The privatization of government control is taking place in the United States. The trend is disturbing and leaves little legal remedy for our Constitutional rights and liberties of privacy, freedom of speech and association as well as the right to bear arms. While the Constitution is designed to prevent the usurpation of these rights by the government, there is little that limits the power of the corporations and institutions, which are making decisions about when and how we exercise our rights.
The privatization of democracy seems like an oxymoron. How can a capitalist free market system built on the idea of free enterprise and human innovation lead to an undemocratic system? The ideological justifications are many and increasing. National security was the first justification that allowed data sharing between the government and private corporations.
In a lawsuit in 2002, AT&T v. Hepting, a whistleblower revealed that the telecommunication provider was funneling our information to the NSA, skirting the Fourth Amendment protections that we possess against the government. At the time, the civil rights community expressed outrage and railed at the Bush Administration for such a transgression of our protected rights.
The ACLU and the Electronic Frontier Foundation and others decried the collusion between the government and the private sector in the abridgement of our constitutional rights even if it were in the name of national security. Those days are seemingly long gone.
Now private corporations and institutions argue they are limiting our freedoms to protect us from a range of things. Hate. Extremism. Misinformation. Disinformation. Today, a slow leak of revelations illustrate how the private sector is increasingly in control of whether or not we are able to protect our privacy against surveillance and data mining, exercise our rights of free speech and association or buy guns. Shockingly, many of us are applauding this usurpation of our rights and liberties in the name of democracy.
Our First Amendment rights in the hands of the private sector have led to a narrowing of the topics that may be debated. Social media platforms censor topics that range from Covid vaccines to election fraud to the Hunter Biden laptop story in the name of democracy.
And there is increasing evidence that the government is playing along and even pulling the strings. It turns out there was regular communication between agencies – the CDC, FBI and the White House – about whom and what to censor.
The abridgement of the right to free speech by social media platforms at the behest of the government is problematic enough but there is the more troubling fact that a free market system in a democracy is enabling private corporations and institutions to undermine the very rights that are essential to it. Free speech is not the only victim.
Our associational rights are also on the chopping block as an increasing number of organizations, the Anti-Defamation League (ADL) and the Southern Poverty Law Center (SPLC) and many more zero in on groups that have been defined as “extremists” within an ever expanding definition of the term and data collection similarly broad and meaningless.
The ADL has now taken to demonizing particular groups like the Oath Keepers with a report that is efficiently coordinated with a map of all of those individuals who are associated with the group. The Oath Keepers might not be anyone’s favorite group, but let’s not forget a foundational case for protecting free speech rights.
When the membership list of the NAACP was similarly targeted by the government, the Supreme Court unanimously ruled in NAACP v. Alabama, 357 U.S. 449 (1958) that the First Amendment protected the free association rights of the National Association for the Advancement of Colored People (NAACP) and its rank-and-file members.
There is no such protection against the ADL’s attack on the Oath Keepers but it does not follow that there aren’t effects on the freedom of association of those members and the chilling effect that it will have for those who choose to associate with similar groups.
It might be difficult to generate sympathy for the Oath Keepers, given that some of the members have been associated with the protest of January 6, but the point of our First Amendment freedoms is not to choose favorites as the ADL is currently doing. This was the point of the ACLU’s defense of the KKK in the landmark case of Brandenburg v. Ohio in 1969.
In this case, the Supreme Court walked away from the decades of persecutions of groups that were not the politically favored – communists, civil rights groups, labor unions and Vietnam War protestors, to protect the most vile of speech that was represented by the KKK.
Free speech and association are not the only Constitutional rights under fire. Private corporations are also jumping on the bandwagon of gun control. Visa, Mastercard and American Express have recently announced that they will track gun purchases separately.
Advocates hailed the development as a critical step toward undermining the flow of guns into the hands of violent people. Yet, there is no mention of how this monitoring affects the Second Amendment Rights that we have because there is no need to answer this question when private industry is doing the work.
Couple the ever expanding definition of “extremist” that the Biden Administration is using with the identification of those who are in “extremist” organizations by the ADL and SPLC and monitoring of gun purchases by VISA, Mastercard and American Express and you have the perfect storm of surveillance, chilling of First Amendment freedoms and curtailment of Second Amendment rights without any Constitutional protections whatsoever.
All of the above does not begin to scratch the surface of how institutions are doing the work of government without any accountability or transparency. Whether it is the imposition of COVID vaccination requirements, Diversity, Inclusion and Equity mandates, or speech codes in academia or corporations, the Constitutional oversight that serves the complex interests of democracy are absent. There is no way to work against these powerful forces that are aligned with the interests and ideology of the current administration.
And this inability to challenge these encroachments on the rights and liberties fundamental to a democratic society is not insignificant. Speak out on social media and the platform is ready and willing to report you to the government and deplatform you. Join an organization that falls out of favor with the ADL of the SPLC and you might find yourself identified as an extremist. Purchase a gun and the credit card companies are willing to report you to law enforcement if you happen to be “dangerous.”
Many political philosophers have warned, the ideology of capitalism is not all about freedom. Those like Herbert Marcuse in One Dimensional Man or Adorno and Horkhiemer in Dialectics of the Enlightenment, for example, provided a cultural, societal and political critique of the ideological constraints that resulted in “unfreedom” for individuals within a capitalist system despite the promise of freedom.
The assertion of power in early critiques of industrial societies advanced the idea that the maintenance and security of the authority only succeeds when it is able to mobilize, organize and exploit the technical, scientific, and mechanical productivity. Ideology served the function of mobilization and justifications for the authority.
There is a totalitarian quality to this control because of the manipulation of needs by the vested interests that include government but also media, education, and the corporate interests more generally. While there exists pluralism and even rights and liberties in a capitalist system, Marcuse and others argued that the effectiveness of each of these countervailing freedoms is diminished by the ideological constraints put upon their exercise.
Thus we are told that the ADL is identifying the extremists for us. That social media platforms are protecting us from disinformation and misinformation and preventing those nasty extremists from reaching us. And the credit card companies are only monitoring our gun purchases because those who are deemed dangerous should not be able to exercise rights. But these designations are ideological and by that it does not mean left or right.
The ideology of capitalism is defined by those who have a stake in the power they exercise. Academia. Corporations. Media. Government. The ideological accusations of extreme, dangerous, disinformation and more are the ways in which we are persuaded that freedom is being protected by these major players in economic life against all that could undermine it.
The truth is that with each decision made, government’s outsourcing its control ambitions – the privatization of democracy – is taking away that which is essential to it.