In the intense debate that followed the rapid-fire censorship of Alex Jones and Infowars across virtually every major digital distribution platform last week, no argument has been lazier than the comparison with Christian-owned bakeries.
According to this line of thinking, calls for tech giants to be regulated is equivalent to the leftist cry of “bake the cake, bigot!”, usually yelled at Christian bakers who refuse to cater to gay weddings on the grounds of religious principle. As a short essay in the
liberal imperialist neoconservative magazine Weekly Standard put it:
You might recall a couple months ago when conservatives celebrated the Masterpiece Cake Shop decision. (Rightly, in my view.) The nub of their argument was that privately held businesses ought to be allowed to refuse certain kinds of services to certain customers, provided that (1) the refusal was based on reasonable, non-discriminatory grounds and that (2) the person being refused had reasonable recourse to an alternative remedy. That’s precisely what has happened here.
In the essay, the author points out that Alex Jones has alternative distribution channels. It’s true, he does. He built his following long before Facebook and YouTube came to dominate the web, and his followers know how to find him outside of those platforms.
But that doesn’t help people who are just starting now, at a time when exclusion from social media is increasingly tantamount to exclusion from the public square.
Most will find it obvious that the vast concentration of power in Silicon Valley is a little different from a small-town baker. If you ever run into a classical liberal or free market libertarian who insists that Google and Facebook shouldn’t be regulated, ask them how the founding fathers felt about concentrations of power.
And if they bring up Christian bakeries, explain these differences:
Christian Bakeries Can’t Kill Your Business
Financial institutions are heavily regulated in part because failures on their part affect the livelihoods of so many other people. If a bank messes up, people can lose years, even decades of investment.
Social media companies (and online payment processors) have grown to a similar level of influence. When Facebook tweaked its algorithm — largely without warning — in January, it cut traffic to the non-political viral website LittleThings by 75 percent. The website had to shut down, laying off its 100-strong workforce. The same happened to Rare.us, a conservative-oriented site producing viral content. According to a report by Digiday, entire business models built around the distribution of viral content on Facebook were rendered unviable by the platform’s rapid shift.
Could Silicon Valley’s defenders still make the case that a company should have the power to shutter entire businesses, without any regulation to ensure fair standards (for example, involving businesses that depend on social media algorithms in any changes)? Perhaps. But they would have to come up with a more original argument than tired references to Christian bakeries.
Christian Bakeries Can’t Swing An Election
President Trump has begun to take notice of big tech’s progressive bias, recently calling out Twitter for shadowbanning prominent Republicans. The President’s campaign manager, Brad Parscale — who managed his social media operations in 2016— is also keenly aware of the problem.
As well they should be. Annoying though biased legacy media like CNN may be, biased social media is a far greater threat. Facebook claims to have boosted voter turnout by 3 percent in 2016 by making small tweaks to their algorithm. And studies have shown that if search engines like Google manipulated their results to favor particular candidates, they could sway up to 40 percent of undecided voters. The author of the same studies estimates that biased search results shifted between 2 and 3 million votes towards Hillary Clinton in 2016. How much more could they shift in 2020?
Modern elections are won and lost on social media, not legacy media. Brad Parscale knows this — he led the digital operations team that totally outclassed Hillary Clinton in 2016 (at least on Facebook and Twitter). The Democrats know this too, which is why they’re working so hard to turn social media platforms into little more than conduits for the legacy media. The political goal isn’t to stop Russians, who manipulate both sides of American politics and invest barely any resources in social media propaganda, which has virtually zero effect on voters anyway. It’s to ensure Trump can’t repeat his social media grand slam of 2016.
Christian Bakeries Don’t Incubate Grassroots Movements
Equally as important as the measurable effects of social media platforms on politics, like boosting voter turnout, changing the opinions of undecided voters, and targeting ads to particular audiences are the more intangible elements, like the birth of grassroots movements.
Establishment parties will be severely hampered by social media bias, but they can always fall back on broadcast media and their nationwide network of activists to get their message out. Grassroots movements have no such luxury. Success on Facebook, Twitter, YouTube, and even Reddit and 4chan mean life or death for a modern grassroots movement. Some, like GamerGate (perhaps the most lied-about movement against progressive media elites in recent memory) exist almost entirely on social media. Unfortunately, it’s also much easier for a platform to ban, suspend, or suppress content from rank-and-file members of grassroots movements without anyone ever hearing about it. Unlike Rep. Matt Gaetz or RNC Chairwoman Ronna McDaniel, a grassroots activist is unlikely to have the kind of media connections and political clout to fight back.
Beyond social media, grassroots conservatives rely on online services for fundraising. There, the problem of bias is even worse than it is on social media. Right-wing commentators have been routinely kicked off fundraising platforms on bogus charges. Coincidentally, one of the banned campaigns was trying to raise money for those controversial Christian bakers! What’s more, the creation of alternative fundraising platforms has been rendered impossible by the unwillingness of PayPal and Stripe to process payments for pro-free speech alternatives like MakerSupport and FreeStartr.
Christian Bakeries Aren’t Public Squares
In 2017, the Supreme Court unanimously ruled that it was illegal for the state of North Carolina to prohibit registered sex offenders from using Facebook or Twitter. It was a decision that understandably made a lot of people quite upset. Nevertheless, Justice Anthony Kennedy wrote in the majority opinion that it was justified because social media platforms had become the “modern public square.”
“These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard,” wrote Kennedy.
I doubt he or any Supreme Court justice would reach the same conclusion about a bakery.
The judgment did not affect any private company — it merely prohibited the government of North Carolina from banning citizens from social media companies. But the question in the case of Alex Jones is whether private companies can banish people from public squares. Can they?
An older ruling says no, they can’t. In Marsh v. Alabama, a ruling from 1948, the Supreme Court ruled that the town of Chickasaw, Alabama, then a company town operated by the Gulf Shipbuilding Corporation, could not use trespassing law to ban the distribution of religious material on its sidewalk. Even when a private company owns a public square, therefore, it cannot ban people from it.
The situation is complicated by recent rulings designating corporations as “persons,” with their own first amendment rights. But if a corporation is a platform and not a publisher, and therefore takes no legal responsibility for the content posted by its users, it’s hard to argue that such content is the first amendment expression of the corporation and not the user.
Here’s another thing that Christian bakeries don’t have: a special law that protects them from legal responsibility for the views they publish. Social media companies do have that protection. And why should they have that extra right without extra responsibilities?
Christian Bakeries Aren’t Utilities
Public utilities are industries that are, among other things, subject to common carrier regulations. Public airlines, for example, aren’t allowed to deny you service because of your political views. The water company can’t shut off access to your shower if they don’t like your singing. The phone line can’t cut off your call because they don’t like what you’re saying. So why should social media platforms, so essential to modern communication, be allowed to do the same?
During the Obama administration, internet service providers (ISPs) were also subject to common carrier regulations, a regulation branded “Net Neutrality” by its supporters. Net Neutrality was overkill, not least because ISPs hadn’t demonstrated any interest in censoring content on the internet. Social media companies, on the other hand, do so regularly. And in many countries, Facebook is the internet. In developing countries, Facebook users often say in surveys that they don’t use the internet — because they only use Facebook. The fact that Facebook is connected to the internet doesn’t even register.
If the internet can be argued to be a public utility, as the left argued when it pushed for Net Neutrality, then what happens when the social media giants take over so much of the internet that for all intents and purposes they become the internet?
Christian Bakeries Aren’t Monopolies, Duopolies, Or Oligopolies
Imagine if UPS and Fedex owned a road connecting two cities. Now imagine that, between themselves, they decided DHL vehicles were no longer allowed to use that road. Antitrust lawyers would be salivating. It surely isn’t a fair business practice for two companies to get together and lock a company out of an entire distribution network.
Something very similar happened to Gab, a free speech maximalist competitor to Twitter. It’s been locked out of the Google Play store and the Apple App store. Google and Apple, between themselves, control 99 percent of the market in smartphone operating systems. That’s not an exaggerated number. 99 percent.
When two companies have such a huge share of the market, they can effectively prevent any app from reaching smartphones. A Christian-owned bakery, on the other hand, can stop cakes from reaching a few weddings. An important difference!
Put in perspective, the comparison to Christian bakeries is patently absurd. Each industry faces its own specific set of regulations, for good reason. A cake shop’s product is food, so guess what, it’ll be subject to food regulations. A social media company’s product is providing a platform for speech, usually in exchange for data. The fact that we don’t currently have specific regulations for that kind of industry is because lawmakers haven’t been able to catch up with technology. But I suspect that era is coming to an end.