[NCAC] PRIVATE CENSORSHIP – FIGHTING SUPPRESSION OF SPEECH BY NON-GOVERNMENTAL ACTORS

"Clarence Thomas and the enigma of social media":

https://theweek.com/articles/975842/clarence-thomas-enigma-social-media

excerpt:

. . . That's where Clarence Thomas comes in.

In his concurrence, Thomas acknowledges that, in addition to the special immunity Section 230 confers on websites and digital platforms, private enterprises in general are typically presumed to possess the freedom (grounded in the First Amendment) to disassociate from forms of expression they disapprove of. The government normally couldn't force social media companies to publish ideas or host people they don't want to be associated with — any more than it could force a newspaper or magazine to publish specific ideas or individuals against its will.

Yet there are important exceptions to this rule — and Thomas suggests that there is a strong case for thinking that social media platforms should be treated as exceptions. That's primarily because of their extraordinary size and power, and because of the crucially important role they've come to play in our public life. As Thomas points out, social media companies "provide avenues for historically unprecedented amounts of speech, including speech by government actors."

This "enormous control over speech," according to Thomas, turns these private enterprises into something very much like political gatekeepers, defining what can be said and who can say it on a national level. This is a power orders of magnitude greater than what The New York Times enjoys when it decides whether or not to publish an op-ed in its pages and on its website, or when Fox News decides whether or not to invite a guest onto one of its prime-time programs. A more fitting analogy would be to a company that provides every citizen with a microphone for use as the precondition of full citizenship and political participation — and then selectively exercises the power to shut it off for certain people or groups when the company decides such an act is warranted.

We saw one example of this power being exercised in the weeks leading up to the 2020 election, when Twitter and then Facebook blocked The New York Post from tweeting in order to keep it from promoting a murkily sourced hit job on Hunter Biden, the troubled son of the Democratic nominee for president. We saw another example when, in the wake of the Jan. 6 insurrection, several social media companies banned Trump from tweeting through the final weeks of his presidency. (This restriction on the former president remains in effect today, three months later.)

In these cases, social media companies are exercising powers that, when it comes to controlling political speech, far outstrip those possessed by The New York Post or even the president of the United States. Like many liberals and progressives, I very much enjoyed not having to endure a stream of Trump tweets filled with incendiary provocation and lies about election fraud through his administration's final ten days, and I think muting him through that post-insurrection period, as we prepared to inaugurate his successor, was very good for the country. Yet the decision to do so was made entirely by a small handful of private companies acting with effectively no political oversight or democratic accountability.

That those on my side of the country's main political divide were happy about the exercise of this enormous power in these particular cases shouldn't lead us to turn a blind eye to the ominous implications. Who exactly is running the political show in this country (and the world)? And what are the limits of their powers?

In his concurrence, Thomas suggests a number of different possibilities for how we might begin to think about social media companies, all of them pointing in the same general direction. In some passages, Thomas claims that such enterprises resemble businesses that provide essential public services — like a pipeline, network, or utility. What such companies have in common is that they are constrained in various ways by onerous government regulations because their activities directly impact the public interest. But in other paragraphs of the concurrence, Thomas indicates that he thinks social-media companies more resemble hotels or restaurants, businesses that are expected to treat all comers equally, without discrimination. Legally speaking, the first group of businesses are called common carriers. The second are places of public accommodation.

I find all of Thomas' analogies quite strained. (I'll explain why in a moment.) But I think it's possible to tease out a metaphor from his various comments about social-media companies to capture how he views them and their role in our politics. He sees Twitter, Facebook, Google, and Amazon as akin to gigantic public billboards on which the vast majority of Americans regularly communicate, share information, conduct commerce, and express political opinions. On that model, efforts at content moderation amount to the billboard owners taking it upon themselves to decide who can post on it and what they can say when they do — which is to give those owners government-like power to determine the rules of the political game. Instead of permitting these owners this level of power over our public life, Thomas suggests regulating the billboards on the model of anti-discrimination law, with no one banned and everyone welcomed to compete in overlapping marketplaces of information, commerce, ideas, and opinions.

There are a slew of problems with this hyper-libertarian vision of online life, but I want to focus on just one — which is that social media platforms are very different from gigantic billboards (and pipelines and utilities and hotels and restaurants). What we see on the billboards isn't some neutral reflection of what users are posting on it. What we see is a product of the interaction between what people are posting with complex, proprietary algorithms devised and controlled by the companies.

It's not even possible to say that each platform is equivalent to a single billboard. On the contrary, each of us sees a distinct billboard that's custom-tailored (curated) for us, with the precise content, placement, and rank ordering determined by our past interactions with the platform and the algorithm's best effort at anticipating our wants, desires, hopes, and needs.

Objecting to the prospect of more intentional (and intentionally political) content moderation is to wake up to a problem quite late. Twitter, Facebook, and the other social media companies could vow tomorrow never to deplatform another user or delete another politically controversial post and they would still be engaged in massive amounts of content moderation, adjustment, and manipulation of what we see when we visit their websites. Our news feeds, searches, scrolling, and potential purchases would still be curated especially for each of us with an eye to keeping us maximally engaged and clicking.

The problem with Thomas' analysis is that it's not radical enough. He's right to recognize the political danger posed by social media — and right to note the many ways in which the megabusinesses in this sector are categorically different from other kinds of companies — but he fails to grasp the true character and parameters of the threat. These companies aren't simply enormous common carriers, and they can't just be treated as places of public accommodation on a national scale. They are different and new, posing distinct and novel challenges to democracies around the world, and we are going to need new kinds of laws and regulations to deal with them.

Whether we determine that the right response demands the development of new tech-based forms of regulation, or we ultimately decide the companies need to be broken up, Clarence Thomas deserves credit for using his position as one of nine justices on the Supreme Court to raise pointed and fruitful questions about one of the most pressing problems of our time.

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"YouTube pulls Florida governor's video, says his panel spread Covid-19 misinformation":

https://www.nbcnews.com/news/us-new...his-panel-spread-n1263635?cid=sm_npd_nn_tw_ma

YouTube pulls Florida governor's video, says his panel spread Covid-19 misinformation
Several scientists questioned the use of masks by kids at Gov. Ron DeSantis' roundtable discussion last month.

April 9, 2021, 3:07 PM EDT
By Corky Siemaszko

Video of Florida Gov. Ron DeSantis and a panel of scientists apparently trading in Covid-19 misinformation has been pulled from YouTube.

The video of DeSantis’ roundtable discussion last month at the state Capitol in Tallahassee was removed on Wednesday because it violated the social media platform’s standards, YouTube spokesperson Elena Hernandez said.

It had been embedded in a Tampa-area TV station's news story and it's removal was flagged by the American Institute for Economic Research, a "free market" think tank based in Great Barrington, Massachusetts.

“YouTube has clear policies around Covid-19 medical misinformation to support the health and safety of our users,” Hernandez said in a statement. “We removed AIER’s video because it included content that contradicts the consensus of local and global health authorities regarding the efficacy of masks to prevent the spread of Covid-19.”

Hernandez said YouTube only allows videos “that otherwise violate our policies to remain on the platform if they contain sufficient educational, documentary, scientific or artistic context.”

“Our policies apply to everyone and focus on content regardless of the speaker or channel,” Hernandez said.

DeSantis's press secretary Cody McCloud called YouTube's move "another blatant example of Big Tech attempting to silence those who disagree with their woke corporate agenda."

"YouTube claimed they removed the video because 'it contradicts the consensus of local and global health authorities,' yet this roundtable was led by world-renowned doctors and epidemiologists from Oxford, Stanford, and Harvard, all of whom are eminently qualified to speak on the global health crisis," McCloud said. "Good public health policy should include a variety of scientific and technical expertise, and YouTube’s decision to remove this video suppresses productive dialogue of these complex issues."

Dr. Jay Bhattacharya of Stanford University, one of the scientists on the panel, said this "was a policy forum, in which it is appropriate to consider both the benefits and costs of a policy (child masking) when making judgments and recommendations."

"YouTube’s censorship of our discussion is contrary to American democratic norms of free expression," the professor said in an email. "It is also a violation of basic standards of scientific conduct, which stand in opposition to unreasoned silencing of contrary views and require the free exchange of ideas."

Earlier, AIER editorial director Jeffrey A. Tucker insisted in an article Wednesday on the think tank’s website that YouTube censored DeSantis and the scientists and called it “the latest attack on public health information.”

Many public health experts, however, have accused Bhattacharya and the other scientists on the panel with DeSantis — former Trump White House coronavirus advisor Dr. Scott Atlas; epidemiologist Sunetra Gupta; and Dr. Martin Kulldorff — of spreading public health misinformation. NBC News has also reached out to Tucker, Atlas, Gupta and Kulldorff for comment.

NBC News did not see the video before it was removed. Tucker first reported its removal.

But based on a transcript provided by YouTube, it appears the participants ran afoul of the platform’s standards when DeSantis asked whether children in school should be wearing masks and Kulldorff replied, “Uh, children should not wear face masks, no. They don’t need it for their own protection, and they don’t need it for protecting other people either.”

Less than a minute later, Bhattacharya chimed-in, saying that mask-wearing “is developmentally inappropriate and it just doesn’t help on the disease spread.”

“There’s no scientific rationale or logic to have children wear masks in school,” Atlas said six minutes later.

That language also appears in the transcript posted by Tucker with his article.

Those claims run counter to the recommendations of the federal Centers for Disease Control and Prevention, which advises that “people age 2 and older should wear masks in public settings and when around people who don’t live in their household.”

The World Health Organization recommendations are a bit looser for younger children, but kids age 12 and over “should wear a mask under the same conditions as adults.”
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more at the link

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Lawfare piece on Justice Thomas's opinion

https://www.lawfareblog.com/justice-thomas-gives-congress-advice-social-media-regulation

too long to quote in its entirety, here's an excerpt:

Justice Thomas on Section 230 Reform and Platform Regulation

Having concluded that public forum doctrine isn’t a smooth fit for the “problem” of “private, concentrated control over online content and platforms,” Thomas discusses two existing legal doctrines that would allow additional regulation of private platforms. The first, “common carrier” laws, impose special duties to accept “all comers” and in return grant certain legal immunities to private entities that transport information, people or goods. Historical examples of common carriers include railroads and telegraph, telephone, and internet service providers.

To qualify as a common carrier, the service offered by a company must be “of public interest,” and in many cases, the company must have dominant market power. Common carriers are subjected to more regulation than other companies, most notably the requirement that they “serve all customers alike, without discrimination.” In exchange for imposing these requirements, the government bestows related legal privileges on common carriers, such as immunity from defamation lawsuits and special protections from competitors.

Thomas argues that digital platforms are analogous to common carriers. Like traditional common carriers, he writes, digital platforms “carry information from one user to another[,]” “focus on distributing the speech of the broader public[,]” and dominate the market, creating high barriers to entry for competitors. Thomas flags the fact that Google functions as the “gatekeeper” between internet users and online speech 90 percent of the time, and that Amazon, the distributor of a majority of all e-books and physical books, could impose “cataclysmic consequences” by blocking a book.

The “answer” for “dissatisfied platform users[,]” Thomas says, may be subjecting digital platforms to common carrier regulations. Restricting digital platforms’ “right to exclude” through common carrier laws would indeed increase relative government control over officials’ social media accounts, perhaps enough to turn those accounts into true public forums. But Thomas argues that a valid common carrier analysis would have to examine Twitter’s market power or identify existing common carrier statutory restrictions on Twitter’s “right to exclude,” neither of which the Second Circuit did. (It’s clear that the Second Circuit was not reasoning within a common carrier framework when it did its public forum analysis, so the lower court had no reason to consider the questions of market power Thomas raised here.)

The second doctrine that would allow regulation of private digital platforms, Thomas writes, is the doctrine of “public accommodations.” Public accommodations are similar to common carriers but do not “carry” any products or information from one location to another. Instead, public accommodations are places that provide services, such as food or entertainment, to the general public. While Twitter and other social networking sites arguably provide analogous services, Thomas notes that there is debate over whether public accommodations can extend beyond the physical realm. Even assuming they can, he writes, no existing public accommodation laws or regulations were implicated by this case.

Thomas concludes by highlighting that while Congress has afforded social media companies certain legal privileges, notably immunity from some liability under Section 230, it has not subjected them to parallel legal restrictions. He suggests that common carrier and public accommodation provisions could serve as the “principal means for regulating digital platforms.” He hints that leaning into the common carrier and public accommodations analogies “may give legislators strong arguments for similarly regulating digital platforms” without triggering heightened First Amendment scrutiny by courts. But noting that Congress hasn’t yet imposed such common carrier regulations on social media companies, Thomas leaves the door open to examine these “interesting and important questions” another day.

***
It’s worth highlighting again that Thomas was unable to convince any other justices to sign on to his opinion, even among his five conservative colleagues. SCOTUS does not appear convinced, at least not yet, that the common carrier and public accommodation approaches to platform regulation are the best solutions for passing constitutional muster.

For now, the important question about this concurrence doesn’t seem to be whether other justices agree with Thomas, but whether Republicans in Congress and state houses around the country follow his reasoning and introduce proposals for regulation along the lines Thomas proposes.
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Zoom has overhauled its policies in response to complaints from higher education clients

Zoom Sharply Reduces Its Content Restrictions for Academic Institutions

https://reason.com/volokh/2021/04/1...ntent-restrictions-for-academic-institutions/

too long to quote but here is the new policy statement from Zoom: https://explore.zoom.us/docs/en-us/trust/academic-freedom.html

the policy is in response to letters like this one from the University of California system:

The University's responsibility to protect academic freedom and freedom of expression cannot be outsourced. As we all know, UC currently relies heavily on platforms such as Zoom to facilitate our teaching, research, governance, and the public dissemination of knowledge. UC cannot, however, rely on private companies to protect the academic freedom on which those core university functions depend.

The threats here are not just hypothetical. Zoom has already canceled political events and academic discussions at other institutions, after receiving complaints and finding violations of their terms of service.[1] UCAF's worries go beyond the facts of particular prior cases, which vary in potentially important ways. UCAF is concerned about dangers evident in UC's own contract with Zoom, under which Zoom retains largely unfettered discretion to control what content it hosts. We suspect that Zoom is not alone in this regard.

Zoom's Terms of Service,[2] which incorporate by reference the company's Community Standards,[3] currently prohibit all of the following:

• "posting or sending hateful imagery," where that is defined to include "symbols historically associated with hate groups (e.g. the Nazi swastika)," images of individuals altered "to include animalistic features," and "logos, symbols, or images whose purpose is to promote hostility and malice against others based on" protected grounds such as race, gender, or religious affiliation;
• "the celebration of any violent act that may inspire others to replicate it";
• depicting "any form of gory media related to death, serious injury, violence, or surgical procedures" or "media that depicts death, violence, or serious physical injury in graphic detail," including depictions of "visible wounds" and "bodily fluids";
• nudity, which is restricted "by default," though Zoom "may make allowances" when "the intent is clear" that nudity is shared for "educational or medical reasons";
• "impersonat[ing] anyone," defined as "pretending to be someone you are not";
• "use [of] another's name or image without their permission";
• engaging in activity that is false or misleading;
• communicating "any material that is . . . indecent."

Zoom encourages users to report violations of its Terms of Use and Community Standards through its online "Trust Form."[4]

From swastikas portrayed in history classes to nudity in art studios, from clinical training in the medical schools to impersonation by our theater clubs, mock trial teams, and school mascots, members of the University of California routinely violate Zoom's terms and standards in the course of regular instruction, research, and extracurricular activities. Of course, Zoom may never enforce its terms and standards to the absurdly broad extent that their vague language would allow. (Insofar as it would never do so, Zoom should have no objection to clarifying and limiting its contractual language.) Under our current contract, however, the power to decide what content to allow lies with Zoom, not the University. This is an astonishingly open-ended threat to the University's ability to carry out its fundamental mission.

Zoom has the ability to censor University content on the basis of criteria—such as indecency, falsity, goriness, or the promotion of hostility—that would be unconstitutional for the University to employ in some contexts, and a serious violation of academic freedom in many other contexts. This will surely make companies like Zoom an attractive target for those seeking to influence what gets said, taught, and studied at the University. The University needs to take steps to guard against such outside influence now—particularly now, when UC is so thoroughly reliant on the services of companies like Zoom.

To their credit, our colleagues in Academic Affairs and Information Technology at UCOP had begun meeting to discuss these issues even before UCAF raised them. On December 4, 2020, in a letter to the Council of UC Faculty Associations (attached [see pp. 6-7 of this PDF]), the University Provost also addressed the problem, reaffirming in his letter "that the University of California is committed to upholding and preserving principles of academic freedom." Bringing attention to these principles is always welcome, but the present threat to them requires a stronger response.

Provost Brown writes in his December 4 letter that "Zoom is a private company that has the right to set its own terms of service in its contracts with users." This is true, but incomplete: the right to set contractual terms is not Zoom's alone; the University of California is party to the contract as well. UC has already negotiated additions to its contract with Zoom on issues of data security and privacy. Protecting academic freedom is no less vital. The University of California has the responsibility—and fortunately also the stature and market power—to negotiate terms of service that do not just facilitate the University's core activities, but preserve the academic freedom that makes them possible in the first place.

UCAF therefore requests that Academic Council call on the administration to take the following steps:

First, negotiate with Zoom for contractual terms that protect the academic freedom of UC faculty and other teachers and researchers, the freedom of scholarly inquiry of UC students, and the First Amendment rights of the entire UC community. Content on University of California Zoom accounts should be censored only if hosting it would cause Zoom to violate the law. Any other content limitations should be left to the University.

Second, identify other platforms that UC faculty, students, and staff can use as an alternative if censorship by Zoom occurs or is feared. Provost Brown's recent letter encourages faculty to "contact their local Information Technology Department for recommendations as to other vendors." But the threat of censorship is one that affects the entire University. It results from university-wide contracting. A university-wide solution is therefore appropriate. UC should make available backup platforms that can be used for courses and other events while UC's negotiations with Zoom proceed (or, certainly, if its negotiations fail).

Third, since Zoom is not the only private platform or service the University uses to carry out its core activities, UC should identify other contracts that might raise similar threats to academic freedom and free speech. A renegotiated contract with Zoom could provide a model for negotiations with those contractors, as well as for other universities grappling with similar concerns.

The University of California has an opportunity to be a leader on this important issue. UCAF asks that Academic Council endorse this statement of concern and proposed responses. Thank you for your consideration.

Sincerely,

Brian Soucek, Chair
UCAF

[1] See, e.g., "Zoom Blocks Activist in U.S. After China Objects to Tiananmen Vigil," N.Y. Times (June 11, 2020), https://www.nytimes.com/2020/06/11/technology/zoom-china-tiananmen-square.html; Letter from CUCFA to UC President Drake (Sept. 24, 2020), https://cucfa.org/2020/09/potential-censorship-by-technology-providers/; Letter from AAUP to NYU President Hamilton (Oct. 28, 2020), https://academeblog.org/2020/10/29/aaup-urges-nyu-president-to-address-zoom-censorship/. But see "US Charges Ex-Zoom Employee with Shutting Down Tiananmen Square Events," BBC.com (Dec. 19, 2020), https://www.bbc.com/news/world-us-canada-55372493.

[2] https://zoom.us/terms/

[3] https://zoom.us/docs/en-us/community-standards.html

[4] https://zoom.us/trust-form​

 

“Terror By White Supremacists”: BLM Denounces Coverage Of Co-Founder’s Real Estate Purchases While Facebook Censors Story

https://jonathanturley.org/2021/04/...state-purchases-while-facebook-censors-story/

excerpt:

The main issue for me is not the house or the claimed hypocrisy. It is the censorship of Twitter and now Facebook. Cullors is a public figure who is subject to public scrutiny and commentary. Twitter is rife with a such criticism over the lifestyle choices of figures on the right ranging from Donald Trump Jr. to Rand Paul. That is an unfortunate aspect of being in a high visibility position. I would be equally concerned if criticism of Trump Jr.’s big game hunting exploits or Giuliani’s lavish tastes were censored.

As stated recently in testimony before the House, I remain an unabashed “Internet Originalist,” favoring the free forum for speech that once defined these Big Tech companies. The expanding censorship of the Internet continues to show bias and contractions as politicians push for “robust modification” to silence opposing views of everything from climate change to social justice. Twitter and Facebook now actively determine what people should know and discuss on matters of public interest.

BLM however is denouncing the coverage as raw racism. In a statement, it insisted that Cullors has only made $120,000 from BLM. Once again, I see no evidence that Cullors has taken any money inappropriately from BLM. To that end, I can see why BLM would issue a strong statement to knock down any suggestions of fraud or self-dealing with BLM funds. For any such organization, suggestions of fraud can have a serious impact on corporate and individual donations. As for Cullors herself, her own corporate deals would give her ample money for these real estate investments if the story is accurate.

Yet, BLM added that the reporting about her properties “continues a tradition of terror by white supremacists against Black activists.” What is odd is that the head of NY BLM was that one of those calling for an investigation and presumably it is not part of that “tradition of terror by white supremacists.”

Most of the coverage concerned the irony of Cullors investing millions in real estate given her public persona as a dedicated Marxist. Indeed, some on the left have denounced her as a hypocrite after the disclosures of her investments and homes. Cullors has told followers that “While the COVID-19 illness is tragic, what’s more tragic is capitalism.” Nevertheless, BLM called the coverage of the Cullors investments as a familiar “tactic of terror time and again, but our movement will not be silenced.”

As noted earlier, the greatest irony may not be the home purchase but the corporate support. A professed Marxist, Cullors has not only been paid handsomely by corporations like Warner Brothers but is being actively protected by corporations like Twitter and now Facebook in blocking the underlying story.
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more at the link

 

Volokh comments

https://reason.com/volokh/2021/04/1...-matter-founder-patrisse-cullors-real-estate/

 

Volokh also looking for recommendations for an email service provider

https://reason.com/volokh/2021/04/1...bution-service-that-wont-limit-what-we-write/

Looking for E-Mail Distribution Service That Won't Limit What We Write

EUGENE VOLOKH | 4.16.2021 12:31 PM

Google's FeedBurner, which we use to deliver the Volokh Daily e-mail to our ≈3,000 subscribers, is stopping its e-mail service. My plan was to move to Google Groups instead, and we still might if we can't get a good alternative, but I'm not wild about its content limits, including on whatever speech Google views as "Misleading content related to civic and democratic processes," "Misleading content related to harmful health practices," "hate speech," "bully[ing]," and more.

Naturally, I don't think our posts fit any such categories, and it's probably unlikely, at least today, that Google would think that they do. But I want us to make these decisions for ourselves, and have our users decide for themselves what they choose to read, rather than being subjected to the tender mercies of Big Tech. And while I haven't heard of Google enforcing its Google Groups content policies yet, a lot of tech companies have sharply stepped up their restrictions in recent years—the trend seems to be towards greater and greater exercise of control by such companies.

Can anyone recommend a convenient and reliable e-mail distribution service, with a built-in daily delivery option as well as post-by-post delivery (I expect all such services have them), but without these sorts of content limits? I'm basically looking for a service that views itself as akin to a phone company or UPS or FedEx or the post office—infrastructure with a hands-off attitude to content (setting aside outright illegal content, which they may have a legal obligation to block once they know about it).

I realize that the most blacklist-resistant alternative would be to run this on our own servers, and perhaps things have come to the point where we can't really trust any third parties on such matters. But I'm also looking for convenience and technical reliability, and appreciate the virtues of division of labor for promoting that. So if there is a good third-party service to which we can outsource the technical work, I'd like to use it. Please let me know if the comments if you have some recommendations.

UPDATE: Just to be clear, we'd be happy to use a for-pay service, assuming it's convenient, technically reliable, and trustworthy, though of course we aren't eager to pay more than necessary.
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maybe some of the tech giants here on CF could help Professor Eugene out

 

https://www.discoursemagazine.com/i...-media-bias-more-regulation-is-not-the-answe/

When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer
Conservatives who think common carrier regulation will make big tech less hostile to conservative viewpoints are misguided

Adam Thierer
April 15, 2021

Conservatives have traditionally viewed the administrative state with suspicion and worried about their values and policy prescriptions getting a fair shake within regulatory bureaucracies. This makes their newfound embrace of common carriage regulation and media access theory (i.e., the notion that government should act to force access to private media platforms because they provide an essential public service) somewhat confusing. Recent opinions from Supreme Court Justice Clarence Thomas as well as various comments and proposals of Sen. Josh Hawley and former President Trump signal a remarkable openness to greater administrative control of private speech platforms.

Given the takedown actions some large tech companies have employed recently against some conservative leaders and viewpoints, the frustration of many on the right is understandable. But why would conservatives think they are going to get a better shake from state-regulated monopolists than they would from today’s constellation of players or, more importantly, from a future market with other players and platforms? I pose that question not to be snarky or disregard conservative concerns about the behavior of some of today’s leading tech platforms. Rather, I ask it as someone who has spent 30 years working closely with conservatives on these issues (including almost a decade at the Heritage Foundation) and who has long appreciated how their thinking about the administrative state and regulation is rooted in two facts that still ring true, but which they seem to have forgotten.

Common Carriage Leads to Rent-Seeking
First, conservatives appreciate the lessons of public choice economics and understand the dangers of rent-seeking and regulatory capture in particular. History shows that both of these phenomena have been serious problems when common carriage regulations were implemented.

Alfred Kahn was the preeminent regulatory economist and historian of the past century, and his life’s work culminated in the publication of the massive two-volume book “The Economics of Regulation.” In this book, he dissected the many technical shortcomings of the regulatory process, especially as it pertains to common carriage regulation, rate hearings, price controls and the resulting various barriers to entry created by this system of rules. Kahn understood this process better than anyone else because he not only studied it as an economist, but lived it—first as a state regulator and then as chairman of the Civil Aeronautics Board during the Carter administration in the late 1970s.

Perhaps Kahn’s most important lesson relates to the human element of how common carriage regulation typically works in practice. He noted that the fundamental problem with the process is the inevitability that a symbiotic dependency will develop between powerful regulators and the large firms they control. “When a commission is responsible for the performance of an industry,” Kahn noted, “it is under never completely escapable pressure to protect the health of the companies it regulates, to assure a desirable performance by relying on those monopolistic chosen instruments and its own controls rather than on the unplanned and unplannable forces of competition.”

This wasn’t due to outright graft. The explanation was more subtle: “Responsible for the continued provision and improvement of service, [the regulatory commission] comes increasingly and understandably to identify the interest of the public with that of the existing companies on whom it must rely to deliver goods,” Kahn concluded.

This reality has haunted common carriage regulation for the entire past century. All the grandiose plans and wishful thinking about the theoretical benefits of the system have been undermined by the simple reality that regulators and big companies need each other. This silent, symbiotic pact hardens over time and contorts the regulatory process into a cozy old boy network. This crony system has not advanced conservative viewpoints or causes in the past—and there isn’t much reason to think it will do so in a bold new world of digital media regulation.

Incentives Matter
Second, beyond public choice realities, conservatives also understand basic economic principles and they appreciate the role that incentives play in the world of administrative regulation. What’s more, they understand the simple truism that trade-offs exist and that unintended consequences often haunt even the most well-intentioned of regulatory efforts.

Conservatives are certainly aware of the fundamental trade-off at the heart of common carriage regulation and have pointed to it many times when arguing against net neutrality regulation: Common carriage regulation is essentially a declaration of surrender on competition and innovation. Why? Because it inevitably preserves whatever the status quo is at the time and therefore is rooted in the belief that consumers will have to settle for today’s players and platforms going forward. That doesn’t leave a lot of room for new and innovative players to create better products.

In this mode of reasoning, all that is left to do is optimize the suboptimal by regulating current platforms as if they are all that consumers will ever have to choose from. But why would conservatives fall prey to such static thinking today? They have traditionally been tireless defenders of market dynamism and Schumpeterian “creative destruction.” They should not so easily give up on the idea that new technologies and alternative platforms could emerge.

Practical Challenges
All of this is not to say that the biggest social media platforms have been behaving admirably. Indeed, there are plenty of legitimate conservative complaints about overzealous takedown policies and lack of transparent standards among today’s leading digital tech platforms. But markets need not be perfect to be preferable to government regulation, and that is especially true when talking about giving massive government bureaucracies more money and power to regulate speech. That is very dangerous business—and a development that is not likely to help conservative causes.

One could imagine a new Digital Media Authority (or perhaps just an even more powerful Federal Communications Commission) taking on the task of enforcing new common carriage requirements for social media and digital platforms. It is hard to imagine that situation working out any better for conservatives now than it did in the broadcast era. Are we to believe that five unelected FCC bureaucrats (or the apparatchiks at a new agency) will somehow be able to achieve a “fair” balance of “truthful” viewpoints that results in conservative viewpoints coming out on top?
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more

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