Rethinking Corporatism

The reaction of internet platforms like Twitter and Facebook to the events of January 6, 2021 has drawn lots of pushback from the right wing. Many have voiced concern over the First Amendment implications. But others have a more nuanced criticism that acknowledges that the companies' content-based bans don't have a First Amendment problem.

Pundit Charles Lane of the Washington Post lays out the alternate case in his January 11 opinion piece. He writes: "Private companies or not, Facebook, Twitter and the rest face exactly the same problems a governmental agency would face in establishing consistent, principled — and universally accepted — criteria for what to allow and what to forbid." Mr. Lane basically says that because we have allowed these companies to become so big and so important, we must apply the free speech standards to them as if they were the government.

Except that Mr. Lane and others want to have their cake and eat it, too. They want the government to exempt corporations and other business entities from civil rights laws, as in the case of the bakery's free exercise of religion in refusing to bake a cake for a gay wedding. They applaud the craft supplies retail chain's free exercise of religion in denying its employees health care coverage that is mandated by the government. And they profit greatly when corporations and other business entities exercise their free speech rights through huge campaign contributions.

But what about the individual's right to speak? Well, first, the free speech right doesn't come with a guarantee of a platform. Just as there are other bakeries, there are other internet platforms for communication or "social media." That said, laws that apply to public accommodations (like bakeries) guarantee individuals in specific protected classes access to those public accommodations. Insurrectionists, seditionists, and inciters of violence are not protected classes, and that criminal speech is not protected speech.

When we endow the corporation with freedom of speech (long before Citizens United), or the free exercise of religion (Hobby Lobby Stores, Inc. or Masterpiece Cakeshop, Ltd.), or the power to confiscate property (Kelo, or look up compulsory pooling) we strengthened the bond between the economic power of commerce and the police power of the state, against the rights of natural persons. When these corporate behemoths become so big as to stifle competition, maybe it's time for some Teddy Roosevelt-style trust busting, IMHO.