On May 3, Human Events published an article by Will Chamberlain titled “Platform Access is a Civil Right”. In it, he compares the de-platforming of political dissidents to the struggles of African-Americans with discrimination before the Civil Rights Act. He then lays out a proposal for defining platform access as a protected civil right which can only be lost through abusing said right to engage in illegal behavior. While Chamberlain’s article does recognize that a problem exists which must be solved by using power to stop corporate censorship, his proposed solution cedes ground to leftists while violating property rights and freedom of association. Let us explore Chamberlain’s proposal, critique it as needed, and offer a solution that is superior in both substance and political strategy.

The Civil Rights Era

Chamberlain quotes a story from one of Lyndon Johnson’s African-American assistants from his time in the Senate in the 1950s, as told in Robert A. Caro’s Master of the Senate:

“It’s tough enough to get all the way from Washington to Texas. We drive for hours and hours. We get hungry. But there’s no place on the road we can stop and go in and eat. We drive some more. It gets pretty hot. We want to wash up. But the only bathroom we’re allowed in is usually miles off the main highway. We keep goin’ ’til night comes – ’til we get so tired we can’t stay awake anymore. We’re ready to pull in. But it takes another hour or so to find a place to sleep. You see, what I’m saying is that a colored man’s got enough trouble getting across the South on his own, without having a dog along.”

This convinced Johnson to sign the Civil Rights Act while he was President in 1964. Chamberlain writes of this story,

“And it should change the view of any holdout radical libertarian who still thinks that the Civil Rights Act of 1964 was unjust. Because you know what? Private property rights are great. But that does not mean that we, as a society, had to let private restaurant owners and private hotel managers turn away customers because they were black. We didn’t have to accept a world in which black people had to defecate on the side of the road because they weren’t allowed to use a privately-owned restroom. We, as a society, do not have to allow private companies to violate Americans’ civil rights.”

This is a fractally wrong view of the situation. Prior to the Civil Rights Era, Jim Crow laws forced many business owners not to serve customers or hire employees whom they would have served or hired otherwise. This was the true violation of property rights; business owners should be free to associate with black people and to let them use the same facilities as white people if they choose to use their private property in that manner. Indeed, there is little reason to believe that a market would produce such absurd inefficiencies as doubled, separate facilities for whites and non-whites unless it was forced to do so. Racial zoning ordinances were also used to create black ghettos where none previously existed, as occurred in Baltimore in 1910.[1] But the Civil Rights Act did more than remedy this government failure; it produced a new set of problems by replacing forced segregation not with free association, but with forced integration.

Furthermore, racism in the mid-20th century did not exist ex nihilo; it was manufactured in government schools. The racists who held positions of power in politics and business in the 1950s and 60s would have been schoolchildren in the 1910s and 20s. Let us consider an example of what they were taught:

“The Races of Man. — At the present time there exist upon the earth five races or varieties of man, each very different from the other in instincts, social customs, and, to an extent, in structure. These are the Ethiopian or negro type, originating in Africa; the Malay or brown race, from the islands of the Pacific; The American Indian; the Mongolian or yellow race, including the natives of China, Japan, and the Eskimos; and finally, the highest type of all, the Caucasians, represented by the civilized white inhabitants of Europe and America.”[2]

With this sort of content being taught to children in public schools, it is no wonder that a large number of them would grow up to be racists. Also note that the decision in the Supreme Court case Brown v. Board of Education (1954), which desegregated government schools, was a reversal of the Plessy v. Ferguson (1896) decision, which upheld “separate but equal.”

Problem and False Solution

Chamberlain discusses the May 2 bans by Facebook and Instagram against Laura Loomer, Milo Yiannopoulos, Alex Jones, Paul Joseph Watson, and any content from InfoWars. He notes that this finishes off the mainstream social media presence of Loomer and Yiannopoulos. Chamberlain correctly decries a typical establishment response that I have elsewhere described and denigrated as a form of political autism:

“Now, a critic might argue that Loomer’s First Amendment rights haven’t been violated, because she could always go to a public park and scream into the ether.”

But then, he portrays de-platforming as a civil rights issue:

“Lyndon Johnson’s black employees could always sleep in their cars, too.

[…]

Free Speech is more than the First Amendment, which only protects you from the government infringing on your rights. In 2019, that is woefully inadequate. Access to the large social media platforms – Facebook, Twitter, and Instagram – is a prerequisite to meaningful free speech in 2019.”

[…]

The vast majority of serious public debate takes place there. Thus, access to large social media platforms is a civil right. When private companies violate civil rights, we pass laws to stop them from doing so. That’s what we should do here.”

This is not what we should do here, for it accepts the progressive frame and attempts to use it in opposition to progressivism. This effort is doomed; if successful, it will only further erode private property rights and freedom of association, as any private actor will be disallowed from restricting speech or disassociating from people.

Of course, that is an enormous if, as the entire institutional power of the Cathedral will be brought to bear against such an action. We may expect to see the surviving luminaries of the Civil Rights Era speak out against this proposal as a perversion of their original civil rights movement that seeks to empower the very forces of hate that they fought. The moneyed interests of the authoritarian left are also likely to get involved, and not just by funding cuckservatives and Democrats to unseat the Republicans. Ironically, they may borrow a strategy designed by Charles Murray and explained in his book By the People: Rebuilding Liberty Without Permission for restraining the regulatory state and adapt it mutatis mutandis for their own purposes. Murray advocates that an organization be formed that will defend individuals and small businesses against government regulations which would be too costly and time-consuming for them to fight on their own, and that an insurance agency be formed which will treat government fines and court judgments for non-compliance with laws and regulations as an insurable hazard like other natural or man-made incidents that can lead to financial losses. Just as these could be used to combat regulations which are arbitrary, capricious, and lacking in public support, as per Murray’s suggestion, they could also be created to combat this new form of civil rights law.

However, Chamberlain is correct to claim that “[y]ou should now have the same right to speak on Facebook, Twitter, and Instagram that you do in a public park” and that social media companies “can hardly complain, given that the federal government has underwritten and undergirded their development”; he is just approaching the case incorrectly. Let us explore the correct argument.

True Solution

The nature of corporations provides a clear case for legislation to end corporate censorship. A corporation is a legal fiction created by the state to shield business owners from financial liability and ease the enforcement of laws upon those businesses. Without registering or chartering a corporation under the laws of a state, it is impossible to establish such entities as we know them. Although one could negotiate contracts with other legal persons to make an unincorporated business function similarly to a corporation, this would not be identical to a state-recognized corporation in terms of its interaction with the state or its liabilities for negative externalities. Two results directly follow from this. First, for business owners to register a corporation or accept a corporate charter is to participate in a government program. Second, corporations are not purely private companies, but public-private partnerships in which the state provides limited liability and other privileges through its monopoly on courts and the private business fulfills its purpose, whatever it may be.

In order to participate in a government program, a person or other entity is supposed to be in compliance with government laws. As all of the censorious technology giants are incorporated in the United States, they should obey American law. The Constitution is the supreme legal document with which a state-recognized corporation should be in compliance for this purpose. The Constitution contains a number of provisions which are supposed to limit the conduct of government, including provisions to protect freedom of speech, freedom of the press, freedom of assembly, security against unreasonable search and seizure, and due process, among other rights. Because state-recognized corporations are public-private partnerships, they should be held to the same limitations on their conduct. Because corporations owe the form of their business organization to the taxpayers who are forced to fund the government that enforces the legal system that allows them to incorporate, to let taxpayers be denied service by these entities compounds the injustice of taxation and violates the legal doctrine of estoppel. Like Chamberlain’s proposal, no current legislation explicitly states this, but as he says of his own proposal, “it is aspirational. It’s what the law should be.”

A conservative may object that many people do not pay taxes, and thus access would not be guaranteed to them, but this is false. Everyone uses US dollars, and they are debased by the Federal Reserve’s monetary policy as a means of enabling government spending. In Milton Friedman’s words, “Inflation is taxation without legislation.” As the dollar is the world reserve currency, this argument extends a theoretical right of platform access beyond every American to many other people globally. It would also be easier to argue for the implementation of service-for-incorporation, as the proposal can be framed in anti-corporate terms. Leftists who oppose the plan could be attacked as corporate stooges, which is sure to cost them credibility with progressive primary voters and leftist activists, especially once anti-establishment censorship is brought to bear on them, as it certainly will be if they continue escalating the amount of trouble they cause the Democratic Party establishment.

Implementation

Chamberlain continues,

“Conservatives should focus on passing legislation – at BOTH the state and federal levels – that protects all citizens’ access to large social media platforms on civil rights grounds. Access should be forfeitable only if one engages in unlawful speech on a platform.

[…]

Notice – I said *both* state and federal laws. It will be a very serious challenge to get a federal law passed protecting this civil right, given the current composition of Congress. But states with heavily Republican legislatures can pass laws that protect their state’s citizens from de-platforming.

And if they do so, Facebook, Twitter, and Google will have to comply if they want to keep doing business in that state.”

This is the correct strategy, if it is instead applied to service-for-payment instead of civil rights. By the reasoning outlined in the previous section, corporations should either serve the public that is forced to pay for the system that allows them to incorporate or forfeit their incorporation and rights to do business as a separate legal entity from the people who own and operate the business. He only goes astray in the sentence omitted in the previous quotation:

“If a large social media company wrongfully denies you access to or removes you from their platform, you should be able to walk into court, get an injunction against the company that forces them to restore your account, and be awarded substantial statutory damages.”

While this may seem appealing, it is likely to be rather toothless in practice. It will certainly create business for the lawyers who would argue such cases, but this will further clog an already slow court system, and it counts on judges to rule in favor of the types of people who have historically been on the other side of civil rights cases. As discussed earlier, legal defense funds and insurance companies may be built to further hamper enforcement, and the largest companies may choose to pay such damages as a cost of doing business.

Rather than telling censorious technology giants that they will face a reactive judicial system that may cost them some money and eventually make them restore a person’s account once the appeals process is exhausted, let us be proactive and inform them that any proven case of de-platforming someone who did not use the platform for illegal behavior will result in their immediate disincorporation. Further penalties could include barring the company from reincorporating for a number of years and disallowing anyone on the board of directors of a company thusly disincorporated from serving on any other corporate board for a number of years.

Historical Naïvete

It is in the sections “Government Speech Regulation is a One-Way Ratchet” and “Regulators Aren’t Needed: Courts Can Do the Job” that Chamberlain’s article becomes cringe-worthy. He writes,

“If Democrats retake the White House, they can’t constitutionally use laws like the one I proposed above to constrain speech. First Amendment Law is a one-way ratchet. If a regulator tried to twist the civil rights laws in such a way that they were constraining speech, you could walk into a district court anywhere in the country and get an injunction forcing them to stop.”

He cites a recent Supreme Court case, Packingham v. North Carolina (2017), in defense of that position. Packingham found that a registered sex offender could not be denied access to social media as he had been under North Carolina law because it “bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Justice Kennedy also wrote, “In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.”

Packingham is one case that happens to suit Chamberlain’s purposes, and Pruneyard Shopping Center v. Robins (1980) may be another (though it violates private property rights and freedom of association), but there are several which do not. The Supreme Court never ruled on the Alien and Sedition Acts while they were in force, only noting their unconstitutionality on a posthumous occasion in New York Times Co. v. Sullivan (1964). In 1919, the Court ruled on four cases, most famously Schenck v. United States and Abrams v. United States, resulting from the Espionage Act of 1917 (though it did not rule on the constitutionality of petitioning against the Act). From these cases, a standard of “clear and present danger” was invented to allow the state to interfere with the rights enumerated in the First Amendment in an ultimately arbitrary fashion.

In Valentine v. Chrestensen (1942), the Court upheld a New York City ordinance forbidding the “distribution in the streets of commercial and business advertising matter,” even though such a restriction is clearly arbitrary and capricious. (Valentine was overturned in Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), but 34 years of that ruling is 34 years too long). In Dennis v. United States (1951), the Court upheld the Smith Act, which criminalizes speech that advocates overthrowing any level of government in the United States. In Roth v. United States (1957), the Court ruled that obscenity is not protected, and adopted a definition that relies upon “contemporary community standards,” which can be arbitrary and capricious. Though Schenck and Dennis have since been curtailed by Brandenburg v. Ohio (1969), there remains a standard of “imminent lawless action” which means whatever judges say it means.

Contrary to Chamberlain, “the concerns about government regulation being turned around to constrain speech” are far from unfounded, as it has routinely happened throughout American (and world) history, especially whenever the political establishment feels threatened by internal or external foes. At best, even when court rulings on free speech function as a one-way ratchet, this ratchet tends to turn on the order of decades, which will be far too slow against the current menace. He boasts that his proposal relies on judges and not on regulators, but my proposal only relies on petit juries to find corporations guilty of de-platforming with a mandatory sentence of disincorporation of the company and possibly barring anyone on the board of directors of a company thusly disincorporated from serving on another corporate board for several years.

Conclusion

It is not that platform access is a civil right, but that being denied access to services that one is forced to pay for, even in a roundabout manner, is at least a civil wrong, and is best treated as criminal behavior as well. Attempting to make platform access a civil right will likely produce intense opposition from all parts of the establishment, while taking an anti-corporate approach can unite much of the left with the anti-establishment right against the greatest perversion of free-market capitalism that currently exists.

Libertarians and reactionaries should frame de-platforming as fraud, as non-performance of services paid for – because it is. And whoever is in a position of power to enact legislation should stop this practice – because they can. Chamberlain correctly says that “we are not at peace,” which means that we are at least technically at war. In war, you destroy your enemies until they surrender, and any strategy which fails to accomplish this is worthy of a wartime objection. While his proposal may succeed in slapping the technology giants on the wrist, mine would show them the headsman’s axe and tell them to behave lest their incorporated status and ability to do business as a separate legal entity come under it.

References

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