Inaction is a form of action

In my latest podcast (MP3), I read my latest Locus column, Inaction is a Form of Action,, where I I discuss how the US government’s unwillingness to enforce its own anti-monopoly laws has resulted in the dominance of a handful of giant tech companies who get to decide what kind of speech is and isn’t allowed — that is, how the USG’s complicity in the creation of monopolies allows for a kind of government censorship that somehow does not violate the First Amendment.

We’re often told that “it’s not censorship when a private actor tells you to shut up on their own private platform” — but when the government decides not to create any public spaces (say, by declining to create publicly owned internet infrastructure) and then allows a handful of private companies to dominate the privately owned world of online communications, then those companies’ decisions about who may speak and what they may say become a form of government speech regulation — albeit one at arm’s length.

I don’t think that the solution to this is regulating the tech platforms so they have better speech rules — I think it’s breaking them up and forcing them to allow interoperability, so that their speech rules no longer dictate what kind of discourse we’re allowed to have.

Imagine two different restaurants: one prohibits any discussion of any subject the management deems “political” and the other has no such restriction. It’s easy to see that we’d say that you have more right to freely express yourself in the Anything Goes Bistro than in the No Politics at the Table Diner across the street.

Now, the house rules at the No Politics at the Table Diner have implications for free speech, but these are softened by the fact that you can always eat at the Anything Goes Bistro, and, of course, you can always talk politics when you’re not at a restaurant at all: on the public sidewalk (where the First Amendment shields you from bans on political talk), in your own home, or even in the No Politics Diner, assuming you can text covertly under the tablecloth when the management isn’t looking.

Depending on your town and its dining trends, the house rules at The No Politics Diner might matter more or less. If No Politics has the best food in town and everywhere else has a C rating from the health department, then the No Politics Diner’s rules matter a lot more than if No Politics is a greasy spoon that no one eats in if they can get a table elsewhere.

What happens if some deep-pocketed private-equity types hit on a strategy to turn The No Politics Diner into a citywide phenomenon? They merge The No Politics Diner with all the other restaurants in town, spending like drunken sailors. Once that’s accomplished, the NPD cartel goes after the remaining competition: any holdouts, and anyone who tries to open a rival is given the chance to sell out cheap, or be driven out of business. NPD has lots of ways to do this: for example, they’ll open a rival on the same block and sell food below cost to drive the refuseniks out of business (they’re not above sending spies to steal their recipes, either!). Even though some people resent NPD and want to talk politics, there’s not enough people willing to pay a premium for their dinner to keep the Anything Goes Bistro in business.

MP3