a solution. State courts or state legislatures should clarify that victims of political discrimination may always sue for breach of the contractual covenant of good faith. The covenant of good faith is like an automatic good-faith clause added by law to every contact. If, for example, a grocer agrees to ship "five melons of his choosing," the covenant implicitly says that he cannot choose five spoiled melons.

Whatever melons the grocer chooses, if he chooses certain ones just for Trumpists, he should pay for whatever damages his discrimination unfairly causes. So should Twitter, if it chooses stories to trend, and Amazon, if it chooses sites to kill, just to hurt Trumpists. This protection should be retroactive and non-waivable.

Even the notorious Section 230, a federal law saying that tech giants cannot be held liable for kicking "objectionable" content off their platforms, qualifies that such decisions must be made "in good faith." Though that law says nothing about what counts as "good faith," state law can supply a definition. The new rule should have limits, of course. It should apply only to political discrimination—that is, discrimination retaliating against behavior protected by the Constitution. It should also require only large companies to pay for unavoidable damages. Anyone should be free to stop doing business with anyone else—eventually, but sometimes not immediately. A huge company like Amazon should not be free to kill a startup like Parler before it has a chance to get started on new servers.

Finally, the rule must not require anyone to burden his own constitutional interests. Amazon and Twitter should be free to criticize Parler all they want in their own speech, just as anyone should be free to follow his own religious conscience.

Any American ought to be able to do whatever he pleases—except when his acts cause problems for others that others cannot easily manage on their own. That's exactly what corporate political bigots do. It's time to free America from their misrule.

Sean Ross Callaghan is an attorney, a tech entrepreneur, and a onetime federal law clerk.

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