The Blog

2020-

2020-12-03 f
"Put simply: Since our government cannot regulate content for being offensive, private corporations can, should, and must do so! "

Tyranny, Inc.

What government wants to do but cannot, it can require corporations to do for it

If you’ve read the Parable of the Seasteader, you’ll already know that at sufficient scale the public/private distinction collapses — a private entity of sufficient size can have all the power of a public entity. It is certainly arguable that Facebook and Google have reached such size. Here, however, I want to discuss a different dilemma - government’s use of private entities to regulate freedoms it cannot directly abridge.

We’re going to look at one specific right (the right to free speech) and one specific set of Federal regulations (§ 1604.11) but the pattern I’m describing here has become ubiquitous in our country. Nowadays, almost anything government is forbidden to regulate, it can require corporations to regulate for it. The government has outsourced tyranny. Let’s see how this black magic is performed.

Expression of Viewpoints is Guaranteed to be Free from Government Abridgement, Even if the Viewpoints are Hateful…

The First Amendment to the United States Constitution is a remarkable provision that has, for centuries, protected Americans from the abridgment of their freedom of speech by their government. Even so-called “hate speech” is protected.

The relevant provision states that “Congress shall make no law abridging the freedom of speech.” As written, the guarantee of free speech originally applied only to the federal government. However, the Supreme Court ruled in Gitlow v. New York that the guarantee had been “incorporated” in the Fourteenth Amendment and the guarantee is now applied to all state and local governments as well.

Now, in practice, there are laws regulating speech (you cannot shout “fire” in a crowded theater, and so on), but such regulations are generally “time, place, and manner” restrictions. Our Courts have universally frowned on what is called viewpoint discrimination:

Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.

And, yes, viewpoint discrimination explicitly includes hateful, hostile, and offensive viewpoints. This position was unanimously upheld by the United States Supreme Court in Matal v. Tam. Justice Samuel Alito wrote:

Speech may not be banned on the ground that it expresses ideas that offend.

The disparagement clause denies registration to any mark that is offensive to a substantial percentage of the members of any group… That is viewpoint discrimination in the sense relevant here: Giving offense is a viewpoint.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful, but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’

A more explicit statement could not be made. Speech may not be banned for being offensive or hateful. Giving offense is a viewpoint. There is no “hate speech” exception to the First Amendment.

But Expression of Viewpoints is Not Guaranteed Against Private Abridgement

Government cannot regulate your expression of your viewpoint - but corporations can.

Most people understand that the First Amendment does not apply to private actors on their private property. A person or corporation can choose to allow free speech in their home or business, or can choose to regulate free speech, even viewpoints, as they deem. This “exception” to the First Amendment has been the case since the foundation of Anglo-American law, and it is absolutely necessary to protect the rights of property owners.

... We will put aside the so-far toothless Section 230 for a discussion another day. In general, private corporations can regulate the expression of viewpoints, even though government cannot, and that’s the law.

In Fact, Private Abridgment Is Often Required!

What most people don’t understand, however, is that private actor aren’t just free to regulate viewpoint. They are required by government to regulate viewpoints. What a paradox! Government can require a private actor to undertake regulation over speech that the government couldn’t itself take? Yes!

... Already US citizens have a right to say things that no one is able to permit them to say. Now, US citizens will get a right to own firearms that no one is able to manufacture and sell to them.

By such methods, the Bill of Rights can be castrated. Government, instituted to defend our rights, can pretend to be our protector, while ordering its corporatist agents to control us.

Allowing Tyranny to be Outsourced is the Road to Serfdom

This essay has only scratched the surface of a very deep topic. The mechanisms by which tyranny is outsourced are ubiquitous. And it’s not just bypassing the Bill of Rights. Outsourcing of tyranny is used everywhere to bypass the checks and balances placed on our government. Whether it’s accepting control over our currency from the Treasury, offering private mercenaries unconcerned about the laws of war, or monitoring and recording all of your private data, Tyranny Inc. is ready to do the dirty job that government isn’t supposed… but really wants… to do.

One of the most astute points that F.A. Hayek makes in The Road to Serfdom is that socialism and fascism lead to the same place (serfdom) by different means. In socialism, the government controls your labor and capital directly. In fascism, the government controls the corporations, and the corporations control your labor and capital.

What I’ve described above is similar, but broader in scope. The government controls the corporations, and the corporations control you.

Arguably, it’s even worse than that. Arguably the corporations control the government. They then inform the government how they’d like to control you. Then the government dutifully passes the necessary laws, which the corporations use to control you. If you complain to the government, they say that the Bill of Rights doesn’t apply to actions taken by corporations. If you complain to the corporations, they say they’re just following the law laid down by government. It is as sublime as it is evil. (read more)

______________________

Permission is hereby granted to any and all to copy and paste any entry on this page and convey it electronically along with its URL,
______________________