Big Tech Is the New Government and We're Not Treating It That Way

The First Amendment binds government action. Privately owned platforms can moderate however they want. This is settled law.

It’s also increasingly inadequate as a framework for thinking about power in 2026.

The Infrastructure Problem

Consider what it means to be “deplatformed” today. Not just removed from Twitter or Facebook. We’ve seen cases where someone loses payment processing, cloud hosting, app store distribution, email service, and domain registration simultaneously. Each of these is a private company making a private decision. Together, they represent the ability to make someone unable to operate in the digital economy at all.

That’s not a free speech issue in the constitutional sense. It’s a power issue. The entity being deplatformed has effectively been cut off from infrastructure that functions as public utility. We regulate utilities differently than we regulate discretionary services. We haven’t made that distinction clearly for digital infrastructure.

The Moderation Consistency Problem

Platform content moderation is inconsistently applied and opaque. Identical speech receives different treatment depending on who says it, what political valence it has, and whether enough people complained about it. The platforms are not neutral conduits and they’re not accountable publishers. They’ve constructed a legal and operational structure that carries the rights of neither while bearing the power of both.

What I’d Actually Argue For

Treat large platforms as common carriers for communication infrastructure. Full editorial discretion on the content layer. No discretion on the access layer. You can moderate what gets amplified; you cannot cut off access to the infrastructure entirely.

Define digital infrastructure (payments, hosting, app distribution, domain registration) as regulated utilities above certain scale thresholds. Subject it to non-discrimination requirements with due process before termination.

These aren’t radical positions. We made similar decisions about telephone networks and they didn’t destroy the telephone industry.

The Honest Complication

People who share my politics often want to use deplatforming as a tool against their opponents. People who share my opponents’ politics often want to use it against mine. Everyone arguing for platform accountability is also arguing against the specific use of that power they currently benefit from. Including me. Worth naming.