No, it isn't a "Private Company"

No one understands what "private" means anymore. Blame the Supreme Court.

At one point I thought only libertarians and "conservatives" were prone to using the "It's a private company" argument, but with democrats and leftists pulling out the same card to defend censoring viewpoints they don't like, this delusion deserves a full treatment. The notion of "privacy" has been deeply perverted over time, and we must determine if it can be salvaged, and then rescue it if it can, or scrap it if it cannot.

Privacy for Individuals (or, How the Supreme Court F*cked Everything Up)

The notions of public versus private "spheres" have a variety of definitions, but we can cover most of the bases by stating that the public sphere is the realm of shared norms, politics, employment, etc. while the private sphere is the intimate realm of the domestic, the Home.

What this definition says nothing about is what a "right to privacy" means. It presumably means that public institutions, the realm of politics, employment, etc. should not encroach on the private sphere of domestic life. Of course, how "privacy" actually functions in our society today has largely departed from this substantive meaning and become an incoherent mess centered around the same nonsense concept of autonomy as the rest of Liberalism. So we need to understand how this concept shifted from a substantive notion to an incoherent one.

Who is to blame? Well, it's not like the Supreme Court justices all got hit on the head by anvils cartoon-style and randomly decided to change how they see "privacy". The concept was co-opted by slick lawyers (in the words of Alasdair Macintyre, "the lawyers, not the philosophers, are the clergy of liberalism"). But since the Supreme Court made the final decision, I'm putting the blame on them for the rest of this piece.

Before Earl Warren became Chief Justice, the Supreme Court had never recognized a "right to privacy", and the only prior mention of it in court documents was Justice Brandeis's reference to a "right to be let alone" in an influential dissenting opinion in 1927. The first explicit recognition of a "right to privacy" occurred in the dissenting opinion to Poe v Ullman in 1961. The minority of the court asserted that a right to privacy protected the use of contraceptives by married couples.

Now, even though the right did not prevail in this case, it is deeply important to note something: the right to privacy protected the use of contraceptives, NOT their sale. Why is this important? It was determined that state enforcement of bans on contraceptive usage would violate and harm the important social good of marriage and the sanctity of home life. Justice Douglas noted that without this right, police would have search warrants to enter bedrooms and determine what was going on. This is, of course, ridiculous. The sanctity of marriage and home life must be preserved. You have created a private zone.

But the minority in Poe v Ullman made no attempt to prevent bans on the sale of contraceptives. That was perfectly fine. Banning the sale of contraceptives did not require officers invading marital bedrooms; the sales took place in public.

What we have is a clear zonal concept of privacy: there are zones, physical regions or particular relationships and/or institutions, that cannot be invaded. (While this notion of invasion is limited to the State in the Supreme Court's writings, I will argue it refers to corporations as well later in this piece)

Four years later, in Griswold v Connecticut, the Supreme Court did uphold a right to contraceptive usage by married couples on the same morally substantive zonal concept of privacy. There are regions, relationships, and institutions that are determined to be Good to an extent that State intervention would harm them to an extent that makes that intervention unacceptable. Marriage and the zonal privacy of the home were cited as being serious moral goods:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship

...

Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred...[and] it is an association for as noble a purpose as any involved in our prior decisions

So what happened? When did the Supreme Court f*ck it all up?

Eisenstadt v Baird: When the Supreme Court lost its marbles

In this decision, the Supreme Court transformed their notion of privacy. It invalidated a Massachusetts statute that restricted the distribution/sale of contraceptives on the grounds of equal protection, citing that:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision to bear or beget a child.

*"Fundamentally affecting".

There is no answer to "what the f*ck is that supposed to mean", because it is a meaningless concept. Every decision is a private matter: individuals ultimately decide every matter in the recesses of their minds. Neither the state nor the individual is either capable or, or interested in, controlling a citizen's life-defining decisions. What the State has a keen (and sometimes necessary) interest in, is compelling behaviors.

Furthermore, and perhaps most damning, although the Court claimed that the right to privacy protects decisions “fundamentally affecting” individuals, it nevertheless failed to distinguish between those fundamentally affective decisions protected by privacy from those important decisions that are not, such as the decision to engage in embezzlement, murder, or dog-fighting.

These problems only got worse as the Court explicitly transformed privacy into a voluntarist notion (one centered around autonomy) in recognizing a right to abortion in Doe v Bolton and Roberts v United States Jaycees.

In Doe v Bolton, Justice Douglas claimed the right to privacy protected liberties such as:

The autonomous control over the development and expression of one's intellect, interests, tastes, and personality

In Roberts v United States Jaycees, the Court asserted the right to privacy protects,

"the ability independently to define one's identity"

All of this transformed privacy into a notion wholly indistinguishable from, and reducible to, autonomy. And considering autonomy is wholly incoherent, we have a massive problem with this notion. As Safranek summarizes well:

Consider the circularity of the Court's liberalist justification. Because the due process right to liberty cannot protect every act of liberty, the Court has attempted to limit this right to acts or decisions that are fundamental to self-definition. However, the Court must adduce some criteria to distinguish those acts or decisions fundamental to self-definition from those that are not, because people dispute the acts they consider fundamental to their personhood.

...

But the criteria enlisted by the Court - privacy, autonomy, and dignity - reduce to self-definition. Therefore the Court inadvertently attempts to distinguish among acts fundamental to self-definition by appealing to the criteria of self-definition. In other words, in response to the query of why the due process right of liberty protects the self-defining act of abortion but not other acts central to some person's self-definition, the Court responds that abortion is central to self-redefinition (or the Court uses the equivalent terms of privacy, autonomy, or dignity)

I also can't come up with a snippier one-line take on this than Safranek does:

If autonomy is insufficient, liberal scholars proceed to invoke dignity or equality, or, like the Supreme Court, articulate all of these concepts as if a lengthier tautology renders it meaningful.

The notion of "privacy", if it is to mean anything, must refer to a substantive zonal concept, not a voluntarist one. But now we reach part 2 of this delusion: public vs private as State vs Corporate.

Public vs Private =/= State vs Corporation (or, Yeah, Corporations Coerce you too, ya dingus)

If I had to identify the general understanding that leads people to the conclusion that the Public/Private distinction maps on to (or directly refers to) the State/Corporation distinction, I would likely point to our concept of ownership. The State, if we assume that it is directed by the "will of the People" (lol), can be understood as being, in some sense, owned by the People. Democracy is just the people, the "individual shareholders of the State," voting on what the State should do. On the other hand, corporations are established by groups intentionally. This is, of course, also one of the sources of the delusion that corporations are not coercive while the State is. "I did not consent to the State, but I consent to this corporation." (I will expand on this shortly).

The problem, of course, is that this is not at all a meaningful conception of Public/Private. The concept of "consent" is centered around autonomy. As Hugh LaFollette puts it:

Central to libertarianism is the claim that individuals should be free from the interference of others. Personal liberty is the supreme moral good. Hence, one's liberty can justifiably be restricted only if he consents to the restriction.

Of course, one of LaFollette's points as he engages in a superb and thorough explanation of why Libertarianism is totally misguided is that:

Everyone's life is not, given the presence of negative general rights and negative general duties, free from interference of others. The "mere" presence of others imposes duties on each of us, it limits everyone's freedom.

...

The libertarian's own moral constraints limit each person's freedom without consent.

This isn't to say that the moral constraints are bad. It is good we can't go around murdering each other. But the rationale, the justification, for "negative general rights" collapses (especially since these rights frequently limit freedom to a greater extent than "positive general rights" - which ignores there is no such thing as the Positive vs Negative rights distinction in the first place...).

So, a general appeal to "consent" is insufficient to justify treating corporations differently than the State when it comes to "coercion". The other side of the libertarian argument centers around "exit". This value is similarly nonsense.

Exit (or Would you Prefer your Liberalism grape or cherry?)

Credit for the title of this section goes to Zippy Catholic, may he Rest in Peace

The concept of Exit similarly underlies one of the core assumptions of the "Free Market": an infinite number of small (read: not very powerful) producers and consumers would allow for endless choices and competition. If you don't like company A for whatever reason, you can switch to company B.

When it comes to corporations, you see Exit invoked in two settings:

  1. To justify the corporation doing or selling what it wants ("If you don't like it, go somewhere else")

  2. To justify the corporation paying or treating its workers however (little/poorly) it wants ("If you don't like it, find another job")

The validity of these arguments rests on the assumption that Exit is indeed possible. This piece has gone on long enough (and isn't even done), so I will spare you all a complicated data-heavy explanation as to why Exit is a delusional farce in both of these situations. The real world trends towards oligopoly in most places (and no, that isn't because of the State - markets trend towards centralization and oligopolies on their own in many, many cases). And if Exit isn't possible, choice isn't possible (or is heavily constrained). And if choice is so constrained, we cannot be considered to have truly consented to any particular decision we make. The whole thing falls apart.

But even if Exit does not provide a valid distinction between Corporation and State, we haven't yet proven that corporations should be limited. The concept of privacy has always delineated the boundaries of State encroachment on particular physical regions, institutions, and relationships. So, if Exit does not provide justification for a set of boundaries, what does? How do we determine what the State can and cannot do regarding corporations? We must understand the place of corporations in the public versus private sphere, and understand that the State has sovereignty over the public sphere.

So, first, if we do assume that Exit is good in some sense, that individuals should be given a degree of choice, that freedom of association is a good and should be extended to as many people and communities as possible, the State appears entirely justified in breaking up oligopolies (and declaring anyone it can't break up to be a utility). In the interest of freedom of association, megacorporations must fall.

"Private" Companies and the Public Sphere

I will argue that if you can exert significant control over the public sphere, you are a Public company. If you can impact what is or is not being said, what is or is not being transmitted, what is or is not being sold - you are exercising control over the public sphere. You are therefore a public institution, and the State has every right to intervene in your affairs. Of course, a mom & pop store or local radio station don't have the power (at least not in 2021) to decide what is being said and sold. Amazon and Facebook, on the other hand, do. And so if we assume that these are goods, that freedom of association and freedom of speech are goods, the State has every right (and perhaps even a duty) to intervene and ensure corporations are respecting these rights (which properly belong to individuals, not corporations).

Furthermore, if these megacorporations are indeed elements of the public sphere, they should be subject to the same limits on invading the sanctity of the home as the State is. Privacy laws against data capture (if they were actually enforced, cough cough The NSA and the Fourth Amendment cough cough) should apply to these companies as well. No more collecting data on individuals, especially considering that corporations (through advertising) actually appear to have a greater interest in affecting how people make decisions than the State does. One might even argue that this represents a far greater intrusion into our private lives.

Recap

So, we have explained that individual "privacy" can be rescued from incoherence with a substantive zonal sense, and that companies can coerce individuals when options for Exit are not plentiful and available (and they rarely are). We also explained how corporations that if Exit is indeed a good, it demands the State engage in trust-busting. We further noted that any company that has a significant impact on the Public Sphere counts as a Public Company in some sense, and that it is wholly under the jurisdiction of the State (whether or not the State wants to take on that duty). And finally, if these companies have significant impacts on the public sphere, and therefore count as a public company, they should be subject to the same limitations as the State when it comes to intruding into the private zones of our lives.


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