Ominous Threats to the Marketplace of Ideas

Donald Trump recently accused Google of biasing its search results against conservatives. Two days later, Trump proceeded to accuse Google and other social media platforms of “political censorship” and suggested that the companies were entering a “very antitrust situation.” In the meantime, Senator Orrin Hatch wrote a letter to the Federal Trade Commission asking them to probe Google for “anticompetitive conduct.”¹ This came after a controversy last summer when activists on the political left accused Google of being a “monopoly” with the power to “censor.”

It should raise red flags that in the name of preventing “censorship,” these proposals would use the force of government to regulate what content private companies can promote — which looks like a proposal to engage in censorship. By the same token, we should be alarmed that a concern that corporations wield too much “power” is being used to justify the imposition of government power on private business decisions. These red flags point to real confusion about what “censorship” and “monopoly power” actually mean.

This is not the first time that confused understandings of these concepts converged to threaten intellectual and economic freedom. In the early 1960s, when television broadcasting was beginning to influence politics, Federal Communications Commission Chairman Newton Minow threatened to revoke the licenses of private broadcasters who were thought to exercise too much power and to threaten Minow’s conception of “the public interest.”

One commentator in the period, Ayn Rand, thought it was so important to clarify the meaning of these concepts that she featured her analysis of them prominently in the first issues of her first periodical, the Objectivist Newsletter. She argued that a proper understanding of the concepts of “censorship” and “monopoly” revealed the Kennedy-era policies as severe threats to individual freedom, and that “in the F.C.C. and in the Anti-Trust Division the government possesses the legal weapons it needs to transform this country into a totalitarian state.”² Especially because the Trump administration is now using rhetoric similar to the Kennedy administration’s, it behooves us to revisit Rand’s analysis: it may reveal that today we face a similar threat to freedom.

Private editorial decisions vs. government censorship

In her March 1962 piece “Have Gun, Will Nudge,” Rand focuses on broadcast regulations threatened by the FCC. She notes that while some in her day were concerned that these measures were a form of censorship, the Kennedy administration dismissed these concerns by saying that the license revocation threat was merely a form of “encouragement,” not a form of force.³ On the contrary, Minow asserted that it was the broadcasters who engaged in “censorship” by making programming decisions based on considerations about ratings, advertising, and network and affiliate priorities.⁴

Rand responds by contending that by this standard, any private decision about whether to fund the promotion of content would count as “censorship”. A play would be “censored” if no one chose to buy tickets, an author would be “censored” if no one chose to publish his book, etc. In her view, there is a fundamental difference between these acts and the decision of a government to shut down a theater or ban a book. A theater can do better advertising or improve its offerings if no one buys tickets, and an author can seek a different publisher if she can’t at first sell the manuscript.⁵ But the same is not true if a government bans the play or the book.

As Rand explained in a newspaper column later that same year, the right to free speech is connected to “the right to act on one’s own convictions,” which crucially includes the right not to support content with which one disagrees.⁶ This means that the editorial decision not to fund the production of content or feature it on one’s platform is far from being a form of “censorship” or any form of coercion. More generally, she argues that free speech means “freedom from suppression, interference or punitive action by the government — and nothing else.” Censorship means the forceful governmental suppression of that freedom. This means, she claims, that no private agency can, in its voluntary dealings with individuals, censor; only government can.

This helps explain why, in “Have Gun, Will Nudge,” Rand remarks that the attempt to justify broadcast restrictions on the grounds that broadcasters “censor” amounts to “the ultimate inversion: to the claim that a private action is coercion, but a government action is freedom.”⁷

In that piece, Rand also notes another conceptual distortion Minow used to justify his threats to revoke broadcast licenses: his claim not to be pushing censorship because he was acting in the name of “the public interest.”⁸ Rand observes that this phrase is never taken to mean the interest of every citizen. Instead, it is used to “imply and establish” a conflict between “private” interests and the interest of “the public.” In practice, this means that the interests of some men are to be sacrificed to those of others. But especially because Minow himself declares that “the public interest” is not whatever interests the public, the only people to decide what counts as “the public interest” will be regulators, using unspecified, nonobjective criteria.⁹ This means that broadcasters are expected to function under the unpredictable whims of bureaucrats.

Ominously, Rand notes that the FCC had considered denying the broadcast licenses of two companies, General Electric and Westinghouse, on the grounds that they had been charged with antitrust violations.¹⁰ The FCC had also recently “deferred action” on NBC’s license renewal for its Philadelphia station simply because an antitrust investigation against it was pending; as a result NBC divested itself of the station.¹¹ She calls this convergence of FCC regulations and antitrust laws a “pincer-movement” enabled by nonobjective law.¹²

Private economic power vs. government monopoly power

Those concerned today about the danger censorship poses to the intellectual freedom of companies like Google and Facebook (and to those of us who use them) may be surprised to see how antitrust law can contribute to the regulation of speech. In Rand’s view, intellectual and economic freedom are intimately connected.¹³ Because antitrust rhetoric is now being used to threaten intellectual freedom on the internet, defenders of intellectual freedom should also examine if they have a blind spot about the importance of economic freedom. Rand’s commentary on antitrust law from the same period is a good place to begin.

In her February 1962 essay “Antitrust: The Rule of Unreason,” Rand begins by noting that antitrust laws are justified on the premise that successful companies in an unregulated market can become “coercive monopolies.” Therefore antitrust laws to limit the growth or break up such companies are alleged to “protect competition.” Yet in the same way that Rand illustrates the fundamental difference between a publisher’s decision not to feature content and a government’s decision to ban it, she argues that there is a fundamental difference between success in a free market and any kind of “monopoly power.”¹⁴

In a speech from that same month, she argues that companies working in a free market succeed by developing their economic power, the power to produce, the power to offer better steel or railroad transit or other values at lower prices than their competitors.¹⁵ A free market is free from physical coercion, and anyone is free to purchase these goods or services, or “vote” with their dollars by purchasing others instead. This is fundamentally different from a true coercive monopoly, in which government uses its political power to grant legally-enforced charters or franchises that literally outlaw competition with a designated company.

Given this fundamental difference between economic and political power, just as Rand argues that it is improper to regard any private publishing decision as “censorship,” so she thinks it is improper to regard any private business success as creating a “monopoly.” Only government has the power to create true monopolies.

As one example, some American railroads were actually granted government franchise power in the nineteenth century and became notoriously corrupt. Ironically, contempt for this corruption provided part of the motivation to pass the Sherman Antitrust Act, which then imposed legal sanctions on private businesses who had become successful without government help.¹⁶ In light of this, Rand notes that the attempt to justify antitrust actions to prevent “monopolies” involves a “moral inversion” similar to the attempt to regulate broadcasters in the name of preventing “censorship”: in such a case, “the victims, the businessmen, [take] the blame for the evils caused by the government, and the government [uses] its own guilt as a justification for acquiring wider powers, on the pretext of ‘correcting’ the evils.”¹⁷

In a further parallel to her commentary on broadcast regulations,  just as Rand argues that broadcast regulations are imposed by the undefinable standard of “the public interest,” so she also argues that antitrust laws aim to enforce the undefinable condition of “fair competition.”¹⁸ She argues, for instance, that there is no standard by which one can decide what kind of competition, with whom, or at what price should count as “fair” competition, because these decisions can only be answered by the mechanism of a free market. Businessmen are left to guess whether they are setting a price that is too high (making them guilty of “intent to monopolize”), too low (making them guilty of “unfair competition”), or too similar to others’ prices (making them guilty of “collusion”). As a result, businessmen live in perpetual uncertainty about their legal status. Because they are then dragged like criminals to jail for the “crime” of exercising superior productive ability, they are terrorized in a manner analogous to life under the capricious rule of a dictatorship.¹⁹

The looming “pincer-movement” against freedom

In her 1973 lecture “Censorship: Local and Express,” Rand claims that the two flanks of the “pincer-movement” she had identified in 1962 have drawn closer and closer together.²⁰ In her analysis of a series of Supreme Court decisions concerning the censorship of obscenity, she observes, as she did in her previous essays, that these decisions exploit a set of undefined or legally undefinable philosophical standards (e.g., “community standards,” “the average person,” “obscenity,” and once again, “the social interest”). Rand also notes that Chief Justice Burger cites antitrust law as a precedent in his decision upholding one ban on obscene movies, on the grounds that these laws rely on “unprovable assumptions” to restrict freedom of association, and that similar reliance to restrict freedom of speech should therefore be of no concern.²¹

Rand closes her lecture with a reflection on history, and a prediction:

If someone had said in 1890 that antitrust laws for the businessmen would, sooner or later, lead to censorship for the intellectuals, no one would have believed it. You can see it today. . . .

If this censorship ruling is not revoked, the next step will be more explicit: it will replace the words “marketplace of pornography” with the words “marketplace of ideas.” This will serve as a precedent for the liberals, enabling them to determine which ideas they wish to suppress — in the name of the “social interest” — when their turn comes. No one can win a contest of this kind — except the State.²²

In 1962, Rand warned that antitrust law was working in tandem with regulations on speech to empower threats of censorship. A mere eleven years later, she observes that this political “pincer-movement” has now been legally sanctioned. This should give us reason to take her final prediction seriously.

Today we are witnessing trial balloons for regulating the marketplace of ideas. Some of the balloons are being released by the Trump administration in its bid to implement a new “fairness doctrine” to regulate the internet. Others are being released by pundits and politicians who, while normally opposing Trump, have noticed that their turn has come, and have jumped on their bandwagon to suggest that Google should be regulated because its search results are biased against oppressed minorities.

Either way, there is new urgency to examine the conceptual distortions that are increasingly being used to push this concerted assault on both economic and intellectual freedom.

Explore more on these topics: Free Speech, Culture and Society, Government, Foreign Policy, Objectivism.

1. Commentators have challenged the idea that there is obvious evidence of overt political biasing in Google’s algorithms. Others contend there is some evidence of bias but challenge the need for government regulation to combat it.
2. Ayn Rand, “Choose Your Issues,” Objectivist Newsletter 1 (January 1962): 1.
3. Ayn Rand, “Have Gun, Will Nudge,” Objectivist Newsletter 1 (March 1962): 9-10, 12.
4. Quoted in “Clamp Down” (interview with Newton Minow), Show Business Illustrated 1 (September 19, 1961): 35.
5. Rand herself was rejected by eleven publishers before Bobbs-Merrill accepted her manuscript for The Fountainhead. See Jeff Britting, Ayn Rand (New York: Overlook Duckworth, 2004), 58-61.
6. Ayn Rand, “Freedom of Speech,” Los Angeles Times (December 2, 1962). Reprinted in The Ayn Rand Column, Peter Schwartz, ed., 2nd ed. (New Milford, CT: Second Renaissance Books, 1998), 70-71.
7. Rand, “Have Gun, Will Nudge,” 9. Later, in April of 1963, in her more theoretical article “Man’s Rights,” Rand would elaborate on the nature of the inversion between private and government action and its role in undermining the protection of rights. See Ayn Rand, “Man’s Rights,” in The Virtue of Selfishness: A New Concept of Egoism (New York: Signet, 1964 Centennial edition).
8. Specifically, in his famous “vast wastelands” speech from May 9, 1961, Minow remarks as follows: “I am in Washington to help broadcasting, not to harm it; to strengthen it, not weaken it; to reward it, not to punish it; to encourage it, not threaten it; and to stimulate it, not censor it. Above all, I am here to uphold and protect the public interest.” Part of Minow’s argument in the speech depends on the notion that the broadcast airwaves are “public property” and that broadcasters are simply temporary stewards of this public asset. Rand, however, contested the notion of “public property” and argued elsewhere that the airwaves could and should have been recognized as private property from the industry’s beginnings. See Ayn Rand, “The Property Status of Airwaves,” in Ayn Rand, Capitalism: The Unknown Ideal (New York: Signet, 1967 Centennial edition).
9. In his “vast wastelands” speech, Minow gives examples of programming that he thinks does or does not serve the public interest, but he never defines the term. The closest he comes is to say that it “is made up of many interests.” He says to broadcasters that “there are many people in this great country and you must serve all of us,” though he also insists that the public interest is not whatever interests the public, as judged by ratings. In response to critics who say they still do not know how to maintain their broadcast licenses in accord with this standard, he says: “Everyone of you serves a community in which the people would benefit by educational, and religious, instructive and other public service programming. Every one of you serves an area which has local needs — as to local elections, controversial issues, local news, local talent. Make a serious, genuine effort to put on that programming. And when you do, you will not be playing brinkmanship with the public interest.” In an article in Barron’s cited by Rand, one of the FCC commissioners is quoted as saying “Criteria are meaningless” and “It is impossible consistently to give the same weight to each of the criteria. I frequently do not have time to consider all of the criteria anyway.” (Shirley Scheibla, “His Master’s Voice?: The F.C.C. May be Threatening the Independence of Broadcasting,” Barron’s (January 1, 1962), 9).
10. Scheibla, “His Master’s Voice?,” 9.
11. Scheibla, “His Master’s Voice?,” 15. Part of the FCC’s interpretation of “the public interest” involved a preference for local rather than corporate ownership of broadcast stations. The article describes other FCC efforts to use its licensing authority to extort corporations into selling their assets to local or “public broadcasting” companies. Notably, President Trump has recently begun to threaten NBC’s license because of his disagreement with their news reporting. Trump is here following a tradition established earlier by both Kennedy and Nixon.
12. Rand, “Have Gun, Will Nudge,” 12.
13. Throughout her work, Rand emphasizes how property rights help integrate economic and intellectual freedom. For instance: “It is only on the basis of property rights that the sphere and application of individual rights can be defined in any given social situation. Without property rights, there is no way to solve or to avoid a hopeless chaos of clashing views, interests, demands, desires, and whims.” (Ayn Rand, “The Cashing-In: The Student ‘Rebellion’,” in Rand, Capitalism: The Unknown Ideal). And: “No human rights can exist without property rights. Since material goods are produced by the mind and effort of individual men, and are needed to sustain their lives, if the producer does not own the result of his effort, he does not own his life. To deny property rights means to turn men into property owned by the state.” (Ayn Rand, “The Monument Builders,” in The Virtue of Selfishness).
14. Ayn Rand, “Antitrust: The Rule of Unreason,” in Ayn Rand, The Voice of Reason: Essays in Objectivist Thought, ed. Leonard Peikoff (New York: Meridian, 1989).
15. Ayn Rand, “America’s Persecuted Minority: Big Business,” in Rand, Capitalism: The Unknown Ideal.
16. Rand elaborates on the history of corruption induced by government-enforced railroad monopolies  in “Notes on the History of American Free Enterprise” in Rand, Capitalism: The Unknown Ideal. Rand notes the role of contempt for railroad corruption in the support for the Sherman Act in “America’s Persecuted Minority: Big Business.”
17. Rand, “Antitrust: The Rule of Unreason.”
18. Rand, “Antitrust: The Rule of Unreason.” Rand quotes antitrust scholar A.D. Neale, who says “The courts in the United States have been engaged ever since 1890 in deciding case by case exactly what the law proscribes. No broad definition can really unlock the meaning of the statute.” (The Antitrust Laws of the United States of America (Cambridge: Cambridge University Press, 1960), 13.
19. Rand notes that businessmen are the one social group not found in totalitarian states. To guard against the onset of dictatorship, their rights need to be protected. To this end, she proposes forming a “Civil Liberties Union” for businessmen, as had already been done to protect the civil liberties of journalists and political dissenters. See Rand, “Antitrust: The Rule of Unreason.”
20. Ayn Rand, “Censorship: Local and Express,” in Ayn Rand, Philosophy: Who Needs It (New York: Signet, 1984).
21. Rand, “Censorship: Local and Express.” Rand is referring here to Burger’s (majority) decision in Paris Adult Theater I v. Slaton, 413 U.S. 49, 61 (1973). As she examines the difference between the opinions written by “conservative” and “liberal” justices, Rand observes that the “conservatives” who defend censorship still typically want to defend economic freedom, freedom in the “material” realm, while seeking to restrict intellectual freedom, freedom in the “spiritual” realm. The “liberals,” by contrast, traditionally maintain the opposite position, wishing to restrict economic freedom while seeking to preserve intellectual freedom. She attributes this difference to their basic difference in philosophical worldview: “conservatives” are religionists who believe only the spirit matters, while “liberals” are materialists who believe the same about the body: “each camp wants to control the realm it regards as metaphysically important” (italics omitted). However, Rand is philosophically opposed to the idea that there is a stark dichotomy between the material and spiritual realms. She believes that mind and body are integrated, and so too are intellectual and economic freedom. But, she notes, since the worldview of each political camp opposes the rational mind (whether by advocating faith or emotionalism), both end up advocating force rather than persuasion. As a result, “Since the two camps are only two sides of the same coin — the same counterfeit coin — they are now moving closer and closer together.” (Rand, “Censorship: Local and Express.”)
22. Rand, “Censorship: Local and Express.”