Will the federal government move to regulate Big Tech? I think that is unlikely for many reasons I will delineate in a moment. But I can’t deny that there is growing concern about censorship on various social media platforms. It started with declaimers on social media posts and has now expanded to banning politicians and commentators and even an attempt to destroy an alternative social media platform.
House Intelligence Committee Ranking Member Devin Nunes called for a RICO investigation of Big Tech. Here’s a simple test: if no investigation takes place in the next month or so, then you can assume there will be no regulation of Big Tech.
The common argument is that these social media organizations are private companies and therefore should not be governed by First Amendment protections against censorship. The authors of a Wall Street Journal op-ed argue that these companies “should be treated as state actors under existing legal doctrines.” The Supreme Court has ruled that government cannot encourage “private persons to accomplish what it is constitutionally forbidden to accomplish.” They argue that Section 230 of the Communications Decency Act which immunizes them from liability does that.
Although Donald Trump and a number of members of Congress called for the repeal of Section 230, I doubt that will happen under this administration that is already showing itself to favor Silicon Valley and the influence of Big Tech. Even if someday Congress was to remove those protections, I think it likely that these huge companies could probably withstand any court challenge.
Big Tech has become a social media Leviathan with unchecked power to ban people from their platforms and censor content. But I don’t see much courage on the part of this new administration or Congress to challenge its actions.