The Underestimated Danger of Private Actors Colluding With Government to Limit Freedom
Great tomes have been written on the subject of political overreach. But these are almost exclusively dedicated to the question of how best to throw up roadblocks between power and those underhanded individuals seeking to appropriate it for their own purposes.
Unquestionably, there is great danger in governments that deviate from the path delineated them by their foundational documents. The federal government of the United States, in particular, is intentionally fragmented. By confining each branch to its respective sphere of influence, the Constitution attempts to limit the damage an individual can do even should he pervert power and use it to pursue his own ends. In a similar manner, the federal government is not the preeminent political power in the country. It has supreme authority only over the specific areas named in the Constitution–the enumerated powers listed in Article I, Section 8 — but no authority in other areas; these are under the jurisdiction of states and localities, each to be governed in a manner detailed by the charters of the respective states.
Power is broken up in this way to bind government: to create a space where individuals are free from oversight and regulation, that they may seek and define their own happiness and live in a manner that befits their self-created philosophies. For it is in the ability to do this that justice lies.
But just as the threat to personal freedom comes from a government unmoored from any limitations, there are threats too lying in the public sector.
Reason places natural limitations upon man. The intelligent man does not commit atrocities against his neighbor when he knows his welfare may one day rely upon the aid of that neighbor. The irrational man is not governed by such thinking; he does not respect the rights of others, which means he has no real respect for his own rights or his own being.
A rogue actor in the private sector is a danger to himself and to others. Social justice mobs have been able to drive individuals with whom they disagree to the fringes of society, taking away the livelihoods of people like Brendan Eich for the crime of holding an unpopular opinion. Their failure to respect rights sets a dangerous precedent: if minority actors can be driven from their position simply because their views are unpopular, with no respect for rights, then the same can be done to majority actors should their opinion one day fall out of favor. The problem with social justice mobs is an inability to understand that the private sector is pluralistic. Personal opinion does not give one the right to force others to live according to one’s own way of thinking. Freedom of thought is rooted in the right of conscience, but the moment one attempts to force others to live by one’s own values, one undermines one’s own security. It means others can attempt to do the same to you.
Hence the danger of rogue actors in the private sector, who refuse to respect the rights of others and assume their belief in their own moral righteousness gives them power to force others to live by their standards.
When Government Works to Erode the Private Sector
Government often meddles in private affairs technically beyond its purview. Federal regulatory agencies exist in a kind of political twilight zone, wherein the boundary between the public and private sector are blurred. The regulatory agencies are able to apply public policy to areas technically off limits to the federal government. Nowhere in the Constitution is the federal government given the express authority to regulate drugs, yet the Food and Drug Agency does so. Nowhere in the Constitution is the federal government given the express authority to regulate energy efficiency standards, yet the Department of Energy does so, thanks to expansive interpretations of the commerce clause and the “necessary and proper” clause.
Taken together, these two phrases give thin political cover to end-runs around the bounds of political power.
Consider Operation Choke Point, the Obama-era program run by the Department of Justice, which attempted to dissuade banks from offering financial services to particular institutions. Billed as a push to weed out fraud, the initiative targeted payday lenders and gun dealers it deemed shady. If banks denied basic financial services like loans and access to bank accounts to such businesses, the logic ran, they would quickly collapse. Many considered this a covert attempt by the Obama administration to target industries it disliked. The closure of bank accounts belonging to law-abiding business owners certainly validates this suspicion.
Whether or not one believes this was an underhanded program designed by Obama to punish his ideological opponents or simply a poorly conceived government initiative hampered by bureaucratic incompetence, it is an undeniable subversion of the due process of law promised by the Constitution.
There is an implicit threat conveyed in the authority of the federal government, even when used for ostensibly positive purposes. Within the confines of its authority, government is the sole arbiter of legal right and wrong: cross government and one risks facing legal ramifications. The incredible influence this has on private actors is evident in the aftermath of Operation Choke Point. Court records have revealed that the Federal Deposit Insurance Corporation (FDIC) contacted banks and identified payday lending as a “high-risk activity.” This led FDIC-insured banks to stop doing business with payday lenders. In at least one instance, a bank terminated an account held by a payday lending business, even though there was no evidence of criminal wrongdoing, following pressure from the FDIC.
The injustice here is twofold. It exists not only in the denial of due process of law but in the ability of government to bully private institutions like banks into compliance. Such organizations are effectively caught between a rock and a hard place. They have a duty to those who contract their services, but regulatory oversight also means private institutions exist at the pleasure of the federal government. In the case of Operation Choke Point, the FDIC was able to bully banks into serving their ends because the banks did not wish to face the wrath of the financial regulatory agency. Failure to comply with existing laws and statutes invites extra scrutiny for banks, which not only drives up the cost of business but places them in dubious standing, which affects their clientele.
Such temerity in the face of the soft despotism of government’s persuasive power is perhaps understandable. Government uses its position of authority to foment fear; it alone has power to interpret the meaning of existing laws and statutes. Certain legal principles, such as the Chevron deference (which gives regulatory agencies power to interpret statutes ambiguous in meaning), tilt the balance of power even further towards government agencies.
When Private Actors Collaborate with Government to Erode the Private Sphere
But the threat to personal freedom becomes worse when rogue actors in the private sector collude with public officials anxious to regulate morality.
As the political has increasingly become redefined as the social, the high Constitutional wall erected between the public and private spheres has collapsed. Increasingly, public institutions collude with private institutions to enact ends made unattainable by political roadblocks. Society lacks the design impediments that prevent public officials from using the law as a cudgel to force citizens into complying with their moral judgments. Private avenues are pluralistic and nonaction rarely carries repercussions. For instance, one can walk into a store and browse without a belligerent owner blocking one’s egress unless one pays an entry fee. Any decision to enter into a transaction is voluntary and mutually beneficial: the buyer has decided whatever good catches their eye is of a value commensurate to the dollar amount they pay. Two different buyers may decide the same item has value for entirely different reasons. For instance, two people may purchase the same mystery novel from the bookstore. The first buyer may be a mystery aficionado and expects to receive enjoyment from the novel. The second may abhor mystery novels but has a close friend who enjoys them and purchases the book anticipating the joy he will receive in giving his friend a gift that will be enjoyed. Or, two patrons may select totally different books to purchase. In each instance, all parties are satisfied, if for entirely different reasons, which illustrates the pluralism inherent to private transactions.
Historically, government has sought to curtail this freedom by using expansive and vague laws that invoke the public welfare. Ronald Reagan famously threatened states with a 10% reduction in highway funds if they did not sign onto the National Minimum Drinking Age Act, which raised the drinking age to 21 across the nation and simultaneously undermined the principles of federalism and state sovereignty. Indirectly, of course, this is also an assault on personal sovereignty: raising the drinking age suggests citizens, left to their own devices, can’t make this decision for themselves.
But this pressure is just as frequently exercised directly against private actors. Most recently, government’s desire to legislate behavior has been illustrated in its spat with social media companies it accuses of promoting political bias and habits it considers abhorrent and deleterious. Senators like Ted Cruz (R-TX) and Josh Hawley (R-MI) are laboring under the false impression that Congress’ Constitutional mandate to promote the public welfare gives it an all-encompassing reach. Hence Ted Cruz’ decision to resurrect the specter of the Fairness Doctrine, based in part on an erroneous understanding of Section 230 of the Communications Decency Act. Section 230 protects social media companies like Facebook from legal liability when its users post legally questionable content, such as direct threats to public figures or images of illegal activities. This is because Section 230 treats companies like Facebook as platforms, not publishers. Cruz and others believe this means Facebook is not allowed to engage in viewpoint discrimination and must treat all political ideologies with an even hand. This is false.
At an April hearing, in which social media executives were dragged before Congress to account for their actions, Cruz declared, “Not only does big tech have the power to silence voices with which they disagree, but big tech likewise has the power to collate a person’s feed so they only receive the news that comports with their own political agenda.”
One might very well ask, so what? After all, isn’t the user’s ability to find information in which they have an interest the point of existence for companies like Facebook? This seems like a company providing its user base with a service they desire. Why do certain members of Congress feel they have the right to compel private executives to appear before them and defend their actions?
Because companies are asking to be regulated. Mark Zuckerberg has suggested companies like Facebook need the guiding hand of government behind them. In a Washington Post op-ed, the Facebook CEO wrote, “Lawmakers often tell me we have too much power over speech, and frankly I agree.” Nor is Zuckerberg alone in this opinion. When President Obama was pushing net neutrality, nearly every major telecommunications company lined up to announce their willingness to be kept in line by the federal government, as did many prominent websites.
This attitude is perverse for a number of reasons. First, it introduces a sense of alienation between actors and their actions. If Zuckerberg sees flaws in Facebook, it’s his responsibility to address and correct them. It is, after all, largely his creation. Yet, he seems eager to default on his responsibility. Worse, he lumps the rest of society in with his lackadaisical attitude and seeks, by inviting greater regulation, to make them accountable for his failures.
Again, from Zuckerberg’s op-ed:
“I believe we need a more active role for governments and regulators. By updating the rules for the Internet, we can preserve what’s best about it — the freedom for people to express themselves and for entrepreneurs to build new things — while also protecting society from broader harms.”
Zuckerberg is alarmingly cavalier in interweaving “I” and “we.” He states his opinion — that regulators need to be more proactive — then invokes a generalized “we” when discussing the action he wants to see taken. This invokes a rosy sense of collective cooperation, but why does Zuckerberg imagine he has the authority to speak, with such little regard for opposition, for the rest of society? He is asking for regulations that would curb not only his freedoms, but the rest of the nation’s, as well. And while Zuckerberg might have a right to cede his own freedoms, this doesn’t apply to anyone else. He, however, does not seem to be particularly bothered by this. Nor do any of the other companies eager to submit to federal control.
This impulse can be traced to the increasing socialization of our politics, which is to say that social attitudes play a larger and larger role in policy debates. Politics is about managing what is held in common: areas where peoples interests overlap. Civic services like road maintenance and garbage collection are tasks proper to government because they serve a common interest. But politics has increasingly expanded its scope and subsumed the social realm, once a part of private life. As a result, areas of personal management — such as one’s habits of social media consumption — have been folded into things managed under the public interest.
This means the bright lines of political limitations have fallen away. It is possible for the federal government to manage the judiciary without infringing on anyone’s right of conscience; this is because government behavior in this area is based on a rigid framework that prioritizes the preservation of rights. The judicial structure is designed to preserve rights, which are held in equal by all citizens (and non-citizens, too).
But social matters are rooted not in rights but in interests, which are naturally disparate because people are individuals and have different values and priorities in life. There’s nothing wrong with this; so long as individuals are left to pursue these things and to negotiate with other private actors on mutually beneficial terms, even people of different and conflicting values can treat with one another. For example, Ben and Jerry’s not only sells ice cream, the company is politically active, partnering with groups such as Free Speech for People, which holds the false belief that the Citizens United decision is a threat to the Constitution. In actuality, it is perhaps the greatest victory for free speech in America since the passage of the First Amendment. As a private consumer, one might not want to contribute to Ben and Jerry’s political activism. The answer, then, is to buy your ice cream elsewhere, at a company whose values are more in line with your own. Alternately, you might decide Ben and Jerry’s ice cream is so good that it overrides whatever objections you have to their inability to understand the First Amendment.
In calling on more proactive regulation, Zuckerberg fails to respect this distinction. He would require others to live in a world modelled around his ideas, which would not give dissenters the same ability to peacefully coexist in a space where they could pursue choices more amenable to their values. Rather, he would force others into compliance with his.
Worse, he encourages politicians like Josh Hawley, whose ludicrous Social Media Addiction Reduction Technology (SMART) Act is social engineering dressed up as management of the public welfare. The bill seeks to reduce what Hawley alleges are features social media companies design to “exploit the science of addiction to put up as many obstacles as possible to keep us on their platforms.” Features like infinite scroll and autoplay would be made illegal under the SMART Act. Again, Hawley would deny social media users the ability to make their own choices, not only just in how they consume social media, but in determining what behaviors are deleterious to their health.
Proposals such as Hawley’s SMART Act or Cruz’s desire to repeal Section 230 protections don’t respect the autonomy of their constituents. They are based in a very natural instinct: belief that one’s foundational ideas are correct and should be the basis for living. But they extend that instinct beyond the self and attempt to ingrain it in entities larger than the self, which means differences in opinion — a reflection of the innate right of conscience — are not going to be respected. Moreover, there is no ability for adherents of dissenting viewpoints to peacefully coexist, as there is in the private realm, because government carries with it threat of force. Particularly at the federal level, government is omnipotent: it cannot be disobeyed without incurring legal costs, unlike actions in the private sector. There is no penalty for using Facebook or not using Facebook. One manages one’s actions as one sees fit. But the desire to legislate social aspects of life would not allow this. Public officials — and certain collaborator private actors — would have all citizens complying with their ideas of what’s in the interest of society. And that means private actors — the people who actually make up society — lost the ability to define and pursue their own interests.
