Unprecedented and . . . Precedented
On May 28, President Trump signed an Executive Order pointing the way toward future action that the federal government might take, reining in the power of social media platforms, such as Twitter and Facebook.
As Trump said in the Oval Office, the Silicon Valley companies have “unchecked power to censor restrict, edit, shape, hide, or alter virtually any form of communication between private citizens or large public audiences.” He added, “There’s no precedent in American history for so small a number of corporations to control so large a sphere of interaction.”
Actually, there is a precedent, and it speaks loudly to the inevitability of significant regulation on social media—but we’ll get to that later.
Yet first, we should note that in the wee hours of May 29, the Trump-vs.-social-media confrontation took a new leap to outright censorship—and there was no precedent for that.
Reacting to the ongoing riot happening in Minneapolis, Trump tweeted:
I can’t stand back & watch this happen to a great American City, Minneapolis. A total lack of leadership. Either the very weak Radical Left Mayor, Jacob Frey, get his act together and bring the City under control, or I will send in the National Guard & get the job done right….
And then, in a second tweet, Trump added:
…These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!
Whereupon Twitter took it upon itself to hide the second tweet and insert a note: “This Tweet violated the Twitter Rules about glorifying violence.”
Okay, so that is an unprecedented confrontation: a Silicon Valley company, one that didn’t even exist 15 years ago, accusing the President of the United States of “glorifying violence” and censoring his words. And all that was before the recent spate of violence in the streets; it remains to be seen what the tech companies will do in response to what Trump does.
In fact, just on June 1, some Facebook employees staged a “virtual walkout” to protest the company’s editorial policies, which they judge to be too easy on Trump. In response, on June 5, Mark Zuckerberg posted an item on his own Facebook page indicating that he would accede to this pressure. In the meantime, on June 3, another social media platform, Snap, announced that it was somewhat restricting Trump’s prominence. Yet so far, at least, the hottest fireworks have concerned Trump vs. Twitter.
The Trump-Twitter Rollercoaster
As we ponder this POTUS-Twitter confrontation, it’s worth recalling that the president has had, in fact, a long love-hate relationship with Twitter. (Amusingly, on the 28th, the White House immediately tweeted the news of Trump’s anti-Twitter Executive Order.)
Trump has been on Twitter since 2009. And over the the last 11 years, he has used that digital platform to help propel himself from celebrity mogul to presidential candidate to actual commander-in-chief. Indeed, he now boasts 80.4 million followers; that’s an audience that dwarfs any single media portal—no wonder he loves that aspect of Twitter.
Yet in the meantime, conservatives were growing restive about Big Tech’s political correctness, which has led to a hostile, even censorious, relationship with the right and with Republicans. This GOP distrust represented a significant shift in the party, shifting from the old pro-corporate libertarianism of, say, Rep. Paul Ryan, to the new populist activism of Sen. Josh Hawley. In fact, it’s fitting that Hawley came into office in January 2019, just as Ryan was retiring.
In the meantime, conservatives began to speculate about what sort of regulation might be in the offing. And so we might pause to take note of a piece written here at Breitbart News in August 2018, prophesying the significant regulation of Big Tech—taking the form of a new Federal Platform Commission and building, perhaps, on the Federal Communications Commission.
Such a regulatory apparatus would acknowledge the obvious: that the platforms are so woven into our lives that they have become, in effect, common carriers. “Common carrier,” of course, is a legal term bespeaking the status of a carrier—be it a road, a canal, a telephone line, or now, a digital platform—as being equally open to all customers. Common carriers have not only rights that need to be protected, but also duties that need to be fulfilled. And since the public interest—often defined as “convenience and necessity”—is involved, the fees and other activities of common carriers are usually regulated by some sort sort of government authority, such as a public utilities commission.
Yet for his part, Trump wasn’t yet there, regulation-wise. Indeed, for the first two years of his presidency, his administration did little or nothing that impacted Silicon Valley’s lefty ways.
But that situation started to change in 2019. In March of last year, Trump accused Silicon Valley of harboring a “hatred [for] a certain group of people that happen to be in power, that happen to have won the election.” That is, to say, hatred of him. Trump even raised the prospect of possible federal action to address the matter, suggesting that Uncle Sam might “have to do something about it.”
In April of last year, Trump reflected on the strangeness of his love-hate relationship with Silicon Valley and, in particular, with Twitter. That is, the companies loved him for the traffic he generated, even as they hated him, seemingly, for everything else. As the president wrote in a two-part tweet:
“The best thing ever to happen to Twitter is Donald Trump” [said] @MariaBartiromo. So true, but they don’t treat me well as a Republican. Very discriminatory, hard for people to sign on. Constantly taking people off list. Big complaints from many people. . . . Twitter . . . playing their political games. No wonder Congress wants to get involved – and they should. Must be more, and fairer, companies to get out the WORD!
Yet then Trump pulled a Trumpian surprise. He hosted Twitter CEO Jack Dorsey at the White House, and later tweeted:
Great meeting this afternoon at the @WhiteHouse with @Jack from @Twitter. Lots of subjects discussed regarding their platform, and the world of social media in general. Look forward to keeping an open dialogue!
For its part, Twitter responded with a friendly statement of its own:
Jack had a constructive meeting with the President of the United States today at the president’s invitation. They discussed Twitter’s commitment to protecting the health of the public conversation ahead of the 2020 U.S. elections and efforts underway to respond to the opioid crisis.
So those were the warm feelings of 2019.
New Year, New Feelings
Yet in 2020, the Trump-Twitter relationship cooled—to the point of being very cold. On May 26, Trump tweeted about the danger to Republicans of mail-in ballots, a point he had made many times before. And yet this time, Twitter decided to add its own commentary, declaring that Trump was wrong and citing the reportorial wisdom of “CNN, Washington Post, and others.”
We might pause over the significance of Twitter’s venture into overt editorializing. All of a sudden, Twitter went from being a digital “bulletin board” in the proverbial “public square”—that is, a common carrier—to being just another MSM outlet, echoing MSM opinions. (As an aside, we can see that Twitter’s citation of the Washington Post for the pooh-poohing of vote fraud did not include the opinion of lonely conservative there, namely, Marc Thiessen, a former Bush 43 speechwriter, who headlined his recent op-ed in the Post, “Trump’s concern about mail-in ballots is completely legitimate.”)
By now, Trump was on the warpath—and still using Twitter, of course. On May 27, he tweeted:
@Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the Amazon Washington Post. Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!
And the following day, he added:
So ridiculous to see Twitter trying to make the case that Mail-In Ballots are not subject to FRAUD. How stupid, there are examples, & cases, all over the place. Our election process will become badly tainted & a laughingstock all over the World. Tell that to your hater @yoyoel.
That last name that Trump cited is the Twitter handle of Yoel Roth, whose title is “Head of Site Integrity” at the company. Roth, we might note, is so committed to “integrity” that he once tweeted that the Trump White House contains “ACTUAL NAZIS.”
Twitter’s hypocrisy here—judging Trump and nobody else—is so thick and gooey that one could cut it with a smartphone.
As Breitbart News’s Joshua Caplan pointed out, Twitter’s “integrity checkers” failed to take action when several “verified” Twitter accounts posted a photo falsely linking a Minneapolis police officer—seen on video with his knee on a suspect’s neck—with a man wearing a “Make Whites Great Again” baseball hat. In other words, the pictures were fake news, aimed at heating up the already heated situation in Minneapolis, but Twitter didn’t mind.
As Breitbart News’s Lucas Nolan noted, Twitter “fact-checks” Trump—and yet not Xi Jinping and the regime of the People’s Republic of China.
As Breitbart News’s Joel Pollak observed, Twitter’s new fact-checking policy failed to extend to Democrats such as Rep. Adam Schiff, “whose claims about Russian ‘collusion’ with President Donald Trump remain unaltered, a year after they were disproven.”
Conservative legal activist Mike Davis then asked of Twitter, “It’s acceptable to censor the President of the United States—but not the Supreme Leader of Iran, who calls for the destruction of Israel?” (And Sen. Ted Cruz believes that the presence of Iranian leaders on Twitter justifies a criminal investigation.)
Or as the New York Post’s Sohrab Ahmari put it, “Twitter has consistently refused to suspend Nation of Islam leader Louis Farrakhan—even after the left-wing darling compared Jews to termites.”
The Wall Street Journal’s Jason Willick added the shrewd point that “Twitter is now implicitly endorsing content they *don’t* flag.” (In other words, in not flagging aforementioned dictators, ayatollahs, and other nogoodniks, Twitter is, seemingly, vouching for them.) As Commentary’s Noah Rothman said of Twitter’s new policy, “Dipping its toe into fact checking was always a selective and subjective exercise that could never be uniformly applied.”
Noted immigration hawk Mickey Kaus sniped at Twitter, “Next they’ll notify us ‘experts say the Packers are better than the Eagles.’”
Indeed, the bent paradoxes of Twitter’s policy keep piling up faster than any mere scribbler can chronicle them.
So yes, the sharks are circling Twitter. As for Facebook, so often coupled with Twitter, interestingly enough, Mark Zuckerberg’s company has tried to stay out of the line of fire; indeed, Zuckerberg has done his best, personally, to distance himself, and his company, from his censorious rival. Yet even so, Facebook seems destined to be collateral damage in the Trump-Twitter smackdown—it will be hit by the same regulatory shrapnel.
Still, at least in the short term, regulation-wise, nothing is certain. Trump’s Executive Order sets policy within the executive branch, which includes the Justice Department, now presidentially instructed to set up a platform “working group” including state attorneys general. And state AGs can be potent, since they, too, can file lawsuits against Big Tech, although all of these legal wheels tend to grind slow.
In the meantime, other administration policies will have to be submitted to independent regulatory bodies, such as the Federal Communications Commission and the Federal Trade Commission; these agencies will have to then make their own decisions. Yet as a revealing aside, we should note that Ajit Pai, chairman of the FCC, has been quick to criticize Twitter’s dopey censorship, and another Trump appointee to the commission, Brendan Carr, has been a regular critic of social media bias. (The commission has five commissioners, in all.)
Okay, so that’s the situation today: A little bit murky. (Nobody ever said that a swamp was clear and fast-flowing.) Still, in the words—okay, yes, in the tweet—of Breitbart News’s Allum Bokhari:
Trump’s executive order is an important moment. It won’t end censorship overnight, but it sends a message to Big Tech companies in Silicon Valley that they can expect more than words from @realDonaldTrump–they can expect action.
Bokhari is right: Action is coming, at both the federal and state level. How do we know? Because similar action has come before, in an analogous situation in U.S history. And we can learn a lot from that.
Precedent: The Railroads
There is, in fact, a strong precedent for government authorities taking on a super-powerful industry. That is, in the mid-to-late 19th century, governments challenged the tech titans of that era, namely, the railroads. So if we wish to get an inkling of what’s likely to happen to Big Tech in the 21st century, we can look back at the history of Big Railroads in the 19th century.
And as we start looking, we should bear in mind that the railroads were as dominant in in those bygone days as the tech companies are in our day.
In the words of historian Tony Judt, the railroads made the industrial revolution—that epochal transformation that spurred the great leap in standards of living—into a country-wide, then continent-wide, then mostly worldwide, phenomenon:
It was the railways that gave life and impetus to that same industrial revolution: they were the largest consumers of the very goods whose transportation they facilitated. Moreover, most of the technical challenges of industrial modernity—long-distance telegraphic communication, the harnessing of water, gas, and electricity for domestic and industrial use, urban and rural drainage, the construction of very large buildings, the gathering and moving of human beings in large numbers—were first met and overcome by railway companies.
Indeed, the growth of the railroads in the 19th century was Moore’s Law-ish in its rapidity, from rails’ first beginnings in Massachusetts in 1826, to the laying of almost 9,000 miles of track in 1851, to the completion of more than 158,000 miles of track in 1890.
We should emphasize that for the most part, the railroads were a great boon to America, as well as to the world as a whole. And yet at the same time, not surprisingly, the zooming economic power of the railroads soon became a raging political issue. That is, controversies over the routing of the rail network, rights of way, the grading of tracks, working conditions, the pricing of cargo, liability for damages—all these grew into fierce debates.
After all, every community knew that if a railroad went through its jurisdiction, it would boom, even as, of course, problems might emerge. In the meantime, a community knew that if the railroad bypassed it, it rises withering on the vine.
Thus Chicago, the quintessential railroad town, ballooned in population, from barely more than 4,400 in 1840 to nearly 2.2 million in 1910. (By contrast, St. Louis, a much older city, had prospered and grown on the basis of traffic along the Mississippi River—and yet when railroads surpassed steamboats and barges, Chicago surpassed St. Louis; in 1880, the population of the Gateway City was overtaken by that of the Windy City, and St. Louis never caught up.)
In fact, every superlative about the relative clout of Big Tech today could be matched by that of Big Railroads then; the railroad tycoons were frequently dubbed “Robber Barons,” and the companies were often collectively known as “The Octopus.”
Not surprisingly, the public was soon demanding that the railroads—economically beneficial and transformative that they they were—must be made to better serve the public interest. Thus began a political tug-of-war that lasted throughout the 19th century.
From the time that the railroads first emerged, in the mid 1820s, it took nearly two decades, until 1844, to see the first regulation at the state level; in that year, New Hampshire established a board to examine railroad safety. Moreover, in the 1850s and 60s, many other states followed, including Connecticut, Maine, New York, and Ohio.
Then in 1869, Massachusetts set up a permanent commission with the power to scrutinize the economic impact of railroads on the Bay State. Similarly, in 1871, Illinois created an overseeing Railroad and Warehouse Commission.
Yet regulation by the federal government didn’t come until 1887, when Congress established the Interstate Commerce Commission (ICC), aimed at economic regulation of the rails—especially of the rates charged to farmers who needed to get their crops to market. Still, the ICC didn’t have real teeth until 1906, when an Iowa Republican, Rep. William Peters Hepburn, working closely with President Theodore Roosevelt, engineered passage of the Hepburn Rate Act.
So finally, the railroads were deemed to be a common carrier to be regulated, at least somewhat in the mode of a utility. We can add that the new regulatory system overseen by the ICC was hardly perfect, and the ICC itself was abolished in 1996—although many of its functions were simply transferred to a new entity, the Surface Transportation Board, which exists to this day.
Thus we can step back and see that the process of properly regulating the railroads was a multi-decade effort, involving leaders in every state and in both political parties. In fact, much of that regulation still applies to the railroads, which are doing fine today; indeed, they are looking forward to a bicentennial celebration American railroading, coming in 2026.
So now, if we shift our focus from Big Railroads to Big Tech, we might ponder the ways in which railroads and digital platforms are similar. That similarity includes what economists now call the “network effect,” also known in tech circles as “Metcalfe’s Law.”
The lesson of the network effect is that the possessor of a network reaps a disproportionate advantage, or increasing returns, based on the number of “nodes” (users, customers, suppliers) on the network. There’s nothing wrong with the network effect; it’s simply an economic phenomenon, the results of which are sometimes called “positive network externalities.”
Or as the related Metcalfe’s Law puts it, A network’s value is the square of the number of nodes in the network. For example, if a network has 10 nodes, its value is 100 (10 x 10). But if network has 100 nodes, its value 10,000 (100 x 100). So we can see: a ten-fold increase in nodes equals a hundred-fold increase in network value. Thus the value of a network doesn’t just increase arithmetically as it grows in size, it ramps up exponentially.
It was the power of the network effect that caused the railroads to grow rich and powerful in the 19th century, and it was the similar power of Metcalfe’s Law that caused the tech companies to grow rich and powerful in the 21st century.
They were and are both networks, one being physical, one being virtual. Moreover, they are both common carriers.
This combination of being a powerful network (which is obvious already), as well having common-carrier status (which is becoming obvious) means that Big Tech, today, is likely to face the same regulatory destiny as Big Railroads, back then.
Trump’s tiff with Twitter might have accelerated this regulatory movement, and yet just as regulation of railroads in the 19th century was inevitable, so regulation of the platforms in the 21st century is inevitable. It’s a trend bigger than any personality or party—and so we’ll be dealing with these issues for many years to come, no matter who’s in the White House, or who controls Congress.
In fact, the Democrats, are already on board. Back in January, Joe Biden declared that he was in favor of new regulation on the tech companies; in the words of Politico, Trump and Biden “have come to the same conclusion for starkly different reasons.” Okay, but it’s still the same conclusion.
Meanwhile, on May 28, House Speaker Nancy Pelosi jibed, “As far as the platforms are concerned, they want two things from the federal government, no regulation and no taxes.” And to think: Pelosi represents tech-heavy, billionaire-heavy San Francisco!
Yet another California Democrat, Rep. Ro Khanna, who represents much of Santa Clara County, which is the heart Silicon Valley, has called for a revival of the FCC’s onetime “fairness doctrine,” updated to apply to the digital platforms. The specifics of Khanna’s idea, or other Democrat ideas, may, or may not, sit well with most Republicans, and yet it’s clear that Democrats, too, are in the mood to do something to rein in Big Tech. And that’s how enduring change happens, with bipartisanship; policies with the support of one party only are often undone with the next changing of partisan power.
To be sure, in the near term, the chances of Trump, Biden, Pelosi, and Khanna finding common ground are, shall we say, not good. And yet the longer-term trend is toward bipartisan support for regulation, just as was the case in the 19th century.
We might pause to freely concede that federal regulation is no panacea; as we have seen, governments spent decades tinkering with railroad regulation. Indeed, to this day, there’s plenty of scholarly controversy about the wisdom of railroad regulation, and there’s even more controversy, today, about the wisdom of tech regulation. So we can hope that wise leaders will come up with wise policies; the only thing we can be sure of is that there won’t be no regulation. That is, the imperative of politics in a time of perceived urgency—do something!—will not allow honest debate to turn into mere filibustering; a new regulatory regime is coming.
In the meantime, we can observe that one oft-suggested regulatory approach, anti-trust action to break up the tech companies, doesn’t make a whole lot of sense. Why not? Because the value of a network is its being, well, a network—that is, its Metcalfean synergy. So breaking a network into little pieces hurts customers; it’s far better to keep the network, and its exponential value, all together, while applying regulation to make it fair and to capture some of that value for the public.
The most obvious answer, as was suggested here at Breitbart News two years ago, is a Federal Platform Commission, in the mode of the old Interstate Commerce Commission, or of the Federal Trade Commission, established in 1914, or the Federal Communications Commission, created in 1934.
Most obviously, a properly run Federal Platform Commission would not permit Twitter to single out the president of the United States for censorship while okaying the tweets of myriad jackasses and lowlifes. A private company has a great deal of discretion in its business choices, but a common carrier, by legal design, has very little discretion.
Of course, the exact form of future regulation remains to be seen; the only thing we know is that, in these days, events move faster than they did in the 19th century.
Yes, it might seem strange to think that the best regulatory system for the early 21st century is a throwback to the systems of the 19th and early 20th centuries. And yet if the issue is wrestling a technological tiger, the bottom line is simple: Today, the American people want fair and open communication, just as they have always wanted fair and open transportation.
And the public interest must always come first.