Ep. 176 A Framework for Analyzing Tech Censorship
Bob explains the legal and practical issues surrounding the purge of right-wing voices from social media sites. He makes a distinction between free speech and the 1st Amendment, and critically analyzes the typical “newsstand / publisher” analogy for Section 230.
Mentioned in the Episode and Other Links of Interest:
- EFF article on Section 230 and why the platform/publisher distinction is a red herring.
- Encyclopedia Brittanica entry on the First Amendment.
- Help support the Bob Murphy Show.
The audio production for this episode was provided by Podsworth Media.
About the author, Robert
Christian and economist, Chief Economist at infineo, and Senior Fellow with the Mises Institute.
You said everything I’ve said in my head. The purged are wanting a cheap quickie victory by appealing to government when in the long run it will be a much bigger loss. We need to suffer our losses, be patient, consider the longer ramifications, and put in the time and work necessary. When siblings squabble, they shouldn’t run to mom and dad too quickly.
Agreed completely. Any law that Ted Cruz et al could have conceived of would have been used against them already, just a few months after they suggested it.
At about the 40 minute mark you talk about how private companies (rather than government directly) are being used to clamp down on speech and you mention the possibility of progressive activists at big companies using their positions to effect outcomes that would be difficult or impossible to do for the government itself. I think this is very close to the mark. This isn’t the complete story, though if you read the book: “The Crisis of Democracy: Report on the Governability of Democracies to the Trilateral Commission” (published in 1975) it talks rather openly about all the ways blind deference and obedience to authority (especially government authority) has declined among the masses (among other concerns they have), and their vision to “fix” this “problem” is in no small part focused on using businesses to change the world rather than government. So back in 1975 some of the most powerful government folks and people running the biggest businesses in the world (The Trilateral Commission) could see that direct government actions were waning in effectiveness and they planned to find ways of using private businesses to continue shaping society. I don’t think the Trilateral Commission runs the whole world in every fine detail, though I do think their vision and their plans do have a real impact on how events unfold in the world, if nothing else based on the direct control their members have to effect their plans (they’re top figures in government and business). Organizations like the Trilateral Commission tend to have VERY low time preference and think and plan in multi-decade timeframes, rather unlike typical government leaders that are relatively high time preference. This gives institutions like the Trilateral Commission a strategic edge.
There are many factors at play, this is only one. Though it’s one I don’t hear mentioned very often so I wanted to contribute. I wish you and yours all the best — cheers!
I agree that giving government more power is generally a bad idea, but you need to define your terms. Suppose Section 230 simply went away … or let us go one step further and suppose the entire Communications Decency Act vanished overnight … that would result in LESS government power, from my perspective one law off the books is one less thing they can use. Therefore if the so called “Big Tech” are taking advantage of Section 230 for their own ends, then necessarily they are also benefiting from government power … a benefit they would not have been able to gain without Section 230.
It’s also fair to point out that the FCC claims the power of “Interpretive Authority” over this, and under FCC Chairman Ajit Pai has declared they will review their rules to make the protection offered by Section 230 somewhat weaker (or at least more specific).
https://www.fcc.gov/news-events/blog/2020/10/21/fccs-authority-interpret-section-230-communications-act
Although FCC Chairman Ajit Pai is retiring soon and will be replaced, that power of “Interpretive Authority” will remain and Section 230 can be used as the new Chairman sees fit. This variability is in itself an interesting additional power of government because a conscientious tech company would be forced to be ultra-careful around such flexible agency discretion … while a less conscientious but politically connected tech company would be in a position where it can take a much more aggressive stance.
Bob, in terms of Rothbardistan, I think that you made one error and then missed making one key point.
Williamson Evers, Rothbard, and Kinsella have argued cogently, in my view, that violations of contracts are not enforceable unless they also involve a violation of someone’s physical property (the “title-transfer theory” of contracts). On that basis, if, in Rothbardistan, a social-media site were to fail to comply with its terms of service and kick you off, then you could not enforce that contractual violation against that site. Now, if you were willing to transfer title to some of your money to the site on the condition that, for example, you could say X,Y, and Z, and the site were to disallow those expressions, then you would have a claim for theft of your money if the site were to try to retain it.
The other point is that, in Rothbardistan, there would be no available action for defamation as you cannot own your reputation, and therefore if someone were to tarnish it, you would have suffered no violation of your private-property rights. When we look at Section 230, as much as it pains me to say this, that outcome is actually the libertarian outcome. Since the state’s courts have incorrectly recognized defamation as an actionable wrong, Section 230’s immunity from liability for defamation actually corrects things in a libertarian direction.
Hey The NAPster: I totally agree with you that I should have mentioned that in Rothbardistan, you don’t own your reputation and you can’t sue for defamation. (Back in my blackmail episode I hope I surely covered this.) On your earlier point, it’s murkier since I didn’t spell out what the legal remedy would be, but it’s certainly true that people saying a private company “can do whatever it wants” just because it’s private, is not a sufficient trump card. So although I know about Rothbard’s view on contract enforcement, I think that’s a bit hazy and I’m glad I didn’t bring that stuff up in this episode, since it would have been needlessly distracting (in my opinion).
Hi Bob,
While the politicians harping on Section 230 are being overly broad, there is one aspect in which these companies are inappropriately using it as a shield.
To see how, let’s go back to the news stand example.
Imagine the news stand owner organized his periodicals into two bins, one of which is labeled “Our independent fact checkers have determined the content of these periodicals to be false.” It seems pretty clear that the owners of periodicals who fall into this bin would have a valid defamation claim. This is exactly what these big tech sites are doing and able to get away with under the cover of Section 230.
This is a good critique against the standard Ted Cruz style argument. However, I’m still wondering how Bob would respond to some of our own, regarding…
– Whether or not tech platforms are abiding by their Terms of Service.
– Whether or not “community standards” reflects any ideal of private law.
– Whether tech platforms have engaged in fraud by claiming neutrality.
– Whether big tech’s ties to the state are significant enough to compromise their standing as defensible products of spontaneous order.
– Whether web domains should be considered “property,” in light of Stefan Kinsella’s case against IP.
– Whether a post-Rothbardian big tech era calls for such philosophical revisions and conclusions in the pursuit of liberty.
Great show and good analysis. The only thing that I would add is that it is a matter of “when” not “if” the government regulates the big tech firms. They have been disparate for that control since the beginning of the tech boom.