Free speech is at stake: Twitter, Big Tech, big media vs. Elon Musk … and you

Editor’s note: Veteran Raleigh-based tech attorney Jim Verdonik, founder of Fire Pit Cell which is dedicated to exploring Freedom issues, and co-founder of Innovate Capital Law, discusses Elon Musk becoming Twitter’s largest stockholder and offer to take Twitter private. This is the first of two parts. The second focuses on free speech issues and Big Tech. Verdonik has been actively involved over more than two decades in helping Triangle companies go public or be sold.

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RALEIGH – Having answered the question why Twitter made an ideal target for Elon Musk, lets discuss how this relates to Free Speech.

2021 was the year the Free Brittney movement won.

Will 2022 be the year the Free Twitter movement wins?

What the two movements share in common is that both were supported by people who might not have liked every use of Freedom, but who realize that there is no Freedom if you are only free to act the way other people think appropriate. Brittney doesn’t have to make perfect decisions to be free and people don’t need to comply with any ideology to talk freely. Put another way, perfection is not a prerequisite to Freedom.

Jim Verdonik

Let’s discuss the media’s role in Free Speech in the contexts of:

What does the law require?
Why has Free Speech traditionally been the most supported of America Freedoms?
How has technology and media concentration change the dynamics of Free Speech?
How has the American public adapted to media concentration in the past?

Freedom of Speech Laws

The first amendment to the US constitution provides “Congress shall make no law . . . abridging the freedom of speech, or of a free press . . ..” Most state constitutions have similar provisions.

What has this got to do with Twitter?

Twitter isn’t the government. It’s a private company. So, let’s examine how free speech rights and property rights interact with one another.

In the 1970s’s free speech activists argued that shopping malls were public spaces and the first amendment guaranteed access. The U. S. Supreme Court rejected that argument 1980. Most states have also ruled that their constitutions also do not guarantee free speech on private property. New Jersey and a few other states do protect free speech rights in privately owned shopping malls, but the general rule is that owners of private property do not have to honor free speech rights.

So …

Can an airline refuse to fly you to Washington DC to protest for a cause the airline doesn’t like?
Can a telephone company refuse service if they disagree with your political views?

No, such privately owned companies aren’t allowed to discriminate based on what you say.

There are a wide range of laws that protect free speech rights and prevent private companies from discriminating against the public. An airline can donate free tickets for causes the CEO of the airline supports, but the CEO can’t ban ticket sales to people the CEO doesn’t like.

The free speech issue is whether Big Tech companies should be subject to similar laws.

Publisher or Technology Provider?

This raises the fundamental question: What is Big Tech?

Big Tech generally claims they are mere technology providers that enable users to publish content. They have immunity from lawsuits based on user supplied content that newspaper and book publishers do not have.

Big Tech says it is more like the telephone company than a newspaper or book publisher. But in modern America software and servers no longer store and process all data in a content neutral way. We have blue servers and red servers that discriminate based on political and social content.

Media Concentration

One of the criteria used to determine whether private businesses must accept all of the public is whether people have viable alternatives to exercise their rights. Let’s see how Big Tech measures up to that standard.

In the olden days, every town of any size had at least one newspaper. Most had more than one. Often, these newspapers took partisan positions. One supported Dems, the other Republicans. The first amendment protected their right to be openly partisan and exclude views they disagreed with.

Those diversified days are long gone. Media concentration that is suppressing free speech is like an octopus. It has many arms that are coordinated by a central ideology.

A few software platforms are collecting hundreds of millions of users, and in some cases billions of users. These software platforms are the most public side of media concentration.
Advertising dollars are funneled or withheld by these software platforms, which threatens the economic viability of other smaller media players. They have the power to punish people who express opposing views.
Device manufacturers erect software barriers to communicating with their device owners if they disagree with policies of software platforms that compete with established platforms.
Behind the scenes, Amazon, Microsoft and few other corporations control the servers required to operate a media platform and have used their market power to withdraw servers from use by new platforms that target users with diverse political views.

All these forms of concentration, reinforce one another. When these technology suppliers who control customer access, monetization and data storage and processing power, coordinate policies about speech it is extremely difficult for anyone they oppose to be heard in the public space. A famous octopus cartoon from the election of 1904 reminds us that these issues are not new.

Government Involvement

The political parties and government never ignore the power to promote or suppress information. Likewise, businesses don’t ignore government power to promote or harm their businesses. This makes cooperation between the private sector and government attractive for both sides. Therefore, if government does not like free speech, it will use the private sector to do what the government cannot do directly. Recently, we have examples of Government agencies promulgating “truths” and then Big Tech erasing views that criticize such truths, all to protect of protect people from hearing untruths.

George Orwell’s Ministry of Truth had three slogans: “War is Peace,” “Freedom is Slavery,” and “Ignorance is Strength.” When 1984 was written, Americans were trusted to be able to decide for themselves what is true and not true. My parents didn’t need a Ministry of Truth assisted by Big Tech to protect them. My parents were Free.

History of Regulation of Technology Enabled Businesses Serving the Public

America has a long history of regulating transportation and communications technology providers to assure fair access.

Interstate Commerce Act of 1887 regulates railroads
Communications Act of 1934 regulates wire, radio, telephone, telegraph and broadcasting businesses
Federal Aviation Act of 1958 regulates the airline industry

Each of these industries were in their era, cutting edge technology. They became regulated when people started to depend on them and in some cases when they started to become political players.

The Telecommunications of 1996 reduced regulations for Internet businesses to promote competition. That was when the Internet was in its infancy before a dozen companies took control and could crush competitors and control elections.

This raises the questions:

Does Big Tech still need exemptions?
Is competition really being promoted?

Public Policy Issues: Why Is Free Speech Important?

Earlier in this article, we discussed the Constitution. Free Speech, however, transcends technical legal issues.

Prior generations of Americans decided that Free Speech is not only a political right, that it’s a social good, because allowing people to talk freely and others to hear them gives them the incentive to talk instead of taking action.

Allowing people to blow off steam has been the American way of creating political stability. Other countries have tried and failed to create stability by suppressing speech. Suppression works for the short term, but pressure builds and creates an explosion.

Most people would rather talk than fight, but they will fight if their ability to talk and be heard is suppressed. They also don’t think it’s important distinction that their ability to talk and be heard is suppressed by a government official or a software algorithm or a billionaire who owns servers.

This raises many public policy questions:

Are separate blue and red servers and software algorithms battling to cancel one another promoting better public discourse?
Does talking to and listening only to your fellow true believers produce the best results?
Is faith in our election system increasing or decreasing?
Do people believe media bias is increasing or decreasing?
What happens when no one believes the media?

Elon Musk didn’t consult me before he engaged with Twitter, but I think he is pointing us all toward the right direction. A messy noisy marketplace of ideas is better than orderly speech suppression.