Three years ago, I asked whether social media platforms might one day be deemed a “public good,” subject the principles of public accommodation currently applied to brick-and-mortar businesses, as well as other government mandates (e.g. those imposed on broadcasters). It is rather common for public accommodation and restrictive covenants to interfere with individual liberties such as freedom of movement, association, assembly, and property rights, but as remediations for “greater evils” such as the legally-mandated segregation and institutionalized racism of the Jim Crow era, as one example, such moves by government constitute a “lesser evil” that imposes what should be a transitory period to a future of greater liberty. But, like any new tool in a toolbox, the public accommodation principle, once created, has been used for far more than its original purpose i.e. the dismantling of institutionalized racism.

The growth in size and scope of social media giants and technology companies, to a point where an inability to access them is tantamount to an exclusion from a “public space,” presents an interesting conundrum. Have the services provided by Facebook and Twitter and the app platforms provided by Apple and Google’s mobile operating systems become so fundamental to function in today’s society that they can be considered public accommodations? Can one argue that being denied access to these qualifies as actionable discrimination? Do the arguments that supporters use to defend public accommodation, e.g. a business benefits from public infrastructure therefore it’s obligated to conform to some degree of public standards, translate into cyberspace?

Libertarianism would argue that it’s not the government’s business to sort this stuff out, that market forces should reward and punish players. And they’d be correct, and as a libertarian, my default position is to keep government out of it. And, yes, the parallels with “Net Neutrality” don’t go unnoticed.

However, allow me to posit a different analogy. Consider the gay marriage issue. Under free-market principles, there should be no government involvement whatsoever in the marriage contract. However, this is not remotely the reality. Fact is, marital status is of relevance to over a thousand laws and regulations at the federal level alone. Government is already deeply involved. Thus, under the principle of equal treatment under the law, there should be no gender-mix discrimination when it comes to marriage. While a complete extrication of government from marriage is the proper end, until we get there it’s proper to apply the rules evenly.

Similarly, if there are rules regarding public accommodation, we should feel it proper that they be applied to cyberspace as well, especially when it comes to the tech giants whose services are integral to functioning in modern society.

Consider a recent Supreme Court case, where a North Carolina law banning ‘registered sex offenders from any “commercial social networking Web site” that is open to minors.’ The Court unanimously overturned the law, citing “the internet’s vital importance to freedom of speech.”

Now, consider some examples of the current state of things and the trending direction:

  • Apple and Google function as Internet gatekeepers by exercising veto power over third party apps.
  • PayPal (owned by eBay) banned a couple conservative groups from receiving donations through their service.
  • Facebook routinely deletes content it finds objectionable, under sometimes arcane rules it changes as it wishes.

I will emphasize that I recognize these are private companies, which in a free market are fully entitled to set whatever rules they wish for their interactions with customers. But, if brick-and-mortar locations are not afforded that consideration, why should Internet companies be?

Progressives and other statist sorts tend to rail against the perils of monopolies, and think it’s the proper role of the State to prevent them from arising. With Google and Apple controlling 98% of the mobile OS marketplace, I can’t imagine a better target for application of public accommodation principles to censorious behavior.

Oh, who am I kidding.

The problem is that these big tech companies are discriminating against opinion, not against demographic markers such as race, gender, orientation, disability, and so forth. And – they’re discriminating against opinions that our control-minded friends on the Left discriminate against as well. The fraction of people, and this includes people of many ideological stripes, who when push comes to shove put principle over personal bias is small, and they’re usually called nasty names for their efforts.

I don’t for a moment expect that the proponents of public accommodation theory are likely to stand up for an even-handed application of that theory, even when doing so would actually be a blow for individual liberty and diversity of opinion.

As to that last part – again – who am I kidding? It’s never about individual liberty and diversity of opinion. It’s about forcing others to live and think a certain way. Sometimes, that certain way is a good way: bigotry is a Bad Thing, and institutionalized, systemic bigotry (in shorter words, racism was required by law) needed to be addressed. But, more often than not of late, it’s a bridge too far, it’s the imposition of personal biases, not advancement of individual liberty.

In fact, I’d only imagine that people would want public accommodation theory applied to Apple and Google if the tech giants took a position of liberty and neutrality in their app gatekeeping. We know there’s already tremendous social pressure on them, Facebook, Twitter, et al to actively combat their platforms being used to propagate opinions considered hateful. I don’t count, here, the use of their products for actual criminality, war, and terrorism. These are acts of aggression that violate others’ liberties, and any student of liberty will tell you that one person’s rights end where another’s begin.

Private-sector censorship is a tough nut to crack. A simple, first-level application of liberty tells us that a company can do what it wants, as long as it’s not funded by or connected to government. Nuance and reality, though, make things a bit grayer than that. We can contemplate the extent to which a company is interconnected with government, public spending and public goods, and the like, and see if that level of interconnection puts its activities under 1A restrictions. Or, we can consider the underlying premise of public accommodation – that a bias of sufficient breadth to deny some access to public spaces and services warrants government action.

Consider the infamous case of the gay wedding cake. One baker declined to serve a customer. While the customer was inconvenienced to the degree of having to find a different baker, it’s hard to rationally argue that the customer was denied the ability to get a cake of sufficient quality made. However, if the baker controlled every bakery in town, the customer wouldn’t have equivalent alternatives. Is there a libertarian case to be made for intervention in such a circumstance, given that there are many non-libertarian components to the society and market segment that led to the arising of that circumstance?

Perhaps.

A fundamental role of government is the protection of rights. If a private-sector entity grows to where it can systemically deny individuals’ exercise of their rights, to where there are no available alternatives and few prospects for them developing, then there might actually be a libertarian case for intervention. After all, the government does serve the public when its agents protect the rights of protestors to speak their minds.

This is a very tough nut to crack, because there are many who’d use intervention to restrict liberty instead of protecting it, but it’s also a very important conversation. It’s one that’s happening this very moment, and it behooves any lover of liberty to take it seriously.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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