Virgil — Flash-Forward to 2038: How the Federal Platform Commission Protected Free Speech

The following is a speculative “future history.”  Building from true events that have already transpired, the author believes that action along the lines described below is inevitable, and yet, of course, it hasn’t happened yet.  So we’ll have to wait and see. Yet in the meantime, here’s a sneak peek at a plausible future scenario from the year 2038.  –Virgil  

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From the perspective of today—late in the third decade of the 21st century—we can look back and see that 2018 was the watershed year in the long and ultimately successful campaign to establish a Federal Platform Commission. 

As students of recent history will recall, 2018 witnessed a seemingly endless string of revelations about political bias in Big Tech.  That is, social-media companies, mostly in and around Silicon Valley, were shown to be guilty of egregious violations of both free speech and elementary fairness.  

Indeed, the scandalous discoveries of bans, shadowbans, suspensions, and de-platforming had finally convinced most conservatives that the tech companies were simply not to be trusted with so much concentrated power.  (It’s worth recalling, too, that there were plenty of complaints from the left, as well, about censorship, which underscored the reality that absolute power becomes absolutely capricious power, toxic to just about everyone.) 

Of course, a hinge moment came in August 2018, when the President of the United States, Donald Trump, blasted the social-media companies in a series of tweets (ironically enough), in which he declared, “Too many voices are being destroyed, some good & some bad, and that cannot be allowed to happen.”  At that point it became obvious that the greater threat to free speech was from the left-leaning tech  companies; Republicans realized that if they wanted to protect free speech, they would have to use the power of the government to protect it.

Yes, by 2018, Republicans knew that something had to change: The abusive situation of these social-media companies—often dubbed “platforms”—had gotten out of hand, such that just two companies of dubious trustworthiness, Facebook and Google, accounted for 70 percent of all the news.  

In response to this hoarding, as well as flexing, of media muscle, a 2018 headline in Breitbart News asked a piercing question: “Who Gave Private Big Tech Companies the Power to Decide What We Can See?”  The answer, in large part, was that it was Uncle Sam that did it.  That is, in a series of low-key government decisions, the feds gave a huge boost to the Tech Lords, thereby privileging their oligopolistic position.  

In the face of such abuses, by the late 2010s, three main lines of public-policy response had emerged: 

First, do nothing.  Some on the right—if libertarians could to be considered as the right—insisted that there was nothing to worry about, because the abuses of Silicon Valley, even foreign-based manipulations, weren’t really so bad.  And in any case, libertarians declared, tech troubles were a purely private matter; in other words, private property was prior to the public interest.  And so self-regulation, as preached by the followers of Ayn Rand, was all that was called for. 

Yet this trusting, laissez-faire attitude became untenable when the full extent of techster trickery became clear; for instance, in 2018, we learned that Facebook had been using well-honed psychological ploys to get young people even more “hooked” on social media.  In other words, the “freedom” of social media was the same kind of “freedom” as opioid use—that is, disastrous for the individual and for society.  

Second, anti-trust action.  Some on the center-left argued for energetic anti-trust enforcement, aimed at breaking up the tech companies.  There was, to be sure, a certain nostalgic appeal to the idea that world-girdling behemoths could somehow be made local.  And yet it was soon realized that such a retro vision was unrealistic in the 21st century.  After all, it’s the essence of a network that it benefits from economies of scale; indeed, Metcalfe’s Law tells us that bigger networks benefit consumers, too.   

Even more urgently, astute conservatives pointed out that the key issue was quality (whether or not tech platforms were honest and fair), much more than quantity (how big they were).  To put it another way, breaking up a big liberal Silicon Valley company—all the resulting pieces still, of course, belonging to the same owner—into five or six little liberal Silicon Valley companies was no solution to the problem of political bias.  

Also, some conservatives with long memories recalled the wisdom of President Theodore Roosevelt; TR had always viewed anti-trust as a last resort.  It was far better, TR counseled, to get the situation right by putting in place the proper rules of the road, thus avoiding further problems down the road.  As the 26th president explained in 1907, “The design should be to prevent the abuses incident to the creation of unhealthy and improper combinations, instead of waiting until they are in existence and then attempting to destroy them by civil or criminal proceedings.” 

Third, direct regulation of Big Tech.  By process of elimination, Americans came to realize that if Big Tech couldn’t be trusted, well, then, there oughtta be a law.  Another Breitbart News headline from 2018 stated the case for regulation plainly: “We the People Should Decide Whether Google, Facebook Can Censor.”  That is, the public interest should supersede private interests. 

To be sure, there was plenty of debate over the idea of regulation.  Some well-meaning observers feared, for example, that regulation was simply a blank check for hiring bureaucrats.  In response, advocates reached back to the wisdom of James Madison, the principal author of the Constitution, who saw that some regulation would always be needed, as a way of keeping society in balance.  

In Federalist #51, Madison wrote wistfully, “If men were angels, no government would be necessary.” And yet, he continued, since men (and women) are not angels, well, then, as a “provision for defense,” it was necessary that power be divided so that “each may be a check on the other.”  As we can see, Madison was describing the mechanism of checks and balances that is at the heart of accountable governance.  As the Sage of Montpelier also wrote, a system of divided power serves as “a sentinel over the public rights.”  

Madison’s logic, of course, is impeccable.  And so it has been updated to meet changing circumstances.  For instance, beginning in the 19th century, states started to create public utilities commissions to manage water, electricity, and other vital public goods.  To be sure, these regulatory processes were messy—it’s for a reason that the making of laws and rules has been compared to the making of sausage—and yet there is no better way to proceed.  To paraphrase Winston Churchill’s famous observation about democracy, the system of countervailing regulation is the worst possible system—except for all the others. 

Of course, periodically we have had reminders of this Madisonian/Churchillian wisdom: In the late 90s, for instance, California experimented with the partial deregulation of electricity; the results were catastrophic, and so regulation was quickly re-imposed.

In the meantime, at the turn of this century, few realized that Silicon Valley had managed to elude virtually all regulation.  This loopholing was a bit ironic, since the federal government had created the Internet (no, not Al Gore, despite his claims, but rather, the Pentagon, many years before Gore was elected to Congress).   

In the early days of the public Internet, many hoped that the Net would be a pleasant “virtual community,” in which everyone would have the opportunity to express his or her opinion by posting on an electronic bulletin board.  Soon thereafter, personal blogs emerged, each upholding the individual right of free expression.

Yet in the 00s came the Great Consolidation, as the web came to be dominated by a few giant corporations.  We might note that such rolling-up of individuals and small players has been the story of all new technologies; as an industry emerges, there’s room only for a few big wheels.  As we have seen, Facebook and Google gained control of almost all the news, as well as advertising revenue, and, of course, essentially all of our personal data. 

In the process, traditional newspapers were mostly wiped out, and the Big Squeeze has also throttled websites, even radio and TV.  

It was at this point that the big tech companies started to resemble highways and other aspects of our basic infrastructure; the legal term for such a phenomenon, we might add, is “common carrier.”  

The notion of a common carrier reaches far back into the history of human civilization.  In the course of human events, some modalities have become so important, so vital, that it is deemed that the commonweal is fully dependent upon them.

Common carriers—everything from toll-bridges to water pipes to broadband frequencies—have typically been privately owned.  And yet at the same time, it’s understood that they exist only at the sufferance of society; it is society, after all, that allows for rights-of-way and all the other legal protections that private investment requires.  And so we come back, again, to the need for checks and balances: Yes, private property has rights, but it also has obligations to the public. 

As a keen observer pointed out in Breitbart News in 2017, the regulation of radio and TV by the Federal Communications Commission in the 20th century provided a useful historic benchmark for the regulation of new communications technologies in the 21st century.  And this was especially true as these communications platforms morphed into economic platforms, also known as the Internet of Things—which is to say, the Internet of Everything. 

Indeed, it was the enormous size of digital platforms that led policymakers to conclude that the Federal Communications Commission was better off keeping its focus on communications, rather than on platforms.  What was also needed, leaders concluded, was an additional body—a Federal Platform Commission.  

And then, after additional consideration, a better idea was found: the old Federal Communications Commission should be folded into the new Federal Platform Commission.  That is, the old FCC should become the new FPC. 

And so early in Donald Trump’s second term in the White House, the Federal Platform Commission was established.  Of course, there were still concerns, especially on the right, that the FPC would be captured by special interests—liberal and Democratic special interests.   And yet proponents of the FPC made the point that Silicon Valley had already been captured by liberal Democratic special interests.   So in fact, the FPC gave conservatives and Republicans a second chance to make their legitimate influence felt; after all, the statute establishing the FPC was written along the lines of the former FCC and also the Federal Elections Commission.  That is, the commission structure guaranteed a strong presence for commissioners of both parties.   

Thus the real question for the FPC was whether or not the right had the talent, and the energy, to fill up the FPC with its fair share of smart lawyers and policy experts.  That is, the right, as much as the left, had to have the knowhow to use the new regulatory apparatus to protect its free-speech rights, as well as other constitutional privileges.  

Virgil might pause to observe that this challenge to a free people—are you wise enough, and diligent enough, for self-government?—is eternal.  As the great Madison wrote in 1822, “A people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”   Interestingly, in that missive, Madison was praising an educational initiative in Kentucky; he declared it to be vital for the well-being of the republic that a plan for education embrace “every class of Citizens, and every grade & department of Knowledge.”    

In Madison’s time and in our own, Kentuckians must be intellectually and politically able to step up and assert their constitutional rights.  And of course, the same work-and-study-hard injunction applies to all Americans.  Nobody ever said that self-government was easy, but self-government is always preferable to being governed by someone else.  And so for the vast majority of Americans the new FPC system, after the misrule of the Silicon Valley Tech Lords, was a vast improvement.  

To be sure, there were plenty of challenges.  Yet the new FPC embraced the mission of making sure that all communications, especially political communications, were treated fairly.  

Of course, the goal was not to regulate free speech; the First Amendment continues to be the linchpin of our liberties.  Rather, the goal was to protect free speech, to make sure that nobody’s speech was subtly eroded—or simply kiboshed—by opaque technology.   

Thus it was, for instance, that the the FPC put extraordinary effort into making sure that all the tech algorithms worked in a transparent fashion.  That is, if somebody  posted on a platform, then the post would, in fact, appear on the platform and be visible to all of his or her followers.  And of course, sneaky, misleading, and disruptive advertising, foreign and domestic, was closely studied and eliminated. 

To be sure, there were epic wrangles over each and every aspect of the new regulatory system.  After all, the many stakeholders in society—most obviously, Congress—were heavily involved in parsing out each aspect of procedure.  

Predictably, Big Tech complained, loudly.  The FPC was stifling “innovation,” they claimed.  Well, of course they would say that—as we know, everybody likes to do things exactly as they please.  And yet, of course, the techies had no right to complain, because they had forfeited their trust.  They had earlier demonstrated, repeatedly, that they were not fit custodians of their common-carrier status. 

So from our current perspective, here in the year 2038, we can ask: Has the Federal Platform Commission been completely satisfactory?  Of course not.  Could the FPC have been better?  Of course.  And yet, by the third decade of the century, is it obvious that the FPC is a big improvement?  Is it guaranteeing that free speech is truly being kept free? 

You betcha.