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The Rise of the GOP “Common Good” Socialists

02 Wednesday Sep 2026

Posted by Nuetzel in Capitalism, Socialism

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central planning, China Shock, Common Good Capitalism, Covenant Capitalism, Data Centers, Democratic Socialists of America, Don Boudreaux, Donald Trump, Financialization, Government Equity Stakes, Industrial Policy, Interventionism, J.D. Vance, Josh Hawley, Lindsay Craig, Living Wage, MAGA, Marco Rubio, National Review Institute, Nationalism, NIMBYism, Oren Cass, Protectionism, Share Buybacks, Stakeholder Capitalism, Veronique de Rugy

Socialism has gained ground among democrats at a feverish pitch, and “mere socialism” and “democratic socialism” do not convey the tenor of the movement. The Democratic Socialists of America (DSA) wants not just bigger government: the majority of its governing board would like to completely dismantle our governing institutions and replace them with a communist state. While the DSA is formally independent, it doesn’t field candidates as a party. Instead, it essentially operates as a faction of the Democrats, who have long given cover to the far left. There are still plenty of moderate democrats who see the DSA as anathema and a threat to their electoral hopes.

New Ground On the Right

While the socialists’ ascendance among democrats is getting all the media coverage, a different trend is more remarkable: the outright embrace of socialist policies by an influential wing of the Republican Party. This despite the GOP’s rhetorical tradition as the party of “small government”, which of course it has failed to live up to. Pay no attention to the House resolution condemning socialism “in all its forms”, which was narrowly passed this week. The bill does put opposing representatives on record as having failed to condemn socialism. Otherwise it’s fairly meaningless, especially in the context of “GOP socialism”, which has gone largely unrecognized as such, or willfully ignored, by most republicans. In any case, the resolution is more focused on calling for the enactment of the SAVE America Act (Voter ID) than on socialism itself.

The government equity stakes launched by the Trump Administration are but one manifestation of this statist philosophical trap into which republicans began to stumble several years ago: “Common Good Capitalism” (CGC). Vice President Marco Rubio is widely credited with coining that name in a 2019 speech at Catholic University. In policy terms, it overlaps with MAGA dogma in several areas, but not all. Oren Cass, who is the “chief economist” of American Compass (and he is not an economist), was probably most instrumental in the development of CGC. It’s not all socialism, of course. Every ideological offshoot has its nuances. While often cited for its compatibility with religious policy motives, it’s nevertheless a mishmash of populist-nationalist, postliberal “DO SOMETHING” ideas that would grant a far greater role for the state in economic and social affairs. There are variations of CGC: Senator Josh Hawley calls his own version “covenant capitalism”, which suggests an even heavier emphasis on themes of family and faith.

Burned At the Equity Stake

Veronique de Rugy calls out GOP hypocrisy regarding socialism and state ownership of the means of production in a recent article “The GOP Is Warning About Socialism While Quietly Embracing It”. Trump’s aggressive effort to acquire equity stakes is now at 30 companies plus a giant Venezuelan oil development interest held by … the Pentagon? (A defense bill pending in the Senate would authorize the Department of War to take equity stakes in key contractors, but this deal seems to have happened without it.) I’m passionately opposed to government equity stakes and a federal sovereign wealth fund. I’ve discussed it on this blog several times (here and here, for example).

De Rugy covers several failings of state ownership in private companies:

  • Concentrated power over economic decisions in the hands of shifting partisan interests. Influence here extends well beyond the government’s share of ownership;
  • Every government policy tool influences the value of its equity stake, creating conflicts of interest between government, private shareholders, and taxpayers;
  • Irresponsible use of public funding in a time of severe fiscal imbalance;
  • Inefficient allocation of capital to politically-favored and often boneheaded uses; efficient uses tend not to require public money;
  • These firms might well be too state-invested and state-controlled to fail, so taxpayer bailouts become a much greater possibility.

Government equity stakes ultimately provide a subsidy to select firms and penalize others based on political considerations. They offer some of the worst shortfalls of central planning. And if there is spare change rattling around at the Treasury, which is unlikely, it would be better deployed in paying down the existing federal debt. That gets you an immediate and ongoing reduction in now burgeoning interest costs, less rate risk as debt rolls over, and it avoids reliance on the tenuous equity returns on shares of companies subject to heavy government control.

Cloaked Collectivism

Trump’s equity stakes fit seamlessly with the policy agenda of CGC. The following is taken from the web site of the Common Good Capitalism Movement:

“Common Good Capitalism is when in a free market economy individuals and organizations freely choose to give priority to the common good and second priority to profit or mission. They can act alone. Or they can join in an association with competitors to reach agreements to voluntarily raise the level labor, environmental, and social playing field beyond what governments have demanded of them while continuing to compete as a secondary priority.”

That sounds so nice! Be very, very good and generous to everyone, at your owners’ expense, and then join hands with your competitors. Then we’ll either buy-in or simply leave you alone. Sure they will!

The GOP is enamored with the vacuous concept of “common good” for electoral purposes. It’s certainly alluring to populist instincts. Thus, many republicans have come to believe in an array of policies that incorporate practices involving more than a small degree of statism. It’s partly based on the myth of a shrinking middle class and that the affordability of the American dream is out of reach for many Americans.

Pieces of a Platform

So let‘s review a few positions and tenets now associated with CGC. These appear in no particular order, but several are intended by their advocates to encourage American self-sufficiency and national security:

  • Industrial policy is promoted by CGC devotees as a tool for achieving the common good. They favor interventions that would favor small businesses, and they believe active industrial policy can promote job growth, national self-reliance, and national security. Equity stakes in private companies fall under this heading, which may include coercive reviews or approvals for certain business activities. Industrial policy is a form of central economic planning, and it often boils down to the picking of winners and losers by the state.
  • Protectionism, including tariffs, presumed to encourage reindustrialization and high-wage job growth, self-sufficiency, and national security. This is the wrong approach, and it too is a form of statist central economic planning. Its proponents don’t seem to realize that Trump’s tariffs represent a huge tax increase on consumers as well as firms that rely on imported inputs.
  • “Stakeholder capitalism“, they say, is necessary to ensure that businesses weigh not only the interests of their owners, but more importantly their workers and “communities”, broadly defined. No one should expect firms pursuing such ends to maximize value, and buyers should not expect them to produce superior products. Codified stakeholder capitalism would represent an abrogation of the property rights of actual shareholders. The identification of “stakeholders” has no limiting principle, so it’s an open invitation to loot.
  • Data center derangement has crept into the talking points made by many republicans and the CGC faithful. This is mostly run-of-the mill anti-development activism, not socialism per se. Plain old NIMBYism can be a visceral response to almost any development, and an honest aesthetic revulsion, but data center developers are more than willing to negotiate compromises that bring massive benefits to communities. Almost everything you hear about the external costs inflicted by data center is fictitious. Should data center opponents prevail in slowing the buildout of information infrastructure, it would be a blow to prospects for U.S. leadership in AI, economic growth, competitiveness, and national security. I think more moderate voices within the CGC movement recognize these dangers.
  • Price controls just might be put to broader use in the hope of serving the “common good”: living wage arguments have been welcomed into the CGC intellectual milieu, despite the unproductive and often destructive results of minimum wage legislation. Trump has been railing against the oil companies for supposedly profiting off American consumers. Probably just jawboning, but price ceilings might not be out of the question. Commodity price ceilings seem to be only a mild flirtation of CGC, so let’s hope Trump doesn’t normalize the idea. However, Trump and Josh Hawley have proposed capping credit card interest rates, a sure path to limiting the availability of credit to the most credit-challenged consumers. You can quibble here, but the revocation of pricing authority is every bit as much a taking as a levy on asset values.
  • CGC is union-friendly, which is unusual for a movement dominated by republicans. It insists that broad-based collective bargaining will promote more prosperous and stable families. I support the right to collective bargaining for all except public employees, and with the qualification that workers should have complete freedom of representation. However, unions raise business costs and introduce rigidities that ultimately make unionized firms less competitive and less innovative, so the hoped-for stability is likely to be short-lived for many workers.
  • Another tenet of CGC is to restrict legal immigration, despite the aging U.S. population, an insolvent pay–as-you-go public retirement system, and birth rates below replacement levels. Imposing sharp limits on immigration is a nationalist position, or even nativist, though some notorious socialists were and are both nativistic and nationalistic. Either way, this is an intrusive, statist position, and it is often xenophobic. But to be clear, I am not arguing for open borders or any form of illegal entry. Rather, I advocate for liberalized legal immigration based on merit.
  • To its credit, CGC is more oriented toward “sound money” and an independent Federal Reserve than is the Trump Administration. Trump almost seems to prefer replacing Fed authority with money printing at the whim of the executive, and in support of a far broader economic role for the state.
  • CGC calls for restrictions on certain private financial decisions, such as outlawing share buybacks and private equity. This would represent another intrusion into private affairs. This is connected to CGC’s disdain for the “financialization” of the American economy. The ban would come on top of Trump’s 1% tax of share repurchases and prohibition of buybacks by defense contractors. However, there is evidence that legalizing share repurchases tends to stimulate corporate investment by redirecting investor funds from “mature firms” to newer, relatively cash-strapped firms having unfunded growth opportunities. An implication is that prohibiting buybacks is more like shooting yourself in the foot. It would be another coercive intrusion into the private sphere, a “taking” of private decision-making authority and a form of social control.
  • The CGC movement would like to use the tax code to achieve social objectives such as family formation. These steps would include higher per-child tax credits, subsidies (family income supports), and private business mandates (e.g., required paid parental leave). I‘m all for family formation, but whether you call this socialist or authoritarian, these incentives should remain private, not subject to the whims of the state.
  • Investment incentives: I’m loath to criticize policies that improve investment incentives, such as immediate expensing of investments of physical capital. On the other hand, were it not for the existence of a distortionary tax system that double-taxes corporate income, business tax breaks would be wholly unnecessary. So let’s start with the root problem by reforming business taxation, not doubling down on distortions. Furthermore, the reliance on so-called tax subsidies represents another avenue through which government manipulates the character of economic activity, with impacts that persist for years. Central planning!
  • Perceptions of the “national interest” are always in flux, shaped by current politics and those holding power. But among CGC adherents, their view of today’s national interest must always take priority over market efficiency. This is used to justify a wide range of policies: tariffs, equity stakes, manufacturing subsidies, often based on claims that a fictitious “China Shock” has hollowed out American manufacturing. Please… this is a weak excuse for state intervention. And though the argument might not be uniquely inspired by socialism, the “national interest” makes a convenient talking point for any socialist.
  • Finally, MAGA and CGC have somewhat divergent views on regulation and intervention. MAGA, despite its embrace of government planning and its apparent rejection of fiscal conservatism, at least continues its efforts to reduce regulatory burdens on the private sector. In some cases, CGC might do that too, but CGC embraces a variety of interventions under a variety of circumstances to change business incentives or safeguard against what they judge to be violations against public welfare. CGC’s approach to managing the business environment might include antitrust actions, efforts to discourage plant or office closures, and restrictions on certain business practices such as H-1B visas and non-compete agreements. This is in addition to items discussed above, like discouraging “financialization”, strict oversight of private equity, enforcing a balanced labor bargaining environment, and fostering representation of stakeholders in corporate decision-making.

But here’s a fundamental truth, courtesy of Don Boudreaux in a 2024 letter to the National Review Institute’s then-President Lindsay Craig, regarding Oren Cass‘ advocacy for CGC:

“… one of the merits of the liberal market order is that it allows each of us to pursue our individual ends absent any need to agree on, or to aim for, anything called the ‘common good.’ …

“… Because of the diversity of individuals’ particular interests, ends, and understandings of ‘the good,’ to impose any specific ‘common good’ goal of the sort that Mr. Cass favors necessarily requires coercing the majority of people to abandon their own ends in order to assist in the pursuit of the particular ends enforced by those who currently hold political power.”

If not socialism, many of the positions listed above are at odds with the ideals of small government, individual liberty, and free market capitalism. But it’s not the least unfair to say many of them veer into socialism. The extent to which the collectivist mindset, often disguised as mere populism, has permeated republican circles is rather astonishing. I should be happy they haven’t proposed anything as socially suicidal as a wealth tax… yet!

Vance and Rubio

In leadership circles, Trump has areas of agreement as well as departures from CGC, but it’s a different story among his most likely successors to the helm of the party and the presidency. Vice President J.D. Vance is an ardent critic of capitalism, and strongly believes that the state must intervene to correct the “failures” of the market economy. I empathize with his outrage over the plant closures and economic decline that have afflicted certain communities. He experienced the effects himself growing up, but his current diagnosis assigns blame to the market order. He does not acknowledge that buyer preferences and high costs made operating those plants unviable in the first place. Market competition can both reward and punish, but it is a process that ultimately improves the general welfare. Government planning is wholly incapable of replacing the market process, and government (and taxpayers) cannot be called upon to preserve former income levels or even a former way of life.

Vance has a beef with the pursuit of measured economic growth. In his view, it comes at the expense of the traditional values he most cherishes. For example, unpaid household work is not counted in official GDP statistics, nor is elder care at home. Therefore, says Vance, the statistics themselves contain a bias against single-income and multi-generational households. Those measurement issues have long been acknowledged by economists, but he goes so far as to suggest that policy should ignore the official statistics. He has slammed holiday shifts for retail workers as exploitive. And he believes that trade deficits represent a threat to the nation (complete nonsense) and strongly supports tariffs on imports of foreign goods.

Marco Rubio is another potential CGC contender for the presidency in 2028, and he’s given credit for bringing CGC into broad discussion within the GOP. His version strikes me as hewing closer to MAGA principles than Vance does. Rubio’s take on GCG is quite focused on national security and Sino-American trade and relations. He is strongly for tight control of immigration. He supports deregulation and free market principles, with qualifications. But he also says free markets must guarantee “dignified work” to all working or job-seeking Americans at decent wages. What exactly does “dignified work” mean? And how does one simply wave away frictions in the job market that will always persist. What does “decent wages” mean? Is Rubio suggesting a mandated living wage?

Rubio statements are riddled with misconceptions about economic and technological issues. For example, his anti-trade arguments are just as moronic as Trump’s; his emphasis on redirecting activity toward production in the “physical economy” is vapid (except perhaps in markets with implications for national security); he supports more industrial policy despite a history of central planning failures; his comparison of stock buybacks to dividend income for shareholders is daft; he holds a childish view of internet development as a social media phenomenon; and far too broadly, he characterizes U.S. innovation as historically driven by defense and public-private partnerships. On the whole, Rubio might seem to have a healthier market orientation than Vance, but he still talks like an interventionist in many respects.

Conclusion

The whole CGC attack on free markets reflects a poor understanding of basic economics. It requires massive value judgements that stand in contrast to the values that emerge from the impersonal, voluntary interactions of many participants in free markets. Just as damning is CGC’s failure to recognize the many opportunities for rent seeking and corruption are enabled by government intervention. But to drive all this home, I’ll close with another quote from Don Boudreaux, which I took from a 2023 post on his blog:

“In reality, the best economic system for promoting the common good is what I, in these discussions, call ‘capitalism unprefixed’ – that is, capitalism as understood and championed by people such as Hayek and Friedman. Not only is there no need for government to interfere with capitalism unprefixed in order to ensure that the common good is served, such interference is far too likely to bestow unearned benefits on politically favored groups, or to satisfy the particular ideological preferences of politically influential intellectuals, all at the larger expense – material and nonmaterial – of the people as a whole.

“If ‘common good capitalism’ means anything other than capitalism unprefixed, its pursuit necessarily requires government to elevate the particular preferences of some individuals over those of other individuals – a move that mocks the meaning of ‘common good’ as understood by true liberals.

“In short, ‘common good capitalism’ implies the ability of ‘common good capitalists’ to determine which particular ends are, and which aren’t, consistent with the common good, and the right of these ‘capitalists’ to commandeer the state to impose their determination on everyone.“

Cap Rates and You’ll Kill Low-Income Credit Cards

19 Wednesday Feb 2025

Posted by Nuetzel in Lending, Price Controls

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BBVA Research, Bernie Sanders, Credit Card Lending, Credit Limits, Credit Report, Dodd-Frank, Donald Trump, Federal Reserve, Interest Rate Caps, J.D. Tuccille, Josh Hawley, Late Fees, Loan Sharks, Minimum Payments, Or, PATRIOT Act, Pawn Shops, Payday Loans, Purchase Limits, Relationship Requirements, Revolving Balances, Thin Files, Title Loans, Usury Laws

If you want to induce a shortage, a price ceiling is a reliable way to do it. Usury laws are no exception to this rule. Private credit can be supplied plentifully to borrowers only when lenders are able to charge rates commensurate with other uses of their funds. Importantly, the rate charged must include a premium for the perceived risk of nonpayment. That’s critical when extending credit to financially-challenged applicants, who are often deserving but may be less stable or unproven.

No doubt certain lenders will seek to exploit vulnerable borrowers, but those borrowers are made less vulnerable when formal, mainstream sources of credit are available. A legal ceiling on the price of credit short-circuits this mechanism by restricting the supply to low-income borrowers, many of whom rely on credit cards as a source of emergency funds.

A couple of odd bedfellows, Senators Josh Hawley (R-MO) and Bernie Sanders (D-CT), are cosponsoring a bill to impose a cap of 10% on credit card interest rates. Sanders is an economic illiterate, so his involvement is no surprise. Hawley is otherwise a small government conservative, but in this effort he reveals a deep ignorance. Unfortunately, President Trump would be happy to sign their bill into law if it gets through Congress, having made a similar promise last fall during the campaign. Unfortunately, this is a typically populist stance for Trump; as a businessman he should know better.

Many consumers in the low-income segment of the market for credit have thin credit reports, a few delinquencies, or even defaults. Most of these potential borrowers struggle with expenses but generally meet their obligations. But even a few with the best intentions and work ethic will be unable to pay their debts. The segment is risky for lenders.

Card issuers might be able to compensate along a variety of margins. These include high minimum payments, stiff fees for late payments, tight credit limits (on lines, individual purchases, or revolving balances), deep relationship requirements, and limits on rewards. However, the most straightforward option for covering the risk of default is to charge a higher interest rate on revolving balances.

The total return on assets of credit-card issuing banks in 2023 was 3.33%, more than twice the 1.35% earned at non-issuing banks, as reported by the Federal Reserve. But that difference in profitability is well aligned with the incremental risk of unsecured credit card lending. According to BBVA Research:

“… studies confirm that higher interest rates on credit cards are not related to limited market competition but to greater levels of risk relative to other banking activities backed or secured by collateral. … In fact, an investigation into the risk-adjusted returns of credit cards banks versus all commercial banks suggests that over the long term, credit cards banks do not enjoy a significant advantage. … the market is characterized by participants that operate a high-risk business that requires elevated risk premiums.”

So card issuers are not monopolists. They face competition from other banks, often on the basis of non-rate product features, as well as “down-market” lenders who “specialize” in serving high-risk borrowers. These include payday lenders, pawn shop operators, vehicle title lenders, refund anticipation lenders, and informal loan sharks, all of whom tend to demand stringent terms. People turn to these alternatives and other informal sources when they lack better options. Hawley, Sanders, and Trump would unwittingly throw more credit-challenged consumers into this tough corner of the credit market if the proposed legislation becomes law.

Much of this was discussed recently by J.D. Tuccille, who writes that many consumers:

“… find banks, credit card companies, and other mainstream institutions rigid, uninterested in their business, and too closely aligned with snoopy government officials. Often, the costs and requirements imposed by government regulations make doing business with higher-risk, lower-income customers unattractive to mainstream finance.

‘The regulators are causing the opposite of the desired effect by making it so dangerous now to serve a lower-income segment,’ JoAnn Barefoot, a former federal official, including a stint as deputy controller of the currency, told the book’s author. She emphasized red tape that makes serving many potential customers a legal minefield“

Tuccille offers a revealing quote attributed to a bank official from a 2015 article in the Albuquerque Journal:

“‘Banking regulations stemming from the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and the Patriot Act of 2001 have created an almost adversarial credit environment for people whose finances are in cash.‘“

In other words, for some time the government has been doing its damnedest to choke off bank-supplied credit to low-income and risky borrowers, many of whom are deserving. It’s tempting to say this was well-intentioned, but the truth might be more sinister. Onerous regulation of lending practices at mainstream financial institutions, including caps on credit card interest rates, is political gold for politicians hoping to exploit populist sentiment. “Good” politics often hold sway over predictable but unintended consequences, which later can be blamed on the very same financial institutions.

An Internet for Users, Not Gatekeepers and Monopolists

09 Wednesday Jun 2021

Posted by Nuetzel in Censorship, Social Media, Uncategorized

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Alphabet, Amazon, Anti-Trust, Biden v. Knight First Amendment Institute, Big Tech, Censor Track, Censorship, Clarence Thomas, Clubhousse, Common Carrier, Communications Decency Act, Daniel Oliver, Department of Justice, Exclusivity, Facebook, Fairness Doctrine, Gab, Google, Google Maps, Internet Accountability Project, Josh Hawley, Katherine Mangu-Ward, Media Research Center, MeWe, monopoly, Muhammadu Buhari, Murray Rothbard, My Space, Net Neutrality, Public Accommodation, Public Forum, Quillet, Right to Exclude, Ron DeSantis, Scholar, Section 230, Social Media, Statista, Street View, Telegram, TikTok, Twitter, Tying Arrangement

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.

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