Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
– The First Amendment of the United States Constitution
Think back to a time where there was no social media, no mass media, and no printing press. How was a message passed? Two ways: through oral conversation or the laborious task of duplicating messages by hand.
These two conditions meant that your message didn’t really go far, but then again, neither did you. Most of your business was decided in your community and you had little fear of far off places impacting your life.
Fast forward to today. The technological leaps we have made allow us to replicate the message faster, spread the message faster, and reach a wider audience. I hit “publish” and this article is theoretically accessible to over 3 billion people by the first degree.
Generally speaking, these advances have worked out well for us. Think free societies, scientific innovation, friendships and bonds.
Today, we have much greater ability to communicate than the great thinkers and scientists of the past who laid down the foundations of our society today. They were limited to coffee shops and town squares for most of history.
Imagine what a bright light this ability would have been for them and for us.
Now imagine a means existed to deny, filter, and augment their message. This path is truly darkness for those who care about freedoms and liberties.
The Ability to Communicate
Communication of any form requires a receiver. I can have all the protected free speech I want, but if I am denied the ability to have that message heard, the net effect is the same.
It is suppression of free speech by other means.
To be clear, I am not talking about the receiver not wanting to listen or read what you have to say. That is an individual liberty we should all enjoy.
If I don’t want to hear or read what you have to say, I have the liberty to ostracize you out of my life.
If I don’t like what you say or writing, I have the liberty engage in debate with you, should you wish to engage.
In either of these cases, you have not been denied the ability to communicate your message.
I am also not talking about the cases which could result in immediate and tangible harm. You always maintain the ability to communicate to others by yelling “fire!” in a crowded theater when there is no fire, yet as a society we have agreed such reckless behavior should be punished because your actions put innocent others at unnecessary risk. That risk is getting trampled by a rushing mob of scared people, not the risk of having your feelings hurt.
So what am I talking about?
As noted, communication requires a receiver, meaning that sender and receiver must assemble. That is why the right to peaceful assembly is critical to freedom of speech. If there is no way to assemble, your freedom of speech has been limited to you alone. In other words, freedom of speech has been suppressed.
How the Past Had the Ability to Assemble
Think to the 1800s. William Henry Harrison was the first presidential candidate to use the rail system to campaign in 1836. He lost in 1836, but in 1841, when he won, President-elect Harrison used his train to roll into Washington, DC. Shortly thereafter, President Lincoln used the train and rail system extensively to rally support for his policies by talking to people directly.
The rail system, a major technological achievement of the day, gave these two Presidents and countless others the ability to communicate to the masses, whether it was for political aspiration or for commerce.
Neither Harrison nor Lincoln owned the entire rail infrastructure used to exercise their freedom of speech. Private companies built, maintained, and operated these lines and trains, all of which sat on the land of the people, land which was granted to these companies by the federal government.
Imagine for a moment if Lincoln was denied the ability to board the rail cars, all because The Baltimore and Ohio Railroad, or the United New Jersey Railroad and Canal Company, or The Delaware and Hudson Railway did not like what Lincoln had to say.
What would really be going on?
Lincoln would be having his freedom of speech suppressed by other means.
It’s a sleight of hand really. Follow along:
- [Private company denies] Lincoln the ability to board the train, because of what he is saying.
- Lincoln’s [ability to travel] (a liberty) has been significantly reduced, where other means are prohibitively expensive.
- Lincoln [no longer has the ability to assemble with the public].
- Lincoln’s [freedom of speech has been suppressed] by other means.
The ability to travel is what gives Lincoln the ability to communicate.
If the rail car companies can deny boarding by some discriminatory means, they are also denying the individual the ability to travel over a network of federal lands.
That is the sleight of hand. It is the powerful private interest that, by proxy, suppresses the constitutional rights, because it is the powerful private interest that holds monopoly over a key technology that society has become reliant on. Therefore, until such time where there are competitor rail car companies or new modes of travel, the private interest holds dominance over the ability to communicate.
When a Private Technology Becomes a Public Reliance
I’m preempting an argument: “but it’s a private company, they should be allowed to be able to deny somebody the ability to board.” Generally, this is a valid argument. But what if that private technology has become something the public relies on? And then what if the private entity discriminates against users that rely on the technology?
Let’s reframe the Lincoln example. Lincoln is allowed to board the rail car, but because of what he is advocating, the rail car company only allows him to travel to certain destinations and say certain things when he assembles because the rail car company’s interests are at threat by what Lincoln is saying.
Instead of allowing the general public to ostracize Lincoln because they do not like what he has to say – the hallmark of a free society that allows its citizens to exercise their individual liberty – the private entity is exerting its monopolistic power over what Lincoln has to say. And the private interest can do so because they control the technology.
In other words, Lincoln’s ability to communicate is being denied. And if the powerful interest can deny Lincoln from boarding, they can surely do it to any other individual.
There are only three solutions to this potential problem:
- A comparable competitor rail car company. A regional rail car company is not comparable to a transcontinental one, even if both are in the rail car business. They need to be similar in scale and outreach and accessible at near similar cost.
- A new technology, such as air travel, which gives similar (or greater than) scale and outreach as the powerful rail car company, but is also comparable in cost, unless the new technology offers some premium or advantage that the rail car does not. For example, a plane saves you time, which is why you pay a premium.
- Legal or regulatory measures that ensure arbitrary discriminatory practices do not occur.
The Rail System of the 21st Century
Railroads were a major technology of the 1800s that allowed people to assemble and speak freely. Fast forward to today and you know this conversation leads to the Internet.
Instead of land, railroads, and rail cars, think radio spectrum, telecommunication lines, and social media companies.
Generation and transmission of radio waves is strictly regulated, done so through national laws. It is necessary to do so because it would be impossible to communicate otherwise. Radio waves would be crashing into each other and could put the public in harm’s way. Think somebody laying down some railroad track through your backyard just because they felt like it. Reliable radio transmission would be impossible if we did not have these governing rules, many of which are coordinated by the International Telecommunication Union.
Here is how the system works: the federal government grants the use of spectrum to a private company in order to build a network. These private companies are called service providers.
Sounds very similar to the federal granting land rights to a private company to build a private railroad system, doesn’t it? It should, because the railroad system is a service provider.
The 21st Century conundrum is the rail car. But really, it shouldn’t be.
Here is why: imagine you are traveling from New York to Los Angeles to speak at a conference, but the rail car company refuses to allow you to board because of your political views. There would be personal outrage. You would seek remedy from authorities, informing them of the unjust and discriminatory practices of this rail car company.
You would want to make your story public, who may also share in your outrage. And if there were competing and comparable rail car companies, offering similar services for similar access, the discriminatory rail car company could lose customers and ultimately go out of business.
There’s the key though: true competition. Without it, private interests that hold monopoly of technology that the general public relies on are more powerful than meets the eye.
More to the point, certain private interests, through proxy, can deny constitutional rights.
The Rail Cars of the 1800s are the Search Engines & Social Media Platforms of Today
It may not have been by design, but search engines and social media companies have become the rail car companies of the 21st Century, telecommunication carriers the railroads, and radio spectrum the federal lands.
I am preempting an argument: wouldn’t have Net Neutrality solved this problem by making Internet access a common carrier telecommunication service?
No, it wouldn’t and here’s why.
The pro-Net Neutrality argument never reconciled the rail car problem. In fact, it gave the rail car companies the unimpeded ability to travel along the network, which others built and is on federal land, but also gave the rail car companies the power to put limitations on its passenger’s travel.
Put another way: Net Neutrality still allowed rail car companies the unchecked discretion to send passengers to the back of the train, deny them the ability to board, and even restrict which routes they could travel.
Taken to an extreme, a rail car company could write into its terms of service that if you liked the color purple, you could be denied boarding.
Because this rail car problem was never reconciled in the Net Neutrality solution – in fact, made it worse – it is a good thing Net Neutrality was scrapped.
Here’s why: for the Net Neutrality argument to work, where all data on the Internet must be treated the same, would mean that the rail cars companies (social media companies, for example) would also have to, wait for it: treat all data the same.
To illustrate: I board the train, off to give a speech at a conference across the country. While in the café car, I ask people to assemble because I have something to say and would like their response. Some agree to listen while others go about their merry business paying no attention to me.
I say two things, one that most passengers find agreeable and one that many don’t. I did not harm anybody. I just said them as points of view that I believe in.
When I said something agreeable to the passengers, they gravitated towards me. When I said something disagreeable, they moved away from me. Some were even highly offended.
Here is the key though: I was allowed to say both while traveling on the train and I was still allowed to get to my final destination. As long as I kept a level of civility, made no tangible threats and caused no physical harm to anybody, even if my comments were controversial, the free market determined the result of whether people wanted to gravitate towards me or ostracize me.
I should note, the same argument applies to others. If I am a traveler and somebody asks us to assemble, I can either disregard and go about my business or listen. If I decide to listen, I am at liberty to agree or disagree.
If I disagree or am offended by what the other passenger has to say, that’s a personal problem of my own which I must reconcile. I can debate or ostracize.
If what I think the other passenger is saying is fake or inaccurate, that’s a personal problem of my own where I have the responsibility to validate or invalidate those comments.
Only if this passenger threatens to cause tangible harm or engages in violence towards me (and innocent others) should I be allowed to self-defend myself (or assist in the defense of innocent others). Similarly, I can also request of the rail car company to toss that passenger off the train on account of their unruly behavior.
That is what decent and free societies do. They let people say both agreeable and disagreeable things, allowing the free market to decide which opinion to gravitate towards to.
Consider then what would it mean if the rail car companies only allowed us to board if we believed and said certain things? The rail car companies would, by proxy, have dominance and control over our free speech because they have the ability to limit our ability to communicate. Surely, if we had other comparable means of travel that allowed us to believe and speak freely, we would take them, but no others exist.
Therefore, despite the existence of an extensive railway system, my travel, along with the travel of others, is limited to the few rail car companies which hold the ability operate over the majority of the network. And these rail car companies can stop me from boarding, decide which routes to take, and even determine what my final destination will be. And they can do that to you too.
That is what Net Neutrality missed and although the Net Neutrality argument is done for now, the purpose of bringing it up here is to show the grave deficiency it had. It created an opening to give even more power to the already powerful. And it does that through terms of service and algorithms.
Liberty, Freedom of Speech, Right to Peaceful Assembly, and the Ability to Communicate
Industries evolve over time and play different roles in society as they evolve. The rail, airline, and telecom industries did just that, each playing a different role in society. Social media companies and search engine providers must also do the same, evolve, albeit in a shorter amount of time.
Yes, as private companies they are perfectly with their own rights to deny travel to unruly passengers. If somebody gets on a rail car and starts harassing other passengers, or commits acts of violence, yes, toss them and ban them. But if you are denying travel for any other reasons, you are acting more as a private club as opposed to a tool for social good and peaceful assembly.
If you are offended by somebody’s views, that somebody should not be denied the ability to ride the train. Remember, offensive smelling people are still allowed to travel on the train. If somebody sits beside you on the train and smells offensive, find another seat. And if another seat isn’t available, suck it up for the ride and hope to never sit beside that person again in future travels.
There are a lot of seats on this rail car and just because you don’t like how somebody smells five cars ahead of you shouldn’t mean they get tossed off the train. Decent society has a way of ostracizing offensive people naturally.
It’s time to have the honest conversation: if you are a social media company today or company that provides a public service (search engines), short of causing tangible harm to an individual, you should not be denying passengers travel on your rail cars because you neither own the tracks (internet service provider) nor the land (radio spectrum). And because there is no reasonable competition to the modern day rail car companies (we all know who they are), all societies that value liberty, freedom of speech, and the right to peaceful assembly, should protect the ability to communicate.
The Internet has allowed speech to move freely. It is the railroad system of the 1800s and nobody should ever be denied entry onto a rail car for discriminatory reasons, especially when those reasons can serve as proxy to deny somebody their constitutional rights. And because the Internet rests on the use of radio spectrum, a federally-regulated property, nothing should prohibit the free exercise or abridging of the freedom to communicate.
Also available on LinkedIn