At the Supreme Court this week, big tech said most economic regulation for platforms are unconstitutional. And they used same logic as Robert Bork in attacking the Civil Rights Act of 1964.
First, thank you for going in depth in answering exactly the question I was baffled by earlier this week. I know it wasn't just for me, but I'm tickled pink nonetheless. To make it even better, this is one of your most educational pieces I've ever read – and to put that in context, I've crawled through much of your back archive, and you're the most educational jobrnalist I know even on your run-of-the-mill days. Bravo!
I hope this doesn't go down in history as one of those Supreme Court decisions that we all know shouldn't have been and needs to be reversed but takes decades to get fixed if it ever does. I mean, you allude to Citizen's United here too…
Did any of the Conservative amicus briefs urge that the court not rule against the law simply for sake of, as Conservatives put it, not "legislating from the bench"? You write a lot about the whole legal battle as the expression of our democratic system, and I want to believe you (antitrust is pretty much the only hope for the country I have left!); but if I may offer another example of the issue of how we structure our society and the question of whether our elected lawmakers rule… there's the fact that the law and any political decisions dependent on it is subject to the legal philosophy opinions of a tiny team of unelected officials in the first place. (I'm not sure who I want enforcing the Constitution, I'll admit. The trouble with pointing to the Constitution as a bulwark against tyranny is someone's got to actually enforce it. But there's only so meta I can go here.) Sorry, not trying to be a downer – just saying, for comparison, Conservative judges are normally so hung up on this meta issue they couldn't even bring themselves to limit or remove Obamacare, and I'm sure you remember how they felt (probably still feel) about that law… Surely someone pointed out the "don't overrule the law itself, that's not your job" argument they're normally sympathetic to? Surely it's not just me, Joe Blogreader in the combox, who's thinking about this?
Aside, a _huge_ Thank You to your org and all others who weighed in against a partisan reading of the case. One of the most demoralizing experiences in the past decade has been watching at least half the people I know come around to a populist consensus on actual policy (maybe it's the peculiar circles I move in but the rightwingers I know in real life quietly comment on how they now believe what they're up against is fascism, and they mean the behavior of Big Business, not "well akshully lefties are the real fascists"; though ironically, right-wing antifascists seem to be the people most likely to get labeled "fascist" now), only to watch in horror as some of the other people I know literally flipflop on their positions rather than give up the chance to dunk on or demonize their political enemies. I can't tell you how heartening it was, after all the social fallout in my communities and a deeply personally trying past several years, to see a whole slew of political influence cross the aisle to advocate for a bipartisan handling of this issue. I'm almost not sure if I'm happy or in shock but thank you!
Finally, the history section of this article has inspired me to write one of my own. There is a tie in here (actually more than one) that you probably haven't heard, to earlier history and religious philosophy on the other side of the Atlantic. And it affords a nice opportunity to try to pull more of my Conservative friends back over to the antitrust tradition! If I can get it published somewhere (I have a few ideas) – if I can manage to sit down, dig up some good supporting quotations (I know enough background to be confident they're there), and hammer it out in the first place – I'll be sure to share it later.
In conclusion, fantastic work and fantastic reporting; keep fighting the good fight, sir!
Nah. It’s not about Bork. It is about “difficulty”. It is about how doing the right thing is difficult; regulation is difficult; adjudication is difficult, behavior is difficult, control is difficult, enforcement is difficult. We are in a social period where we can’t be bothered with difficult so we gravitate to easy and we can get easy and avoid difficult by using the cover of things like the first amendment. And, we are in an environment where most everything is so complex and interconnected that doing the right thing is de facto difficult.
The arc of the legal cases purporting to find constitutionally-protected 'free speech' rights of the most powerful, mendacious and paternalistic corporations in existence is Satan's work. And clever toads like Bork are the personification of evil. I'm not hopeful that this group of Justices will be able to re-tie the knot this issue has created in any way that gives new life to the concept of common carriage, but thank you for the heads-up.
In 1975, a 5-4 Supreme Court majority said that the Portland, Oregon, Lloyd Center mall owners could prohibit protests against the Vietnam war — squelching that speech entirely in the confines of the mall. And, contra your post, Nader and Public Citizen fought hard to try to open up speech in corporate settings, including by pushing for laws that regulated public entities (such as utilities) must carry “bill stuffer” messages, paid for entirely by public advocates and at no cost to the utilities. They lost that fight.
Now the mall is the internet. It will be interesting to see if the court is willing to throw Lloyd Corp v Tanner out the window to own the libs.
I don't know that I have any greater trust in corporations than I do with elected officials. They have the same agenda - I want what I want, when I want it (in the current moment). Add to that the range of thinking of SCOTUS. In our capitalist society the focus is always on "what makes money" and not about "what benefits society". It's a mess!
Sorry, but you're on the wrong side of this one. Imagine what would happen if you got your way here. These unconstitutional laws pass, and social media sites are forced to reinstate accounts that repeatedly and flagrantly violated their terms of service, as Trump did on Twitter. Social sites are open to government sanction if they remove fascists from their platforms?
Of course common carrier laws make sense in certain contexts. And of course we need anti-discrimination laws. These laws are not either of those things. If it's not common sense enough, there's plenty of scholarship about how communities that don't moderate become hostile to regular people. You say you want to trust our elected officials rather than Big Tech with that moderation, and absolutely we should require interoperability so that we can get some better competition to help with things like this, but there is no way the government can moderate all social media posts. Think of the difference in scale.
These laws are just going to let gerrymandered, minority elected extremists destroy any online social community they set their eyes on.
There is a lot here and I feel like i could spend a few months doing background research but given the importance and timing of the case I'm going to offer my two cents.
Firstly the regulation/deregulation paradigm in the context of marxist, conservative liberal doctrine is BS.
Common sense does apply and there are a long list of thinkers from a broad range of subjects that offer direction. Adam smith being one. The argument solely based on free speech rings complete false to me.
A more nuanced argument would be a full public examination of how algorithms work as gatekeepers and help foster monopolies, creating vicious cycles and barriers to entry.
The explicit use of anonymous harassment that repeatedly gets reported and never gets prosecuted.
If these platforms are so benign why don't their children use them?
Did I misunderstand this or did tech lawyers just make the case for censorship as a means to free speech? How is this a rational argument. What about liability and harm? Tort law?
Monopolies consolidate wealth in innumerable ways. They create supply bottle necks and create scelortic nations akin to autocracies where the incumbents become reluctant to give up power, ie market share.
Its the continuous generation of fresh ideas, new blood, new business that makes the US unique.
Enforcing the law and spirit of American enterprise is a form of deregulation. Binary paradigms aren't helpful. Consumer welfare can be a very conservative idea.
Money in politics should not be allowed. Lobbyists shouldn't exist. Constituents are you lobby. Citizens views are what matter.
So let me get this straight. It’s wrong for a private platform to decide and express for itself what kind of content it wants to curate, but perfectly OK for a redneck attorney general (under indictment for fraud and corruption) to make those decisions instead? You better hope he doesn’t have an ax to grind with Substack!
"...that common carriage rules to foster public spaces are intrinsically bad." Corporations will never, and have no incentive, to care about your rights. That is the job of any functioning government.
I think I agree with all of this except for the Supreme Court of Janus, the recent EPA decision, the upcoming evisceration of the administrative state, and countless others being "open" to populist arguments about the regulation of big business. If they find for Paxton here, it's because they want to own the libs.
Thanks Matt for the history lesson, especially about Bork. I always thought he was just another right wing nut. After the points you made I have a better understanding on how America became a corporate state.
It is time for Americans to decide if they want a to live in democracy or in a country where the corporate masters make all decisions based on what’s best for corporate profits.
Americans can use the power of their vote to elect representatives that will pass laws and enforce existing laws to bring back the regulatory power of our
government to stop and brake up the consolidation and monopolies.
If anyone thinks letting corporations decide what is good for you is the definition of delusional.
Hi Matt, great article, fascinating case with profound implications. Can you give some insight on the interplay of this with the Kids Online Safety Act? Is this act a reasonable response to kids safety, or is it a disguise for censorship? And how would the outcome of this case affect that proposed legislation? Thanks!
Is it just corporations that are the subject of the question? If so I think we may be missing the question of whether we have let the corporate entity metastasize and grow into something it should never have become, gaining rights and powers that endanger the health of the social structure that gives it it’s very existence. Yes, that does beg the question of how facilities like networks, power grids etc can be maintained, but roads and bridges and postal systems don’t depend on collections of anonymous people who are motivated only by the rent that can be charged - over and above the actual cost of providing a service, and these facilities exist and operate.
Furthermore we seem to assume that the US Constitution is akin to the Ten Commandments, immutable and perfect as is. Is this conflict not generated by flaws in the assumptions underlying that document? Do we always see it as a given that must be accepted?
Matt,
First, thank you for going in depth in answering exactly the question I was baffled by earlier this week. I know it wasn't just for me, but I'm tickled pink nonetheless. To make it even better, this is one of your most educational pieces I've ever read – and to put that in context, I've crawled through much of your back archive, and you're the most educational jobrnalist I know even on your run-of-the-mill days. Bravo!
I hope this doesn't go down in history as one of those Supreme Court decisions that we all know shouldn't have been and needs to be reversed but takes decades to get fixed if it ever does. I mean, you allude to Citizen's United here too…
Did any of the Conservative amicus briefs urge that the court not rule against the law simply for sake of, as Conservatives put it, not "legislating from the bench"? You write a lot about the whole legal battle as the expression of our democratic system, and I want to believe you (antitrust is pretty much the only hope for the country I have left!); but if I may offer another example of the issue of how we structure our society and the question of whether our elected lawmakers rule… there's the fact that the law and any political decisions dependent on it is subject to the legal philosophy opinions of a tiny team of unelected officials in the first place. (I'm not sure who I want enforcing the Constitution, I'll admit. The trouble with pointing to the Constitution as a bulwark against tyranny is someone's got to actually enforce it. But there's only so meta I can go here.) Sorry, not trying to be a downer – just saying, for comparison, Conservative judges are normally so hung up on this meta issue they couldn't even bring themselves to limit or remove Obamacare, and I'm sure you remember how they felt (probably still feel) about that law… Surely someone pointed out the "don't overrule the law itself, that's not your job" argument they're normally sympathetic to? Surely it's not just me, Joe Blogreader in the combox, who's thinking about this?
Aside, a _huge_ Thank You to your org and all others who weighed in against a partisan reading of the case. One of the most demoralizing experiences in the past decade has been watching at least half the people I know come around to a populist consensus on actual policy (maybe it's the peculiar circles I move in but the rightwingers I know in real life quietly comment on how they now believe what they're up against is fascism, and they mean the behavior of Big Business, not "well akshully lefties are the real fascists"; though ironically, right-wing antifascists seem to be the people most likely to get labeled "fascist" now), only to watch in horror as some of the other people I know literally flipflop on their positions rather than give up the chance to dunk on or demonize their political enemies. I can't tell you how heartening it was, after all the social fallout in my communities and a deeply personally trying past several years, to see a whole slew of political influence cross the aisle to advocate for a bipartisan handling of this issue. I'm almost not sure if I'm happy or in shock but thank you!
Finally, the history section of this article has inspired me to write one of my own. There is a tie in here (actually more than one) that you probably haven't heard, to earlier history and religious philosophy on the other side of the Atlantic. And it affords a nice opportunity to try to pull more of my Conservative friends back over to the antitrust tradition! If I can get it published somewhere (I have a few ideas) – if I can manage to sit down, dig up some good supporting quotations (I know enough background to be confident they're there), and hammer it out in the first place – I'll be sure to share it later.
In conclusion, fantastic work and fantastic reporting; keep fighting the good fight, sir!
Nah. It’s not about Bork. It is about “difficulty”. It is about how doing the right thing is difficult; regulation is difficult; adjudication is difficult, behavior is difficult, control is difficult, enforcement is difficult. We are in a social period where we can’t be bothered with difficult so we gravitate to easy and we can get easy and avoid difficult by using the cover of things like the first amendment. And, we are in an environment where most everything is so complex and interconnected that doing the right thing is de facto difficult.
The arc of the legal cases purporting to find constitutionally-protected 'free speech' rights of the most powerful, mendacious and paternalistic corporations in existence is Satan's work. And clever toads like Bork are the personification of evil. I'm not hopeful that this group of Justices will be able to re-tie the knot this issue has created in any way that gives new life to the concept of common carriage, but thank you for the heads-up.
In 1975, a 5-4 Supreme Court majority said that the Portland, Oregon, Lloyd Center mall owners could prohibit protests against the Vietnam war — squelching that speech entirely in the confines of the mall. And, contra your post, Nader and Public Citizen fought hard to try to open up speech in corporate settings, including by pushing for laws that regulated public entities (such as utilities) must carry “bill stuffer” messages, paid for entirely by public advocates and at no cost to the utilities. They lost that fight.
Now the mall is the internet. It will be interesting to see if the court is willing to throw Lloyd Corp v Tanner out the window to own the libs.
I don't know that I have any greater trust in corporations than I do with elected officials. They have the same agenda - I want what I want, when I want it (in the current moment). Add to that the range of thinking of SCOTUS. In our capitalist society the focus is always on "what makes money" and not about "what benefits society". It's a mess!
Sorry, but you're on the wrong side of this one. Imagine what would happen if you got your way here. These unconstitutional laws pass, and social media sites are forced to reinstate accounts that repeatedly and flagrantly violated their terms of service, as Trump did on Twitter. Social sites are open to government sanction if they remove fascists from their platforms?
Of course common carrier laws make sense in certain contexts. And of course we need anti-discrimination laws. These laws are not either of those things. If it's not common sense enough, there's plenty of scholarship about how communities that don't moderate become hostile to regular people. You say you want to trust our elected officials rather than Big Tech with that moderation, and absolutely we should require interoperability so that we can get some better competition to help with things like this, but there is no way the government can moderate all social media posts. Think of the difference in scale.
These laws are just going to let gerrymandered, minority elected extremists destroy any online social community they set their eyes on.
There is a lot here and I feel like i could spend a few months doing background research but given the importance and timing of the case I'm going to offer my two cents.
Firstly the regulation/deregulation paradigm in the context of marxist, conservative liberal doctrine is BS.
Common sense does apply and there are a long list of thinkers from a broad range of subjects that offer direction. Adam smith being one. The argument solely based on free speech rings complete false to me.
https://blogs.lse.ac.uk/politicsandpolicy/adam-smith-and-inequality/
A more nuanced argument would be a full public examination of how algorithms work as gatekeepers and help foster monopolies, creating vicious cycles and barriers to entry.
The explicit use of anonymous harassment that repeatedly gets reported and never gets prosecuted.
https://www.unwomen.org/en/what-we-do/ending-violence-against-women/faqs/tech-facilitated-gender-based-violence
https://fpanalytics.foreignpolicy.com/2021/05/13/the-urgent-case-for-gender-equality-in-the-digital-age/
If these platforms are so benign why don't their children use them?
Did I misunderstand this or did tech lawyers just make the case for censorship as a means to free speech? How is this a rational argument. What about liability and harm? Tort law?
https://lawjournal.mcgill.ca/article/special-morality-of-tort-law-the/
In terms of anti trust - this seems like a no brainer to me. Say the quiet part out loud. Everyone is worried about their stock portfolio.
https://prospect.org/blogs-and-newsletters/tap/how-monopoly-destroys-democracy/
https://www.minneapolisfed.org/article/2021/by-sabotaging-essential-products-monopolies-increase-poverty-and-economic-inequality
Monopolies consolidate wealth in innumerable ways. They create supply bottle necks and create scelortic nations akin to autocracies where the incumbents become reluctant to give up power, ie market share.
Its the continuous generation of fresh ideas, new blood, new business that makes the US unique.
Enforcing the law and spirit of American enterprise is a form of deregulation. Binary paradigms aren't helpful. Consumer welfare can be a very conservative idea.
Money in politics should not be allowed. Lobbyists shouldn't exist. Constituents are you lobby. Citizens views are what matter.
https://www.brennancenter.org/our-work/research-reports/citizens-united-explained
https://www.americanprogress.org/article/how-campaign-contributions-and-lobbying-can-lead-to-inefficient-economic-policy/
The complexity and tax dodging and obfuscation are a deliberate means of de enfranchisement. Antithetical to democracy.
I know I'm preaching to the choir. I just thought I'd send this out to the digital universe.
Thank you so much for the post.
So let me get this straight. It’s wrong for a private platform to decide and express for itself what kind of content it wants to curate, but perfectly OK for a redneck attorney general (under indictment for fraud and corruption) to make those decisions instead? You better hope he doesn’t have an ax to grind with Substack!
"...that common carriage rules to foster public spaces are intrinsically bad." Corporations will never, and have no incentive, to care about your rights. That is the job of any functioning government.
I think I agree with all of this except for the Supreme Court of Janus, the recent EPA decision, the upcoming evisceration of the administrative state, and countless others being "open" to populist arguments about the regulation of big business. If they find for Paxton here, it's because they want to own the libs.
Thanks Matt for the history lesson, especially about Bork. I always thought he was just another right wing nut. After the points you made I have a better understanding on how America became a corporate state.
It is time for Americans to decide if they want a to live in democracy or in a country where the corporate masters make all decisions based on what’s best for corporate profits.
Americans can use the power of their vote to elect representatives that will pass laws and enforce existing laws to bring back the regulatory power of our
government to stop and brake up the consolidation and monopolies.
If anyone thinks letting corporations decide what is good for you is the definition of delusional.
Hi Matt, great article, fascinating case with profound implications. Can you give some insight on the interplay of this with the Kids Online Safety Act? Is this act a reasonable response to kids safety, or is it a disguise for censorship? And how would the outcome of this case affect that proposed legislation? Thanks!
Is it just corporations that are the subject of the question? If so I think we may be missing the question of whether we have let the corporate entity metastasize and grow into something it should never have become, gaining rights and powers that endanger the health of the social structure that gives it it’s very existence. Yes, that does beg the question of how facilities like networks, power grids etc can be maintained, but roads and bridges and postal systems don’t depend on collections of anonymous people who are motivated only by the rent that can be charged - over and above the actual cost of providing a service, and these facilities exist and operate.
Furthermore we seem to assume that the US Constitution is akin to the Ten Commandments, immutable and perfect as is. Is this conflict not generated by flaws in the assumptions underlying that document? Do we always see it as a given that must be accepted?
"In fact, the Supreme Court in this case is likely more open to populist notions than most civil society groups."
You might want to read that Thomas Frank book, " The People, No" before you continue using "populist" as a perjorative.
"Populism" is what gave us labor protections in the first place.