Social media, property and discrimination

Right-wing users continue to be banned on YouTube and other social networks. Few of those affected evoke much sympathy in me, but deleting large channels that represent years of people's work without any transparent procedures is a troubling trend. The Republicans have now introduced a bill, the Stop the Censorship Act of 2020. In short, it would strip large IT companies of their "freedom to discriminate" (guaranteed by another law), requiring them to respect freedom of speech and remove only content that is "illegal or incites violence and terrorism".

The traditional defense of IT companies here is quite libertarian: these companies are simply exercising control over their property. Besides, you signed that worthless scrap of paper (also known as the "user agreement") yourself, accepting that the platform's owner has every right and you have none. When right-wingers and conservatives are banned, even the most ardent leftists suddenly become libertarians: "Go and find yourself another YouTube."

This defense, however, is unconvincing. Here is why.

1. First, "private discrimination" (actually a bad term—it sounds like "private racism"). Refusing someone entry to your property is like refusing to have sex with the first person who comes along: you are simply exercising a right. Things are somewhat different, however, when it comes to business and the provision of services. A business can operate as a club or on the basis of a public offer: ordinary rules that everyone understands without further explanation. If you are a club, you must make that clear in advance, with a large sign saying "No entry for X or Y." If you open your doors to everyone, you cannot throw out a customer who has come in and sat down at a table simply because you dislike something about him. That would violate the public commitments you made yourself.

How were social networks originally presented? As closed clubs? No, they were presented as open, public platforms for everyone. Their owners nevertheless try to have it both ways, reserving the right to expel anyone without explanation.

2. The appeal of social networks depends on more than the technical infrastructure their owners provide as a service. Above all, it comes from content generated by users. The quality of a restaurant's food does not depend on whether people are sitting at the neighboring tables; on social networks, it is precisely the people at those tables who are being "sold" to you. Social networks are more like a joint venture: something closer to commons, or communal property, than to private property in its purest form. The principles of "managing the commons" are therefore more applicable here. Precisely which principles should apply is an open question. But one owner setting all the rules unilaterally is certainly inappropriate.

3. We can also draw an analogy with the rental market. Many businesses today rent premises (office space, retail units, and so on). Can a landlord change contracts unilaterally and throw tenants out into the cold simply because he has taken a dislike to them? In the civilized world, he cannot. Otherwise, no business could plan more than three days ahead. Confidence that the terms will not change arbitrarily is a cornerstone of a healthy legal environment. YouTube, Twitter and the rest are landlords of this kind, with many entrepreneurs operating on their premises. Yet today they can throw you out on the street without explanation if they dislike something.

I therefore hope the Republicans will still manage to bring the IT giants to heel before Grandpa Trump consigns their party to oblivion. This does not infringe property rights. On the contrary, it is better understood as protecting property rights and establishing a normal legal environment where one has failed to develop.

Mihail Pojarsky 2020-08-03