Tag Archives: Common Carrier

The Twitter Files and Political Exploitation of Social Media

07 Wednesday Dec 2022

Posted by in Censorship, Regulation, Social Media

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I’ve been cheering for Elon Musk in his effort to remake Twitter into the kind of “public square” it always held the promise to be. He’s standing up for free expression, against one-party control of speech on social media, and especially against government efforts to control speech. That’s a great and significant thing, yet as Duke economist Michael Munger notes, we hear calls from the Biden Administration and congressional Democrats to “keep an eye on Twitter”, a not-so-veiled threat of future investigative actions or worse.

Your Worst Enemy Test, Public or Private

As a disclaimer, I submit that I’m not an unadulterated fan of Musk’s business ventures. His business models too often leverage wrong-headed government policy for profitability. It reeks of rent seeking behavior, whatever Musk’s ideals, and the availability of those rents, primarily subsidies, violates the test for good governance I discussed in my last post. That’s the Munger Test (the “Your Worst Enemy” Test), formally:

“You can only give the State power that you favor giving to your worst enemy.”

On the other hand, Musk’s release of the “Twitter Files” last weekend, with more to come, is certainly a refreshing development. Censorship at the behest of political organizations, foreign governments, or our own government are all controversial and possibly illegal. While we’d ordinarily hope to transact privately at arms length with free exchange being strictly an economic proposition, one might even apply the Munger Test to the perspective of a user of a social media platform: would you trust your worst enemy to exercise censorship on that platform on the basis of politics? Like Donald Trump? Or Chuck Schumer? If not, then you probably won’t be happy there! Now, add to that your worst enemy’s immunity to prosecution for any content they deem favorable!

Cloaked Government Censorship?

Censorship runs afoul of the First Amendment if government actors are involved. In an interesting twist in the case of the Twitter Files, the two independent journalists working with the files, Matt Taibbi and Bari Weiss, learned that some of the information had been redacted by one James Baker, Twitter’s Deputy General Counsel. Perhaps not coincidentally, Baker was also formerly General Counsel of the FBI and a key figure in the Trump-Russia investigation. Musk promptly fired Baker from Twitter over the weekend. We might see, very soon, just how coincidental Baker’s redactions were.

Mark Zuckerberg himself recently admitted that Facebook was pressured by the FBI to censor the Hunter Biden laptop story, which is a key part of the controversy underlying the Twitter Files. The Biden Administration had ambitious plans for working alongside social media on content moderation, but the Orwellian-sounding “Disinformation Governance Board” has been shelved, at least for now. Furthermore, activity performed for a political campaign may represent an impermissible in-kind campaign donation, and Twitter falsely denied to the FEC that it had worked with the Biden campaign.

Solutions?

What remedies exist for potential social media abuses of constitutionally-protected rights, or even politically-driven censorship? Elon Musk’s remaking of Twitter is a big win, of course, and market solutions now seem more realistic. Court challenges to social media firms are also possible, but there are statutory obstacles. Court challenges to the federal government are more likely to succeed (if its involvement can be proven).

The big social media firms have all adopted a fairly definitive political stance and have acted on it ruthlessly, contrary to their professed role in the provision of an open “public square”. For that reason, I have in the past supported eliminating social media’s immunity from prosecution for content posted on their networks. A cryptic jest by Musk might just refer to that very prospect:

“Anything anyone says will be used against me in a court of law.”

Or maybe not … even with the sort of immunity granted to social media platforms, the Twitter Files might implicate his own company in potential violations of law, and he seems to be okay with that.

Immunity was granted to social media platforms under Section 230 of the Communications Decency Act (DCA). It was something many thought “the state should do” in the 1990s in order to foster growth in the internet. And it would seem that a platform’s immunity for content shared broadly should be consistent with promoting free speech. So the issue of revoking immunity is thorny for free speech advocates.

Section 230 And Content Moderation

There have always been legal restrictions on speech related to libel and “fighting words”. In addition, the CDA, which is a part of the Telecommunications Act, restricts “obscene” or “offensive” speech and content in various ways. The problem is that social media firms seem to have used the CDA as a pretext for censoring content more generally. It’s also possible they felt as if immunity from liability made them legally impervious to objections of any sort, including aggressive political censorship and user bans on behalf of government.

The social value of granting immunity depends on the context. There are two different kinds of immunity under Section 230: subsection (c)(1) grants immunity to so-called common carriers (e.g. telephone companies) for the content of private messages or calls on their networks; subsection (c)(2) grants immunity to social media companies for content posted on their platforms as long as those companies engage in content moderation consistent with the provisions of the CDA.

Common carrier immunity is comparatively noncontroversial, but with respect to 230(c)(2), I go back to the question: would I want my worst enemy to have the power to grant this kind of immunity? Not if it meant the power to forgive political manipulation of social media content with the heavy involvement of one political party! The right to ban users is completely unlike the “must serve” legal treatment of “public accommodations” provided by most private businesses. And immunity is inconsistent with other policies. For example, if social media acts to systematically host and to amplify some viewpoints and suppress others, it suggests that they are behaving more like publishers, who are liable for material they might publish, whether produced on their own or by third-party contributors.

Still, social media firms are private companies and their user agreements generally allow them to take down content for any reason. And if content moderation decisions are colored by input from one side of the political aisle, that is within the rights of a private firm (unless its actions are held to be illegal in-kind contributions to a political campaign). Likewise, it is every consumer’s right not to join such a platform, and today there are a number of alternatives to Twitter and Facebook.

Again, political censorship exercised privately is not the worst of it. There are indications that government actors have been complicit in censorship decisions made by social media. That would be a clear violation of the First Amendment for which immunity should be out of the question. I’d probably cut a platform considerable slack, however, if they acted under threat of retaliation by government actors, if that could be proven.

Volokh’s Quid Pro Quo

Rather than simply stripping away Section 230 protection for social media firms, another solution has been suggested by Eugene Volokh in “Common Carrier Status as Quid Pro Quo for § 230(c)(1) Immunity”. He proposes the following choice for these companies:

“(1) Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or

(2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).”

Option 2 is the very solution discussed in the last section (revoke immunity). Option 1, however, would impinge on a private company’s right to moderate content in exchange for continued immunity. Said differently, the quid pro quo offers continued rents created by immunity in exchange for status as a public utility of sorts, along with limits on the private right to moderate content. Common carriers often face other regulatory rules that bear on pricing and profits, but since basic service on social media is usually free, this is probably not at issue for the time being.

Does Volokh’s quid pro quo pass the Munger Test? Well, at least it’s a choice! For social media firms to host all viewpoints isn’t nearly as draconian as the universal service obligation imposed on local phone companies and other utilities, because the marginal cost of hosting an extra social media user is negligible.

Would I give my worst enemy the power to impose this choice? The CDA would still obligate social media firms selecting Option 1 to censor obscene or offensive content. Option 2 carries greater legal risks to firms, who might respond by exercising more aggressive content moderation. The coexistence of common carriers and more content-selective hosts might create competitive pressures for restrained content moderation (within the limits of the CDA) and a better balance for users. Therefore, Volokh’s quid pro quo option seems reasonable. The only downside is whether government might interfere with social media common carriers’ future profitability or plans to price user services. Then again, if a firm could reverse its choice at some point, that might address the concern. The CDA itself might not have passed the “Worst Enemy” Munger Test, but at least within the context of established law, I think Volokh’s quid pro quo probably does.

We’ll Know More Soon

More will be revealed as new “episodes” of the Twitter Files are released. We may well hear direct evidence of government involvement in censorship decisions. If so, it will be interesting to see the fallout in terms of legal actions against government censorship, and whether support coalesces around changes in the social media regulatory environment.

On Quitting Facebook, One Year Later

25 Friday Feb 2022

Posted by in Censorship, Social Media, Uncategorized

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I’m very happy to be off Facebook, or “Meta” as it now calls itself. The platform has become, effectively, a propaganda arm of governments, and one that appears to be engaging in unconstitutional censorship. More on that below.

One year ago my profile dropped off of FB entirely. I had decided to quit in January 2021 after about 15 years. I downloaded everything from my profile and wrote a blog post called “On Quitting Facebook”. It was my last entry there, so that’s really when I quit, but it took a month before they completely deactivated me.

You have to resist the temptation to go back during that interim month or it starts all over again — a new interim period, that is — when you finally decide to get out. I knew immediately that I loved being free of it, so that part was easy. My feelings haven’t changed a bit.

F-R-Double E

I no longer have to put up with the propaganda that FB prioritizes nor the “demoted post” phenomenon. None of my posts had actually been blocked outright, but I knew “Facebook jail” was happening to users with increasing frequency, as well as post blocking and “red flags” authorized by politically-motivated FB “fact checkers”.

Free of FB, I no longer have to put up with various “frenemies” I’d somehow collected. And quitting FB allowed me to reclaim precious time I’d been wasting on an obsession that one would think avoidable: scrolling through my news feed, sometimes more than once a day, to view an assortment of photos of meals, puppies, and peoples’ lovely feet propped-up in “relax mode”, plus huge dollops of left-wing political and economic BS, often delivered with snark. But of course the lefty BS is almost everywhere in media.

There was one other disturbing anomoly on FB that became more frequent for me: friend requests from exceptionally gruesome-looking characters. I think they were fake requests, but I had tight security on my profile, so the source and motive is anyone’s guess. The increasing frequency led me to wonder whether someone had information about me, which my security settings should not have allowed. That would have meant it was partly an “inside job” on FB, perhaps designed to intimidate me in one way or another. I have no idea, but I don’t miss those requests.

So there’s a lot to like about quitting FB! It certainly brought a few disappointments and challenges. Unfortunately, I did lose touch with some good people. In what follows I elaborate on certain legal ramifications of FB’s poor conduct in hosting users both privately and within what’s purported to serve as a “public square”; the social media frustrations I’ve experienced since quitting; and my impressions of a few other platforms.

Government Censorship?

FB is a private company, so the usual libertarian position is that it can run its platform any way it wants. It is therefore no business of the government’s whether FB moderates content, bans certain users, or takes editorial positions. However, FB benefits from immunity to prosecution under Section 230 of the Telecommunications Act of 1996, which was traditionally intended for common carriers like telephone companies. That means they can’t be held liable for anything a third party might say on their network. Say what you want on the phone, because liability-free carriers shouldn’t care. FB and other social media platforms receive this same protection. But should they?

While we can think of FB as a kind of modern public square, in some respects it looks more like a common carrier. By that I mean much of the communication that takes place on the platform is voluntary and between private contacts, or groups of “friends”. The voluntary nature of these connections is a key aspect of what Eugene Volokh calls the “hosting function”. No one is forced to look at what you post. Yet FB makes a habit of moderating the content of those posts and conversations and still receives immunity under Section 230.

In other respects, FB does resemble a public square. Content posted by one party can be shared by each contact with their own network of friends, and thus can “go viral”. But if FB moderates content, censors users, or takes political positions of its own via the “recommendation function” often exercised by social media platforms, then it is not acting purely as a public square. Indeed, in that case it is more like a publisher, which otherwise would not be immune from lawsuits.

The case against FB is even stronger than that, however. It has acted as a de facto agent of the government in several respects. A recent FOIA request has revealed a White House email showing:

“… Facebook, Merck, and the CDC Foundation, whose corporate partners includes Pfizer, have formed an alliance ‘to use social media and digital platforms to build confidence in and drive uptake of vaccines.’”

FB has also acted to delete user accounts at the behest of the U.S. and Israeli governments. And FB has partnered with a security firm called FireEye, which is funded by the CIA. There are other areas of “cooperation” between entities performing government-funded activities described at the last link.

The topic of social media giants censoring speech on behalf of the U.S. and other governments has been discussed by Vivek Ramiswamy, who notes the obvious breach of constitutional rights that it represents. It’s fine for a private firm to regulate speech on its own premises, but conducting censorship at the behest of government is equivalent to censorship by government and a flat out a violation of the First Amendment.

Moreover, FB has had the audacity to propose government “oversight” in its effort to moderate content. What, in the name of regulatory capture, could go wrong? I’d say the whole thing is Orwellian, but perhaps no more than what we’ve already seen. The best policy response, as Volokh suggests, might be to separate the hosting and conversation functions of social media from the recommendation function. The former can be treated as “common carrier” functions for the purpose of applying Section 230, with an obligation for non-discrimination and minimal content moderation, while the latter function would receive no immunity under Section 230.

My Post-FB Social Media Escapades

My blog lost a lot of readership when I quit FB. Last spring, however, I began a roughly five-month stint as a contributing blogger on a site that brought a jump in my readership. Unfortunately, it became clear, over time, that it was largely an audience unwilling to entertain more objective and sometimes technical considerations. I also became disillusioned after finding myself writing posts to debunk certain conspiratorial fantasies of other contributing bloggers on the site. I didn’t want to be associated with those writers, so I cut ties. My readership crashed again, but I’m not sure I lost many high-quality readers in that instance.

I joined various “free speech” social media platforms: first Parler (until it was taken down by Amazon, and I haven’t been back), and I’d been on MeWe, but then Gab, CloutHub, GETTR, and Telegram. MeWe, Gab, and CloutHub sponsor groups with shared interests, and I’ve made it a point to join Libertarian groups when I can find them. Those groups are not very active on CloutHub. GETTR feels a bit more like Twitter to me, and there are no group pages. Telegram is a secure messaging app with extra features. I just started a so-called “channel” there to which I can post my content. Users can view and subscribe to my channel if they wish, but I have to cross-post to other channels to find them. We’ll see how it goes, but there are a lot of people who LOVE Telegram!

A few friends from my FB days followed me to one or two of the “free speech” platforms, but only one of them seems to have maintained any presence there. Most of them became entirely inactive from what I can tell. I know some went back to FB, upon which so many people are dependent. Sometimes that’s for business reasons, which is both understandable and regrettable. Anyway, at least one of my former FB connections is still cross-posting some of my articles to FB, which is fine and I truly appreciate it.

Like FB, the alternative platforms I’ve tried are dominated by meme warriors. While a few trolls lurk there, MeWe, Gab, and CloutHub are very much echo chambers. But at least dissident voices have a place where they aren’t censored! In an ideal world we’d have diversity of thought and civility.

I’ve grown kind of numb to all the memes. I tend to scroll right past them in search of meatier fare. Memes tend to over-simplify complex issues and appeal to mood affiliations. They generally offer zero evidence in support of their messages. Even worse is their impact on attention span. It’s extremely difficult to get users to read anything longer than a meme blurb. In fact, there are people who notice the headlines on my posts and make immediate comments on that basis, as if I’m posting memes! But again, FB is very much a hall of memes, so I don’t mean to imply that there’s been any change for me in that respect … I just like to bitch about memes!

There are a few anti-semites on some of the “free-speech” sites, Gab in particular. In fact, Gab is thoroughly dominated by the religious right, so the anti-semitism is all the more striking. Excepting the Jew haters, whom I can block, I respect the religious right, and our interests are often aligned. However, a steady diet of posts with Christianity as an emphasis makes Gab less than ideal for me. Besides, every time I click on the Gab app it takes like 15 seconds to load on my phone!

I joined MeWe well before I quit FB. Nevertheless, I’ve had trouble getting traction there and I’m thinking of dropping out just to simplify my life. So far, CloutHub seems a little better in terms of generating visits to my blog.

It’s hard for a small-time blogger like me to get much notice on GETTR. There are some well-known conservative personalities there, so there are some decently informative posts. I have not been very active on Telegram, but that might change, as I said above.

I’ve been on LinkedIn for many years, but I’ve only recently decided to begin posting my articles there. I’ve lost a handful of connections as a result! That’s okay. As I like to say, eventually I’ll piss everyone off! I do get some views from LinkedIn, but users who might agree with my point of view are often too chickenshit to say so. That’s more understandable on a platform oriented toward career and professional contacts. However, I think the perception of social pressure is not very much different than the intimidation some people feel on FB.

I’ve considered joining the Truth Social platform, Donald Trump’s foray into social media. It’s billed as a “big tent”, but it will be another echo chamber, I’m sure. It’s also been a technical mess so far (not unique among new apps in that respect). I’m no Trump hater by any means, but any post that might be critical of him is almost certain to attract some hate on Truth Social (the link no is satire, btw). That’s not censorship per se, but TS might not be a great place for some of my posts.

No Going Back

Maybe the last section above was more self-assessment than anything else. As a personal decision, quitting FB was unequivocally positive for me. It hurt my blog readership, but I still hope to gain momentum on other platforms and to promote Sacred Cow Chips by placing links on other sites. In any case, I blog for myself as much as anyone else, just because I enjoy writing, thinking about issues, and occasionally doing a “deep dive” to research an issue.

The censorship occurring on the big social media platforms is simply unacceptable, and I wish more people would rise-up against it. I experienced some schadenfreude when I saw that Meta’s (Facebook’s) financials were a disappointment last quarter. The number of active users declined ever so slightly, but that was a first for FB. One can only hope it’s a trend in the making. And see this, though it might be a bit over-optimistic. Damn the censorship!

Censorship and Content Moderation in the Public Square

30 Thursday Sep 2021

Posted by in Censorship, Free Speech, Social Media

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I’m probably as fed up with social media as anyone, given the major platforms’ penchant for censoring on the basis of politics, scientific debate, religion, and wokeism (or I should say a lack thereof). I quit Facebook back in January and haven’t regretted it. It’s frustratingly difficult to convince others to give it up, however, and I’ve tried. Ultimately, major user defections would provide the most effective means of restraining the company’s power.

Beyond my wild fantasies of a consumer revolt, I will confess to a visceral desire to see the dominant social media platforms emasculated: broken up, regulated, or even fined for proven complaints of censorial action. That feeling is reinforced by their anti-competitive behavior, which is difficult to curb.

Are There Better Ways?

While my gut says we need drastic action by government, my head tells me … not … so … fast! These are private companies, after all. I’m an adherent of free markets and private property, so I cannot abide government intrusions to force anyone to sponsor my speech using their private facilities. At the same time, however, our free speech rights must be protected in the “public square”, and the social media companies have long claimed that their platforms offer a modern form of the public square. If they can be taken at their word, should there be some remedy available to those denied a voice based upon their point-of-view by such a business? This seems especially pertinent when access to “public accommodations” is so critical to the meaning of non-discrimination under current law (not that I personally believe businesses should be forced to accommodate the specific demands of all comers).

In a lengthy and scholarly treatment of “Treating Social Media Platforms Like Common Carriers”, Eugene Volokh states the following about U.S. Supreme Court case law (pg. 41):

“Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.”

The Common Carrier Solution

Volokh’s article is very detailed and informative. I highly recommend it to anyone hoping to gain an understanding of the complex legal issues associated with the rights of big tech firms, their users, and other interested parties. His article highlights the long-standing legal principle that so-called “common carriers” in telecommunications cannot discriminate on the basis of speech.

Volokh believes it would be reasonable and constitutional to treat the big social media platforms as common carriers. Then, the platforms would be prohibited from discriminating based on viewpoint, though free to recommend material to their users. He also puts forward a solution that would essentially permit social media firms to continue to receive protection from liability for user posts like that granted under Section 230 of the Communications Decency Act:

“… I think Congress could categorically treat platforms as common carriers, at least as to their hosting function. But Congress could also constitutionally give platforms two options as to any of their functions: (1) Claim common carrier status, which will let them be like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and- takedown basis).”

Economist Luigi Zingales emphasizes the formidable network externalities that give the incumbent platforms like Facebook a dominance that is almost unshakable. Zingales essentially agrees with Volokh, but he refers to common carrier status for what he calls the “sharing function” with Section 230-like protections, while the so-called “editing function” can and should be competitive. Zingales calls recommendations of material by a platform part of the editing function which should not be granted protection from liability. In that last sense, his emphasis differs somewhat from Volokh’s. However, both seem to think an change in the law is necessary to allow protections only where they serve the “public interest”, as opposed to protecting the private interests of the platforms.

The most destructive aspect of Section 230 immunity is the so-called “Good Samaritan” clause aimed at various kinds of offensive material (“… obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”), which the social media platforms have used as “a license to censor”, as Philip Hamburger puts it. Here, Eugene Volokh and others, including Supreme Court Justice Clarence Thomas, assert that this provision should not receive a broad interpretation in determining immunity for content moderation decisions. In other words, the phrase “otherwise objectionable” in the provision must be interpreted within the context of the statute, which, after all, has to do with communications decency! (Here again, I question whether the government can legitimately authorize censorship in any form.)

Arm of Government?

Viewpoint discrimination and censorship by the platforms is bad enough, but in addition, by all appearances, there is a danger of allowing companies like Facebook to become unofficial speech control ministries in the service of various governments around the world, including the U.S. Here is Vivek Ramaswamy’s astute take on the matter:

“… Facebook likely serves increasingly as the censorship arm of the US government, just as it does for other governments around the world.

In countries like India, Israel, Thailand, and Vietnam, Facebook frequently removes posts at the behest of the government to deter regulatory reprisal. Here at home, we know that Mark Zuckerberg and Sheryl Sandberg regularly correspond with US officials, ranging from e-mail exchanges with Dr. Anthony Fauci on COVID-19 policy to discussing “problematic posts” that “spread disinformation” with the White House.

If Zuckerberg and Sandberg are also directly making decisions about which posts to censor versus permit, that makes it much more likely that they are responsive to the threats and inducements from government officials.”

Even LinkedIn has censored journalists in China who have produced stories the government finds unflattering. Money comes first, I guess! I’m all for the profit motive, but it should never take precedence over fundamental human rights like free speech.

There is no question of a First Amendment violation if Facebook or any other platform is censoring users on behalf of the U.S. government, and Section 230 immunity would be null and void under those circumstances.

Elections … Their Way

On the other hand, we also know that platforms repeatedly censored distribution of the Trump Administration’s viewpoints; like them or not, we’re talking about officials of the executive branch of the U.S. government! This raises the possibility that Section 230 immunity was (or should have been) vitiated by attempts to silence the government. And of course, there is no question that the social media platforms sought to influence the 2020 election via curation of posts, but it is not clear whether that is currently within their rights under Section 230’s Good Samaritan clause. Some would note the danger to fair elections inherent in any platform’s willingness to appease authoritarian governments around the world, or their willingness and ability to influence U.S. elections.

Pledge of Facebook Allegiance

Some of our domestic social media companies have become supra-national entities without a shred of loyalty to the U.S. This article in The Atlantic, of all places, is entitled “The Largest Autocracy on Earth“, and it has a sub-heading that says it all:

“Facebook is acting like a hostile foreign power; it’s time we treated it that way.”

The article reports that Facebook’s Mark Zuckerberg has promoted the mantra “company over country”. That should disabuse you of any notion that he cares one whit about the ideals embodied in the U.S. Constitution. He is a child consumed with dominance, control, and profit for his enterprise, and he might be a megalomaniac to boot. If he wants to host social media relationships in this country, let’s make Facebook a common carrier hosting platform.

An Internet for Users, Not Gatekeepers and Monopolists

09 Wednesday Jun 2021

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Factions comprising a majority of the public want to see SOMETHING done to curb the power of Big Tech, particularly Google/Alphabet, Facebook, Amazon, and Twitter. The apprehensions center around market power, censorship, and political influence, and many of us share all of those concerns. The solutions proposed thus far generally fall into the categories of antitrust action and legislative changes with the intent to protect free speech, but it is unlikely that anything meaningful will happen under the current administration. That would probably require an opposition super-majority in Congress. Meanwhile, some caution the problem is blown out of proportion and that we should not be too eager for government to intervene. 

Competition

There are problems with almost every possible avenue for reining in the tech oligopolies. From a libertarian perspective, the most ideal solution to all dimensions of this problem is organic market competition. Unfortunately, the task of getting competitive platforms off the ground seems almost insurmountable. In social media, the benefits to users of a large, incumbent network are nearly overwhelming. That’s well known to anyone who’s left Facebook and found how difficult it is to gain traction on other social media platforms. Hardly anyone you know is there!

Google is the dominant search engine by far, and the reasons are not quite as wholesome as the “don’t-be-evil” mantra goes. There are plenty of other search engines, but some are merely shells using Google’s engine in the background. Others have privacy advantages and perhaps more balanced search results than Google, but with relatively few users. Google’s array of complementary offerings, such as Google Maps, Street View, and Scholar, make it hard for users to get away from it entirely.

Amazon has been very successful in gaining retail market share over the years. It now accounts for an estimated 50% of retail e-commerce sales in the U.S., according to Statista. That’s hardly a monopoly, but Amazon’s scale and ubiquity in the online retail market creates massive advantages for buyers in terms of cost, convenience, and the scope of offerings. It creates advantages for online sellers as well, as long as Amazon itself doesn’t undercut them, which it is known to do. As a buyer, you almost have to be mad at them to bother with other online retail platforms or shopping direct. I’m mad, of course, but I STILL find myself buying through Amazon more often than I’d like. But yes, Amazon has competition.

Anti-Trust

Quillette favors antitrust action against Big Tech. Amazon and Alphabet are most often mentioned in the context of anti-competitive behavior, though the others are hardly free of complaints along those lines. Amazon routinely discriminates in favor of products in which it has a direct or indirect interest, and Google discriminates in favor of its own marketplace and has had several costly run-ins with EU antitrust enforcers. Small businesses are often cited as victims of Google’s cut-throat business tactics.

The Department of Justice filed suit against Google in October, 2020 for anti-competitive and exclusionary practices in the search and search advertising businesses. The main thrust of the charges are:

  • Exclusivity agreements prohibiting preinstallation of other search engines;
  • Tying arrangements forcing preinstallation of Google and no way to delete it;
  • Suppressing competition in advertising;

There are two other antitrust cases filed by state attorneys general against Google alleging monopolistic practices benefitting its own services at the expense of sellers in various lines of business. All of these cases, state and federal, are likely to drag on for years and the outcomes could take any number of forms: fines, structural separation of different parts of the business, and divestiture are all possibilities. Or perhaps nothing. But I suppose one can hope that the threat of anti-trust challenges, and of prolonged battles defending against such charges, will have a way of tempering anti-competitive tendencies, that is, apart from actual efficiency and good service.

These cases illustrate the fundamental tension between our desire for successful businesses to be rewarded and antitrust. As free market economists such as Murray Rothbard have said, there is something “arbitrary and capricious” about almost any anti-trust action. Legal thought on the matter has evolved to recognize that monopoly itself cannot be viewed as a crime, but the effort to monopolize might be. But as Rothbard asserted, claims along those lines tend to be rather arbitrary, and he was quite right to insist that the only true monopoly is one granted by government. In this case, many conservatives believe Section 230 of the Communications Decency Act of 1996 was the enabling legislation. But that is something anti-trust judgements cannot rectify.

Revoking Immunity

Section 230 gives internet service providers immunity against prosecution for any content posted by users on their platforms. While this provision is troublesome (see below), it is not at all clear why it might have encouraged monopolization, especially for web search services. At the time of the Act’s passage, Larry Page and Sergey Brin had barely begun work on Backrub, the forerunner to Google. Several other search engines had already existed and others have sprung up since then with varying degrees of success. Presumably, all of them have benefitted from Section 230 immunity, as have all social media platforms: not just Facebook, but Twitter, MeWe, Gab, Telegram, and others long forgotten, like MySpace.

Nevertheless, while private companies have free speech rights of their own, Section 230 confers undeserved protection against liability for the tech giants. That protection was predicated on the absence of editorial positioning and/or viewpoint curation of content posted by users. Instead, Section 230 often seems designed to put private companies in charge of censoring the kind of speech that government might like to censor. Outright repeal has been used as a threat against these companies, but what would it accomplish? The tech giants insist it would mean even more censorship, which is likely to be the result. 

Other Legislative Options

Other legislative solutions might hold the key to establishing true freedom of speech on the internet, a project that might have seemed pointless a decade ago. Justice Clarence Thomas’s concurring opinion in Biden v. Knight First Amendment Institute suggested the social media giants might be treated as common carriers or made accountable under laws on public accommodation. This seems reasonable in light of the strong network effects under which social media platforms operate as “public squares.” Common carrier law or a law designating a platform as a public accommodation would prohibit the platform from discriminating on the basis of speech.

I do not view such restrictions in the same light as so-called net neutrality, as some do. The latter requires carriers of data to treat all traffic equally in terms of priority and pricing of network resources, despite the out-sized demands created by some services. It is more of a resource allocation issue and not at all like managing traffic based on its political content.

The legislation contemplated by free speech activists with respect to big tech has to do with prohibiting viewpoint discrimination. That could be accomplished by laws asserting protections similar to those granted under the so-called Fairness Doctrine. As Daniel Oliver explains:

“A law prohibiting viewpoint discrimination (Missouri Senator Josh Hawley has introduced one such bill) would be just as constitutional as the Fairness Doctrine, an FCC policy which adjusted the overall balance of broadcast programming, or the Equal Time Rule, which first emerged in the Radio Act of 1927 and was established by the Communications Act of 1934. Under such a law, a plaintiff could sue for viewpoint discrimination. That plaintiff would be someone whose message had been suppressed by a tech company or whose account had been blocked or cancelled….”

Ron DeSantis just signed a new law giving the state of Florida or individuals the right to sue social media platforms for limiting, altering or deleting content posted by users, as well as daily fines for blocking candidates for political office. It will be interesting to see whether any other states pass similar legislation. However, the fines amount to a pittance for the tech giants, and the law will be challenged by those who say it compels speech by social media companies. That argument presupposes an implicit endorsement of all user content, which is absurd and flies in the face of the very immunity granted by Section 230. 

Justice Thomas went to pains to point out that when the government restricts a platform’s “right to exclude,” the accounts of public officials can more clearly be delineated as public forums. But in an act we wouldn’t wish to emulate, the government of Nigeria just shut down Twitter for blocking President Buhari’s tweet threatening force against rebels in one part of the country. Still, any law directly restricting a platform’s editorial discretion must be enforceable, whether that involves massive financial penalties for violations or some other form of discipline.

Private Action

There are private individuals who care enough about protecting speech online to do something about it. For example, these tech executives are fighting against internet censorship. You can also complain directly to the platforms when they censor content, and there are ways to react to censored posts by following prompts — tell them the information provided on their decision was NOT helpful and why. You can follow and support groups like the Media Research Center and its Censor Track service, or the Internet Accountability Project. Complain to your state and federal legislators about censorship and tell them what kind of changes you want to see. Finally, if you are serious about weakening the grip of the Big Tech, ditch them. Close your accounts on Facebook and Twitter. Stop using Google. Cancel your Prime membership. Join networks that are speech friendly and stick it out.

Individual action and a sense of perspective are what Katherine Mangu-Ward urges in this excellent piece:

“Ousted from Facebook and Twitter, Trump has set up his own site. This is a perfectly reasonable response to being banned—a solution that is available to virtually every American with access to the internet. In fact, for all the bellyaching over the difficulty of challenging Big Tech incumbents, the video-sharing app TikTok has gone from zero users to over a billion in the last five years. The live audio app Clubhouse is growing rapidly, with 10 million weekly active users, despite being invite-only and less than a year old. Meanwhile, Facebook’s daily active users declined in the last two quarters. And it’s worth keeping in mind that only 10 percent of adults are daily users of Twitter, hardly a chokehold on American public discourse.

Every single one of these sites is entirely or primarily free to use. Yes, they make money, sometimes lots of it. But the people who are absolutely furious about the service they are receiving are, by any definition, getting much more than they paid for. The results of a laissez-faire regime on the internet have been remarkable, a flowering of innovation and bountiful consumer surplus.”

Conclusion

The fight over censorship by Big Tech will continue, but legislation will almost certainly be confined to the state level in the short-term. It might be some time before federal law ever recognizes social media platforms as the public forums most users think they should be. Federal legislation might someday call for the wholesale elimination of Section 230 or an adjustment to its language. A more direct defense of First Amendment rights would be strict prohibitions of online censorship, but that won’t happen. Instead, the debate will become mired in controversy over appropriate versus inappropriate moderation, as Mangu-Ward alludes. Antitrust action should always be viewed with suspicion, though some argue that it is necessary to establish a more competitive environment, one in which free speech and fair search-engine treatment can flourish.

Organic competition is the best outcome of all, but users must be willing to vote with their digital feet, as it were, rejecting the large tech incumbents and trying new platforms. And when you do, try to bring your friends along with you!

Note: This post also appears at The American Reveille.

Gays and Bakers: Expression or Repression?

26 Monday Feb 2018

Posted by in Discrimination, Free Speech

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A lot rides on the legal interpretation of “expression” in the gay-wedding-cake dispute. Eugene Volokh discusses a recent ruling in California in which a trial court judge ruled that the baker’s right to free expression, buttressed by her right to free exercise of religion, protected her from demands that she participate in a form of expression to which she objected. Specifically, she had no legal obligation to create a cake for the celebration of a gay couple’s wedding, according to the ruling.

The facts in the case, CA Dept. of Fair Employment and Housing v. Cathy’s Creations, are that the baker refused to bake the couple a wedding cake but expressed a willingness to sell them anything that was already available in the shop. Thus, she did not discriminate against the couple by denying them access to her “public accommodations”. She also gave the couple a referral to another baker whom she believed would be willing to produce the cake. So there were probable alternatives available to the couple, and the baker’s assistance in locating one mitigated against any harm suffered by the gay couple. That sort of mitigation is an important factor to consider in weighing the rights of conflicting parties. Courts have tended to view “dignitary harm” as less compelling than forced expression.

Volokh argues that the baker’s role in the episode did not demand expression on her part. He says the proposed cake was a pre-existing design and did not involve writing of any kind. Otherwise, Volokh would have supported the ruling. He and a coauthor discuss the distinctions between an artist (who expresses) and an artisan (who merely executes), and an expressive and a non-expressive cake, in an amicus brief, as noted in the article linked above. Here is Volokh’s summary of his view:

“While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not.“

The Volokh article is a little confusing because the amicus brief seems to have been filed in a different but similar case, Masterpiece Bakeshop v. Colorado Civil Rights Commission, which is now before the U.S. Supreme Court. A ruling is expected this summer. Here is a transcript of the oral arguments in that case, which were heard late last year. It’s a fascinating discussion.

Volokh’s analysis is fine as far as it goes. However, a wedding cake is likely to be considered expressive to both the baker and the cake’s buyers. The baker’s effort in executing even a pre-existing design may involve meaning for her beyond mere execution, since the usual intent of a wedding cake is to celebrate a sacred union. Likewise, the baker knows that the buyers consider the cake to be expressive of their union. The baker doesn’t want any involvement in that expression, asserting that it is not for the government to intercede, forcing them to participate by producing the cake.

Does the baker’s offer to supply an existing cake (or any other bakery good) undermine their case? Does the necessity of baking a new cake for a gay wedding differ from offering a cake already on the shelf for the same purpose? That may be irrelevant to the cases at hand, because no other wedding cakes were available at the time, and freshness might demand the preparation of a new cake for such an occasion. Nevertheless, that sort of line between an acceptable sale for the baker and unacceptable expression strikes me as thin.

As for the matter of the baker’s religious beliefs and their importance to her expressive rights, Volokh derides some of the language of the ruling. Those beliefs, Volokh says, are irrelevant to the question of whether a particular kind of expression is protected or compelled:

“By the way, I take it that it’s clear that the Free Speech Clause issue can’t turn on whether Miller’s belief ‘is part of the orthodox doctrines’ of many religions, or whether it’s instead ‘trivial, arbitrary, nonsensical, or outrageous’ — the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.“

Bravo! However, when the rights of two parties are in conflict, it is appropriate to weigh any impingement upon other, secondary rights of both parties.

A disturbing aspect of these cases is that they do not turn in any way on freedom of association, a freedom that encompasses a right not to associate (since any association must be voluntary for both parties). The presumption is that the baker’s right to freely associate or not associate with whomever they please is superseded by their obligations under public accommodation laws, despite the fact that freedom of association is an enumerated right in the U.S. Constitution. While public accommodation laws have generally been found to be constitutional, those laws do not apply in all circumstances, such as when a particular product or service involves expression. But on its own, a violation of the baker’s freedom of association seems to matter less, in today’s legal environment, than abridgment of her free expression, and perhaps less than any obligation she has to provide public accommodation.

Richard Epstein gives a general treatment of the balance between freedom of association and anti-discrimination law. David Henderson has bemoaned the dilution of the freedom of association suffered in the name of non-discrimination. He does not defend discrimination on the basis of race, gender or sexual preference. Quite the contrary. However, as a matter of individual liberty, he prefers that we retain our right to associate on any basis of our choosing and pay the price imposed by the market for discrimination. For example, if you hang a sign outside your restaurant saying that you won’t serve African Americans, you are likely to suffer a loss of business from all who find your preference offensive, as many will. That solution is obviously unappealing to those who believe that participation in civil society requires public standards of equal access in private transactions. Still, there is some truth to a quote Henderson provides from an anonymous individual comparing the idea of non-discrimination in public accommodations to the “common carrier” designation:

“‘Either way, the theory boils down to “you brought forth a good or service and abracadabra you now have fewer rights”‘”.

The legal actions against the bakers in the cases discussed above rely on anti-discrimination law (in CA, the Unruh Act, and in CO, the Anti-Discrimination Act). Those laws must face limits in their application, as may be necessary in the case of compelled expression, especially expression against one’s most deeply-held convictions, religious or otherwise. The most basic question in this regard is whether the creation of the proposed wedding (or union) cakes can be described as expression. Whether the bakers are acting as mere fabricators or as artists, there is no doubt that the wedding parties desired the cakes as part of the celebration of their unions. That use of a cake constitutes expression on their part, and it is a kind of expression and an association from which the bakers would prefer to demure.

I support the right of homosexuals to enter into legal marriage, but I also support the bakers’ right to refuse the business. To invoke a phrase used by Richard Epstein in the article linked above, the world would be a better place if all agreed to simply “live and let live”.

Netflix: Oops… No, Let’s Not Regulate The Internet

10 Tuesday Mar 2015

Posted by in Net neutrality

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Netflix was heralded only recently as a strong supporter of net neutrality, but the company has changed its position in the wake the the FCC’s decision to reclassify broadband ISPs as common carriers. The link goes to a Google search page. The top article listed there should be ungated, from L. Gordon Crovitz in the Wall Street Journal. I have posted a number of times on the misguided policy of net neutrality (see here, here, here, and here). While I hesitate to post on the topic again, I think a short description of the Netflix flip-flop, or should I say its “evolving position“, is worthwhile, and especially with a few quotes from the Crovitz article.

Crovitz notes that Netflix videos “take up one-third of broadband nationwide at peak times.” The company’s support for so-called neutrality seemed grounded in its frustration at the prospect of having to negotiate for massive use of resources controlled and sometimes owned by the ISPs. Here’s Crovitz:

“Today Netflix is a poster child for crony capitalism. When CEO Reed Hastings lobbied for Internet regulations, all he apparently really wanted was for regulators to tilt the scales in his direction with service providers. Or as Geoffrey Manne of the International Center for Law and Economics put it in Wired: ‘Did we really just enact 300 pages of legally questionable, enormously costly, transformative rules just to help Netflix in a trivial commercial spat?‘”

Indeed! But the powers at Netflix have had a revelation:

“Net-neutrality advocates oppose ‘fast lanes’ on the Internet, arguing they put startups at a disadvantage. Netflix could not operate without fast lanes and even built its own content-delivery network to reduce costs and improve quality. This approach will now be subject to the ‘just and reasonable’ test. The FCC could force Netflix to open its proprietary delivery network to competitors and pay broadband providers a ‘fair’ price for its share of usage.

There’s no need for the FCC to override the free-market agreements that make the Internet work so well. Fast lanes like Netflix’s saved the Internet from being overwhelmed, and there is nothing wrong with the ‘zero cap’ approach Netflix is using in Australia. Consumers benefit from lower-priced services.”

I will leave you with my favorite part of the Crovitz piece:

“Last week John Perry Barlow, the Grateful Dead lyricist-turned-Internet-evangelist, participated in a conference call of Internet pioneers opposed to the FCC treating the Internet as a utility. He called the regulatory step ‘singular arrogance.’

In 1996 Mr. Barlow’s ‘Declaration of the Independence of Cyberspace’ helped inspire a bipartisan consensus for the open Internet: ‘Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.’“

Can Federal Regulation Enrich Your Web? What?

05 Thursday Feb 2015

Posted by in Net neutrality

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Do you really believe that government regulation of the internet will keep it “open”, fast and innovative? Really? Then you will be happy with today’s FCC decision to reclassify broadband internet service providers (ISPs) as “common carriers.” (The link above will take you to a Google search page with another link to “Washington Conquers the Internet“.) This puts the ISPs on the same regulatory footing as land-line and wireless voice services. The FCC’s action is a legal move that will pave the way for regulation of rates and service rules with the supposed aim of “net neutrality”.

The FCC chairman, Tom Wheeler, has recently argued that because the wireless carriers have enjoyed tremendous growth under the common carrier rules, there is no reason to fear that the broadband industry would suffer under the reclassification. However, as Peter Suderman explains, the common carrier rules applied only to wireless voice services, not to rapidly growing wireless data services. Wheeler’s argument is therefore misleading:

“... it suggests that Wheeler wants to pursue reclassification not because the wireless sector has been successful under Title II, but because of the service that has been successful without it.”

The FCC would almost assuredly reclassify wireless data as well as broadband as common carrier services.

Net neutrality is a misnomer, as Sacred Cow Chips has noted in the past here, here, and here. These posts cover shortcomings of so-called net neutrality such as mis-pricing of services, subverting incentives for network maintenance and growth, massive non-neutral subsidies for network hogs, the potential threat to free speech, and a negative impact on the poor. Warren Meyer at Coyote Blog expresses his dismay at the utter naivete of those who think that “net neutrality” sounds appealing:

“Here is my official notice — you have been warned, time and again. There will be no allowing future statements of “I didn’t mean that” or “I didn’t expect that” or “that’s not what I intended.” There is no saying that you only wanted this one little change, that you didn’t buy into all the other mess that is coming. You let the regulatory camel’s nose in the tent and the entire camel is coming inside. I guarantee it.”

Today’s FCC decision will also expose unsuspecting internet users to federal and local fees and taxes averaging about $49 per year. According to this calculation, that’s an increase in average broadband cost of about 9%. I believe that the estimate of the negative impact on subscribership given at the link is mistaken and too large (even in the update at the bottom), but there will certainly be a negative impact that could run into the millions of subscribers.

Finally, there is little doubt that FCC Chairman Wheeler felt strong pressure from the White House (another link at a Google search page) to reclassify ISPs as common carriers. President Obama is one of those souls who find “net neutrality” appealing, but I’m cynical enough to think that he merely finds the politics of “net neutrality” appealing. Big government can’t wait to control your “open internet”.

Postscript: This video is a lighthearted take on what the FCC is getting us into.

Big Daddy Wants To Neutralize Your Net

09 Friday Jan 2015

Posted by in Uncategorized

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Net-Neutrality

Once again, President Obama is trying his hand as populist candyman, now pressing the FCC to adopt “net neutrality” rules for regulating internet service providers (ISPs) as common carriers. Net neutrality refers to regulations on ISPs that would prohibit different treatment of different types of internet content, matters that are better left to market participants. Obama has no idea what he’s doing or who he’ll be hurting (hint: internet users of all stripes). The candy is an illusion. Peter Suderman’ has an aptly titled article on this topic at Reason: “Will 2015 Be the Year the FCC Regulates the Internet Back to 1934?” He offers some background on the history of U.S. telecommunications regulation and explains the context within which FCC Chairman Tom Wheeler and the Commission will deal with the issue. Suderman closes with this thought:

“If Wheeler does take this route (reclassification of ISPs as common carriers], as he now seems to determined (sic), we’ll end up with an Internet that is more regulated, more subject to regulatory uncertainty in the near-term, and more like a public utility from another era than an information delivery service for the modern age. It’ll be 2015—but for the Internet, it’ll be 1934 all over again.”

Wired also gives its perspective but implies that Wheeler is seeking ways to reclassify the ISPs, impose neutrality rules, while also creating sufficient exceptions to mollify the ISPs, avoiding litigation as well as market disruption. That would be nice as far as it goes.

Net neutrality is a misnomer, as Sacred Cow Chips has discussed on two previous occasions in “The Non-Neutrality of Network Hogs“, and “Net Neutrality: A Tangled Web“. A lowlight is the corporate cronyism inherent in calls for net neutrality. The biggest beneficiaries are not consumers, but large content providers such as Netflix and Google, though the latter has altered its position on neutrality now that it is entering the market as an ISP. Another lowlight is the disincentive for network expansion created by forced subsidies to the large content providers, who are extremely heavy users of internet capacity.

Jeffrey Eisenach at AEI picks apart the arguments in favor of internet regulation. He also counters assertions that consumers are likely to benefit from internet regulation. Here are two choice quotes:

“And while much is made of consumers’ limited choices, the broadband market is actually less concentrated than the markets for search engines, social networks, and over-the-top video services: discriminatory regulation of ISPs cannot be justified on the basis of market power.”

“Finally, there’s the argument about fast lanes and slow lanes, or, in regulatory jargon, “paid prioritization.” The simple reality is that edge providers like Netflix require prioritization for their services to work. It’s just the “paid” part they don’t like.”

Finally, Don Boudreaux provides two relevant quotes on regulation, one from the great Ronald Coase, along with some of his own thoughts. I close with Boudreaux’s summation:

“Government imposition of “net neutrality” will substitute bureaucrats’ politically poisoned judgments on what are and what are not appropriate business practices for the market-tested judgments of legions of suppliers competing for the patronage of hundreds of millions – indeed, often billions – of consumers.“