Regulatory Policy

Beware the Regulatory Crackdown on Big Tech

(Jon Nazca/Reuters)
Legislators ought to incentivize entrepreneurs to innovate, and stay out of the way.

It is true, as Supreme Court Justice Louis Brandeis famously wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” But not in the way some Republicans calling for regulating social-media platforms mean it. They are sacrificing the bedrock conservative principle of property rights — Twitter and Facebook’s platforms are privately owned — for short-term political gains and this will be to the detriment of the Internet and its future users.

Last week’s controversial decision by Twitter and Facebook to limit distribution of a story from the New York Post that contained an unconfirmed claim about Democratic presidential nominee Joe Biden added more fuel to the drive for social-media regulation. Several Senate Republicans set out on the war path against the platforms and called for Twitter’s CEO to be subpoenaed. The next day Federal Communications Commission chairman Ajit Pai announced the agency would “move forward with a rulemaking to clarify [Section 230’s] meaning.”

As a practical matter, content moderation at scale is impossible to do perfectly. With half the world screaming at Twitter and Facebook to take down “dangerous” content instantaneously and the other half indignant about being “censored,” there’s little room for these platforms to make informed and consistent decisions in real time. Furthermore, there could never be such thing as an absolutely objective arbiter of bias or accuracy to write and enforce the rules. (And even if there were, he or she sure as heck wouldn’t be a politician.) There is no way to avoid some amount of bias or inaccuracy if content moderation is going to occur. If content moderation is going to be prohibited, Facebook will be “Pornbook” within 24 hours.

So what to do instead?

Back to Justice Brandeis’s point about more speech: The solution to content-moderation bias on platforms isn’t pretending it can be prevented, but instead to let competition do what it does. There will come a point when bias in moderation will drive subscribers to other platforms, and, for that matter, encourage entrepreneurs to establish platforms where that bias doesn’t exist.

That involves protecting property rights. With respect to its very limited role in Internet governance, the core public-policy duty for Congress ought to be fostering the creation and expansion of private-property rights and an abundance of communication on existing and future platforms. The long-term health of free speech and the Internet ought to count for rather more than perceived short-term political advantage.

Such an approach is almost completely the opposite tack of those (very vocal) Republicans now seeking to treat successful social-media platforms as if they are public utilities simply because they are big.

With luck, speech on the Internet can recover from regulatory incursions by those without much respect for property rights in general. But when presumed champions of free enterprise and the First Amendment abandon principle and go full-interventionist, it’s not so easy to be optimistic. A conservatism that turns its back on private-property rights in relatively simple social-media disputes over bias — and in the end that’s what we are talking about — will render itself unable to defend against leftist attacks on property rights in future right-leaning networks. Take that to the bank.

The unforced abandonment of core principles when it comes to relatively easy matters such as the handling of online bias by what may turn out to be transitory players (remember MySpace?) on an infinite Internet makes it far more difficult to stop the state from either blocking the expansion of institutions that promote economic and other liberty or, alternatively, regulating them into insignificance. This is by no means the only instance of this error, and it has resulted in sector after sector being consigned to “progressive” control. The conservatives who place trust in the Federal Communications Commission, Justice Department, and Federal Trade Commission to rein in bias shouldn’t forget that those agencies are not always run by conservatives.

Some on the left and some on the right, including many in Congress as well as the president, regard social media as a public forum and, by ignoring the reality that these are spaces created by private companies, effectively ignore the property rights that ought to go with that. The fact that the Internet is an inexhaustible resource appears to have passed them by. The judiciary, too, has magnified this problem. According to the Second Court of Appeals in mid 2019, President Trump cannot block users on Twitter. It ruled that it was a violation of the First Amendment for him to do so. As the Wall Street Journal  pointed out at the time, “under the Second Circuit’s ruling, politicians would have to choose between abandoning social media — which would limit their ability to communicate with voters — and tolerating harassment and lies. The decision also opens a potential legal avenue by which regulators and federal courts could become the speech arbiters for online platforms.”

“Everybody” hates Big Tech now. That ought to mean that the time is right for alternatives. If anything, the underlying functionality of the Internet has reached even higher levels than in the pre-Google and pre-Facebook era. The potential to offer users new ways of doing things on new platforms has not gone away and may even have been enhanced. All politicians have to do is preserve the property rights that incentivize entrepreneurs to innovate, and stay out of the way.

Wayne Crews is vice president for policy at the Competitive Enterprise Institute, where Jessica Melugin is associate director of the Center for Technology and Innovation.

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