One of the reasons the American free speech debate is so tortured (and unintelligible to Europeans) is that people on both sides identify free speech with the First Amendment (viz. Gaetz) when the principle of free speech is actually bigger than the Constitution itself. https://twitter.com/repmattgaetz/status/1348648248903405571

Recall the Federalist (not the website) opposition to the Bill of Rights—that enumerating rights would actually limit rights. Even then, Hamilton was more worried about giving the government regulatory power and did not foresee the way our speech depends on platform providers.

Some necessary throat-clearing at the start: I support deplatforming Trump and all violent accounts from platforms, and am agnostic about the fate of Parler. This thread is mainly concerned with liberal and conservative hypocrisy that threatens free speech.

When I say that Twitter, Amazon, et al. have curtailed free speech, and people reply “that’s not what the First Amendment says,” it’s Hamilton’s fear manifest in a different way. Platforms can and should moderate but it must be transparent and consistent and respectful of rights.

Perhaps it is unfair, but Twitter, Facebook, Amazon, Apple, and Google give the impression that they are only interested in moderating speech that is interesting to them. For starters, moderation has an English-language bias. Although the platforms are global, the mods are not.

Thus, when @navalny observes Twitter doesn’t seem concerned with the death threats he gets regularly, it’s because those threats are coming in Russian. The same holds true for abuse in Mandarin. And it was certainly true with Burmese on Facebook during the Rohingya genocide.

Similarly, while Apple and Google demanded that Parler guarantee robust moderation and then removed the app from their stores, they make no such demands of WeChat, which is full of misinformation, hate speech, and conspiracy theory—albeit in Mandarin.

For Navalny and Merkel, whose countries have no First Amendment, the move against Trump feels like a blow to free speech because most Europeans favor a social market approach where companies follow regulations given by the state but otherwise allow free speech.

That does not mean less censorship. Media in Germany, for example, must censor Nazi content and violent images that are accessible in the US. Likewise, France limits free expression of religion in ways most Americans would reject. The UK’s hate speech laws are stronger too.

Returning to America, the conservatives decrying deplatforming today are reaping the very whirlwind of deregulation that conservatives have long favored, while liberals are embracing the fruits of deregulation that they have long opposed.

Recall the Fairness Doctrine, abolished by Reagan’s FCC, which held that because broadcast corporations used public airwaves, they needed to promote ideological balance as a public good. Ending the Fairness Doctrine helped give rise to right-wing talk radio and broadcast TV.

Liberals used to argue for a return of the Fairness Doctrine, and I think Sen. Sanders still invokes it periodically, but with the rise of the Internet, talk radio’s relative importance has declined, and platform “neutrality” meant all ideologies could carve out a niche online.

That said, platform providers, to invoke Obama’s phrase, “didn’t build that” by themselves. They are the beneficiaries of decades of government subsidy, research, and infrastructure. Although they don’t use public airwaves, the argument for the Fairness Doctrine still applies.

It would be deeply ironic if conservatives tried to resurrect the Fairness Doctrine in defense of Trump, but for now liberals seem content with the brute force of the marketplace being wielded against their ideological enemies—and, it must be said, against domestic terrorists.

But what if tomorrow Amazon decided to ban unions from hosting sites on AWS, or Apple removed a popular leftist app or podcast? Would liberals continue to embrace the libertarian dogma that no free speech is being violated in those cases? Would conservatives switch sides again?

Limits on speech are a public good when the speaker threatens public safety, but relying on companies to regulate speech on their platforms leaves rights contingent on the decisions of CEOs. One would think that, after Trump, we’d never trust a CEO with such power ever again.