Freedom Of Speech Is About More Than The First Amendment

Op-Ed by Gary Chartier

Facebook’s recent bans on controversial figures including Nation of Islam leader Louis Farrakhan and Infowars host Alex Jones have evoked strikingly varied responses in different corners of the libertarian world.

“Thin,” or “brutalist,” libertarians often seem to think that nothing really matters very much apart from the unjust use of force. They vigorously protest criticisms of private actors’ nonviolent choices, along with any attempt to involve the state in remedying perceived (nonviolent) private wrongs. However, ironically, many thin libertarians have roundly criticized the Facebook ban—and some have even suggested that Facebook might qualify as a public forum or public utility that can legitimately be regulated by the state.

But Facebook isn’t public property, and it’s not a public utility. Like most large contemporary businesses, it enjoys an overly cozy relationship with the state, but it’s still privately funded, operated, and maintained. Of course, it should end its ties with the state—notably with intelligence and law enforcement agencies. But we shouldn’t treat it as an arm of the state. Even if the case for its being one were stronger than it is, the last thing we need is to encourage greater state involvement in our lives by promoting a governmental takeover of or enmeshment with Facebook and other social media platforms.

“Thick” libertarians see concern with liberty from forcible interference as the supreme or only political value. But they also recognize that libertarians should care about a range of social and cultural values. In particular, thick libertarians often criticize bullying and restrictions on workers’ freedom by private employers—not only because they sometimes see those employers as empowered by the state but also because they typically care about multiple varieties of freedom.

As Murray Rothbard described their position, about which he was skeptical: They “don’t want to push other people around . . . and . . . don’t want to be pushed around themselves.” And yet, again ironically, some thick libertarians have been quick to defend the Facebook ban, emphasizing that Facebook should be free to exclude whomever it wants.

Of course, it should be. But that’s not the last word on the ban.

Robust rights against interference with people’s bodies and their physical property are the most fundamental grounds for the protection of free expression. These rights serve as safeguards against forcible interference—and so, especially though not exclusively, against interference through law, regulation, and other kinds of state action. Social media platforms are exercising, not interfering with, these rights when they ban users, and they should certainly be entitled to exercise these rights. But rights against interference with bodies and physical property aren’t the only bases for protections of expressive activity; other reasons for protecting expressive activity apply to private actors as well as states.

People should be free to do all sorts of things it’s wrong, foolish, or unreasonable for them to do. Thus, for multiple reasons, platforms like Facebook shouldn’t interfere with people’s expressive activity based on its content.

Content-based restrictions on posts and bans on users responsible for particular sorts of posts interfere with the autonomy of both the producers and the consumers of information. Obviously, such restrictions don’t do so forcibly. But they do, to use Rothbard’s phrase, push people around. To the extent that I value my own autonomy, my own ability to make unfettered decisions, it won’t be reasonable for me to restrict others’ autonomy. In addition, whatever you think about the value of the autonomy of Farrakhan, Jones, and the others subjected to the ban, users, in general, are harmed by a policy like Facebook’s. I don’t want or need Facebook to decide what information is safe or desirable for me to consume. Paternalism is unfair (would Mark Zuckerberg really like me to decide what he reads?) and manipulative.

Not just autonomy, of course, is affected by restraints on expressive activity. Restricting such activity by deleting posts or banning users hampers users’ development, refinement, and display of creative and analytical skills. It also gets in the way of their formation of friendships and other relationships. Interference with expressive activity is thus an attack on people’s flourishing in diverse ways and is especially troubling for that reason.

There are multiple reasons someone might find it attractive to exclude this or that bit of content from the web. But it makes more sense to look at the issue as a matter of what a sensible general policy might not be What do we think of post X? but Do we want a policy in virtue of which Facebook exercises the discretion to assess the aptness of particular posts in light of their content?

To my knowledge, no telephone company bans users in light of the contents of their exchanges with each other or abruptly terminates conversations when people begin saying putatively inappropriate things. Nor would we want telephone and similar service providers to do this: We want the freedom to decide with whom and in what ways we’ll communicate using our phones. That service providers abstain from discriminating on the basis of content gives us this kind of freedom.

We have every reason to want social media platforms, similarly, to avoid making discretionary, content-based decisions about which users and messages to host—just like phone companies. (To be sure, social media posts are visible to people who don’t ask or expect to see them in ways phone conversations are not. But platforms can easily equip individual users and groups of users to avoid encountering words, images, and sounds served up by those in whose posts they’re uninterested.)

We might well want social media platforms to avoid exercising content-based discretion simply because we don’t believe such platforms possess any particular expertise that enables them to judge the truth or appropriateness of particular posts. We might also recognize that the criteria we use to judge truth or appropriateness might well not be theirs. And more than that, we might reasonably wonder whether platforms’ decisionmakers were detached, unbiased arbiters: Their own political, social, and cultural prejudices could easily influence their decisions about what posts and users to ban or promote. Given the risk that these prejudices could be decisive, why not prefer policies that minimize their effects?

Robust public interchange enables people to assess ideas, images, and practices. It’s especially important for governments not to interfere with this kind of interchange because of the reach of state power. But decisions to impede or end the sharing of ideas, sounds, and images on a smaller scale also make the achievement of common understanding and the sifting of options more difficult.

That’s especially true when the smaller scale isn’t so small—as in the case of a social media platform with billions of members, like Facebook or Instagram. If you value the marketplace of ideas, you have reason to resist restraints on exchange whether they’re private or governmental.

Thick libertarians could be expected to object, rightly, if employers sought to shut down vibrant discussions of workplace issues. The same general considerations apply in cases in which social media platforms try to prevent conversations about particular topics or by particular people. Paternalism is objectionable and unhelpful. Autonomy matters. Expressive activity fosters flourishing, and vibrant exchange helps to sift ideas and other cultural products.

Defenses of attempts to corral expressive activity seem to presuppose that those doing the corralling are both better informed and better intentioned than it’s safe to assume they actually are; the more content-focused discretion is exercised, the more likely it is that restrictions will reflect unnecessary biases. So while social media platforms and other private actors should be legally free to impede expressive activity using their property, they shouldn’t restrict users or particular exchanges in light of content: they should opt, instead, for general principles permitting unfettered expression on a content-neutral basis.

P.S. Thanks to Sheldon Richman for helping to prompt the writing of this piece and for making multiple comments that contributed to its enhancement.

Gary Chartier is a professor of law and business ethics and associate dean of the Tom and Vi Zapara School of Business at La Sierra University in Riverside, California. He is the author of Anarchy and Legal Order: Law and Politics for a Stateless Society, published by Cambridge University Press.

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