Google Censorship Update: Victory Over Communism!

Ryan Williams at the Claremont Institute reports that Google has changed its mind:

See Ryan’s complete update of the story here.

One wonders whether Google changed its mind because it discerned a “mistake” or took note of the public heat it was getting over this. But a deeper issue needs to be addressed.

A number of conservatives have said that although Google, Facebook, and Twitter are engaging in censorship of conservatives, those platforms are privately-owned, and therefore immune from the reach of the First Amendment. Maybe not?

My mind has been wandering back to some old Supreme Court cases, starting with Munn v. Illinois in 1876. This was the case that upheld state regulation of the prices charged by grain elevator cooperatives, even though there was no monopoly in grain elevators. What could a 19th century case about grain elevators possibly have to tell us about social media in the 21st century? More than you might think.

Here’s the 10th paragraph of Chief Justice Morrison Waite’s majority opinion:

Looking, then, to the common law, from whence came the right which the Constitution protects, we find that, when private property is “affected with a public interest, it ceases to be juris privati only.” This was said by Lord Chief Justice [Matthew] Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg.Law Tracts 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control. [Emphasis added.]

It seems to me that social media, being a prime means by which the public now communicates, satisfies this test. (We must leave aside for another time due consideration for Justice Stephen Fields’s excellent dissent in Munn, not to mention Richard Epstein’s modern powerful critique of this and similar cases.)

Likewise, several of the railroad regulation cases of the late 19th century, not to mention the Civil Rights Cases of 1883, find that private property that is used in a mode of public conveyance ceases to be strictly private property (this is the basis for prohibiting discrimination on the basis of race in restaurants, hotels, and so forth). And there are other cases that might be brought to bear to support the conclusion that the Internet giants and social media platforms that discriminate on the basis of viewpoint are violating fundamental civil rights, even if they are nominally “private” enterprises.

The holdings and doctrines of these cases may be defective, but they are part of the legal foundation of modern regulation and civil rights law. Why shouldn’t Google, Facebook, Twitter, et al. be subject to the same legal regime that in other domains they wholeheartedly support? Mark Zuckerberg has said to Congress, “Please regulate us!” I say  let him have it, good and hard.

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