Should Private Monopolists Be Subject to a Nondiscrimination Requirement?
Recently, there has been much talk about the power of private companies, such as Google, Twitter, or Cloudfare (the internet security company), over political speech. The decision by these companies to not provide their services to certain political viewpoints is extremely controversial. Conservatives often criticize these companies for employing standards that are biased in favor of liberals. But other conservatives and libertarians often defend the companies on the ground that they are private entities and can choose not to provide services based on the political views of the consumer or user.
This raises the question whether it is legitimate to prohibit such companies from acting in a politically biased way in providing services. Since I am a classical liberal, I will look at the question from that perspective. Is it permissible to impose a prohibition on certain types of political bias by private actors from a classical liberal perspective? In addressing this question, I should note that I am not arguing that this approach will be beneficial for conservatives or libertarians. I am merely asking whether it is legitimate.
That these are private companies, of course, provides a strong argument in favor of allowing them to make decisions with whom to deal. But this may not be the end of the story. If a company has a monopoly on an essential service, then one might argue that it should be limited in its ability to refuse to provide service. One might require that it should have an obligation to provide services to the public in a nondiscriminatory manner. Monopolies may be inevitable aspects of certain markets, but that does not mean they should be able to discriminate.
There are several reasons for this conclusion. First, even if we believe monopolies should not be regulated (perhaps because it is better to have an unregulated monopoly than a regulated one), that does not mean that the unregulated monopoly needs the ability to discriminate in order for it to have the proper economic incentives.
Second, the worst aspects of the coercion that monopolists as to essential services can impose can be eliminated through a nondiscrimination requirement. Just as governments are properly prevented from exercising coercion in a discriminatory manner, so should essential service monopolists.
Without the nondiscrimination requirement, the monopolist can coerce members of the public as to important rights. For example, if the essential services are related to speech or writing, then the monopolist can silence an individual or group by not providing those services. Even if the essential services are unrelated to speech or writing, the monopolist can threaten to not provide its services unless the individual refrains from engaging in the offensive speech or writing.
The nondiscrimination requirement was employed in traditional legal regimes. For example, in 19th century America, common carriers, such as railroads or inns which were thought of as exercising monopoly power, were subject to a nondiscrimination requirement. Thus, this requirement certainly had precedents in legal regimes that could be classified as classical liberal.
While there is therefore a strong argument for imposing a nondiscrimination requirement on monopolists, especially those of essential services, the question is whether Google, Twitter, Cloudfare or other services are monopolists. I hope to turn to this question in the future.