President Trump and his allies have gone to war with social media sites and digital communications platforms like Twitter, Facebook, and Google. Decrying supposed anti-conservative “bias,” Trump has even floated an Executive Order aimed at “Preventing Online Censorship,” that entails many new forms of government meddling with these private speech platforms. Section 230 is their crosshairs and First Amendment restraints are being thrown to the wind.

Various others have already documented the many legal things wrong with Trump’s call for greater government oversight of private speech platforms. I want to focus on something slightly different here: The surprising ideological origins of what Trump and his allies are proposing. Because for those of us who are old-timers and have followed communications and media policy for many decades, this moment feels like deja vu all over again, but with the strange twist that supposed “conservatives” are calling for a form of communications collectivism that used to be the exclusive province of hard-core Leftists.

To begin, the truly crazy thing about President Trump and some conservatives saying that social media should be regulated as public forums is not just that they’re abandoning free speech rights, it’s that they’re betraying property rights, too. Treating private media like a “public square” entails a taking of private property. Amazingly, Trump and his followers have taken over the old “media access movement” and given it their own spin.

Media access advocates look to transform the First Amendment into a tool for social change to advance specific political ends or ideological objectives. Media access theory dispenses with both the editorial discretion rights and private property rights of private speech platforms. Private platforms become subject to the political whims of policymakers who dictate “fair” terms of access. We can think of this as communications collectivism.

The media access movement’s regulatory toolkit includes things like the Fairness Doctrine and “neutrality” requirements, right-of-reply mandates, expansive conceptions of common carriage (using “public forum” or “town square” rhetoric), agency threats, and so on. Even without formal regulation, media access theorists hope that jawboning and political pressure can persuade private platforms to run more (or perhaps sometimes less) of the content that they want (or don’t) on media platforms.

The intellectual roots of the media access movement were planted by leftist media theorists like Jerome Barron, Owen Fiss in 1960s and 1970s, and later by Marxist communications scholar Robert McChesney. In 2005, I penned this short history of media access movement and explored its aims. I also wrote two old books with chapters on the dangers of media access theory and calls for collectivizing communications and media systems. Those books were: Media Myths (2005) and A Manifesto for Media Freedom (2008, w Brian C. Anderson). The key takeaway from those essays is that the media access movement comes down to control.

The best book ever written about dangers of media access movement was Jonathan Emord’s 1991, Freedom, Technology and the First Amendment. He perfectly summarizes their goals (and now Trump’s) as follows:

• “In short, the access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.”
• “Rather than understanding the First Amendment to be a guardian of the private sphere of communication, the access advocates interpret it to be a guarantee of a preferred mix of ideological viewpoints.
• “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

“This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant,” I argued in that old TLF essay. That is still just as true today, even when it’s conservatives calling for collectivization of media.

It’s astonishing, yet nonetheless true, that the ideological roots of Trump’s anti-social media campaign lie in the works of those extreme Leftists and even media Marxists. He has just given media access theory his own unique nationalistic spin and sold this snake oil to conservatives.

There certainly could come a day where his opponents on the Left just take this media access playbook up again and suggest this is exactly what’s needed for Fox News and other right-leaning media outlets. If and when that does happen, Trump and other conservatives will have no one to blame but themselves for embracing this contemptible philosophical vision simply because it suited their short-term desires while they were in power.

I hope that conservatives rethink their embrace of communications collectivism, but I fear that Trump and his allies have already convinced themselves that the ends justify the means when it comes to advancing their causes or even just “owning the libs.” But there really is a strong moralistic slant to what Trump and many of his allies want. They think they are on the right side of history and that the opponents–including most media outlets and plaforms–are evil. Trump and his allies have repeatedly referred to the press as the “enemy of the American people” and endlessly lambasted social media platforms for not going along with his desires. This reflects a core tendency of all communications collectivists: a sort of ‘you’re-either-with-us-or-against-us’ attitude.

Steve Bannon scripted all this out back in 2018. Go back and read this astonishing CNN interview for a preview of what could happen next. Here’s the rundown:

>> Bannon said Big Tech’s data should be seized and put in a “public trust.” Specifically, Bannon said, “I think you take [the data] away from the companies. All that data they have is put in a public trust. They can use it. And people can opt in and opt out. That trust is run by an independent board of directors. It just can’t be that [Big Tech is] the sole proprietors of this data…I think this is a public good.” Bannon added that Big Tech companies “have to be broken up” just like Teddy Roosevelt broke up the trusts.” >> Bannon attacked the executives of Facebook, Twitter and Google. “These are run by sociopaths,” he said. “These people are complete narcissists. These people ought to be controlled, they ought to be regulated.” At one point during the phone call, Bannon said, “These people are evil. There is no doubt about that.” >> Bannon said he thinks “this is going to be a massive issue” in future elections. He said he thinks it will probably take until 2020 to fully blossom as a campaign issue, explaining, “I think by the time 2020 comes along, this will be a burning issue. I think this will be one of the biggest domestic issues.”

This is now Trump’s playbook. It’s incredibly frightening because, once married up with Trump’s accusations of election fraud and other imagined conspiracies, you can sense how he’s laying the groundwork to call into question future election results by suggesting that both traditional media and modern digital media platforms are just in bed with the Democratic party and trying to rig the presidential election. I don’t really want to think about what happens if this situation escalates to that point. These are very dark days for the American Republic.

Tech issues don’t move the needle in national elections like yesterday’s, but below I’ll make some general observations, followed by a few on winners and losers in issue areas I cover.

All in all, I think it’s a good election result.

We’re back to divided government. The acute tension between the Republican House and Democratic Senate and president is likely to produce fiscal rectitude, and only legislation on which there is something close to true national consensus will pass.

Neither the Republicans nor the Tea Party movement were awarded any kind of sweeping victory, so they are unlikely to overplay their hands or take public support for granted. They must work to advance their aims by persuading more Americans that their philosophies and leadership are meritorious.

Democrats should, of course, be chastened. They’re rightly paying the price for the careless, go-for-broke strategy they used in the 111th Congress, to pass their sprawling, intrusive health care regulation, for example.

Here’s to at least two years of welcome gridlock.

Now, there were some notable losses among tech-focused representatives. The most worrisome loss is Senator Russ Feingold (D-WI), who has been a consistent and persistent overseer and skeptic of the growing surveillance state. I don’t see anyone to step up and take his place. Privacy lost big in the Wisconsin election.

I’m bucking consensus on the loss of Rick Boucher (D-VA) in the House, at least as far as privacy goes. (On copyright and some telecom issues, I’ll take Mike Masnick’s word.) Boucher is a nice guy and a careful legislator, but his popularity among the Washington, D.C. tech lobby, I think, was a product of lobby-legislator symbiosis, not his actual backing for the interests of tech innovators.

For at least a decade, Boucher has been an advocate of “baseline privacy legislation” that never actually had a serious chance of passing. The result was that tech lobbyists could always report to the home office that they had something to do, and tech trade associations could garner corporate support for all those noon-time strategy meetings over sandwiches—without generating a true threat to the business models of the companies they (purport to) represent.

My point is not that Boucher should have advanced his privacy legislation—it’s not going to be federal law that delivers privacy. I’m just not unhappy that he’s gone. (Not that far gone. Watch for him to take a job somewhere in the D.C. tech lobby. Knowing nothing about his plans, I’d give it a greater than 50% chance.)

The tech lobby will actually have some work to do under Boucher’s likely successor in the role of Democratic tech/consumer protection leader. Ed Markey (D-MA) is a partisan and an ideologue who will actually require the tech lobby to defend itself. He’s canny enough to have decent influence even from his perch in the minority.

UPDATE w/additional thought: Democrat Richard Blumenthal, elected to the Senate from Connecticut, is a technophobe demagogue—or plays one on TV, which is what matters. He went to war against Craigslist to boost his campaign, and his win is a notable loss for tech and free speech.

But—really—the fate of our privacy, the fate of our tech sector, and the fate of our country and society shouldn’t turn on elections. We are not defined by these people, who go to Washington, D.C. to sit atop the coercive authority machine for a while. Elections come and go. I’ll continue to work on returning power to civil society where it belongs.

I cannot in strong enough terms recommend that everyone read Gordon Crovitz’s latest Wall Street Journal column, “Free Speech, Now that Speech is Free.”  It perfectly encapsulates everything we stand for here and makes the case that I have made again and again: Speech regulation — of all flavors — makes less and less sense in a world of information abundance and user empowerment, and it is a complete affront to our First Amendment rights.  As Crovitz argues:

The Constitution was drafted at a time when there were few media outlets, and few people could be heard. Since then, technology has made it possible for everyone to express their views. The cost of expressing opinions continues to fall. Now that speech is no longer expensive, it’s time to return to the Founders’ intention that speech be free and that Congress not abridge anyone’s right to speak.

Amen brother!  In his essay today, Crovitz specifically takes on America’s increasingly insane campaign finance laws, which make a mockery of the First Amendment.  In the wake of last week’s Supreme Court arguments in the Citizens United case, Crovitz points out the insulting stupidity and sheer futility of these analog era, scarcity-oriented laws:

In the era of YouTube and Facebook, the notion that anyone or any institution can dominate political debate is quaint at best. After last week’s Supreme Court argument, key parts of McCain-Feingold seem likely to be overturned. The justices are legal experts, not technologists, but in protecting constitutional rights, they know they are operating in a very different information environment than existed earlier in the decade. Lively political debate is supposed to benefit everyone—with the occasional exception of incumbent officeholders who are not re-elected. But McCain-Feingold banned the broadcast or transmission by cable or satellite of “electioneering communications” paid for by corporations in the 30 days before a presidential primary or 60 days before the general election. This always raised a First Amendment issue. The issue now goes deeper: How can any regulation based on an assumption of information scarcity be justified in an era of information abundance?

Absolutely, 100% right.  As I pointed out in my old City Journal essay, “The Media Cornucopia“:

Throughout most of history, humans lived in a state of extreme information poverty. News traveled slowly, field to field, village to village. Even with the printing press’s advent, information spread at a snail’s pace. Few knew how to find printed materials, assuming that they even knew how to read. Today, by contrast, we live in a world of unprecedented media abundance that once would have been the stuff of science-fiction novels. We can increasingly obtain and consume whatever media we want, wherever and whenever we want: television, radio, newspapers, magazines, and the bewildering variety of material available on the Internet.

And yet, despite these wonderful developments, we still have Washington policymakers and regulators conditioning speech rights on the supposed “scarcity” of viewpoints or soapboxes to stand on.  What utter rubbish.  Of course, that hasn’t stopped many regulatory activist groups from continuing to use such logic in favor of expanded media regulation.

Regardless, Crovitz suggests that, with any luck, we could get a replay of what happened to the Fairness Doctrine:

The likely demise of McCain-Feingold echoes the fate of the Fairness Doctrine. The Federal Communications Commission in 1949 required holders of broadcast licenses to present all sides of controversial topics. There were few broadcast outlets and at least arguably a risk of one-sided debates. The rule was abolished in 1987 as channels grew. With hundreds of cable channels and endless uploads of videos to the Web, it would be impossible to enforce “fairness” even if bureaucrats could track how much of which views were being expressed.

We can only hope that the course of human events follows that same trajectory and policymakers come around to once again realizing the error of their past ways.

. . . follow @persiankiwi.

Geese are flying overhead. Leaves are orange. The election is over. A historic moment. And I will be optimistic, and hope that although the economics of the moment seems to be a return to things past… to the 1930s, it will turn out to be otherwise, for a good bit is known now that was not known then, whatever one’s ideology.

This column offering thoughts from Europe anticipates a wave of hostility to free markets. Well, that would perhaps not be that much of a change. I will venture far out on a doctrinal limb here, why not, and venture to ask where the free marketers went wrong? [Wait, you mean that they did something wrong? Can that be possible? Surely not]. (There is a good bit that went wrong, of course, that is not the fault of markets or their advocates… the fact that markets are not perfect, problems with rent-seeking, the fondness of the press for dwelling on the negative, and so on). But there have been consistent problems with our presentation, which I diagnose as follows:

-Use of nineteenth century models and rhetoric, and too much movement jargon, much of which is pointlessly disparaging and negative.

-Failure to empathize with people’s real concerns, such as concern about the environment or income disparity. There is the perennial addiction of wonks to Reason-and our awkwardness with emotion that leads us to dismiss it as irrelevant. Makes it look like we don’t care–a false impression, but a real factor none-the-less.

-Specializing in the defense of unpopular causes, whether it is free speech, the super-rich, or the large company of the day. Advocates tend to focus on these causes in the hope of getting attention as contrarians-but as a result the image of advocates for the market becomes identified with unpopular interests, and our energy gets expended in short run battles.

The solution? Well, I’ll save that for another day.

Meanwhile, how about this for a thought? In recognition of the nation’s leaning to the left, I’ll make a concession. Have some social programs. Have all the social programs you want. But there is one thing that I will insist on. Just one thing.

Y’all will have to be ruthlessly honest about how well the programs actually work. About the unintended consequences. About the rules that pile up costs with no benefits. About the forces and factors that lead institutions like public schools or regulatory agencies to fail.

If you can just manage a genuine curiousity about whether the plans that you dream up to help people will actually work, then we’ve got a deal. I promise that if the programs don’t work, we can try something else. Institutional re-design. Heck, maybe even a market.

But I don’t think anyone’s going to go for it.

In the beginning, there was Obamamania: