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:

The Unconstrained Nature of the Cyber-Collectivist Vision

Sowell’s taxonomy provides a useful frame of reference for today’s debate over communications and media policy. The unconstrained vision crowd here might best be labeled “cyber-collectivists.” This collectivism is not necessarily the hard-edged Marxist brand of collectivism of modern times. It is more the collectivism of Plato’s rule by “philosopher kings” as much as it is modern European “social democrat” collectivism. It generally rejects outright State ownership of the means of production, although there are some exceptions. (Free Press founder Robert McChesney, for example, would go much further than most other collectivists in having the State intervene and directly control or even own media and communications outlets and infrastructure).

Like their many “unconstrained” intellectual predecessors, what unifies the cyber-collectivists is the belief that the State should have a hand in guiding market outcomes toward a “fairer” end. The cyber-collectivists, for example, get indigestion over unequal patterns whether we are talking audience shares or technological diffusion. They are quick to allege “market failure” when some of their preferred media voices only capture miniscule audience shares (even when it’s just the result of consumer demand in action). And when some people or communities gain access to a network or new technology quicker than others, they are often quick to conclude some nefarious plot by greedy capitalists must be to blame.

Of course, in reality, this is just the way things in a free society have always worked. “Liberty upsets patterns” the late Harvard University philosopher Robert Nozick taught us in his 1974 masterpiece “Anarchy, State, and Utopia.” What Nozick meant was that there is a fundamental tension between liberty and egalitarianism such that when people are left to their own devices, some forms of inequality would be inevitable and persistent throughout society. Correspondingly, any attempt to force patterns, or outcomes, upon society requires a surrender of liberty.

All of this is equally true for media and communications policy. Just as there will never be perfect equality of outcomes in the provision of homes, cars, or incomes, there will never be perfect equality of tech gadgets or audience shares for media speakers / outlets.

Speech Redistributionism

The cyber-collectivists are not content with that, however. Just as they call for a redistribution of wealth to rectify the supposed injustice of unequal incomes, so too they call for “something to be done” to “balance” outcomes and ensure “fairer” outcomes. We might call this “media redistributionism” or even “speech redistributionism.”

Consider, for example, a proposal set forth by Cass Sunstein, the prolific University of Chicago law professor (and now Obama Administration official). In his 2001 book Republic.com, in which he suggests that government should consider requiring “electronic sidewalks” in cyberspace to encourage more balance on Internet websites. The state would impose the equivalent of “must carry” mandates on popular or partisan websites, forcing them to carry links to opposing viewpoints. In the name of “media access” or “fairness,” Sunstein and others are apparently willing to let the state impose tyrannical mandates on private website operators, forcing them to open their private property to use by others. Essentially it’s a Fairness Doctrine for the Internet Age.

Elsewhere Sunstein has argued in favor of greater “public interest” regulation to actually change public attitudes and tastes, claiming that there “is a large difference between the public interest and what interests the public.” [See: Television and the Public Interest, 88 California Law Review 499, 501 (2000).] He and many other cyber-collectivist scholars claim that they have a better idea of what interests the public. Essentially, the public doesn’t know what’s best for them, so someone else must tell them—and potentially even force supposedly better choices upon them. For example, Ellen P. Goodman of the Rutgers-Camden School of Law, and currently an adviser to the Federal Communications Commission, believes that, “a proactive media policy must not only correct a poorly functioning market, but also provide diversions around existing media markets and tastes. Proactive media policy can do this by changing consumer wants.”

The thought of having government “change consumer wants” is positively Orwellian and raises the obvious question: according to who’s tastes and values? The viewing and listening public has a broad array of interests and desires that cannot be easily gauged by congressional lawmakers, and certainly not by five unelected bureaucrats at the FCC. As media scholar Benjamin Compaine has correctly noted, “[i]n democracies, there is no universal ‘public interest.’ Rather there are numerous and changing ‘interested publics.’”

And, more practically, how should such goals be accomplished in an age of information abundance? The sheer scale and volume of media activity taking place across an unprecedented variety of communications platforms makes it difficult to imagine how a scarcity-era regulatory regime will be applied going forward. Are we going to have speech patrols standing on every cyber-corner policing the Net for “fairness” violations or determining what is and isn’t “in the public interest”?

Opportunity, Not Outcome, Is What Matters Most

Those of us who subscribe to a more “constrained vision” understand that what is really important is equality of media opportunity, not equality of media outcomes. A focus on the latter is both foolish and destructive. It is foolish because media equality is an impossibility absent extreme measures, which in turn explains why it is destructive. We would need totalitarian government controls on media outputs and consumption in order to achieve anything remotely close to “balance” or “equality” in terms of media results. What counts most is that people have a chance to be heard, not whether millions are listening or whether there is a perfect distribution of digital technology.

Again, that is not enough for the unconstrained visionaries who guide the cyber-collectivist movement. They want action and they want results and they want them now! And, they will always remind us, they have the best of intentions, so we should just trust them. The problem is, intentions + action = control. When they say “something to be done” that is usually code (excuse the pun) for heavy-handed government action to control the messy, un-patterned outcomes of a free marketplace.

And so we arrive at the critical difference between the cyber-freedom and the cyber-collectivist movements: Those of us who adhere to a more constrained view of nature, society and economy (i.e., the cyber-freedom movement) believe that liberty is the default position and that it generally trumps other values. Supposed “market failures” (or “code failures,” as the case may be) are ultimately better addressed by voluntary, spontaneous, bottom-up, marketplace responses than by the coerced, top-down, governmental solutions that the cyber-collectivists call for. Moreover, the decisive advantage of the market-driven approach to correcting code failure comes down to the rapidity and nimbleness of those response(s). Finally, and quite importantly, we in the cyber-freedom movement are not so quick to cry “market failure!” and call in the code cops. We understand that those messy, un-patterned market outcomes are the result of an evolutionary process or trial-and-error and that society and economy benefit from the resulting learning process.

Sure, there may be times when governments may need to intervene at the margins, but we would counsel against abrupt and incessant interventions to correct every supposed “market failure” or “unfair” outcome. After all, those interventions will simply beget more and more interventions to correct the inevitable failures of, or dissatisfaction with, previous interventions. There is simply no sugar-coating the reality that, no matter how well-intentioned, more and more media control is the inevitable prescription.

In my next installment in this series, I will detail the cyber-collectivist blueprint for radical media redistributionism by outlining this movement’s goals and its proposed methods of control.

Jonathan Frieden (who runs the e-commerce law blog) has a nice, pithy summary of Section 230:

If the “essential published content” is willingly provided by a third-party, the interactive computer service provider publishing that content enjoys the full immunity afforded by Section 230.

Amen, brother! I noted Eric Goldman’s excellent outline about Section 230 back in June. As Adam has noted, Section 230 is about more than just protecting online intermediaries bottom line or even about freeing them to provide the content and services we all take for granted.

Section 230 is the very cornerstone of Internet Freedom, the law that makes possible Robert Nozick’s “framework for utopias”: Online communities (“utopias”) can flourish in their infinite variety only because those who build, host or enable access to such communities (social network operators, search engines, aggregators, etc.) do not have to worry about legal liability for user-generated content. The fundamental difference between Web 1.0 and Web 2.0 lies in the movement of online speech away from individual websites where the speaker was operator to online speech platforms where the potential number of speakers is essentially unlimited. This ongoing shift makes Section 230 more important than ever.

Never before has it been so easy for users to “vote with their feet,” sorting themselves into communities of their own choosing, and not since the the 1890 Census declared the American frontier “closed” has it been been so easy for the individual to start entirely new communities if they don’t like their current options.

“Liberty upsets patterns.” That was one of the many lessons that the late Harvard philosopher Robert Nozick taught us in his 1974 masterpiece “Anarchy, State, and Utopia.” What Nozick meant was that there is a fundamental tension between liberty and egalitarianism such that when people are left to their own devices, some forms of inequality would be inevitable and persistent throughout society. (Correspondingly, any attempt to force patterns, or outcomes, upon society requires a surrender of liberty.)

No duh, right? Most people understand this today–even if some of them are all too happy to hand their rights over to the government in exchange for momentary security or some other promise.  In the world of media policy, however, many people still labor under the illusion that liberty and patterned equality are somehow reconcilable. That is, some media policy utopians and Internet pollyannas would like us to believe that if you give every man, woman, and child a platform on which to speak, everyone will be equally heard.  Moreover, in pursuit of that goal, some of them argue government should act to “upset patterns” and push to achieve more “balanced” media outcomes. That is the philosophy that has guided the “media access” movement for decades and it what fuels the “media reformista” movement that is led by groups like the (inappropriately named) Free Press, which was founded by neo-Marxist media theorist Robert McChesney.

Alas, perfect media equality remains an illusive pipe dream. As I have pointed out here before, there has never been anything close to “equal outcomes” when it comes to the distribution or relative success of books, magazines, music, movies, book sales, theater tickets, etc.  A small handful of titles have always dominated, usually according to a classic “power law” or “80-20” distribution, with roughly 20% of the titles getting 80% of the traffic / revenue.  And this trend is increasing, not decreasing, for newer and more “democratic” online media.

For example, recent research has revealed that “the top 10% of prolific Twitter users accounted for over 90% of tweets” and  “the top 15% of the most prolific [Wkipedia] editors account for 90% of Wikipedia’s edits.” As Clay Shirky taught us back in 2003 in this classic essay, the same has long held true for blogging, where outcomes are radically inegalitarian, with a tiny number of blogs getting the overwhelming volume of blogosphere attention.  The reason, Shirky pointed out, is that:

In systems where many people are free to choose between many options, a small subset of the whole will get a disproportionate amount of traffic (or attention, or income), even if no members of the system actively work towards such an outcome. This has nothing to do with moral weakness, selling out, or any other psychological explanation. The very act of choosing, spread widely enough and freely enough, creates a power law distribution.

The latest proof of the persistence of power laws in the media world comes from Slate’s Chris Wilson, who recently analyzed traffic distribution over on YouTube to answer the question: “Will My Video Get 1 Million Views on YouTube?” Alas, YouTube proves every bit as anti-egalitarian as every other media platform throughout history:

This is the great promise of YouTube: Your video can soar in popularity through sheer word-of mouth—or rather, click-of-mouth—until eventually people are making T-shirts about it. No one ever said this was going to happen for everyone. So, what are your chances of achieving YouTube stardom? I crunched the numbers to find out what percentage of YouTube videos hit it big, cracking even 10,000 or 100,000 views. The results: You might have better odds playing the lottery than of becoming a viral video sensation.

And after he runs the numbers to show how such a small percentage of videos dominate YouTube, Wilson goes on to note:

These figures certainly don’t ratify the grand promise of social media. Not everyone uses YouTube to launch their showbiz or political career, but the potential to do so is central to the Web 2.0 narrative that figures in so many newsmagazine panegyrics. When the odds of even 1,000 people viewing your video in a month’s time are only 3 percent, however, it’s tough to argue that hitting it big on YouTube is anything more than dumb luck. You could argue that this is the way it’s always been in show biz, and you’d be right. But wasn’t the Web supposed to change all that?

Indeed, why is that?  After all, as Wilson suggests, the Internet, blogs, social networks, Twitter, YouTube, and so on, were the revolutionary platforms that were supposed to democratize all media and give everyone a fighting chance to be heard.  Instead, power laws and media inequality have proven relentlessly persistent.  Here’s how I explained why this is the case in an earlier essay:

There are several reasons that power laws always exist in all media contexts. We used to think it was because the economics of media are quite different than most other industries. Namely, media industries typically exhibit “public good” qualities; high fixed (production costs), but lower distribution costs.  But the primary reason why power laws are probably more prevent in media industries than other sectors of the economy is because the creation and consumption of news and popular culture is a truly social phenomenon. Think of it as the economics of popular choice and the sociology of fashion and fads. People (and consumers) react to what others are reading or watching. Word-of-mouth counts. Bandwagon effects exist. First-mover advantages are significant. And so on.  The end result is a hopeless imbalance of outcomes or outputs.  Media egalitarianism is simply an impossibility.

OK, so now that I’ve said all this and rained on the New-Media-Will-Produce-Perfect-Outcomes-Parade, let me explain why NONE OF THIS MAKES A DAMN BIT OF DIFFERENCE.   What is really important is equality of media opportunity, not equality of media outcomes.  A focus on the latter is both foolish and destructive. It is foolish because media equality is an impossibility absent extreme measures, which in turn explains why it is destructive. We would need totalitarian government controls on media outputs and consumption in order to achieve anything remotely close to “balance” or “equality” in terms of media results.

Again, all that really counts is that people have a chance to be heard, not whether millions are listening.  New media platforms really do change some things for the better because at least we now all have an equal chance to make a go at it and grab a bit of that audience. That’s certainly more than could be said back in the old analog media world, in which we suffered from outlet scarcity and information poverty. Today, by contrast, will live in a wonderful world of media abundance, where every man, woman, and child really does have a soapbox on which to stand and speak to the world.

Of course, no one may be listening.  And there will always be someone else who will nab greater audience share than you.

Get used to it. It is the way the media world has always worked, and it is the way every media platform will work until the end of time.  So long as citizens are free to choose, media inequality is inevitable.

I haven’t been blogging much lately because, along with my PFF colleagues Berin Szoka and Adam Marcus, I’m working on a lengthy paper about the importance of Section 230 to Internet freedom. Section 230 is the sometimes-forgotten portion of the Communications Decency Act of 1996 that shielded Internet Service Providers (ISP) from liability for information posted or published on their systems by users or other third parties. It was enshrined into law with the passage of the historic Telecommunications Act of 1996. Importantly, even though the provisions of the CDA seeking to regulate “indecent” speech on the Internet were struck down as unconstitutional, Sec. 230 was left untouched.

Section 230 of the CDA may be the most important and lasting legacy of the Telecom Act and it is indisputable that it has been remarkably important to the development of the Internet and online free speech and expression in particular. In many ways, Section 230 is the cornerstone of “Internet freedom” in its truest and best sense of the term.

In recent years, however, Sec. 230 has come under fire from some academics, judges, and other lawmakers. Critics raise a variety of complaints — all of which we will be cataloging and addressing in our forthcoming PFF paper. But what unifies most of the criticisms of Sec. 230 is the belief that Internet “middlemen” (which increasingly includes almost any online intermediary, from ISPs, to social networking sites, to search engines, to blogs) should do more to police their networks for potentially “objectionable” or “offensive” content. That could include many things, of course: cyberbullying, online defamation, harassment, privacy concerns, pornography, etc. If the online intermediaries failed to engage in that increased policing role, they would open themselves up to lawsuits and increased liability for the actions of their users.

The common response to such criticisms — and it remains a very good one — is that the alternative approach of strict secondary liability on ISPs and other online intermediaries would have a profound “chilling effect” on online free speech and expression. Indeed, we should not lose sight of what Section 230 has already done to create vibrant, diverse online communities. Brian Holland, a visiting professor at Penn State University’s Dickinson School of Law, has written a brilliant paper that does a wonderful job of doing just that. It’s entitled “In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism” and it can be found on SSRN here. I cannot recommend it highly enough. It is a masterpiece. In the paper, Holland argues that Section 230 has helped give rise to our modern Web 2.0 world and that it “plays a vital role in [the] process of building heterogeneous communities that encourage collaborative production and communication.” Specifically, Holland argues that Sec. 230 immunity allows an online community:

to evolve and structure itself in the most efficient manner. To a limited extent, §230 immunity permits uncoordinated and uncoerced individual choice among different values and among different embodiments of those values. It further allows the intermediary to play an active role in facilitating the market in social norms and in creating enforcement mechanisms as a tool of self-governance. Those enforcement mechanisms can then themselves adapt. This allows not only for the development of distinct community values, but also for a means of tapping into incentives, adapting to evolving norms and conditions, and reducing costs associated with disputes. Within this framework, greater variations in community norms are possible. As communities grow, niche communities are formed at low cost. It… functions as a laboratory for testing social norms and values.

I think that is exactly right. Moreover, reading Professor Holland’s article got me thinking about something my favorite modern political philosopher, the late Harvard University philosophy professor Robert Nozick, said in his brilliant 1974 book, Anarchy, State, and Utopia. In a sense, Section 230 and existing online liability norms have helped foster what Nozick called “a utopia of utopias.”

Because people are all complex and quite different from one another, Nozick argued that, “There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not.” Consequently, as a normative matter, it would be preferable for government to allow spontaneous community formation such that individuals can pursue their own interests. Nozick elaborated in the closing chapter of his book as follows:

The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.

That last line almost perfectly encapsulates everything that is so wonderful about our modern Web 2.0 world. Netizens are free to pursue their own vision of a good life in a community of their choosing, free from centralized or coerced visions of what “a good life” should entail.

Web 2.0 is Nozick’s utopia of utopias, and Section 230 has been instrumental in fostering and protecting it. We shouldn’t forget that.