It has taken a long time, but conservatives are finally beginning to comprehensively reject the idea that corporacracy is capitalism. And Alex Macris contemplates how corpocracy can become a form of legalized tyranny that deftly eludes the constitutional protections previously enjoyed by Americans:
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....
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.
For instance, if I am running a bicycle shop, I am absolutely permitted to prevent my employees from putting up posters that say “bicycles suck” or telling my customers to “buy a scooter.” Likewise, if I am running a video game news site, I am absolutely permitted to tell my journalists not to write about the beauties of Sistine Chapel instead. And if I invite you to my home to binge-watch Babylon 5, and you express the offensive viewpoint that Star Trek is better, I am altogether within my rights to make you leave.
Admittedly, there have been occasional exceptions to this rule under the so-called state actor doctrine. Most notably, the US Supreme Court ruled in Marsh v Alabama (1946) that the First Amendment fully applied to expressive activities on the company-owned sidewalks and streets of a company-owned town. The precedent of Marsh v Alabama was expanded in Amalgamated Food Employees Union v Logan Valley Plaza (1968) then overturned in Hudgens v NLRB (1976). Since Hudgens, the state actor doctrine has waned in importance, despite numerous conservative efforts to sue online platforms.
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!
There is more, there is a lot more, there for the reading.