"Heritage Foundation Defends Facebook's 'Right' to Censor, Will Oppose Regulation." So read the headline of an article at Breitbart.com reporting the opinion of "the think tank's senior research fellow for technology," Klon Kitchen. "I think Facebook is a private company," said Kitchen, a former national security adviser to Sen. Ben Sasse, R-Neb. "Facebook can ultimately make decisions about what kind of speech it wants to have on its platform."
As I read Klon's words I found myself wondering whether he would claim the same right for the Marriott Corporation when it comes to providing rooms for the night. Existing federal law "prohibits public accommodations from discriminating on the basis of race, color, religion or national group." Indeed, when it comes to employment, sex, age, disability, pregnancy and sexual orientation have been added to the mix. This is not to say that existing federal laws cover the kind of viewpoint discrimination Facebook and other internet communication's giants more and more openly practice.
However, it does suggest that private corporations offering public accommodations are not simply immune from government regulation if and when their actions affect the national security and/or common good of the people of the United States. And surely no one can reasonably deny that activities the U.S. Constitution explicitly protects from lawful abridgment form part of our common good.
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When it comes to "freedom of speech, or of the press," the activity in question is not just an individual belonging. Without information, discussion and debate among themselves, how can Americans ponder the choices they have to make as citizens? Those choices are essential to exercising the sovereign power of election (extending to the highest offices in government) on which our identity as a free nation depends. What does "national security" mean if it excludes safeguarding the activities required to preserve our national identity in this respect?
Public discourse, including exchanging and debating all available information, is the process of thought our body politic requires to reach a decision. Accurate deliberation requires access to all relevant data, including opposing analyses and conclusions about the data's significance. Since we are dealing with the activity of the people as a sovereign body, what sense does it make to suggest that this or that private entity has the "right" to pre-empt the sovereign's access to such information? In fact it seems deeply wrong to tolerate such private interference with a decision-making process so critical to the common good of all.
In this respect, allowing private corporations to censor the thought process of the people is not just a matter of individual rights, on one side or the other. Freedom to speak and publish is, like the right to keep and bear arms, a matter that reflects an obligation incumbent upon the whole people. We must therefore judge the abridgment of individual rights in light of how it affects the body politic's ability to fulfill that obligation.
In light of this broader view of the public interest at stake, I must question Mr. Klon's assertion that, simply because it is a private entity, Facebook has an unlimited "right" to censor speech "on its platform." Facebook's platform is not just a public accommodation because it offers space for exhibitions. It has achieved such success in doing so that the large extent of its activities deeply affects the public at large, including the body politic composed of citizens of the United States (and other countries, for that matter.)
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In other cases found adversely to affect a fundamental public interest (our nation's goal of liberty and justice for all, for example), the American people have had to consider how to deal with the actions of private persons (including corporations like Facebook) that damage our national security. Since freedom of speech and publication affects the preservation and exercise of our sovereign power as a people, it makes no sense to suggest that private corporations may act as they please, no matter how it damages the body politic's actual performance of their duties. At the very least, it makes sense to enact legislation that allows citizens to seek relief in the courts of law, when private abridgment of their freedom of speech and publication thwarts their responsible pursuit of activities essential to their constitutional office as voting members of the body politic.
Most Americans understand that we have ways to challenge our government institutions when they run roughshod over constitutionally enumerated rights. But what if corporate entities are openly allowed to curtail those rights, as a matter of "legal" right, in ways the government cannot? I realize that forces hostile to our self-government have been abusing their control of public education to depress the general level of our prudential wisdom as a people. But have they succeed in dimming our wits to such an extent that we can no longer foresee obvious consequences?
The same people who already spend a fortune to preclude real choice in our elections will spend billions to expand and abuse this private corporate route to totalitarian censorship, if we leave are stupid enough to leave it open. Unable use their control of government to foreclose all avenues of free reporting, discussion and debate, the would-be tyrants of the elitist faction will enlist private entities to do it for them.
Such entities are already suppressing grass-roots exchanges of information, turning our already precariously free society into a surefire sham. As the Second Amendment suggests, there are instances in which it is necessary to the security of a free people, and protection of their liberty, to make sure resources the public depends on are "well-regulated" – by law if need. Private corporate censorship of views on the internet's huge, government-facilitated, social communications platforms is certainly such one instance. It is just as wrong for private corporations to tyrannize over the citizen body's process of thought as for the government to do so.
Congress must act to constrain this tyranny. Otherwise, the constitutional safeguards for our exercise of right as a free people – already crumbling – will utterly fail.