When Twitter permanently cancelled President Trump’s account and Facebook suspended it indefinitely, many Americans, most of them liberals, gave their resounding approval. These drastic actions came, of course, after a long stream of lies and disinformation the incumbent president launched against the integrity of the presidential election outcome and his reprehensible and inflammatory speech exhorting his supporters to march on to the Capitol and take back “their country” with the shameful and insurrectional actions that followed.
Silencing someone, like Donald Trump, who has masterfully used social media to coral millions of his followers into a parallel universe of concocted facts ranging from the coronavirus pandemic to voter fraud surely has a salutary effect on all those who stand for science, facts, civil rights and democratic norms. But before we celebrate Messrs. Mark Zuckerberg (of Facebook) and Jack Dorsey (of Twitter) as noble defenders of American democracy, we need to connect all the dots and see where their actions can take a democratic and pluralistic society.
Both Zuckerberg and Dorsey delivered a punch of extraordinary force because they have an immense control on the market for information exchange. So, let’s first disassociate the market as a mechanism for exchange from its users. Markets are often denounced by the left as tyrannical and extolled by the right as liberating. Both sides are barking up the wrong tree. Focusing on the market is most often a convenient way to take our eyes away from its users, the true suspects of any good or bad thing markets bring to human societies. Those who are truly responsible for the beneficial or harmful consequences of markets are their users, individuals, enterprises, and state authorities.
There is the misconception that, if left free, markets are innately capable of sorting out and facilitating the exchanges people (the consumers) like to have. But the reality is that unregulated markets do not necessarily lead to free exercise of individual choices. Even in the absence of a state monopoly, a market can be cornered by one or a few private entities. Facebook, Twitter as well as Google, Apple and Amazon which have denied services to Parler (another social media firm) are practically the owners of the information market. Donald Trump is a victim of their huge market power. Other times, individuals are locked out of a market for political, religious or pure discrimination reasons (see below).
Because so much of one’s life is affected by the opportunities to use markets to satisfy material needs and wants as well as for self-expression, the right to participate in markets should be considered an individual right. Of course, like other rights, market rights are subject to limitations when this is necessary for the common good. The internet and social media, in particular, have made the navigation of market rights and the common good extremely challenging. Disinformation and incitement can mislead people to take actions harmful to themselves and others or drive people to violent acts. It is this concern that led Facebook and Twitter to exclude Donald Trump and thousands of conspiracy theorists from their platforms. But this reaction raises legitimate questions about the enforcement of market rights.
Over a year ago, I wrote about the case of the Colorado baker who refused to bake a wedding cake for a gay couple. Similarly, the firm Hobby Lobby refused coverage of contraceptives to its female employees as a matter of religious freedom. In these cases, either a certain class of customers or employees were excluded from a particular market but the Supreme Court found the exclusions consonant with the First Amendment. I then raised the question as to what would happen if a market was controlled by a single or a few players, all imposing the same exclusions. How would the individual right to a market be protected in the absence of market alternatives or poor substitutes of these markets?
Well, this conjecture seems to have been realized in the case of Donald Trump. And this poses a problem for conservatives and liberals. Conservatives cannot celebrate the right of the baker and Hobby Lobby while they condemn Trump’s expulsion from the social media of his choice. And liberals cannot rejoice at Trump’s rejection but deny the baker and Hobby Lobby the same right of refusal in their respective markets for cakes and workers.
And just because I like to provide historical perspectives, let’s not forget that prior to the repeal of segregation practices in the 1954 case of Brown v. Board of Education of Topeka, Black Americans were excluded from markets that were reserved for white clienteles. Very recently, Newsday, a local newspaper in Long Island, had an extensive expose on how real estate brokers had systematically tried to keep Black home buyers away from predominantly white neighborhoods. All these cases suggest that even a country with a professed adherence to free markets has and continues to engage in the practice of market exclusions for reasons rooted in political, religious, or racial ideologies.
There are a couple of lessons in the above examples. First, we have to recognize that markets can violate individual rights whether they are run by private or state interests. Markets can be dominated by private interests and be as illiberal as markets dominated by state authorities. The Chinese are already drawing an equivalence between their state control over information and that exercised by private entities in the US. Second, individual rights are not necessarily protected when we allow unfettered market freedom. The Trump administration, like previous Republican administrations, was particularly friendly to mergers and acquisitions. (Democratic administrations, though to a lesser extent, can be also faulted in this regard.) Now Republicans find that one of their own in addition to thousands of their supporters have fallen victims of the market power of a few mega-players.
The expulsions from social media with all the ramifications on the right of people to exchange information is bound to force a reckoning and hopefully a public debate that should lead to a new legal and social contract for the regulation of information markets. It is hard to expect or accept that a democratic society would grant the power of information gatekeeper to a few private entities, some of them dominated by a single or few owners.
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