From talk radio to social media, the left and right offer unprincipled, self‐​serving views on free speech. What should libertarians think?

On Free Association and Free Speech

David S. D’Amato is an attorney, a regular opinion contributor at The Hill, and an expert policy advisor to the Future of Freedom Foundation and the Heartland Institute. His writing has appeared in Forbes, Newsweek, The American Spectator, the Washington Examiner, Investor’s Business Daily, The Daily Caller, RealClearPolicy, Townhall, CounterPunch, and many others, as well as at nonpartisan, nonpartisan policy organizations such as the American Institute for Economic Research, the Centre for Policy Studies, the Institute for Economic Affairs, the Foundation for Economic Education, and the Institute for Ethics and Emerging Technologies, among others. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School. He lives and writes in Chicago.

The freedom to associate—and dissociate—ourselves from others for any or no reason is at the core of our liberty, “integral to the lives of free human beings.” For the individualist anarchist Benjamin Tucker, the principle of free association was arguably the key libertarian idea: that “all the affairs of men should be managed by individuals or voluntary associations, and that the State should be abolished.” He put this “associative liberty” at the heart of a libertarianism that worked very deliberately and deductively from something like the non‐​aggression principle. The anarchist Laurance Labadie similarity argued that freedom and independence must always entail exclusion or the right to exclude, that compelling people to carry on unwanted relationships—forcing people together—was authoritarian.

When it came to, for example, providing a wedding cake to a gay couple, conservatives seemed to like this whole free association thing. And while I certainly didn’t agree with the bakery’s moral decision during the Masterpiece Cakeshop affair, I nevertheless felt that, borrowing the words of the Cato Institute’s Ilya Shapiro, “people should be free to live their lives according to their consciences.” When it aligned easily with their position in the culture war, conservatives seemed to have no trouble adopting the libertarian view. But recent dust‐​ups have arguably fomented a realignment. Twitter’s decision to oust then‐​President Trump was followed closely by Amazon’s move to prevent social media platform Parler from using its cloud‐​based hosting services (AWS is the world’s largest provider of such services). Apple and Google followed suit by banishing Parler from their respective app stores, citing, as Amazon had, Parler’s failure to remove user posts inciting violence, particularly in connection with January 6th’s storming of the U.S. Capitol. And we could imagine that conservatives, thinking of themselves as the defenders of freedom and private enterprise, would react to these decisions with the sentiment that the likes of Twitter and Facebook ought to be free to do what they’d like. Even progressives might’ve expected to see conservatives, looked at on the left as the defenders of big business, shrug off any perceived slights from the social media giants. Here, again, we find the peculiarities of partisan politics voiding any earlier‐​expressed fundamental principle: Once ban Donald Trump from Twitter, and the two teams appear to have swapped places, progressives now trumpeting the idea that a private company has the right to make its own decisions, conservatives entreating the federal government for a kind of revamped fairness doctrine.

Finding themselves in the other position, conservatives have launched a full frontal assault on social media companies, Twitter and Facebook prominent among them, for what they perceive is intentional and systematic discrimination against both individual conservative users, groups and corporate users deemed conservative, and, perhaps most importantly, censoring the content shared on these sites. The sentiment is captured succinctly in a recent tweet by conservative author Mollie Hemingway: “Tech oligarchs are destroying the country’s culture of free speech.” This argument and the politically‐​charged episodes behind it raise a question of interest and importance for libertarians: must two of our core principles—free speech and free association—always reconcile? Put another way, can there be cases in which these two freedoms become incompatible? Proceeding further still, if it is indeed possible for such cases to arise, how does it happen?

Speech, Corporate Policies, and the Law

At the moment, whether the First Amendment may apply to protect conservatives’ use of the medium provided by Twitter seems to be a settled issue. Indeed, even as he criticized Facebook and Twitter for blotting out an incriminating story on President Biden’s son Hunter, Glenn Greenwald wrote, “That the First Amendment right of free speech is inapplicable to these questions goes without saying.” Still, some of the social media companies’ critics contend that existing Supreme Court precedent, regardless of what it currently implies, must give way. Legal scholar David L. Hudson, Jr. argues that “[w]hen a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.” Hudson believes that these recent episodes do implicate legitimate rights, protected by the Constitution. Some have prosecuted the closely related argument that a social media platform such as Twitter ought to be reckoned a kind of public utility. It is argued both that social media companies have the kind of monopoly associated with the provision of utilities, and that the realities of contemporary daily life render the use of such platforms a basic necessity. Upon even a moment’s reflection, it becomes quite clear that these positions are in fact not, as Hudson argues, analogous: just by definition, the former doesn’t enjoy a government’s defining power, the legal right to accomplish its goals through aggression, the power we might call the Weberian monopoly. That is, these kinds of arguments seem to underappreciate the importance of the fact that no one must use Facebook or Twitter; if you are a conservative and believe that the Silicon Valley elites who run Twitter hate conservatives and want to erase conservative content and opinions, then you’re quite free to leave Twitter in favor of another website. A website doesn’t owe a user a place to share opinions that it determines violate its terms. And, again, if you are a conservative who thinks the process Twitter uses to make that determination is biased, simply move on from Twitter.

Even if we were to assume for the sake of argument that the social media giants have the kind of coercive monopoly power that characterizes state actors, we might consider pausing to ask why that is so before coming out for stricter and more far‐​reaching government intervention. That is, how is it that Facebook and Twitter have come by such power? Are they holding consumers hostage by using violence or exploiting special government‐​created privileges (on which more below), are they somehow defrauding their users, or are people simply agreeing to the terms of these companies’ (gratis, it should be noted) services? If we’re looking at the latter, it seems clear that the state’s imposition of speech codes or other restrictive policies that would override the membership standards established by these companies are both unethical and violative of the First Amendment. But most of the conservatives outraged by the putative censorship of admittedly powerful tech companies don’t seem to care about this causal question at all; they see banning certain views or users as necessarily incompatible with the principle of free speech. They see the major social media companies as working hand in glove with a left‐​wing establishment of journalists, politicians, and Hollywood to silence conservative voices. Here, such conservatives are rather like some socialists and progressives for whom inequalities of wealth or income are problematic—and thus in want of a governmental remedy—even if these inequalities result from perfectly voluntary and informed economic interactions. Neither group seems to care at all about how we got here. They find an outcome they perceive as bad and then sew together a remedy.

Potential Reasons to Regulate Considered

On these grounds, there are certainly still reasons we might regard Facebook and Twitter, for example, as government‐​protected monopolies (in the Tuckerian sense rather than the strict sense of there being only one seller in the marketplace). Both hold hundreds of software patents that arbitrarily restrict the rights of others and thus competition. While libertarians hold a range of views on intellectual property and its legitimacy, many would argue that intellectual property is a privilege created by governments, not a true right such as would precede government and require protection. Here we find a plausible and fully libertarian objection to big tech’s moderation, suppression, or outright obliteration of certain kinds of user speech: as the beneficiaries of monopoly privilege created by the state and its inherently violent, anti‐​competitive power, big tech forfeits the kinds of rights entailed by the freedom of association. Twitter, Google, and Facebook, for example, cannot partake of and benefit from government power and protection whilst exempting themselves from the kinds of constitutional rules that, in theory at least, protect us from government actors. It is fundamentally an empirical question: have such tech companies so benefited from their relationships with state power that they are treated more accurately as appendages of the state than as genuinely private actors making decisions in an environment that is essentially a competitive free market? Whether or not this question is answerable as a practical matter (for it is certainly answerable in principle), it is nevertheless the one with which principled libertarians must concern ourselves. As Benjamin Tucker puts it, “Inasmuch as the monopolist is the victor, it is true that to deny him the spoils of victory is to sheathe the sword of monopoly.” For Tucker, it mattered how one with any kind of power, real or perceived, achieved that position, whether by sword or by voluntary association.

Supposing that the social media companies’ power has derived only (or mostly) from voluntary interactions, there may nonetheless arise some objections. There are, perhaps, some choices that the values underlying personal freedom should prohibit us from making—even freely. After all, even among plumb‐​line radical libertarians, there is some question about how far we may go with the freely‐​executed agreements between adults with the mental capacity to contract. There are, in the borderlands, difficult cases, cases that require more than libertarian bromides, that appear to implicate the very essence of what it means to be free. “For instance,” ask Kimberley Brownlee and David Jenkins, “can we have a right to voluntarily become a slave and our associate the master…?” This, the question of slavery contracts, is among a number of oft‐​debated intra‐​libertarian philosophical ideas, and it may not be as easy to answer as it seems. For as Brownlee and Jenkins observe, “if we can autonomously do things that eliminate all prospects for future autonomous agency such as seek voluntary euthanasia, then why could we not autonomously form associations that do or threaten the same thing?” It is probably safe to say that most libertarians believe an adult is within her rights to take her own life, that euthanasia should be legal. But how many could reconcile a lifetime of enslavement, even if agreed to with full knowledge and consent, with the core ideas of liberty, with the sovereignty of the individual? This is just to underline the notion that there likely are reasonable (and perfectly libertarian) limits on the kinds of lives and actions to which we can bind our future selves. Indeed, the law of contract traditionally disallows the remedy of specific performance in agreements for a personal service (see, for example, the classic English case of Lumley v. Wagner).

No Sufficient Case for Regulation

Notwithstanding these nuances, recent controversies do not seem to be of the kind that recommends government action. Relaxation of the state action doctrine, as recommended by Hudson and others, moves us further away from a society that genuinely protects the freedom of expression, unjustifiably interfering with consenting adults’ voluntary choices about which services to use and which relationships to enter into. The state has no right to attempt to prevent free adults from agreeing to join clubs or use platforms that restrict speech that would be perfectly permissible outside of those clubs and platforms. Conservatives’ (and some self‐​described libertarians’) apparent about‐​face on this question is a great mistake, one that invites bad legal precedent and further intellectual error.