Big tech dominance undermines a diversity of view points that is critical to the marketplace of ideas
Mark Epstein, June 9, 2019, Epstein is an antitrust attorney and freelance writer, Wall Street Journal, Antitrust, Free Speech, and Google, https://www.wsj.com/articles/antitrust-free-speech-and-google-11560108712
Donald Trump’s 2016 campaign promised to use antitrust law against oligopolies it said were “destroying an American democracy that depends on a free flow of information and freedom of thought.” The Justice Department’s investigation of Google may appear to fulfill this pledge. But Makan Delrahim, who heads the antitrust division, has voiced skepticism. In a 2018 address, he rejected the notion that “antitrust enforcers should step beyond consumer welfare and think about . . . values like the free speech the First Amendment protects.” He worried it would lead to subjective enforcement because “Republican and Democrat prosecutors, or those of any party or political orientation, carry with them their own perceptions of what is good and bad for our democracy.” Yet platform neutrality isn’t a strictly partisan issue. When Facebook temporarily blocked Democratic Sen. Elizabeth Warren’s campaign ad in March, she tweeted: “I want a social media marketplace that isn’t dominated by a single censor. #BreakUpBigTech.” Her Republican colleague Ted Cruz agreed: “She’s right—Big Tech has way too much power to silence Free Speech.” The Justice Department does have authority to consider how Google’s dominance affects the marketplace of ideas, and federal prosecutors routinely make decisions with partisan policy implications when enforcing campaign-finance, election-fraud, and voting-rights laws. Even in the antitrust context, regulators must consider viewpoint diversity in cable and broadcast mergers. Special statutes apply to these industries, but there is also precedent to address similar concerns under the broader antitrust laws. In Associated Press v. U.S. (1945), the Supreme Court held that the Sherman Antitrust Act of 1890 complemented the First Amendment, which “rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Antitrust law has evolved since Associated Press to focus solely on consumer welfare. But as Maureen Ohlhausen, then a member of the Federal Trade Commission, argued in 2016, the consumer-welfare standard applies to “values like openness and free speech” because “consumers care about a host of qualities for Internet access, not just price.” Thus the Justice Department may consider whether Google uses its dominance to reduce consumer choice. Many startups, for instance, attempt to compete against big tech by offering less-moderated content. As Google-owned YouTube enacted content guidelines, some creators and viewers moved to freer platforms such as BitChute and DTube. Antitrust enforcers could use the welfare standard to evaluate whether Google used its dominance in the search or mobile operating system market to exclude these competitors. Antitrust law isn’t a panacea, and the department should avoid getting caught in the partisan bickering over fake news and censorship that consumes most congressional hearings on Silicon Valley. Whether Google abuses its market dominance in search, online advertising, and mobile operating systems is a question that directly affects consumers and worries Democrats and Republicans alike.
Marketplace of ideas critical to freedom, democracy, and peace
David E. Bernstein, Defending the First Amendment from Antidiscrimination Laws, 82 N.C. L. Rev. 223, 240-41 (2003). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=489063 David E. Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law i
The primary civil libertarian defense of freedom of expression from government suppression is that such freedom is necessary to ensure the existence of a robust marketplace of ideas. More effusive advocates of the marketplace of ideas paradigm suggest that freedom of expression helps ensure the triumph of reason over prejudice, of enlightened public opinion over entrenched political and economic power. [FN42] This argument has some force, given the notable successes of the marketplace of ideas in recent American history. As recently as the 1940s, Catholics and Jews were excluded from many universities, private clubs, and corporations, African Americans were segregated by law in the South and subjected to routine discrimination almost everywhere else, Japanese Americans were incarcerated in concentration camps, American Indian children were removed from their parents and forcibly assimilated in boarding schools, and male homosexuals were generally thought to be pedophilic perverts. The status of these groups has improved dramatically, due to social and political changes made possible only because the Constitution’s guarantee of freedom of expression prevented defenders of the status quo from institutionalizing orthodox attitudes. Nevertheless, at first blush the marketplace of ideas paradigm seems to be an inadequate justification for inhibiting government regulation of speech, especially if one thinks about it in economic terms. [FN43] The unregulated marketplace of ideas is highly imperfect, and far less perfect than an unregulated economic market when it comes to protecting members of minority groups. A free economic market protects minorities from discrimination to some degree because businesspeople have an economic incentive to hire the best workers and obtain the most customers. [FN44] Meanwhile, minorities get relatively little protection in the marketplace of ideas. The average citizen seeking an ideology to guide his voting and other political activity has virtually no incentive to seek and find truth, especially since his opinion is highly unlikely to be decisive on any given matter. [FN45] On the other hand, it makes perfect sense for citizens to take pleasure in supporting positions they find intuitively appealing despite their ignorance. When average citizens commit to an ideological position, they will normally adopt a position that either makes them feel good for some reason, or that sends a signal to their social cohort that they are “good people,” regardless of the objective validity of the position.[FN46] The aggregation of votes by such “rationally irrational” voters is quite dangerous, especially for minority groups, which are often the subject of emotionally powerful but false myths, and against whom it often pays members of the majority to exhibit social solidarity. [FN47] Even voters who seek the truth regarding particular issues will have difficulty finding it. The human mind is cognitively limited, and much more suited for certain tasks, such as pursuing economic self-interest, than for others, such as adopting sensible ideological positions. [FN48] As Nobel economics laureate Ronald Coase points out, “it’s easier for people to discover that they have a bad can of peaches than it is for them to discover that they have a bad idea.” [FN49] One can hardly explain the ubiquitous appeal of nationalism, for example, as an outcome of reason. [FN50] To take a relatively innocuous example, there is no rational reason for soccer fans worldwide to get into a frenzy when the team representing their nation wins the World Cup. Meanwhile, opportunistic propagandists and demagogues find it beneficial to foment hatred based on false premises. As figures ranging from Adolf Hitler to Al Sharpton show, racist rabble-rousing can lead to public acclaim, and even grand political careers. While despised minorities can always find an economic haven even in a society where most employers discriminate against them, there is no escape for minorities if purveyors of racist ideas win out in the political process and capture the government. David Duke [FN51] poses far more danger to minorities than does Denny’s. [FN52] If anything, then, restrictions on speech that denigrate vulnerable groups are more likely to protect minorities and women over time than are laws banning discrimination in employment. [FN53] Free speech critics, though generally ignoring economic/public choice analysis, nevertheless manage to exploit the power of this point. Fiss, [FN54] Sunstein, [FN55] Morton Horwitz, [FN56] Jack Balkin, [FN57] and others [FN58] criticize liberal civil libertarians who vigorously oppose free market solutions to economic problems, especially in the employment discrimination context, but support an unregulated marketplace of ideas. If the government can make the economic marketplace fairer and more efficient, they ask, why can it not do the same for the less efficient speech marketplace? One answer, provided by law and economics luminaries such as Ronald Coase, Richard Epstein, and Richard Posner, is that government regulation of the economic marketplace is at least as wrongheaded as government regulation of the marketplace of ideas. [FN59] Epstein argues in favor of both a robust First Amendment and the repeal of antidiscrimination laws that apply to private parties. [FN60] Indeed, he argues that the two policies are synergistic because he doubts that freedom of speech and of religion can ultimately be defended from civil rights laws once it is conceded that an antidiscrimination norm is appropriate in the employment and property area. [FN61] But even liberal civil libertarians who oppose laissez-faire economics and support civil rights laws have a compelling rejoinder to advocates of censorship. Civil libertarians can recognize that the free marketplace of ideas is imperfect, but still ask the most important question in political economy, “compared to what?” [FN62] While much private speech is harmful, wrongheaded or dangerous, it’s even more dangerous to put the government in charge of policing it. [FN63] The alternative to an unregulated speech marketplace is to permit government censorship, leaving “the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us.” [FN64] For good reason, civil libertarians believe that the government cannot be trusted with the power to establish an official orthodoxy on any issue, cultural or political, or to ensure the ‘fairness’ of political debate. As one scholar puts it: [F]reedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of government determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense. [FN65] Freedom of expression is necessary to prevent government from entrenching itself and expanding its power at the expense of the public. As Seventh Circuit Judge Frank Easterbrook wrote in an opinion striking down an anti- pornography statute inspired by academic feminists, “[f]ree speech has been on balance an ally of those seeking change. Governments that want stasis start by restricting speech . . . . Without a strong guarantee of freedom of speech, there is no effective right to challenge what is.” [FN66] First Amendment scholar John McGinnis likewise notes that “government officials have a natural tendency to suppress speech antithetical to their interests . . . and that the free flow of information related to politics and culture threatens government hierarchies both by rearranging coalitions and revealing facts that will prompt political action.” [FN67] The framers of the American Constitution recognized that government, rather than inherently serving the public interest, is s
usceptible to capture by factions that desire to use the government for their own private ends, a phenomenon known in modern academic literature as “rent-seeking.” [FN68] The Constitution and Bill of Rights attempted to establish a system of government that would limit such rent-seeking. [FN69] The First Amendment’s protection of freedom of expression was particularly important in this regard. The Founders believed that once in power, factions would exploit any government authority to regulate speech in self-serving ways, to promote their own agendas, and/or to repress dissenting opinions. [FN70] The Founders’ insights have been confirmed by experience around the world, and by modern research into human political behavior by economists and evolutionary psychologists. [FN71] Permitting government regulation of information relating to politics or culture would come at a very high price to society. [FN72] Contrary to the insinuations of some critics, [FN73] then, civil libertarians recognize that freedom of expression can create many negative side effects, or, as economists put it, negative externalities. [FN74] But civil libertarians, aware of the voracious pursuit of power and self-interest endemic to politicians and their rent-seeking allies, make the cold calculus that the negative externalities caused by government regulation are likely to outweigh any negative externalities that arise from freedom of expression. [FN75] This is especially true in the United States. By contrast to more statist social systems, the United States has largely maintained a
Free speech is key to truth seeking, without it society devolves into stagnation and warfare
Greg Lukianoff, 2014, Founder of Foundation For Individual Rights in Education, .Unlearning Liberty: Campus Censorship and the End of American Debate, . Encounter Books. Kindle Edition.
If you take a step back and view history broadly, you see that free speech is an essential component of how we order our society and how we come to decide what is true or false. As Rauch explains, the intellectual system that gave birth to the Enlightenment— which in turn gave birth to the American economic and political system— has been around so long and has been so successful that we don’t even have a name for it. Rauch calls this system “liberal science.” (For conservatives reading this, don’t get too worried— he means “liberal” in its nineteenth-century sense, which was all about greater freedom and less control by government.) Often equated with the scientific method, this intellectual system is actually much broader, and possibly the most radical and brilliant system ever devised for resolving disputes and inching closer to the truth. Other systems too easily result in stagnation, ignorance, and oppression, or in division, tribalism, and warfare. Lukianoff, Greg. Unlearning Liberty: Campus Censorship and the End of American Debate (p. 21). Encounter Books. Kindle Edition.
Absence of democracy means mass death
Rummel 96, (Rudolph J. Rummel, Professor Emeritus of Political Science, University of Hawaii, “Chapter 8: An Enlightened Foreign Policy,” THE MIRACLE THAT IS FREEDOM: THE SOLUTION TO WAR, VIOLENCE, GENOCIDE, AND POVERTY, Martin Monograph Series No. 1., Martin Institute for Peace Studies and Conflict Resolution, University of Idaho, 1996. Available from the World Wide Web at: http://www.hawaii.edu/powerkills/MTF.CHAP8.HTM, accessed 4/28/05.)
Then there is mass democide, the most destructive of human lives than any other form of violence. Except in the case of the Nazi Holocaust of European Jews, few people know how murderous the dictators of this world have been and could be. Virtually unknown is the fact that the number of non-Jewish Poles, Russians, Ukrainians, Yugoslavs, Frenchmen, Germans, and on, murdered by Hitler surpasses by two or three times the Jews he killed. Then there are the shocking tens of millions murdered by Stalin and Mao, and the other millions wiped out by Pol Pot, Ho Chi Minh, Kim Il-sung, and their kind. Just omitting foreigners, who are most often murdered during a war, such thugs have murdered about 123,000,000 of their own people from 1900 to 1987. Adding foreigners they have killed raises the toll to an incredible near 170,000,000. Adding to this unbelievable toll since 1987 is the million people the Hutu rulers of Rwanda may have slaughtered in four months (Chapter 6. Even now, these mass murders still go on in Burma, Sudan, Afghanistan, North Korea, Rwanda, Burundi, Zaire, Sierra Leone, Liberia, and the Congo, just to mention the most glaring examples. Serb democide It should be clear, then, why I refer to the rulers of these murderous regimes as thugs. I am not a diplomat nor government official and do not have to worry about the delicate sensitivities of these rulers. I can speak truth to power, and call thugs the thugs they are. As should be clear from this book and web site, they often murder people by carefully thought out plans, they set up a bureaucracy to do so, they train people for this purpose, and then they order the killing. Sometimes they murder people because of their race, ethnicity, or religion; their parents or other relative’s political activities, or beliefs, or speech; or their lack of proper enthusiasm for their glorious rulers. Sometimes they established a murder quota to fill, or kill people randomly to set an example. While we can approximate how many these thugs have killed, we cannot even guess at the heartbreak and misery these deaths have caused their loved ones, and how many of these grieving survivors have died of a broken heart or committed suicide. Moreover, the term murder hardly carries the full weight of the pain and misery of the victims. Some lucky ones died quickly with a shot to the back of the head, or had their head decapitated. Most died quite wretchedly, in pain from torture or beatings; by drowning, being buried or burned alive; or in agony from wounds. Many died from intentionally administered starvation, thirst, exposure, or disease. Some died horribly as the result of repeated human medical experiments. We have no pain/misery index to measure all this except for the incredible pile of corpses these thugs have created in nearly one century. We must assume that a penumbra of pain and misery, of love and hope squashed, and a future stolen surrounds each of these millions of corpses. Castration What is true about freedom and internal violence is also so for this mass democide. As clear from Table 8.1, the more freedom a people have, the less likely their rulers are to murder them. The more power the thugs have, the more likely they will murder their people. Could there be a greater moral good than to end or minimize such mass murder? This is what freedom does and for this it is, emphatically, a moral good.