Business corporations don’t need free speech rights. Nor should they have the power to deny free speech to others. But leading up to and following the 2020 election, we saw both undemocratic realities on display.
The 2020 election was largely “democratic.” Due to the pandemic, more voters had more ways to cast their ballots than ever, and the elections were overall free and fair. More citizens voted than in any other election in U.S. history.
However, the election may have been the most undemocratic given the amount of money spent, estimated at over $14 billion, by a stunningly small number of mega-donors and corporate entities through super PACs and nontransparent “dark money” groups. Individual donations accounted for just 22 percent of the total raised.
Giant political contributions drown out the voices of most individuals. The super-sized electoral influence of the super-rich and corporations derives from undemocratic Supreme Court decisions decreeing money spent in elections is equivalent to free speech and the Court-invented constitutional free speech rights for corporations to donate to political campaigns. The 2010 Citizens United decision expanded both doctrines, with the resulting explosion of election spending and further decline of public transparency and accountability of political campaign “investors.”
Donald Trump’s incessant “big lie” that the election results were illegitimate, representing 60 percent of his post-election tweets, fueled the violent Capitol breach and triggered Twitter, Facebook, Instagram and Twitch to immediately ban both Trump’s account and the accounts of 70,000 others who propagated QAnon conspiracy theories. Big Tech, including Amazon Web Services, also banned the far right Parler app for not having adequately responded to prior violent threats.
Titans of tech shouldn’t be the gatekeepers with the omnipotent power to decide who gets to speak or be our societal moral center of what is responsible communication. It’s disturbing that Facebook has its own “Supreme Court” to determine who gets to continue to have a platform to speak from and who doesn’t. Twitter and other social media corporations ban people at will.
The immense power and constitutional rights corporations enjoy allow social networking and communication companies to decide how they treat workers, consumers and other users visiting their domain. Platforms like Facebook and Twitter are largely self-regulated and therefore not subject to democratic accountability. They govern. They decide. They set the rules whether we’re allowed access to their property. The same is true of the privatization, corporatization and monopolization by Google of the digital highway used by all these platforms — the internet — which has its own means to censor information and groups, including demonetizing groups on YouTube.
The GOP and some Democrats’ response to Big Tech’s actions have centered on scaling back or repealing Section 230 of the 1996 Communications Decency Act, which gave online corporations federal liability protections against First Amendment suits for policing users’ content. Of course, there was no equivalent uproar when Big Tech banned Indigenous, environmental and social justice organizations, Occupy movement activists, socialists and anarchists.
If Big Tech has any overarching bias, it’s toward promoting polarization, which is profitable. Sensationalism sells. The business model of Facebook, Twitter and Google is to hook people as long as possible on their sites to sell specific advertisements based on data mined from their online interests. The more sensational the content, the longer viewers stick around and the more cash rolls in.
Facebook ran ads for body armor and other military equipment next to content promoting false election information and the attempted coup. It’s also prioritized protecting its business over protecting people from violence and oppression in Burma, India, Vietnam, Sri Lanka and the Philippines. Google provided ad services to 86 percent of sites promoting pandemic conspiracies in one survey.
There’s no financial incentive to ban unfounded conspiracy theories and blatant misinformation, as demonstrated by Big Tech’s allowance for years of Trump and his ilk being permitted to blow through the guardrails of basic truths. Banning certain users and content after the 2017 violence in Charlottesville, Virginia, was just a momentary pause in their ongoing profitable disinformation industry.
The government has handed over free speech concerns to corporations to avoid dealing with this complicated terrain. Free speech is a critical requirement in any true democratic society, yet it must be balanced against the rights to safety, dignity, respect and integrity. Incendiary words promoting violence have been connected throughout history to the violent overthrow of governments, and to violent actions towards people of different religions, nationalities, races, orientations and political beliefs. These are bright lines that shouldn’t be crossed.
Our society already has many free speech limitations, including statutes against defamation, perjury, blackmail, incitement to imminent lawless action, true threats, solicitations to commit crimes, plagiarism and obscenity in certain situations. In addition, one doesn’t have a free speech right to yell “fire” in a crowded theater, read aloud the Declaration of Independence through a bullhorn in your front yard at 3 am, or demand to speak for one hour before your city council or Congress. Free speech is either outright prohibited or regulated to balance wider societal concerns in these instances.
It’s time to rethink the intersection of digital communication, corporate rights, free speech, social responsibility and government in promoting and sustaining the ability of people to legitimately govern themselves.
We critically need an honest discussion on whether to make the internet a public utility or, alternatively, how to democratize a private media industry that provides both content and platforms. A serious discussion of how to better balance free speech rights with individual rights with respect and safety is also vital. Finally, we need a We the People Amendment abolishing all so-called corporate constitutional rights in order to tackle these issues frontally without fictional impediments.
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