The Monopoly Over Freedom of Speech

How Big Tech is Controlling Political Process

Here was the first lesson that I discovered when I shifted my profession from academia to journalism: That most news outlets operate as de facto mouthpieces for political parties. Is this to say that there is no good news source? My answer invariably is that we must read across the political spectrum of news and examine evidence-based stories that present facts instead of focussing our reading time almost entirely to opinion pieces which churn out predictable political sycophantism for the left or the right. Certainly, being published in x or y publication is no indication of any story’s veracity.

Take for instance that to this day Russiagate is still reported by CNN as not only a fact, but it has been recast an eminent factor for the upcoming US election despite this hoax having long been disproven. Indeed, threats from other countries like China which have far more influence on the US election is entirely side-stepped by major media as we are given a circus side-show by centrist and left-leaning media about how Trump is planning to “steal the election” through voter fraud.

Now let’s just bracket these above accusations, even those that have not at all been proven and shift to what is presently happening in the American political sphere. Wednesday, one of the United States’ oldest and largest newspapers, founded at the turn of the 19th century by Alexander Hamilton, published a story whose title was typically sensationalist: “Smoking-gun email reveals how Hunter Biden introduced Ukrainian businessman to VP dad.” After reading the article, it is immediately clear that the “smoking gun” is neither smoking nor is it even a gun. 

Here’s the back story: A bizarre tale of a laptop that Hunter Biden allegedly left for repair in a Delaware with the only identifying key being a sticker from the Beau Biden Foundation affixed to the Macbook Pro revealed a hard drive containing emails that reveal Hunter Biden apparently trading on his father’s political position by securing favours to benefit Burisma, a Ukrainian energy company. Apparently, Burisma paid the younger Biden $50,000 each month to sit on its executive board despite his appalling lack of qualifications. The Biden campaign firmly denies that any such meetings occurred or that any exchange of favours took place. So far, the Hunter Biden and Biden campaign have not denied the authenticity of these emails.

While this news is, in fact, newsworthy, it’s simply not the hopeful mic drop that many on the right have hoped it would be. There is nothing cataclysmic about this story that we have not seen before where favouritism from powerful families affords relatives paid positions that hardly match their qualifications. What is devastating, however, is the fact that Facebook and Twitter have systematically censured the New York Post’s articles on this subject. And for this, we should be all very worried about how Big Tech is not only manipulating the news and its dissemination but how it is now curating the news.

It began just after the Post’s article on Biden was published when New York Times White House correspondent, Maggie Haberman, shared on Twitter the story. Within minutes she was put into the same group as the mythical Russiagaters as she was accused of “helping Trump win.” Eventually, the bullying worked as Haberman stepped away from her initial tweet with George Takei, showing an alarmingly condescending show of “support”: “Now we’re talking! This is the tweet that we needed to see!” Indeed, if only the news were entirely composed of what we need to and want to see.

Two hours after the Post story was online, Facebook stepped in positioning its policy communications director, Andy Stone, to address the Post’s article on Twitter. Stone was formerly a communications operative for Democratic Senator Barbara Boxer and the Democratic Congressional Campaign Committee and he is a former staffer for multiple Democratic PACs. Stone tweeted, “This is part of our standard process to reduce the spread of misinformation. We temporarily reduce distribution pending fact-checker review,” linking to Facebook’s policy about protecting “the democratic process.” 

Where Facebook had “reduced” the distribution of the Post’s article, Twitter went much further by banning the sharing of this article altogether—both on the public platform and private messaging. As New York Post editor Sohrab Ahmari correctly concluded, this is a “Big Tech information coup” and the paradox is that the very articles that decry such a takeover of free speech are themselves at risk of censorship from the public arena. 

And if there ever an instance of Crazy meeting Crazier, it is the fact that the Biden’s campaign expressed support for the Big Tech censorship of the New York Post’s original article with the Biden campaign national press secretary, Jamal Brown, stating that he is “glad to see social media companies like Twitter to limit misinformation.” 

So, let’s recap here. The New York Post publishes an article about what seems to be a form of employment corruption within the Biden family, Big Tech censors the story and the Biden campaign says that the censorship “makes clear that the reported allegations are false” when nothing has in fact been proved false. As writer Jim Rickards tweeted, “Corrupt censorship validates the corruption.”

Shortly after, The Post’s primary Twitter account was locked for allegedly going against Twitter’s rules of “distribution of hacked material.” The company posted on Twitter that their policy “prohibits the use of our service to distribute content obtained without authorization” because they “don’t want to incentivize hacking by allowing Twitter to be used as distribution for possibly illegally obtained materials.” If we are to take Twitter’s policy from 2018 seriously, then the end result would be the mass removal from its platform large swathes of investigative journalism which the current Assange trial demonstrates. If we did not have access to “content obtained without authorization,” then we would rarely be able to publish stories about subjects that have used legal manoeuvres such as the technological burying of information.

To add insult to injury, after the pushback on Twitter started against the media giant’s banning of the Post article, Twitter locked the Post’s Twitter account for 24 hours until yesterday morning when the Post ran a follow-up piece, “Emails reveal how Hunter Biden tried to cash in big on behalf of family with Chinese firm,” which documents a similar effort by Biden to pursue lucrative deals in China. Twitter’s response? It also banned sharing this article. And now journalists from the across the political spectrum are raising eyebrows and speaking out.

Legal and Political Analyst for Fox News, Gregg Jarrett, points to how the New York Times can run endless stories about Trump’s taxes based on unnamed sources and “documents it won’t produce” while censoring all sharing of the Post pieces. Spiked’s Fraser Myers decries how tech oligarchs are a threat to democracy. And Matt Pearce of the Los Angeles Times likens the social media censorship of the article to a newspaper delivery company refusing to deliver the paper. The consensus among journalists across the political frontier is that Big Tech’s hold on the virtual public square that is social media is anything but good. And Politicos’ Jake Sherman was temporarily suspended from Twitter for sharing the New York Post article.

In response to the public outcry, Twitter’s Legal, Policy and Trust & Safety Lead, Vijaya Gadde, tweeted: 

Over the last 24 hours, we’ve received significant feedback (from critical to supportive) about how we enforced our Hacked Materials Policy yesterday. After reflecting on this feedback, we have decided to make changes to the policy and how we enforce it. Why the changes? We want to address the concerns that there could be many unintended consequences to journalists, whistleblowers and others in ways that are contrary to Twitter’s purpose of serving the public conversation. We put the Hacked Materials Policy in place back in 2018 to discourage and mitigate harms associated with hacks and unauthorized exposure of private information. We tried to find the right balance between people’s privacy and the right of free expression, but we can do better.

While a cogent response to a terrible situation, Gadde’s response barely scratches the surface on what is a growing problem: Private corporation’s monopoly of the public square. No longer are we having discussions “in real life” as the dominant form of social and personal expression. This is especially true today in the era of COVID-19. Governments from the United States and beyond must question their commitment to free speech and the freedom of conscience if, at the end of the day, our ability to speak, read and know what news media offers is being curated out of our visible sphere. 

Make no mistake, this is censorship pure and simple. We can give it other names, we can justify it by saying, as did Kyle Griffin of MSNBC, “That is not censorship” in his attempt to politically position the curtailing of undesirable political speech as a matter of what private corporations are legally allowed to do. But the bottom line is that more and more social media is not only the largest growing public social sphere for discussing political issues today, but it may also likely be the only platform allowed should this virus keep us further indoors.

It’s clear who owns Twitter and Facebook. What’s not clear today is if these companies can own public discourse and curate out of existence the news which, according to Ofcom, half of the public access through social media. We are at a crossroads as to how freedom of expression translates to the freedoms guaranteed by various national and international laws in this era of hyper-censorship at the hands of social media giants. 

In 2018, Google argued its right to restrict political content citing the “First Amendment protection for a publisher’s editorial judgments encompasses the choice of how to present, or even whether to present, particular content.” Twitter has also issued similar statements in recent years. So while these tech giants have secured the right to legal immunity under Section 230 which they reference regularly, none of these corporations is transparent in its censorship just as they deny their duty to uphold the First Amendment.

Case law points to how the concept of the “public square” has developed in the US and it has overwhelmingly held up to legal scrutiny for protections under the First Amendment. The 1946 case of Marsh v. Alabama was a pivotal moment for defining the public square where the court ruled that the First and 14th Amendments can also apply to private parties where a company-town is not allowed to forbid free speech on its sidewalks. The Supreme Court opinion summary states: “While the town is owned by a private company, it is open for use by the public and thus becomes limited by the constitutional rights of the people there, who are entitled to the freedoms of speech and religion.” Justice Hugo Black writes, “When we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position.” 

Similarly, the 1995 case of Nemo v. City of Portland in which the city required a permit for groups to engage in free speech exercises was also pronounced by the court as discriminatory: “In short, the ordinance did not simply burden speech; it discriminated against speech. Rather than being narrowly tailored to protect speech, as it should have been, it was tailored so as to preclude speech.” And in another 2017 case brought before the US Supreme Court, Packingham v. North Carolina, the justices unanimously found that social media has become the “public square” of today with the court ruling that the state of North Carolina could not block registered sex offenders from the use of social media such as Facebook. Justice Anthony Kennedy writes:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism, 491 U. S. 781, 796 (1989).Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.

So, where sex offenders have the right to access the public square, we are now seeing where newspapers and journalists, and women who claim that sex is a biological reality simply do not in the current climate. If anything, social media has become the public forum through which authoritarianism has flourished in recent years and where individual, non-conformist thought has been wholeheartedly discouraged and even disappeared.

Access to the public square is in peril of being erased simply because it depends almost entirely upon the individual’s or media's will to conform to a specific political narrative. While we might all agree that there are benefits to social media, we can no longer excuse or minimise the fact that these corporations which have more power than any government on the planet today are having an undemocratic and authoritarian control over free speech and the political process.