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No Goldilocks Formula for Content Moderation in Social Media or the Metaverse, But Algorithms Still Help

by on September 13, 2022 · 2 comments

[Cross-posted from Medium.]

In an age of hyper-partisanship, one issue unites the warring tribes of American politics like no other: hatred of “Big Tech.” You know, those evil bastards who gave us instantaneous access to a universe of information at little to no cost. Those treacherous villains! People are quick to forget the benefits of moving from a world of Information Poverty to one of Information Abundance, preferring to take for granted all they’ve been given and then find new things to complain about.

But what mostly unites people against large technology platforms is the feeling that they are just too big or too influential relative to other institutions, including government. I get some of that concern, even if I strongly disagree with many of their proposed solutions, such as the highly dangerous sledgehammer of antitrust breakups or sweeping speech controls. Breaking up large tech companies would not only compromise the many benefits they provide us with, but it would undermine America’s global standing as a leader in information and computational technology. We don’t want that. And speech codes or meddlesome algorithmic regulations are on a collision course with the First Amendment and will just result in endless litigation in the courts.

There’s a better path forward. As President Ronald Reagan rightly said in 1987 when vetoing a bill to reestablish the Fairness Doctrine, “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.” In other words, as I wrote in a previous essay about “The Classical Liberal Approach to Digital Media Free Speech Issues,” more innovation and competition are always superior to more regulation when it comes to encouraging speech and speech opportunities.

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The Classical Liberal Approach to Digital Media Free Speech Issues

by on December 8, 2021 · 2 comments

On December 13th, I will be participating in an Atlas Network panel on, “Big Tech, Free Speech, and Censorship: The Classical Liberal Approach.” In anticipation of that event, I have also just published a new op-ed for The Hill entitled, “Left and right take aim at Big Tech — and the First Amendment.” In this essay, I expand upon that op-ed and discuss the growing calls from both the Left and the Right for a variety of new content regulations. I then outline the classical liberal approach to concerns about free speech platforms more generally, which ultimately comes down to the proposition that innovation and competition are always superior to government regulation when it comes to content policy.

In the current debates, I am particularly concerned with calls by many conservatives for more comprehensive governmental controls on speech policies enforced by various private platforms, so I will zero in on those efforts in this essay. First, here’s what both the Left and the Right share in common in these debates: Many on both sides of the aisle desire more government control over the editorial decisions made by private platforms. They both advocate more political meddling with the way private firms make decisions about what types of content and communications are allowed on their platforms. In today’s hyper-partisan world,” I argue in my Hill column, “tech platforms have become just another plaything to be dominated by politics and regulation. When the ends justify the means, principles that transcend the battles of the day — like property rights, free speech and editorial independence — become disposable. These are things we take for granted until they’ve been chipped away at and lost.”

Despite a shared objective for greater politicization of media markets, the Left and the Right part ways quickly when it comes to the underlying objectives of expanded government control. As I noted in my Hill op-ed:

there is considerable confusion in the complaints both parties make about “Big Tech.” Democrats want tech companies doing more to limit content they claim is hate speech, misinformation, or that incites violence. Republicans want online operators to do less, because many conservatives believe tech platforms already take down too much of their content.

This makes life very lonely for free speech defenders and classical liberals. Usually in the past, we could count on the Left to be with us in some free speech battles (such as putting an end to “indecency” regulations for broadcast radio and television), while the Right would be with us on others (such as opposition to the “Fairness Doctrine,” or similar mandates). Today, however, it is more common for classical liberals to be fighting with both sides about free speech issues.

My focus is primarily on the Right because, with the rise of Donald Trump and “national conservatism,” there seems to be a lot of soul-searching going on among conservatives about their stance toward private media platforms, and the editorial rights of digital platforms in particular. Continue reading →

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The Section 230 Executive Order, Free Speech, and the FCC

by on June 3, 2020 · 2 comments

Section 230 is in trouble. Both presidential candidates have made its elimination a priority. In January, Joe Biden told the New York Times that the liability protections for social media companies should be revoked “immediately.” This week, President Trump called for revoking Section 230 as well. Most notably, after a few years of threatening action, the President issued an Executive Order about Section 230, its liability protections, and free speech online. (My article with Jennifer Huddleston about Section 230, its free speech benefits, and the common law precedents for Section 230 was published in the Oklahoma Law Review earlier this year.) 

There have been thousands of reactions to and news stories about the Executive Order and a lot of hyperbole. No, the Order doesn’t eliminate tech companies’ Section 230 protection and make it easier for conservatives to sue. No, the Order isn’t “plainly illegal.”

It’s fairly modest in reach actually. The Executive Order can’t change the deregulatory posture and specific protections of Section 230 but the President has broad authority to interpret the unclear meanings of statutes. Some of the thoughtful responses that stuck out are from Adam Thierer, Jennifer Huddleston, Patrick Hedger, and Adam White. I won’t reiterate what they’ve said but will focus on what the Order does and what the FCC can do.

Election Year Jawboning

The Order is a political document. For the baseball fans, it’s the political equivalent of a brushback pitch to tech companies–the pitcher throws an inside fastball intended to scare the batter without hitting him. (Enjoy 4 minutes of brushback pitches on YouTube.) Most of the time, a pitcher won’t get ejected by the umpire for throwing a brushback pitch. Likewise, here, I don’t see much chance of the Order being struck down by judges. The Order was wordsmithed, even in the last 24 hours before release, in a way to avoid legal troubles.

As Jesse Blumenthal points out in Slate, the Order is just the latest example of the long tradition of politicians using informal means and publicity to pressure media outlets. The political threats to TV and radio broadcasters during the Nixon, LBJ, and Kennedy years were extreme examples and are pretty well-documented.

More recently, there was a huge amount of jawboning of media companies in the runup to the 2004 election. Newspaper condemnation and legal threats forced a documentary critical of John Kerry off the air nationwide. Stations either pulled the documentary or only ran a few minutes of it because activists’ threatened to challenge TV station licenses for years at the FCC if stations ran the documentary. Many people remember the Citizens United case, which derived from the FEC’s censorship of an anti-John Kerry documentary in 2004 and an anti-Hillary Clinton documentary in 2008. Less remembered is that the conservative group started creating political documentaries only after the FEC rejected its complaint to get a Michael Moore’s anti-Bush documentary, Fahrenheit 9/11, off the air before the 2004 election.

The Title II net neutrality regulations were, per advocates close to the Obama White House, imposed largely to rally the base after Democrats’ 2014 midterm losses.

Implementation of the Executive Order

The timing of the Order–a few months before the election–seems intended to accomplish two things:

  1. Rally the Trump base by publicly threatening tech companies’ liability protections and provoking tech companies’ ire.
  2. Focus public and media scrutiny on tech companies so they think twice before suspending, demonetizing, or banning conservatives online.

The legal effect in the short term is negligible. Unless the relevant agencies (DOJ, FTC, NTIA, FCC) patched something together hastily, the Order won’t have an effect on tech companies and their susceptibility to lawsuits in the near term. The most immediate practical effect of the Order is the instructions to the NTIA. The agency is directed to petition the FCC to clarify what some unclear provisions of Sec. 230 mean, particularly the “good faith” requirement and how (c)(2) in the statute interacts with (c)(1).

It’s not clear why the Order makes this roundabout instruction to the NTIA and FCC. (The FCC is an independent agency and can refuse instructions from the White House.) “Good faith” is a term of art in contract law. It seems to me that referring this to the DOJ’s Office of Legal Counsel, not the FCC, would be the natural place for an administration to turn to to interpret legal terms of art and how provisions in federal statutes interact with each other. 

One reason the White House might use the roundabout method is because the administration knows the downsides of weakening Section 230 and isn’t actually intending to make material changes to existing interpretations of Sec. 230. The roundabout request to the FCC allows the White House to do something on the issue without upsetting established interpretations. And if the FCC refuses to take it up, the White House can tell supporters they tried but it was out of their hands.

Alternatively it could be that this was referred to the FCC because Section 230 is within the Communications Act and the FCC has more expertise and jurisdiction in communications law. The FCC has interpreted Section 230 before and has also interpreted what “good faith” means because Congress requires good faith negotiations between cable TV and broadcast TV operators.

If they took it up, I suspect FCC review would be perfunctory. The NTIA petition need not even get decided at the commission level. The FCC can delegate issues to bureau chiefs or other FCC staff. Bureaus can respond to a petition with an enforcement advisory or, after notice-and-comment, a declaratory ruling regarding the interpretative issues. It would take months to complete, but the full commission could also consider and rule on the NTIA petition.

But I suspect the commissioners don’t want to get dragged into election-year controversies. (As I mentioned above, White House staff may have even sent this to the FCC in order to let the issue die quietly.) The FCC is busy with pressing issues like spectrum auctions and rural broadband. Further, the NTIA-FCC relationship, while cordial, is not particularly good at the moment. Finally, the commissioners know the agency’s history of mission creep and media regulation. The Republican majority has consistently tried to untangle itself from legacy media regulations. An FCC inquiry into what “good faith” means in the statute and how (c)(2) in the statute interacts with (c)(1)–while an intriguing academic and legal interpretation exercise–would be a small but significant step towards FCC oversight of Internet services.

Section 230 is in Trouble

The fact is, Section 230 is in trouble. Courts have applied it reluctantly since its inception because of its broad protections. As Prof. Eric Goldman has meticulously documented, in recent years, courts have undermined Section 230 precedent and protection.

At some level the President and his advisors know that opening the door to regulation of the Internet will end badly for right-of-center and free speech. This was the foundation of the President’s opposition to Title II net neutrality rules. As he’s stated on Twitter:

Obama’s attack  on the internet is another top down power grab. Net neutrality is the Fairness Doctrine. Will target conservative media.

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The Executive Order, while it doesn’t allow the FCC to regulate online media like Title II net neutrality did, is the Administration playing with fire. It’s essentially a bet that the Trump administration can get a short-term political win without unleashing long-term problems for conservatives and free speech online.

The Trump team may be right. But the Order, by inviting FCC involvement, represents a small step to regulation of Internet services. More significantly, there’s a reason prominent Democrats are calling for the elimination of Section 230. The trial bar, law school clinics, and advocacy nonprofits would like nothing more than to make it expensive for tech companies to defend their hosting and disseminating conservative publications and provocateurs.

Prominent Democrats are calling for the elimination of Sec. 230 and replacing it with a Fairness Doctrine for the Internet. If things go Democrats’ way, the Executive Order could give regulators, much of the legal establishment, and the left a foothold they’ve sought for years to regulate Internet services and online speech. Be careful what you wish for.

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The Surprising Ideological Origins of Trump’s Communications Collectivism

by on May 28, 2020 · 0 comments

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. Continue reading →

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The Problem with Calls for Social Media “Fairness”

by on September 6, 2018 · 1 comment

There has been an increasing outcry recently from conservatives that social media is conspiring to silence their voices.  Leading voices including President Donald Trump and Senator Ted Cruz have started calling for legislative or regulatory actions to correct this perceived “bias”. But these calls for fairness miss the importance of allowing such services to develop their own terms and for users to determine what services to use and the benefit that such services have been to conservatives.

Social media is becoming a part of our everyday lives and recent events have only increased our general awareness of this fact. More than half of American adults login to Facebook on a daily basis. As a result, some policymakers have argued that such sites are the new public square. In general, the First Amendment strictly limits what the government can do to limit speakers in public spaces and requires that such limits be applied equally to different points of view. At the same time, private entities are generally allowed to set terms regarding what speech may or may not be allowed on their own platforms.

The argument that modern day websites are the new public square and must maintain a neutral view point was recently rejected in a lawsuit between PraegerU and YouTube. Praeger believed that its conservative viewpoint was being silenced by YouTube decision to place many of its videos in “restricted mode.” In this case, the court found that YouTube was still acting as a private service rather than one filling a typical government role. Other cases have similarly asserted that Internet intermediaries have First Amendment rights to reject or limit ads or content as part of their own rights to speak or not speak. Conservatives have long been proponents of property rights, freedom of association, and free markets. But now, faced with platforms choosing to exercise their rights, rather than defend those values and compete in the market some “conservatives” are arguing for legislation or utilizing litigation to bully the marketplace of ideas into giving them a louder microphone. In fact, part of the purpose behind creating the liability immunity (known as Section 230) for such services was the principle that a variety of platforms would emerge with different standards and new and diverse communities could be created and evolve to serve different audiences.

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The Battle for Media Freedom: A Conflict of Cyber-Visions

by on July 23, 2010 · 17 comments

Over at MediaFreedom.org, a new site devoted to fighting the fanaticism of radical anti-media freedom groups like Free Press and other “media reformistas,” I’ve started rolling out a 5-part series of essays about “The Battle for Media Freedom.” In Part 1 of the series, I defined what real media freedom is all about, and in Part 2 I discussed the rising “cyber-collectivist” threat to media freedom.  In my latest installment, I offer an analytical framework that better explains the major differences between the antagonists in the battle over media freedom.

Understanding the Origins of Political Struggles

In his many enlightening books, Thomas Sowell, a great economist and an even better political scientist, often warns of the triumph of good intentions over good economics. It’s a theme that F.A. Hayek and Milton Friedman both developed extensively before him. But Sowell has taken this analysis to an entirely differently level in books like A Conflict of Visions: Ideological Origins of Political Struggles, and The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy . Sowell teaches us that no matter how noble one’s intentions might be, it does not mean that those ideas will translate into sound public policy. Nonetheless, since “the anointed” believe their own intentions are pure and their methods are sound, they see nothing wrong with substituting their will for the will of millions of individuals interacting spontaneously and voluntarily in the marketplace. The result is an expansion of the scope of public decision-making and a contraction of the scope of private, voluntary action. As a result, mandates replace markets, and freedom gives way central planning.

Sowell developed two useful paradigms to help us better understand “the origins of political struggles.” He refers to the “constrained” versus “unconstrained” vision and separates these two camps according to how they view the nature of man, society, economy, and politics:

“Constrained Vision” “Unconstrained Vision”
Man is inherently constrained; highly fallible and imperfect Man is inherently unconstrained; just a matter of trying hard enough; man & society are perfectible
Social and economic order develops in bottom-up, spontaneous fashion. Top down planning is hard because planners aren’t omnipotent. Order derives from smart planning, often from top-down. Elites can be trusted to make smart social & economic interventions.
Trade-offs & incentives matter most; wary of unintended consequences Solutions & intentions matter most; less concern about costs or consequences of action
Opportunities count more than end results; procedural fairness is key; Liberty trumps Outcomes matter most; distributive or “patterned” justice is key; Equality trumps liberty
Prudence and patience are virtues. There are limits to human reason. Passion for, and pursuit of, high ideals trumps all. Human reason has boundless potential.
Law evolves and is based on the experience of ages. Law is made by trusted elites.
Markets offer benefit of experience & experimentation and help develop knowledge over time. Markets cannot ensure desired results; must be superseded by planning & patterned justice
Exponents: Aristotle, Adam Smith, Edmund Burke, James Madison, Lord Acton, F.A. Hayek, Ludwig von Mises, Milton Friedman, James Buchanan, Robert Nozick Exponents: Plato, Rousseau, William Godwin, Voltaire, Robert Owen, John Kenneth Galbraith, John Dewey, Earl Warren, Bertrand Russell, John Rawls

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Net Neutrality, Slippery Slopes & High-Tech Mutually Assured Destruction

by on October 23, 2009 · 43 comments

by Berin Szoka & Adam Thierer, Progress Snapshot 5.11 (PDF)

Ten years ago, Nobel Prize-winning economist Milton Friedman lamented the “Business Community’s Suicidal Impulse:” the persistent propensity to persecute one’s competitors through regulation or the threat thereof. Friedman asked: “Is it really in the self-interest of Silicon Valley to set the government on Microsoft?” After yesterday’s FCC vote’s to open a formal “Net Neutrality” rule-making, we must ask whether the high-tech industry—or consumers—will benefit from inviting government regulation of the Internet under the mantra of “neutrality.”

The hatred directed at Microsoft in the 1990s has more recently been focused on the industry that has brought broadband to Americans’ homes (Internet Service Providers) and the company that has done more than any other to make the web useful (Google). Both have been attacked for exercising supposed “gatekeeper” control over the Internet in one fashion or another. They are now turning their guns on each other—the first strikes in what threatens to become an all-out, thermonuclear war in the tech industry over increasingly broad neutrality mandates. Unless we find a way to achieve “Digital Détente,” the consequences of this increasing regulatory brinkmanship will be “mutually assured destruction” (MAD) for industry and consumers.

New Fronts in the Neutrality Wars

The FCC’s proposed rules would apply to all broadband providers, including wireless, but not to Google or many other players operating in other layers of the Net who favor such broadband-specific rules. With this rulemaking looming, AT&T came after Google with letters to the FCC in late September and then another last week accusing the company of violating neutrality principles in their business practices and arguing that any neutrality rules that apply to ISPs should apply equally to Google’s panoply of popular services. In particular, AT&T accused Google of “search engine bias,” suggesting that only government-enforced neutrality mandates could protect consumers from Google’s supposed “monopolist” control.

The promise made yesterday by the FCC—to only apply neutrality principles to the infrastructure layer of the Net—is hollow and will ultimately prove unenforceable. Continue reading →

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FCC Speech Czar a Myth, FCC Threat to Speech is Real

by on September 22, 2009 · 10 comments

FCC chair Julius Genachowski has certainly been busy.  This week, of course, he’s been occupied with regulating the Internet.   But last week, he was busy fending off charges on talk radio and elsewhere that the FCC has its very own “speech” or “diversity” czar.

At issue was the appointment in August of ex-journalist and Center for American Progress fellow Mark Lloyd to be the agency’s “chief diversity officer.”  That appointment instantly caused controversy, with Lloyd has becoming a cause celebre  on conservative talk radio and in the blogoshere, where he was been portrayed as yet another in a long line of powerful and unaccountable Obama policy czars and – in light of his support of government regulation of TV and radio content – a threat to free speech.   Nationally syndicated talk show host Glenn Beck led the charge, at one point twittering his listeners: “Watch Dogs: FIND OUT EVERYTHING YOU CAN” about Lloyd and several other “czars.”

But the critics had their facts wrong.   Lloyd was never chosen to be a “czar” of anything. That regal title – and its connotations of unlimited influence — were entirely invented by overactive imaginations in the media. Lloyd’s actual position in the FCC bureaucracy is much more prosaic — “associate general counsel.” He serves in that position along with three other associate general counsel, and three deputy general counsels. Anyone who’s worked at the FCC knows that  is an unlikely locus of power.

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Crovitz on the Regulation of Free Speech in an Age of Abundance

by on September 14, 2009 · 2 comments

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:

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A Fairness Doctrine for the FCC Blog?

by on August 19, 2009 · 9 comments

I wonder, now that the FCC has a blog, shouldn’t the Fairness Doctrine apply? I want my equal time on that soapbox!  Every citizen should be given a chance to have their say.  It’s only fair, right?

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