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On Richard Epstein on Regulating Big Tech

My latest column for AIER was inspired by Tunku Varadarajan’s fascinating report, in the Wall Street Journal, of Richard Epstein’s reaction to tech companies deplatforming certain conservative and populist voices. A slice:

At the core of Epstein’s analysis is his identification of conditions under which so-called “big tech” firms might be prevented by the common law from deplatforming, or refusing to platform, customers. Specifically, the law sometimes holds that firms that are monopolists have obligations to the public that are more extensive than those firms would have were they not monopolists.

And so if companies such as Twitter and Facebook have monopoly power, they are subject to the Anglo-American common-law rule that (as described by Epstein) “no private monopoly has the right to turn away customers.” Such monopolists must serve all customers on terms that are “fair, reasonable and nondiscriminatory.” A useful acronym for this requirement is “FRAND.”

This legal doctrine is real, yet note that it supplies no answer to the question of whether or not private monopolists are subject, as is government, to challenges under the First Amendment. The common-law requirement that private monopolists take customers according to the FRAND standard is completely different from the Constitution’s requirement that government not obstruct private people’s peaceful expressions.

It’s true that application of the FRAND standard to social media companies would cause these companies to behave in ways very similar to how they’d behave if they instead were held to be subject to First Amendment challenges. But this fact doesn’t mean that we should be indifferent between these two approaches. To apply to private parties a constitutional provision explicitly meant to prevent only government from superintending and obstructing speech and the press is to stretch the meaning of the First Amendment absurdly. History instructs us to be exceptionally wary of interpreting the Constitution’s words so elastically.

Even worse, applying the First Amendment to private parties would turn that amendment against itself. It would become a tool for use by an arm of government – the courts – to achieve precisely what the amendment is meant to prevent, namely, government superintendence and control of private citizens’ peaceful decisions about how to express themselves using their own property.

Fortunately, as mentioned above, Epstein never actually makes the case that private companies should be subject to the First Amendment. Any action that he would endorse against tech companies, it seems, is grounded exclusively in the common-law’s imposition on private monopolists of certain obligations – namely, the FRAND standard – that the law does not impose on competitive firms.