Larry Lessig, Demagogue?

Tom Sydnor and Richard Bennett have both made a big deal of the fact that Larry Lessig is purportedly a demogogue. Richard, for example, says:

It’s an error to consider Lessig a serious scholar with serious views about serious issues. He’s a performer/demagogue who will latch onto any issue that he can use to promote the Lessig brand.

At the Stanford FCC hearing, he portrayed capitalism as a law of the jungle, in pictures of tigers eating prey. What intellectual critique if appropriate to refute that point of view, a picture of George Soros writing a fat check to Free Press so they can bus partisans to the hearing?

Now as it happens, I watched Lessig’s Stanford presentation, so I know what Richard is referring to here. And while this characterization is not wrong, exactly, it’s certainly not a fair summary of Lessig’s point. Here’s what he actually said:

If we had right policy, I don’t think that we would be talking about questions of trust. I don’t think the Department of Justice after the IBM case was talking about whether we trust IBM, or trust Microsoft, or trust Google. We don’t talk about trusting a company just like you don’t talk about trusting a tiger, even though the brand management for tigers has very cute images that they try to sell you on how beautiful and wonderful the tiger is.

If you looked at that picture and you thought to yourself the great thing for my child to do would be to play with that tiger you’d be a fool because a tiger has a nature. The nature is not one you trust with your child. And likewise, a company has a nature, and thank god it does. Its nature is to produce economic value and wealth for its shareholders. We don’t trust it to follow good public policy. We trust it to follow that objective. Public policy is designed to make it profitable for them to behave in a way that serves the objectives of public policy, in this case the objective of an open, neutral network. It makes it more profitable for them to behave than to misbehave.

This point, as far as it goes, is absolutely right. If we set up the broadband marketplace poorly, so that corporations have incentives to behave in ways that harm their customers, they will do so. This, for example, was the story of most transportation markets in the 20th century–trucking, railroad and airline companies were able to use the power of the ICC and CAB to form cartels for their own benefit at the expense of consumers. This is why we need to make sure our markets are set up in a way that corporations are led by their own self-interest to do what’s in the best interests of customers. The disagreement between people like Lessig and TLF contributors is that we have different opinions about the best way (markets vs. regulations) to hold companies accountable.

Now of course what Lessig is missing here is that regulatory bodies also have a nature. Indeed, one of the greatest economists of the 20th century, made this point with the tiger’s smaller, fuzzier cousin:

What would you think of someone who said I would like to have a cat, provided it barked? Yet your statement that you favor an FDA provided that it behaves as you believe desirable is precisely equivalent. The biological laws that specify the characteristics of cats are no more rigid than the political laws that specify the behavior of governmental agencies once they are established. The way the FDA now behaves, and the adverse consequences, are not an accident, not a result of an easily corrected human mistake, but a consequence of its constitution in precisely the same way that a meow is related to the constitution of a cat. As a natural scientist, you recognize that you cannot assign characteristics at will to chemical or biological entities, cannot demand that cats bark or water burn. Why do you suppose the situation is different in the social sciences?

Notice that Lessig and Friedman are drawing identical analogies between social institutions and fuzzy animals. And the basic point of their analogies is identical: just as particular kinds of animals have particular characteristics that can’t be changed, so too do human institutions (corporations in Lessig’s case, government agencies in Friedman’s). When making policy, we largely have to take human nature and human institutions as they are, rather than wishing vainly that we could change human nature and cause human institutions to begin behaving in ways contrary to their nature.

Now, I obviously come down more on Friedman’s side than Lessig when it comes to questions of regulating the telecom sector. But there’s nothing remotely objectionable about Lessig’s tiger analogy, and to claim that Lessig “portrayed capitalism as a law of the jungle” is obscurantism at best. Lessig has some coherent, if often flawed, ideas about telecom policy. Let’s take those ideas seriously and explain what’s wrong with them. It only makes us look foolish to pretend he’s Michael Moore with tenure.

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