I’m pleased to announce the release of my latest law review article, “A Framework for Benefit-Cost Analysis in Digital Privacy Debates.” It appears in the new edition of the George Mason University Law Review. (Vol. 20, No. 4, Summer 2013)

This is the second of two complimentary law review articles I am releasing this year dealing with privacy policy. The first, “The Pursuit of Privacy in a World Where Information Control is Failing,” was published in Vol. 36 of the Harvard Journal of Law & Public Policy this Spring. (FYI: Both articles focus on privacy claims made against private actors — namely, efforts to limit private data collection — and not on privacy rights against governments.)

My new article on benefit-cost analysis in privacy debates makes a seemingly contradictory argument: benefit-cost analysis (“BCA”) is extremely challenging in online child safety and digital privacy debates, yet it remains essential that analysts and policymakers attempt to conduct such reviews. While we will never be able to perfectly determine either the benefits or costs of online safety or privacy controls, the very act of conducting a regulatory impact analysis (“RIA”) will help us to better understand the trade-offs associated with various regulatory proposals.

However, precisely because those benefits and costs remain so remarkably subjective and contentious, I argue that we should look to employ less-restrictive solutions — education and awareness efforts, empowerment tools, alternative enforcement mechanisms, etc. — before resorting to potentially costly and cumbersome legal and regulatory regimes that could disrupt the digital economy and the efficient provision of services that consumers desire. This model has worked fairly effectively in the online safety context and can be applied to digital privacy concerns as well.

The article is organized as follows. Part I examines the use of BCA by federal agencies to assess the utility of government regulations. Part II considers how BCA can be applied to online privacy regulation and the challenges federal officials face when determining the potential benefits of regulation. Part III then elaborates on the cost considerations and other trade-offs that regulators face when evaluating the impact of privacy-related regulations. Part IV discusses alternative measures that can be taken by government regulators when attempting to address online safety and privacy concerns. This article concludes that policymakers must consider BCA when proposing new rules but also recognize the utility of alternative remedies such as education and awareness campaigns, to address consumer concerns about online safety and privacy.

I’ve embedded the full article down below in a Scribd reader, but you can also download it from my SSRN page and my Mercatus author page.

A Framework for Benefit-Cost Analysis in Digital Privacy Debates by Adam Thierer

Can we steer people toward hard news — and get them to financially support it — through the use  of “news vouchers” or “public interest vouchers”? That’s the subject of this latest installment in my ongoing series on proposals to have the government play a greater role in the media sector in the name of sustaining struggling enterprises or “saving journalism.”

As I mentioned here previously, last week I testified at the FCC’s first “Future of Media” workshop on “Serving the Public Interest in the Digital Era.” (@3:29 mark of video).  It was a great pleasure to testify alongside the all-star cast there that day, which included the always-provocative Jeff Jarvis of the CUNY Graduate School of Journalism.  He delivered some very entertaining remarks and vociferously pushed back against many of the ideas that others were suggesting about “saving journalism.” Jeff is a very optimistic guy–far more optimistic than me, in fact–about the prospect that new media and citizen journalism will help fill whatever void is left by the death of many traditional media operators and institutions. He had a lively exchange with Srinandan Kasi, Vice President, General Counsel and Secretary of the Associated Press, that is worth watching (somewhere after the 5-hour mark on the video).

Nonetheless, Jarvis is a enough of a realist to know that it has always been difficult to find resources to fund hard news, which he creatively refers to as “broccoli journalism.”  This is what is keeping the FCC, the FTC (workshop today), and many media worrywarts up at night; the fear that as traditional financing mechanisms falter (advertising, classifieds, subscription revenues, etc) many traditional news-gathering efforts and institutions will disappear. Of course, while it is certainly true we are in the midst of a gut-wrenching media revolution with a great deal of creative destruction taking place, it is equally true that exciting new media business models and opportunities are developing. We shouldn’t over look that, as I argued here and here.

Anyway, a lot of different proposals are being put forth by scholars and policymakers to find new ways to finance news-gathering or “save journalism.” One of the ideas that has been gaining some steam as of late is the idea of crafting a “public interest voucher” or what Robert W. McChesney & John Nichols, authors of the new book The Death and Life of American Journalism, call a “Citizenship News Voucher.”  And McChesney discussed this idea in more detail when he spoke at today’s FTC event on saving journalism. The idea is fairly straightforward: Give every American a voucher (McChesney and Nichols propose $200) to donate money to the non-profit news entity of their choice. The assumption is that this would be an efficient and safe way of channeling money to “broccoli journalism” while avoiding the serious concerns that arise when government officials or agencies are the ones steering the subsidies. McChesney and Nichols go so far as to call the notion “a libertarian’s dream” since “people can support whatever political viewpoint they prefer or do nothing at all.”

Before I critique this notion, let me just reiterate that I am sympathetic to the concern here since I began my life with a journalism degree and I’m a true lover of broccoli journalism. I certainly eat my greens when it comes to news. I’m a National Public Radio supporter and have given $10 per month ($120 per year) to my local NPR affiliate for awhile now. That’s more than I spend on almost any other media product with the exception of my almost two-decade subscription to the Wall Street Journal. And I also subscribe to The Washington Post, National Geographic, and a number of other “broccoli journalism” products. (I gave up my Economist subscription several years ago, which was also quite pricey). I make this investment because I personally love hard news and believe these media entities offer the very best of it.

Nonetheless, the “news voucher” proposal has several problems and is going to fail once implemented anyway.

First, McChesney and Nichols want to sell this scheme as “a libertarian’s dream,” but that’s utter rubbish. I don’t know of any libertarian who dreams of sending more money to the federal government only to win back the right to spend it on “qualifying media entities.” And when they say that “people can support whatever political viewpoint they prefer or do nothing at all,” well, last time I checked people were already free to do whatever they want with their money when it comes to media products! Why do we need to send it to Washington first?

And analogies to educational vouchers don’t work because we long ago decided to treat education as a public good and force everyone to pay for it. Vouchers are only sensible when we absolutely have to force people to spend money on public goods; they help make government spending a tad bit more efficient. While McChesney and Nichols claim in their book that the time has come to treat media as such a public good, most people would not agree, since the private provision of media services has worked quite well for some time—being funded by a mix of advertising and subscription revenues for centuries. They claim that era is over but, as I’ll note below and in a future essay about their book, it is their policies that would end private media by taxing and regulating it to death.

Second, what exactly counts as a “qualifying media entity,” and who makes that call? Can just anybody draw support from this program if they claim to be a “media entity”?  Are we going to let people redeem their vouchers on The National Inquirer or People magazine?  How about The Onion?  Or how about blogs like this one! “This is a risk we are more than willing to take,” McChesney & Nichols say since they are “operating on a gut instinct that people will use their vouchers to fund serious media while reaching into their pockets to pay for copies of The National Inquirer at the supermarket checkout.” (p. 205) Of course, it’s always easier to take such risks when you are playing with other people’s money! But they are fools to believe this idea is going to change the face of journalism in any serious way. The majority of people will spend their vouchers on whatever media outlets and content they are currently consuming, which probably isn’t want McChesney & Nichols (or policymakers) would prefer.

This raises a third concern: How long will it be before government starts attaching more strings to the vouchers? To borrow a headline from The Wall Street Journal from earlier this week, how long will it be before the “Economic Policy ‘Nudge’ Gives Way to a Shove?” This “Nudge” notion is popular in DC these days with the Obama crew thanks to Cass Sunstein’s book of the same name (w/Richard Thaler). But, as I’ve said here before, such “nudging” is rife with elitism since some policymakers imagine they can steer the public’s tastes or behavior in more desirable directions through law. The problem is, some people just don’t much like being nudged by officials from afar and they’ll often take steps to evade it. In this context, there is simply no way to get people to consume what you want it in an age of abundance. I talked about this problem at length in my testimony to the FCC last week. You just can’t make people watch, listen, or read if they don’t want to. As Ellen P. Goodman of the Rutgers-Camden School of Law has noted: “Given the proliferation of consumer filtering and choice, these kinds of interventions are of questionable efficacy. Consumers equipped with digital selection and filtering tools are likely to avoid content they do not demand no matter what the regulatory efforts to force exposure.” Moreover, she rightly argues, “regulation cannot, in a liberal democracy, force viewers to consumer media products they do not think they want in the name of the public interest.” Amen, sister.

So, even though, in theory, the news voucher idea lets consumers figure out how to steer the funds, I sincerely doubt that most of those funds will go toward “broccoli journalism” and other civic-minded content. And once people start  redirecting taxpayer dollars to all sorts of silly stuff that the elites and policymakers don’t like, that’s when the nudge will become a shove and more interventions will follow in the form of “voucher guidance and compliance” hearings, rules, etc.  In essence, you can file this all under the “if you build it they will come” theory of public policy. But, in this case, it’s all wishful thinking because you simply can’t force people to spend money (or pay attention) to things they don’t want to.

There’s final problematic caveat to the McChesney-Nichols variant of the news voucher idea: They would disallow any copyright protection or advertising support for an entity who receives voucher funds. That’s an effort by the authors to steer even more media activity away from the commercial sphere and toward “the public option” for the press. Let’s not forget that McChesney has argued (during this interview the Canadian-based “Socialist Project”) that “the ultimate goal is to get rid of the media capitalists,” and that, “unless you make significant changes in the media, it will be vastly more difficult to have a revolution.”  So, it’s important to keep his true intentions in mind when he starts claiming to have found “a libertarian’s dream” of a solution to what ails America’s media sector. [For more details on his intentions, see my essay from last year, “Free Press, Robert McChesney & the “Struggle” for Media.”]

In the meantime, this particular libertarian would like to keep his money and spend it on media as he sees fit, thank you very much!

What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]

by Adam Thierer & Berin Szoka The Progress & Freedom Foundation, Progress on Point No. 16.19

Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:

1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
2. All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.

While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”^[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.

That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families.

I. The Elitism of Speech Regulation

First, consider how those two elitist beliefs identified above are on display when lawmakers or regulatory advocates make efforts to control speech or content.^[2] Calls to regulate free speech are often premised on the belief that something must be done to “protect The Children.”^[3] Personal and parental responsibility ^[4] are regarded as inadequate safeguards ^[5] since some parents will inevitably fall down on the job by not adequately shielding their children’s eyes and ears from potentially objectionable (or supposedly harmful) speech. Therefore, government must regulate content that is indecent, profane, excessively violent, and so on. The definition of those things is then left to unelected bureaucrats and judges to make on our behalf.

But it’s not just about “The Children.” Some regulatory advocates believe that even the choices made by consenting adults must be disregarded because some people fail to understand the supposedly destructive nature of the speech they are consuming. Government must act to protect people from making what some regulatory advocates regard as destructive or even immoral choices that could bring harm to them or their loved ones.

In sum, regulatory advocates are essentially saying that people cannot be trusted or left to their own devices and, therefore, government must intervene and establish a baseline “community standard” on behalf of the entire citizenry to tell them what‘s best for them.^[6] Even if those citizens have tools and information at their disposal to make sensible decisions about objectionable content, that’s not good enough because they might not do the job properly. Government must do it for them!

II. The Elitism of Privacy Regulation

This same mentality motivates calls for privacy regulations. Those who call for government interventions to “protect privacy” often claim that people too willingly surrender personal information about themselves and that they don’t understand the adverse consequences of those actions.^[7] Alternatively, regulatory advocates claim that advertising and marketing efforts are inherently “manipulative” and that people do not realize they are being duped into surrendering personal information or into buying products or services they supposedly don’t need.^[8] Of course, those regulatory advocates rarely pause to explain to us how it is that they were not also duped and manipulated by the same things—again revealing their deeply-rooted elitism! (As discussed below, this makes it clear how the psychological phenomenon of “third-person effect hypothesis” is driving much of this debate.)

“Protecting The Children” is also used as a rhetorical cover for regulation here, but not as often in debates over speech controls.^[9] Instead, regulatory advocates mostly focus on adults who are presumed not to know what is in their own best interest—necessitating paternalistic government intervention on their behalf.

III. Intellectual Schizophrenia on Both the Left & Right

What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality),^[10] but in the next breath advocate controls on content they find objectionable.

Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you?^[11] “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”).^[12] Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates ^[13] or extensive data retention requirements.^[14]

IV. Common Tactics & Regulatory Mechanisms

The two movements also share common political tactics and regulatory approaches. Privacy advocates generally favor “opt-in” mandates as the federal “baseline standard” for any website collecting information about users, especially their browsing habits (regardless of whether the information is “personally identifiable”). In other words, the law would create a property right in such “personal information” (ironically, many advocates of this approach criticize or reject intellectual property.) In a similar vein, many advocates of speech controls push for mandatory parental control tools or restrictive default settings.^[15] That is, if government won’t censor speech outright, regulatory advocates want lawmakers to at least (1) require that media, computing and communications devices be shipped to market with parental controls embedded or included (as proposed in Australia and with China’s “Green Dam” filter),^[16] and possibly, (2) that such controls be defaulted to their most restrictive position—forcing users to opt-out of the controls later if they want to consume media rated above a certain threshold.

More sophisticated advocates of speech controls and privacy regulation will likely argue that their paternalism is less elitist or intrusive because they merely want to “nudge” the public into making “better” decisions. Economist Richard Thaler and legal scholar Cass Sunstein (director of President Obama’s Office of Information and Regulatory Affairs, responsible for analyzing most new federal regulations) popularized this approach with their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness. Based on behavioral economics studies, they argue that both government and private actors must inevitably make decisions about “choice architecture” and that, by setting defaults, incentives and rules smartly, “choice architects” can and should improve decision-making without blocking, fencing-off or significantly burdening choices.^[17]

In this regard, Sunstein and Thaler’s approach parallels the work of Lawrence Lessig, one of the most influential Internet policy thinkers. Lessig has argued that the “architecture” of “code” (how software is written) “regulates” all online activities and requires government oversight and intervention to keep in check. Otherwise, he warned ominously a decade ago, “Left to itself, cyberspace will become a perfect tool of control.”^[18] Lessig’s hyper-pessimistic predictions have proven unwarranted, however. Far from fostering a world of “perfect control,” code and cyberspace have proven remarkably difficult to regulate, but nonetheless has generally benefited consumers and citizens without centralized direction.^[19] Still, Lessig, Sunstein, and others of this ilk persist in their advocacy of “nudges” of many varieties to impose their will on cyberspace through mandates from above.

But while it might be possible to define “better decisions” and argue that poor choice architecture leads people to choose things they clearly don’t want in contexts like investment decisions and mortgages, how can elites know what other people really want in highly subjective contexts like privacy and speech? Should they rely on opinion polls—the highly subjective results of which depend heavily on “choice architecture” of question-crafting—to guess what the right default should be?^[20] Was the Chinese proposal to mandate deployment of “Green Dam” just a harmless “nudge” because users weren’t barred from uninstalling the filtering software that must accompany their computers (i.e., “opting-out”)? The problem becomes even more difficult where trade-offs among competing values are inevitable. For example, data collection about Internet users raises privacy concerns for some but benefits all, creating more funding for “free” content (i.e., speech) and services users prefer by making more valuable the advertising that supports online publishers. In short, regulations of speech and privacy are likely to be pure paternalism, even when billed as “libertarian paternalism as Thaler and Sunstein label their approach.^[21]

What might be called “regulatory blackmail” is also a time-honored tradition among both advocates of speech controls and privacy regulation. When censorship advocates have previously been impeded by the First Amendment, they have worked behind the scenes with lawmakers or regulatory agencies to use indirect pressure and strong-arming tactics to extract “voluntary concessions” from companies or others.^[22] For example, in 2004, the FCC strong-armed radio giant Clear Channel into agreeing to a “voluntary” consent decree that involved taking Howard Stern off the air.^[23] Similarly, in 2008, XM and Sirius Satellite Radio finally agreed to set aside 4% of their system capacity for use by politically favored racial minorities (a kind of speech control) as a “voluntary condition” of their merger—after the FCC had sat on their application for nearly 16 months.^[24] This race-based preference would have been unconstitutional if the FCC had imposed it directly.^[25] While the FTC has been far less prone to such abuse and actually plays a key role in holding companies to their promises, its current Chairman, Jon Leibowitz, has hung the “regulatory sword of Damocles” over the heads of the online advertising industry, threatening them with a “day of reckoning” if he doesn’t get what he wants from industry self-regulatory efforts.”^[26] The sword could actually fall if the FTC turns self-regulation into the European model of “co-regulation,” where the government steers and industry simply rows.^[27]

V. The Crisis Mentality that Drives Regulation

Speech and privacy regulatory advocates share another trait in common: an affinity for the use of a crisis mentality as a method of spurring political action. In his 1995 book The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, political philosopher and economist Thomas Sowell formulated a model that he argued drives ideological crusades to expand government power over our lives and economy. “The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” noted Sowell. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.”^[28] These government-expanding crusades shared several key elements, which Sowell identified as follows:

1. Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
2. An urgent need for government action to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.

We see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but the model is equally applicable to debates over speech controls and privacy regulation. In particular, the various “technopanics”^[29] we have witnessed in recent years fit this model. For example, consider how this model plays out in the debate over online social networking:

1. Assertion of a great danger to the whole society [online sexual predators], a danger to which the masses of people are oblivious.
2. An urgent need for government action [such as mandatory online age verification ^[30] or the Deleting Online Predators Act ^[31]] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [must stop kids and adults from being online together on same sites], in response to the prescient conclusions of the few [some state Attorneys General].^[32]
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [child safety researchers and others are told that their research is meaningless or offbase].^[33]

We also see this model in play in other debates, such as efforts to regulate “excessively violent” video games and television programming.^[34] And consider how this model plays out on the privacy front:

1. Assertion of a great danger to the whole society [amorphous privacy violations], a danger to which the masses of people are oblivious.
2. An urgent need for government action [“baseline federal privacy regulation”] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [anyone who shares information online], in response to the prescient conclusions of the few [a handful of privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [any suggestion that privacy concerns are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Worse yet, regulatory intervention in these cases simply begets more and more intervention to correct the inevitable failures of, or dissatisfaction with, previous interventions.^[35] Thus, the “crisis” cycle never ends.

VI. Third-Person Effect Hypothesis as an Explanation

Something more profound than simple political elitism seems to be at work here, however. A phenomenon psychologists refer to as the “third-person effect hypothesis” can explain many calls for government intervention, especially in the media world.^[36] Simply stated, speech and privacy critics sometimes seem to only see and hear in media or communications what they want to see and hear—or what they don’t want to see or hear. When they encounter perspectives or preferences that are at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and come to believe that government must “do something” to correct those perspectives. Many people desire regulation because they think it will be good for others, not necessarily for themselves. The regulation they desire has a very specific purpose in mind: “re-tilting” speech or market behavior in their desired direction.

The third-person effect hypothesis was first formulated by W. Phillips Davison in a seminal 1983 article:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.^[37]

Davison used this hypothesis to explain how media critics on both the Left and Right seemed to simultaneously find “bias” in the same content or reports when they couldn’t possibly both be correct. In reality, their own personal preferences were biasing their ability to fairly evaluate that content. Davison’s article prompted further research by many other psychologists, social scientists, and public opinion experts to test just how powerful this phenomenon was in explaining calls for censorship and other social phenomena.^[38] In these studies, third-person effect has been shown to be the primary explanation for why many people fear—or even want to ban—various types of speech or expression, including news,^[39] misogynistic rap lyrics,^[40] television violence,^[41] video games,^[42] and pornography.^[43] In each case, the subjects surveyed expressed strong misgivings about allowing others to see or hear too much of the speech or expression in question, but greatly discounted the impact of that speech on themselves. Such studies thus reveal the strong paternalistic instinct behind proposals to regulate speech. As Davison notes:

Insofar as faith and morals are concerned… it is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited. Even the censor’s friends are usually safe from the pollution. It is the general public that must be protected. Or else, it is youthful members of the general public, or those with impressionable minds.^[44]

It’s easy to see how this same phenomenon is at work in debates about privacy. Regulatory advocates imagine their preferences are “correct” (right for everyone) and that the masses are being duped by external forces beyond their control or comprehension, even though the advocates themselves are somehow immune from the brain-washing and privy to some higher truth that the hoi polloi simply cannot fathom. Again, this is Sowell’s “Vision of the Anointed” at work.

Consider the flare-up in 2004 over the introduction of Gmail, Google’s free email service. At a time when Yahoo! mail (then as now the leading webmail provider) offered customers less than 10 megabytes of email storage, Gmail offered an astounding gigabyte of storage that would grow over time (now over 7 GB). Rather than charging some users for more storage or special features, Google paid for the service by showing advertisements next to each email “contextually” targeted to keywords in that email—a far more profitable form of advertising than “dumb banner” ads previously used by other webmail providers.^[45] Self-appointed (or, to extend Sowell’s framework, “self-anointed”) privacy advocates howled that Google was going to “read users’ email,” and led a crusade to ban such algorithmic contextual targeting.^[46] Thierer responded to these critics by pointing out that the service was purely voluntary and noted:

you don’t speak for me and a lot of other people in this world who will be more than happy to cut this deal with Google. So do us a favor and don’t ask the government to shut down a service just because you don’t like it. Privacy is a subjective condition and your value preferences are not representative of everyone else’s values in our diverse nation. Stop trying to coercively force your values and choices on others. We can decide these things on our own, thank you very much.^[47]

Interestingly, however, the frenzy of hysterical indignation about Gmail was followed by a collective cyber-yawn: Users increasingly understood that algorithms, not humans, were doing the “reading” and that, if they didn’t like it, they didn’t have to use it. Today, nearly 150 million of people around the world use Gmail, and it has a steadily growing share of the webmail market. Even though cyber-consumers have embraced the service, some privacy advocates persist in their effort to shut down Gmail. They appear determined to stop at nothing to impose their will on others—the essence of political elitism—even if that means cutting off free email service for 150 million people!^[48]

A similar debate has played out more recently regarding targeted online advertising in general. Advertising on search engines is, much like Gmail, targeted “contextually” based on search terms entered by users and most advertising on other websites is based on the nature of content on a site or page. But certain data is collected about users as they browse to make that advertising more effective—by measuring its performance, reducing fraud, preventing over-exposure, etc. Some privacy advocates have insisted that industry self-regulation of such practices (even if enforced by the FTC) is inadequate and have called for preemptive regulation. They are even more offended by “behavioral advertising” which allows publishers whose content would have little value as the basis for contextually targeting advertising on their own sites to compete for more highly valued advertising by showing ads to users based on other sites they’ve visited. In both cases, data collection can increase the funding available to publishers to produce more of the content and services preferred by users, thus conferring an enormous indirect benefit on users, but also directly benefits users by increasing the relevance of the advertising they see.^[49] For some of the more extreme advocates of privacy regulation, however, there are no trade-offs, only absolutist “solutions:” To them, privacy is so obviously desirable that they feel at ease in deciding what’s best for everyone else. Such absolutists often respond with righteous indignation and conspiratorial fulmination when challenged to identify the harm against which they’re protecting consumers, while disdainfully dismissing all talk of the benefits of online advertising as self-serving industry propaganda.^[50]

VII. The Principled Alternative: Trust People & Empower Them

There is an alternative to this elitist mentality: freedom and personal responsibility. Individuals should be permitted to live a life of their own, even if they sometimes make mistakes or choices that are at odds with what elites think is best for them. ^[51]

Of course, the world isn’t perfect. In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

Achieving that ideal is likely impossible, but the good news is that we are moving closer to it with each passing day. Citizens have more tools and methods at their disposal than ever before which enable them to make decisions for themselves and their families. And this is true for both parental controls ^[52] and privacy controls.^[53]

Of course, some speech and privacy elitists will argue that we can’t trust empowerment tools ( e.g., filters, rating systems, or other controls) that are created by companies or other affected parties. But rather than trying to enhance those tools and educate users about how to use them, these elitists skip right past user empowerment and channel their energies into regulations that would impose a top-down, one-size-fits all standard on all adults and families—or even into trying to craft the perfect “nudge” that will help users make what elites believe to be the “right” decisions. Of course, these tools can, and should, be improved. Those groups worried about speech/content and privacy issues should focus on how we might drive such protections from the bottom-up by empowering individuals instead of government bureaucrats. The goal in both cases should be a “let-a-thousand-flowers-bloom” approach, which offers diverse tools and strategies for our diverse citizenry.^[54] We need not accept “one-size-fits” all approaches, whether they be regulatory mandates or “nudges,” based on the presumption that elites know best.

Finally, it is vital not to lose sight of what’s ultimately at stake here. If regulatory approaches trump the empowerment agenda we have described, the future of a free and open Internet—indeed, as technology converges, the future of all media—is at risk.^[55] By imposing technological solutions from the top-down that can never keep pace with technological change, regulation necessarily forecloses freedom and innovation.^[56] By contrast, individual empowerment allows innovation to flourish. The better approach across the board is education, not regulation.^[57] Empowerment, not elitism, is the path forward. The digital elite should be leading this effort by developing and promoting technologies of empowerment, not crafting regulatory mandates to force their will upon us.^[58]

#

Adam Thierer is a Senior Fellow with The Progress & Freedom Foundation and the director of its Center for Digital Media Freedom. Berin Szoka  is a Senior Fellow with PFF and the Director of PFF’s Center for Internet Freedom.

[1] . William A. Henry, In Defense of Elitism (1995) at 2-3.

[2] . See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html. Like American courts, we use the term “speech” as a broad catch-all for communications, including both actual speaking as well as other forms of transmitting, as well as receiving, information (“content”).

[3] . See generally Adam Thierer, Don’t Scapegoat Media, USA Today, Dec. 4, 2008, www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html; Marjorie Heins, Not in Front of the Children, “Indecency,” Censorship, and the Innocence of Youth (2001); Karen Sternheimer, It’s Not the Media: The Truth about Pop Culture’s Influence on Children (2003); Karen Sternheimer, Kids These Days: Facts and Fictions about Today’s Youth (2006).

[4] . See Adam Thierer, The Progress & Freedom Foundation, FCC Violence Report Concludes that Parenting Doesn’t Work, PFF Blog, Apr. 26, 2007, http://blog.pff.org/archives/2007/04/fcc_violence_re.html.

[5] . See Adam Thierer, The Progress & Freedom Foundation, Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing, PFF Blog, June 26, 2007, blog.pff.org/archives/2007/06/sen_rockefeller_1.html.

[6] . Adam Thierer, Conservatives, Porn, and “Community Standards,” The Technology Liberation Front, March 2, 2009, http://techliberation.com/2009/03/02/conservatives-porn-and-community-standards.

[7] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Online Advertising & User Privacy: Principles to Guide the Debate, Progress Snapshot 4.19, Sept. 2008, www.pff.org/issues-pubs/ps/2008/ps4.19onlinetargeting.html.

[8] . Jeff Chester, for decades the great gadfly of American advertising, has decried “the system … developed to track each and every one of us and our behavior for one-on-one marketing efforts” as “manipulative, intrusive and un-democratic.” Wendy Melillo, Q&A: Chester Writes the Book on Privacy, Dec. 11, 2007, www.gfem.org/node/227. For instance, Chester and other leading “privacy advocates” ridicule the idea of smart phones as a “liberating technology” and insist that,

Despite the glowing words about customization and personalized service, what marketers and advertisers are increasingly offering consumers is merely the illusion of free choice. Mobile operators offer their various options and services, not on an individual basis, but preconfigured according to segmented demographic profiles.

Center for Digital Democracy and U.S. Public Interest Research Group, Complaint and Request for Inquiry and Injunctive Relief Concerning Unfair and Deceptive Mobile Marketing Practices, Jan. 13, 2009 (emphasis original), www.democraticmedia.org/files/FTCmobile_complaint0109.pdf. See generally Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, Feb. 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf.

[9] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, Progress on Point 16.11, May 2009, www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf.

[10] . The Supreme Court has used a “right to privacy” to strike down laws against the use of contraception by married couples, Griswold v Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973).

[11] . Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000), available at www.pff.org/issues-pubs/pops/pop7.15freedomofspeech.pdf.

[12] . See , Amicus Brief for Association Of National Advertisers, Cato Institute, Coalition For Healthcare Communication, Pacific Legal Foundation And The Progress & Freedom Foundation In Support Of Appellants, IMS Health v. Sorrell, No. 09-1913-cv(L), 09-2056-cv(CON) (2nd Cir. 2009), available at www.pff.org/issues-pubs/filings/2009/071309-Brief-Amici-Curiae-ANA-et-al-Second-Circuit-(09-1913-cv).pdf.

[13] . See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 2007, www.pff.org/issues-pubs/ pops/pop14.8ageverificationtranscript.pdf; www.pff.org/issues-pubs/pops/pop14.5ageverification.pdfAdam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety: A Security Professional’s Take, The Guardian, Spring 2007, www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.

[14] . Adam Thierer, The Progress & Freedom Foundation, Mandatory Data Retention: How Much is Appropriate, PFF Blog, June 26, 2006, http://blog.pff.org/archives/2006/06/mandatory_data.html

[15] . Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 14.4, Apr. 11, 2008, www.pff.org/issues-pubs/pops/2008/pop15.4defaultdanger.pdf.

[16] . Adam Thierer, China’s Green Dam Filter and the Threat of Rising Global Censorship, PFF Blog, June 17, 2009, http://blog.pff.org/archives/2009/06/chinas_green_dam_filter_and_threat_of_rising_globa.html

[17] . They define choice architecture as follows: “A structure designed by a choice architect(s) to improve the quality of decisions made by homo sapiens. Often invisible, choice architecture is the specific user-friendly shape of an organization’s policy or physical building when homo sapiens come into contact with it. Examples of choice architecture include a voter ballot, a procedure for handling well-meaning people who forget a deadline, or a skyscraper.” Nudge Glossary of Terms, www.nudges.org/glossary.cfm.

[18] . Lawrence Lessig, Code and Other Laws of Cyberspace (1999) at 6.

[19] . See Adam Thierer, Code, Pessimism, and the Illusion of “Perfect Control,” Cato Unbound, May 2009, www.cato-unbound.org/2009/05/08/adam-thierer/code-pessimism-and-the-illusion-of-perfect-control

[20] . See Solveig Singleton & Jim Harper, With A Grain of Salt: What Consumer Privacy Surveys Don’t Tell Us, 2001, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299930.

[21] . As Cato Institute scholar Will Wilkinson has argued, the book’s “agreeably banal doctrine of choice-preserving helpfulness” blurs the lines between paternalism and libertarianism, and thus “the thrust of the conceptual renovation behind the term libertarian paternalism is to empower, not limit, political elites.” Why Opting Out Is No “Third Way,” Reason, October 2008, www.reason.com/news/show/128916.html. See also Adam Thierer, The Progress & Freedom Foundation, Sunstein’s “Libertarian Paternalism” is Really Just Paternalism, PFF Blog, April 7, 2008, http://blog.pff.org/archives/2008/04/sunsteins_liber.html.

[22] . See Robert Corn-Revere, “’Voluntary’ Self-Regulation and the Triumph of Euphemism,” in Rationales & Rationalizations: Regulating the Electronic Media (Robert Corn-Revere, ed., 1997), at 183-208.

[23] . Telecom Policy Report, Commission Settles Indecency Charges, But At What Cost?, June 30, 2004, http://findarticles.com/p/articles/mi_m0PJR/is_25_2/ai_n6091525.

[24] . See Adam Thierer, XM-Sirius, Regulatory Blackmail, and Diversity, June 17, 2008, http://blog.pff.org/archives/2008/06/xmsirius_regula.html.

[25] . See Comments of W. Kenneth Ferree on Implementation of Sirius-XM Merger Condition, The Progress & Freedom Foundation, MB Docket No. 07-57, March 30, 2009, www.pff.org/issues-pubs/filings/2009/033009siriusXMconditionfiling.pdf.

[26] . See Szoka & Adam Thierer, supra note 8 at 3.

[27] . See id. at 2.

[28] . Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (1995) at 5.

[29] . Alice Marwick, To Catch a Predator? The MySpace Moral Panic, First Monday, Vol. 13, No. 6-2, June 2008, www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Adam Thierer, Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ Inside ALEC, July 2009, at 16-17, www.alec.org/am/pdf/Inside_July09.pdf; Adam Thierer, Progress & Freedom Foundation, Technopanics and the Great Social Networking Scare, PFF Blog, June 10, 2008, http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.

[30] . Supra note 13.

[31] . In the 109th Congress, former Rep. Michael Fitzpatrick (R-PA) introduced the Deleting Online Predators Act (DOPA), which proposed a ban on social networking sites in public schools and libraries. DOPA passed the House of Representatives shortly thereafter by a lopsided 410-15 vote, but failed to pass the Senate. The measure was reintroduced just a few weeks into the 110th Congress by Senator Ted Stevens (R-AK), the ranking minority member and former chairman of the Senate Commerce Committee. It was section 2 of a bill that Sen. Stevens sponsored titled the “Protecting Children in the 21st Century Act” (S. 49), but was later removed from the bill. See Declan McCullagh, Chat Rooms Could Face Expulsion, CNet News.com, July 28, 2006, http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news.

[32] . See Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html; Susan Haigh, Conn. Bill Would Force MySpace Age Check, Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005.

[33] . See, e.g., Letter of Henry McMaster, Attorney General, South Carolina to Attorney General Richard Blumenthal and Attorney General Roy Cooper Regarding Internet Safety Task Force (“ISTTF”) Report, January 14, 2009, www.scag.gov/newsroom/pdf/2009/internetsafetyreport.pdf

[34] . See Adam Thierer, The Progress & Freedom Foundation, Video Games and “Moral Panic,” PFF Blog, Jan. 23, 2009, http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html ; Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate over Video Game Regulation, Progress Snapshot 13.7, March 2006, www.pff.org/issues-pubs/pops/pop13.7videogames.pdf.

[35] . “All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which—from the point of view of their authors’ and advocates’ valuations—is less desirable than the previous state affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.” Ludwig von Mises, Human Action, at 858 (3rd ed. 1963) (1949).

[36] . See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 119-123, www.pff.org/issues-pubs/books/050610mediamyths.pdf (Explaining how the third-person effect serves as a powerful explanation for the heated backlash that followed an FCC effort to moderately liberalize media ownership rules in 2003-04).

[37] . W. Phillips Davison, The Third-Person Effect in Communication, 47 Public Opinion Quarterly 1, Spring 1983, at 3.

[38] . For the best overview of third-person effect research, see Douglas M. McLeod, Benjamin H. Detenber, and William P. Eveland., Jr., Behind the Third-Person Effect: Differentiating Perceptual Processes for Self and Other, 51 Journal of Communication, Vol. 51, No. 4, 2001, at 678-695.

[39] . Vincent Price, David H. Tewksbury & Li-Ning Huang, Third-person Effects of News Coverage: Orientations Toward Media, Journalism & Mass Communications Quarterly, Vol. 74, at 525-540.

[40] . Douglas M. McLeod, William P. Eveland & Amy I. Nathanson, Support for Censorship of Violent and Misogynic Rap Lyrics: And Analysis of the Third-Person Effect, Communications Research, Vol. 24, 1997, at 153-174.

[41] . Hernando Rojas, Dhavan V. Shah, and Ronald J. Faber, For the Good of Others: Censorship and the Third-Person Effect, International Journal of Public Opinion Research, Vol. 8, 1996, at 163-186.

[42] . James D. Ivory, Addictive, But Not For Me: The Third-Person Effect and Electronic Game Players’ Views Toward the Medium’s Potential for Dependency and Addiction, University of North Carolina at Chapel Hill, School of Journalism and Mass Communication, Aug. 2002.

[43] . Albert C. Gunther, Overrating the X-rating: The Third-person Perception and Support for Censorship of Pornography, Journal of Communication, Vol. 45, No. 1, 1995, at 27-38

[44] . Supra note 37 at 14. Along these lines, a December 2004 Washington Post article documented the process by which the Parents Television Council, a vociferous censorship advocacy group, screens various television programming. One of the PTC screeners interviewed for the story talked about the societal dangers of various broadcast and cable programs she rates, but then also noted how much she personally enjoys HBO’s “The Sopranos” and “Sex and the City,” as well as ABC’s “Desperate Housewives.” Apparently, in her opinion, what’s good for the goose is not good for the gander! See Bob Thompson, Fighting Indecency, One Bleep at a Time, The Washington Post, Dec. 9, 2004, at C1, www.washingtonpost.com/wp-dyn/articles/A49907-2004Dec8.html.

[45] . See Chris Anderson, Free: The Future of a Radical Price at 112-118 (2009).

[46] . See Letter from Chris Jay Hoofnagle, Electronic Privacy Information Center, Beth Givens, Privacy Rights Clearinghouse, Pam Dixon, World Privacy Forum, to California Attorney General Lockyer, May 3, 2004, http://epic.org/privacy/gmail/agltr5.3.04.html.

[47] . See email from Adam Thierer to Declan McCullaugh on Politech Email discussion group, April 30, 2004, http://lists.jammed.com/politech/2004/04/0083.html (emphasis added).

[48] . See Complaint and Request for Injunction of the Electronic Privacy Information Center against Google, Inc., March 17, 2009, http://epic.org/privacy/cloudcomputing/google/ftc031709.pdf; see also Ryan Radia, Should the FTC Shut Down Gmail and Google Docs Because of an Already-Fixed Bug?, Technology Liberation Front Blog, March 18, 2009, http://techliberation.com/2009/03/18/should-the-ftc-shut-down-gmail-and-google-docs-because-of-an-already-fixed-bug/.

[49] . See Berin Szoka & Mark Adams, The Progress & Freedom Foundation, The Benefits of Online Advertising & the Costs of Regulation, PFF Working Paper, forthcoming.

[50] . Anti-advertising crusader Jeff Chester often resorts to questioning the motives of those who question whether his regulatory prescriptions would actually benefit consumers, see, e.g., http://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comment-11698840. See generally Jeff Chester, Digital Destiny: New Media and the Future of Democracy (2007).

[51] . “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual.” John Stuart Mill, On Liberty (Penguin Classics, 1859, 1986) at 72.

[52] . Adam Thierer, The Progress & Freedom Foundation, Parental Controls & Online Child Protection, Special Report, Version 4.0, Summer 2009, www.pff.org/parentalcontrols.

[53] . Adam Thierer, Berin Szoka & Adam Marcus, The Progress & Freedom Foundation, Privacy Solutions, PFF Blog, Ongoing Series, http://blog.pff.org/archives/ongoing_series/privacy_solutions.

[54] . Comments of Adam Thierer, The Progress & Freedom Foundation, In the Matter of Implementation of the Child Save Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming; MB Docket No. 09-26, April 16, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5bFCC-FILING%5d-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-(MB-09-26).pdf.

[55] . See Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 20, 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

[56] . “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.” Friedrich von Hayek, “The Pretence of Knowledge,” in The Essence of Hayek, (Hoover Inst., 1984), at 276.

[57] . Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Legislative Approaches to Online Child safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

[58] . See, e.g., Berin Szoka, Google, CDT, Online Advertising & Preserving Persistent User Choice Across Ad Networks Through Plug-ins, Technology Liberation Front Blog, March 13, 2009, http://techliberation.com/2009/ 03/13/google-cdt-online-advertising-preserving-persistent-user-choice-across-ad-networks-through-plug-ins/.

I’ve spent a lot of time here deconstructing and criticizing the proposals set forth by the Free Press, the radical media “reformista” group founded by the prolific Marxist media theorist Robert McChesney.  I have been trying to shine more light on their proposals and activities because I believe they are antithetical to freedom of speech and a free society.  That’s because, as media scholar Ben Compaine has noted, “What the hard core reformistas really want, it seems, is not diversity or an open debate but a media that promotes their own vision of society and the world.”  That’s exactly right and, more specifically, as I argued in my 2005 Media Myths book, the media reformistas want to impose this control by taking the fantasy that “the public owns the [broadcast] airwaves” and extending it to ALL media platforms and outlets.  In other words, McChesney and the Free Press want an UnFree Press.  To cast things in neo-Marxist terms that they could appreciate, they want to take control of the information means of production.  And it begins, McChesney argues, by all of us having to give up this “sort of religious attachment to the idea of a ‘free-press'” from which we all suffer.

Some people accuse me of “red-baiting” or “McCarthyite” tactics when I use the “M-word” (Marxism) or the “S-Word” (socialism) to describe McChesney, the Free Press, and the movement they have spawned.  But these are labels with real meaning and ones that McChesney himself embraces in his work. In his 1999 book Rich Media, Poor Media, he says that “Media reform cannot win without widespread support and such support needs to be organized as part of a broad anti-corporate, pro-democracy movement.” He casts everything in “social justice” terms and speaks of the need “to rip the veil off [corporate] power, and to work so that social decision making and power may be made as enlightened and as egalitarian as possible.”  What exactly would all that mean in practice for media? In his 2002 book Our Media, Not Theirs: The Democratic Struggle against Corporate Media with John Nichols of The Nation, McChesney argues that media reform efforts must begin with “the need to promote an understanding of the urgency to assert public control over the media.” They go on to state that, “Our claim is simply that the media system produces vastly less of quality than it would if corporate and commercial pressures were lessened.”

If you want additional proof of his intentions, then I encourage you to read this lengthy interview with McChesney that appears in the new edition of The Bullet, an online newsletter produced by the Canada-based “Socialist Project.”  (If you ask me, there’s something strangely appropriate about a socialist newsletter named “The Bullet” in light of the millions of people who died while living under socialist tyranny!)  Anyway, let’s ignore that and focus on what neo-Marxist media reform entails according to McChesney.  Because never before has he laid his cards on the table as clearly as he does in this interview.

The “Struggle” for “Media Democracy”

In the interview, as in all his work, McChesney speaks repeatedly about the Marxist concept of “struggles,” which  usually refers to class struggles and worker struggles. But McChesney’s work focuses on “media democracy struggles” as part of an overall struggle for “social justice.”  He says:

Instead of waiting for the revolution to happen, we learned that unless you make significant changes in the media, it will be vastly more difficult to have a revolution. While the media is not the single most important issue in the world, it is one of the core issues that any successful Left project needs to integrate into its strategic program.

In other words, media reform is part of The Big Struggle. The Big Struggle is the effort to overthrow free-market capitalism. And the struggle for “media democracy” is crucial to that, you see, because we are all just pawns whose minds are being manipulated by some far-off corporate puppet-masters in New York and L.A., who are, of course, just feeding us nothing but pro-capitalist propaganda 24/7.  Thus, we have to burn the village to save it, McChesney says:

Many say that corporate journalism, based on profit maximization, best serves a free and democratic society. The position is incorrect. The connection of capitalism to journalism, which has always been fraught with problems, has always been unstable. The relationship between capitalism, journalism, and democracy has never been a sure thing. In the U.S, the notion that capitalism is the natural steward of journalism and should be left alone to provide for a free and self-governing society refers to a period that began during the 19th century. This period ended when owners realized they could make a lot of money by turning journalism into big business. Corporations are not in a position to generate and pay for quality journalism. The news is not a commercial product. It is a public good, necessary for a self-governing society.

In other words, down with private media!  McChesney basically declares that the entire history of private media in America to be one gigantic case of market failure and must be abandoned.

Subsidies to “Save Journalism”

But what’s going to replace private media once McChesney and his media reformistas have moved the regulatory wrecking ball in?  In a nutshell, he wants massive state subsidization of the media:

Once we accept this [the supposed “public goods” nature of all media], we can talk about the kind of media policies and subsidies we want. What are the best ones? How should they be implemented? We are now trying to answer those questions and organize around them.

Herein lies one of the great ironies of McChesney’s work: He spends a great deal of time arguing that the entire history of American media has basically been one big government-created construct (monopolies, entry barriers, subsidies, etc), only to turn around and advocate massive state intervention and subsidies as a solution!  McChesney plays revisionist historian and even tries to paint Jefferson and Madison as media socialists because postal rates from the founding period on down have been reduced for print media mailings. Somehow, McChesney reads this to mean that “the U.S. state has always played a direct and indirect role in facilitating and legitimizing the corporate media system.”  Which is rubbish. The idea that postal subsidies have created “the corporate media system” is preposterous. McChesney is on stronger ground in arguing the state has occasionally helped foster and then protect monopolies, but that is a function of the very “public utility” regulatory regime that McChesney favors! [More on this point down below.]

Meanwhile, in true Rahm Emanual-ian “you-never-want-a-crisis-to-go-to-waste” fashion, the Free Press has started a new project to “Save the News” and move America “Toward a National Journalism Strategy” by endorsing a lot of the same regulations, subsidies, and tax credits that McChesney and John Nichols recently advocated in their Nation magazine essay, “The Death and Life of Great American Newspapers.” As I noted in my City Journal response to that essay back in March, you can file this all under “socializing media in order to save it,” complete with Soviet-style 5-year plans dictated by some faceless elite inside a Beltway bureaucracy. Oh, and there’s the little matter of $60 billion price tag that taxpayers will be left footing.  (But hey, what’s another $60 billion these days?)  Even Free Press favorite Dan Rather is on board with his plan to have President Obama give us “The News America Needs” by “form[ing] a commission to address the perilous state of America’s news media.”  Perhaps once the car commission folks get done driving the U.S. auto industry into the ground they can shift gears, so to speak, and see what they can do to steer journalism onto a supposedly better path.

Down with Advertising

If McChesney and Free Press don’t succeed in destroying private media with their regulatory plans, there’s always Plan B… bleed free market media operators and Internet companies dry by taking away their mother’s milk, advertising.  McChesney argues that “the Internet is increasingly hyper-commercialized” and it is “open[ing] our entire lives to 24/7 injections of advertising messages.”  Thus, wouldn’t you know it, yet another “struggle” is in order!

We need to organize against hyper-commercialism. This is an easy-sell for the Left. We understand that advertising is not something done by all people equally, but rather, done by a very small group of people working on behalf of multinational corporations. Advertising is commercial propaganda…  Advertising is the voice of capital. We need to do whatever we can to limit capitalist propaganda, regulate it, minimize it, and perhaps even eliminate it. The fight against hyper-commercialism becomes especially pronounced in the era of digital communications.  […] There is a fundamental crisis when you are in a world that is entirely commercial, in terms of the integrity of speech and thought. We are at the tipping point and we need to struggle directly against it.

Struggle, struggle, struggle!

Of course, McChesney will have plenty of allies in this particular struggle as Washington continues to wage a war against advertising of all sorts. Of course, there really is no free lunch in this world and something will have to pay for serious news-gathering (and entertainment, for that matter). Of course, McChesney and his Free Press allies will, no doubt, respond that still more subsidies are in order!  There is, apparently, always someone else in their world to whom the buck can be passed.  [But I wonder: Who would be left to pay all the taxes needed to support public media if McChesney’s “struggle” to overthrow The Man succeeds??]

Net neutrality & Infrastructure Nationalization

And don’t for one minute think that McChesney and Free Press are only out for the old media operators.  They’re out for private broadband and Internet players as well.

When speaking about the centrality of Net neutrality regulation to this “struggle” and coming “revolution,” McChesney does a nice job reminding some of us why we have been so concerned about politicizing a debate over network engineering when he says: “What we want to have in the U.S. and in every society is an Internet that is not private property, but a public utility.”  Ah yes, because public utilities have been soooo efficient and innovative in other contexts!  Please.

In advocating increased regulation or state-ownership of communications networks or broadband companies and connections, McChesney seems utterly oblivious to the fact that the very state power he advocates on one hand is the same state power that private parties can corrupt on the other.  He says, for example, that “Our struggle to make the Internet into a public utility conflicts with the interests of telephone and cable firms,” because “Their power rests upon their ability to successfully buy off politicians.”  How does he not see the contradiction?  He’s certainly right to fear that public officials can be co-opted by private interests. (Read up on your public choice theory, buddy!)  But I suppose McChesney believes that his perfect socialist state will be immune to these pressures because it will be run by enlightened, public-minded philosopher kings… you know… like himself.  But that’s nonsense.  See my old essay on the fantasy of “Building a Better Bureaucrat” or Tim Lee’s old essay on “Real Regulators” for more details on why it never works out that way in practice. Or, better yet, since I know he would never read anything I penned on the subject, I encourage McChesney to take a hard look at the definitive 2-volume Economics of Regulation by a far more experienced progressive Democrat, Professor Alfred E. Kahn. In Kahn’s masterwork, you will find the following words of wisdom (and caution) from someone who spent a lifetime studying these issues:

When a commission is responsible for the performance of an industry, 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. […] 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.

McChesney makes one final point about Net neutrality that is worth highlighting. When asked whether he had any reservations about making short-term alliances with new media companies or Internet operators such as Google, eBay, Amazon, and Microsoft in the push for Net neutrality regulations, McChesney says: “Absolutely.. But I’ve learned, by participating in over a decade of specific media struggles, that when you are in the short-term and you are fighting to win, sometimes you make tactical alliances.” Nonetheless, he notes, ” the ultimate goal is to get rid of the media capitalists in the phone and cable companies and to divest them from control.” And, so, the ends justify the means in terms of striking short-term alliances with those evil, blood-sucking capitalists.  I hope the folks at Google, eBay, Amazon, and Microsoft are reading McChesney’s radical thinking on communications policy and realize that he and his Free Press reformistas will eventually turn their sights on them just as soon as they are finished socializing the infrastructure layer of the Internet.

Conclusion: Against Media Tyranny

In a very strange sense, I admire Robert McChesney.  He is a man of principle.  And he isn’t ashamed to advocate his principles publicly (whereas some of his Free Press disciples do a very nice job disguising their true intentions).

That being said, McChesney’s principles are dangerous ones. Very dangerous.  They are antithetical to a free society, freedom of speech, and technological progress.  At its core, as I noted in my old essay, “Your Soapbox is My Soapbox,” the repugnant morality behind this “media access” movement is that nothing is truly yours.  “Media democracy” means everything is up for grabs.  Here’s how I put it in that old “soapbox” essay:

Imagine you built a platform in your backyard for the purpose of informing or entertaining your friends of neighbors. Now further imagine that you are actually fairly good at what you do and manage to attract and retain a large audience. Then one day, a few hecklers come to hear you speak on your platform. They shout about how it’s unfair that you have attracted so many people to hear you speak on your soapbox and they demand access to your platform for a certain amount of time each day. They rationalize this by arguing that it is THEIR rights as listeners that are really important, not YOUR rights as a speaker or the owner of the soapbox. That sort of scenario could never happen in America, right? Sadly, it’s been the way media law has operated for several decades in this country. This twisted “media access” philosophy has been employed by federal lawmakers and numerous special interest groups to justify extensive and massively unjust regime of media regulation and speech redistributionism. And it’s still at work today.

Indeed, McChesney has taken this old “media access” movement that Jerome Barron, Owen Fiss, Cass Sunstein and others pioneered long ago, and advanced it to a whole new level, and to its logical conclusion.  The aim is not just to co-opt someone else’s soapbox; it is to smash their soapbox into pieces. It is to tear the very fabric of the First Amendment into shreds and rebuild “media democracy” around the principles not of true freedom, but of state servitude.  You only have as much freedom to engage in speech, reporting, or entertaining as your media overlords will allow.  And God help you if any of it proves popular because then they will really want to crush you like an ant!

I’ll close this rant the same way I concluded my earlier “soapbox” rant:

This arrogant, elitist, anti-property, anti-freedom ethic is what drives the media access movement and makes it so morally repugnant. Freedom doesn’t begin by fettering the press with more chains, it begins by removing those that already exist and then erecting a firm wall between State and Press. The media access crowd has succeeded in breaching that wall with seven decades of misguided and unjust regulation of the press. The movement back toward a truly free press begins by understanding the error in their thinking, rejecting that reasoning, and then embracing, once again, the original vision of the First Amendment as a bulwark against government control of speech and the press.

Cass Sunstein has another new book out. The University of Chicago law school professor is so insanely prolific that it seems every time I finish reading one of his new books, a new title by him lands in my inbox. Seriously, either this man does not sleep or he is a robot. Anyway, his latest book is entitled, Nudge: Improving Decisions About Health, Wealth, and Happiness , and it was co-authored with Richard Thaler, an economist also residing at Univ. of Chicago.

Their thesis is that people sometimes make bad choices (no duh, right?), but that with a little helpful prodding (i.e., “the nudge”) we mere mortals might make better decisions. The way we get there is through what they call “libertarian paternalism.” Here’s how their official book page describes it:

Every day, we make decisions on topics ranging from personal investments to schools for our children to the meals we eat to the causes we champion. Unfortunately, we often choose poorly. The reason, the authors explain, is that, being human, we all are susceptible to various biases that can lead us to blunder. Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself. Thaler and Sunstein invite us to enter an alternative world, one that takes our humanness as a given. They show that by knowing how people think, we can design choice environments that make it easier for people to choose what is best for themselves, their families, and their society. Using colorful examples from the most important aspects of life, Thaler and Sunstein demonstrate how thoughtful “choice architecture” can be established to nudge us in beneficial directions without restricting freedom of choice.

OK, so the obvious question here is, who, exactly, is doing the “nudging.” And who died and made them the nudgers in chief?!

Like so much of what Cass Sunstein writes, there is a subtle elitism at work here. But he often tries to dance around it or pretend it isn’t really elitist at all. In Nudge, that really comes through when he and Thaler use the oxymoron “libertarian paternalism” to describe what they are proposing. What a brilliant rhetorical tactic! Just add the term “libertarian” to your generally elitist proposal and thereby make the poison.. er, uh, medicine easier to swallow!

But, at least to my ears, “libertarian paternalism” as they describe it sure sounds a heck of lot like ol’ fashion paternalism. Consider these examples they provide to the Washington Post’s Shankar Vedantam:

Carefully designing choices seems to matter most in domains where human nature causes people to make mistakes that a rational machine might avoid. Investing for retirement is one of those domains. Getting divorced is another. “Most couples that get married do not have prenups because they think the probability of a divorce is zero,” Thaler said. “We know the probability of a divorce is around 50 percent.” Because both people in a divorce can see themselves as the aggrieved party, couples often fight protracted battles, Thaler said. Many more couples would reach amicable settlements, he said, if all states had default divorce guidelines. Anyone considering a divorce could still go to court, but most people would choose the default option. Setting up default choices is one of the recurring themes of “Nudge,” because a lot of research shows that people are powerfully influenced by default options. When new employees are told that retirement accounts will be started for them unless they object, for example, most sign up cheerfully. When told that the accounts will not be started unless they opt in, most employees do not sign up because not having the account is then the default choice.

Default marriage and investment guidelines? If it’s the government who is setting such rules, then I don’t see anything libertarian about it. It’s blatantly paternalistic. Again, who decides? That’s the key question here. It’s one thing for private organizations to suggest or even set “defaults” since there will always be alternative options to which people can turn. Not so when the rules are set from above. When set from above, such default rules can lock society into inefficient regulatory systems or subsidization schemes.

Or sometimes they are just elitist and silly. Consider some of the other examples of “nudges” they propose:

• “Dollar a day” program, by which teenage girls with a baby receive a dollar for each day in which they are not pregnant.
• Laws enabling gambling addicts to put themselves on a list that bans them from entering casinos or collecting gambling winnings.
• Motorcycle helmet laws that allow riders to go without a helmet but only if they get special licenses. To qualify for the license, a rider would have to take an extra driving course and submit proof of health insurance.
• And my personal candidate for most absurd… “The Civility Check,” which Sunstein and Thaler describe as their “favorite proposal.” They argue that:

The modern world suffers from insufficient civility. Every hour of every day, people send angry emails they soon regret, cursing people they barely know (or even worse, their friends and loved ones). A few of us have learned a simple rule: don’t send an angry email in the heat of the moment. File it, and wait a day before you send it. (In fact, the next day you may have calmed down so much that you forget even to look at it. So much the better.) But many people either haven’t learned the rule or don’t always follow it. Technology could easily help. In fact, we have no doubt that technologically savvy types could design a helpful program by next month. We propose a Civility Check that can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and trulywant to send it?” (Software already exists to detect foul language. What we are proposing is more subtle, because it is easy to send a really awful email message that does not contain any four-letter words.) A stronger version, which people could choose or which might be the default, would say, “warning: this appears to be an uncivil email. this will not be sent unless you ask to resend in twenty-fourhours.” With the stronger version, you might be able to bypass the delay with some work (by inputting, say, your Social Security number and your grandfather’s birth date, or maybe by solving some irritating math problem!).

When I read that one, I did the same sort of ‘did-he-really-just-say-that’ double-take that I did when I read Sunstein’s proposal in his 2000 book Republic.com that we need mandatory “electronic sidewalks” for cyberspace that would require “partisan” websites to run material from opposing groups (i.e., a massive “Internet Fairness Doctrine” regulatory regime, if you will). Could there be anything more elitist than that? Well, this “Civility Check” certainly might fit the bill. Look, I agree that many insulting things are said online every day, but does that mean we should have the equivalent of an automated digital nanny issuing warnings to us before we can send any e-mail? Who sets the rules regarding civility? Will the system understand sarcastic talk among chums? Will we be able to override it without inputing personal information or solving math problems, like they suggest?

It’s all just so absurd and horrendously elitist. And thankfully I don’t have a civility check system running on my machine right now so I can immediately post that thought!