Pablo Escobar, Woke Tech Lords, and 47 USC §230

 

The other night I was watching Narcos on Netflix and musing about how Pablo Escobar got so rich he felt entitled to run his country. It was as if after acquiring jet planes, pet hippos, and vast estates, there was nothing left to buy except absolute political power. I am beginning to think that in the USA our superrich Big Tech owners are in a similar state of mind.

Joe Biden’s narrow win in swing states was largely a function of Zuckerberg’s $300 million targeted registration drive combined with the tech barons’ uniform crackdown on any and all adverse news about the corrupt and enfeebled Joe Biden or about his son the troubled artist and former international energy consultant.  Escobar would be envious of their power to control the flow of information.  Instead of orchestrating a costly and messy series of hits on NY Post editors and writers, Dorsey and Zuckerberg disappeared Hunter Biden’s laptop with a few keystrokes.

With the possible exception of J.D. Rockefeller (and Pablo), no one has ever had the wealth of the likes of Bezos, Zuckerberg, Gates, or Dorsey.  And never have the richest Americans attempted an overt ideological coup.  In Rockefeller’s era and continuing until fairly recently, the political focus of big corporations and their very richest stockholders was much more narrowly focused on avoiding as much taxation, regulation, and liability as possible. There was no broader ideological agenda antagonistic to existing American political social and cultural norms.

Vivek Ramaswamy, author of Woke, Inc. Inside Corporate America’s Social Justice Scam, argues that the real appeal of wokeism to corporate America is not much different from some kid pretending to start a program to help the poor just so he can put that in his application to Harvard: just an image ploy, a distraction, a way to take focus from what they do and how they profit by cynically buying off the very people most likely to criticize their profits and practices from a Marxist perspective.

In the not-so-long term, the corporate empowerment of the left is a suicidal gesture. No amount of wokeness can save a company or personal assets if AOC and the Bernie Bros ever come to power.

Maybe someday soon, rich bored white people will tire of wokeness and move on to some new abomination but until then, what can we do to minimize the damage and political distortions inflicted on us by the tech lords? What can we do to fight back?

Antitrust law is pretty useless—it is hard to be said to unfairly monopolize a market where the product is free and/or the product is the market.  A conservative SCOTUS is never going to invent a de novo “big is bad” theory of antitrust. So “break up Facebook, Google and Twitter!” is a pipedream barring the emergence of some new social platform technology.

The real beachhead that needs to be established is a rewrite of Section 230 in the federal telecommunications statutes.  (Text of those provisions are at the end of this post—relevant text in bold).

Congress gave the tech giants immunity from liability for content on their sites posted by others (that’s fair) and the right to remove defamatory or pornographic content (well, OK) and pretty much anything else “objectionable” (Oops!!) which, it turns out, is any statement, fact or point of view that differs from that of the tech barons and their hive-minded minions and bots.

Facebook and Twitter each claim not to be a publisher. It is true that, unlike the New York Times, the content on Facebook and Twitter is generated by outside third parties.  However, exactly like the New York Times, they now decide what does or does not get published on their platforms.

Power that the Constitution expressly denies to government is now exercised by private entities that operate at the pleasure of the world’s richest men.  It is much like what a James Bond movie plot would be like if 007 dies in the first scene and the superrich villains then run wild and take over the world with their evil new technology.

Lefties in Congress want section 230 rewritten to mandate that the tech companies suppress “hate speech” as defined by Congress which would be really stupid for their side to do because (a) a conservative/centrist judiciary would swat that legislation out of the park as a slam dunk First Amendment violation and (b) lefty oligarchs can already do exactly that with impunity and a statutory mandate could just make it complicated.

Among centrist and conservative reformers, an idea that has been percolating in recent years is that we should apply the doctrine of “state action” to the tech giants with respect to the First Amendment.  A “state actor” is a private company doing something at the behest of government to do something that the government would like to do but is legally barred from doing. A court can bar such actions by a “state actor.” Some court decisions have taken it beyond an express delegation of government power to any exercise of power analogous to government power.

The conservative SCOTUS majority is unlikely to go much beyond express delegation in defining “state action” and thus does not present much of a threat to the tech giants under current law. In Manhattan Community Access Corp. v. Halleck (2019) the 5-4 conservative majority rejected an application of the state action doctrine where operators of a public TV station refused to air a documentary critical of them and subsequently banned the documentarians from further access.  Writing in support of a “viewpoint discrimination” claim by the minority, Justice Sotomayor wrote: “The First Amendment does not fall silent simply because a government hands off the administration of its constitutional duties to a private actor.” Preach, sister Sonia!! But would Justice Sotomayor thinks that GTwitBook comprise a public forum?

So, one possible solution is to amend Section 230 to say that with respect to the First Amendment, the tech companies are automatically considered state actors and thus cannot restrict the use of their sites for such purposes.  Some serious drafting skills may be required but it seems doable.  And then by strict construction of the statute, the courts could enforce a reining in of lords Zuckerberg and Dorsey.

I think I would go further and take a hard look at FCC and FEC regulations regarding political ads, pending and in-kind contributions.  Enforcement of campaign finance and broadcast law is a bit of a joke in that elections are long over by the time offenses are adjudicated, the fines are invariably trivial and the organizations at fault have already been dissolved.

In the case of the tech giants, there would need to be a real-time government-empowered ombudsman to receive reports of election-relevant content being suppressed altogether or subject to some artificial reduction in the number of its potential viewers. This would also apply to reports of content being artificially advanced or promoted in search algorithms etc.  The response from the provider would need to be virtually immediate and any fines levied would increase over time from the moment of notification of the first reported complaint, and the fine amount proportionate to the scale of the revenues of the offending entity.   They can fight such charges, of course, but if they lose –the meter will still have been running.  Elections are time-sensitive, so enforcement needs to be close to real-time.

None of this kind of legislative or regulatory change will happen before there is a GOP President and Congress (or a veto-proof GOP Congress) but it has to be at the top of the issue agenda for conservatives.  The catastrophic Biden years should be a crisis too good to waste and disempowering the tech lords needs to happen for the sake of American political integrity and our cultural heritage.

______________________________________________

47 U.S. Code § 230

* * *

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

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  1. DonG (CAGW is a hoax) Coolidge
    DonG (CAGW is a hoax)
    @DonG

    Old Bathos: Antitrust law is pretty useless—it is hard to be said to unfairly monopolize a market where the product is free and/or the product is the market. 

    No, the product is targeted advertising and Google + Facebook dominate the market in digital ad space.  They are so dominant, that they can kill (have killed) a business by turning off the ad placement. Break them up and create more digital ad placers, none should have more that 12% market share.

    • #1
  2. Susan Quinn Contributor
    Susan Quinn
    @SusanQuinn

    Old Bathos: Some serious drafting skills may be required but it seems doable.

    This seems to be the roadblock: how to write it and make it work? Especially because there are so many people with conflicting and unreasonable interests. And when those tech companies keep begging for new enforcement rules, that tells me that they must have more to gain and we have much to lose.

    • #2
  3. Old Bathos Moderator
    Old Bathos
    @OldBathos

    DonG (CAGW is a hoax) (View Comment):

    Old Bathos: Antitrust law is pretty useless—it is hard to be said to unfairly monopolize a market where the product is free and/or the product is the market.

    No, the product is targeted advertising and Google + Facebook dominate the market in digital ad space. They are so dominant, that they can kill (have killed) a business by turning off the ad placement. Break them up and create more digital ad placers, none should have more that 12% market share.

    I assure you that a small army of very highly paid lawyers have already tooled up to blow away that argument. You are not wrong but it is not a fight that the DOJ or private claimants can win.

    • #3
  4. Terry Mott Member
    Terry Mott
    @TerryMott

    Susan Quinn (View Comment):

    Old Bathos: Some serious drafting skills may be required but it seems doable.

    This seems to be the roadblock: how to write it and make it work? Especially because there are so many people with conflicting and unreasonable interests. And when those tech companies keep begging for new enforcement rules, that tells me that they must have more to gain and we have much to lose.

    The primary roadblock is that the GOP doesn’t have the gumption to try.  Or else they’re paid not to try.  Or both.  Probably both.

    • #4
  5. Dbroussa Coolidge
    Dbroussa
    @Dbroussa

    I wish I had a positive spin on this for you.  I don’t think that the gov’t can do anything.  Facebook isn’t a monopoly so they cannot really break it up, and even if they did, it really wouldn’t matter.

    I think that the only way to resolve the problem is to make the publication of social media messages part of the public space and then require that every social media company to post every item to that clearinghouse and allow all of their users to read anything from that clearinghouse.  

    • #5
  6. MarciN Member
    MarciN
    @MarciN

    Old Bathos: Among centrist and conservative reformers, an idea that has been percolating in recent years is that we should apply the doctrine of “state action” to the tech giants with respect to the First Amendment.  A “state actor” is a private company doing something at the behest of government to do something that the government would like to do but is legally barred from doing. A court can bar such actions by a “state actor.” Some court decisions have taken it beyond an express delegation of government power to any exercise of power analogous to government power.

    That seems promising. Pursuing it would also create an honest view of who Facebook is: a government public broadcaster,  not an independent publisher.

    It’s going to be a problem, as you said. He gives away free airtime. He doesn’t stifle competition, as far as I know. Anyone is free to start up his or her own social media website.

    Facebook may be controllable somehow, but I don’t think Zuckerberg will ever be under anyone’s control. He is sitting on a fortune in personal data. That’s the real issue.

    If Congress were awake, they would realize that Facebook’s personal data is a national security threat, and they would order him to destroy it.

    Google is slightly aware of this. Google deletes–or they say they do–all search information every six months. There’s no reason that Facebook could not do the same thing. But even if Facebook started right this second tagging all personal data with a self-destruct code, Facebook still has mountains of it that’s been collecting and storing over the past fifteen years. And it’s their property.

    Imagine if China were to invade the United States. How would China find all the American citizens it wanted to hunt down?

    That sounds paranoid, but it was a real problem in World War II. When the Brits were preparing for a possible invasion from Germany, they took down street signs and hid voter lists. They did that because they had watched the Germans’ occupying methods. The Germans went right into the local town clerk’s office.

    • #6
  7. Z in MT Member
    Z in MT
    @ZinMT

    As conservatives we shouldn’t be looking for solutions that lead to more government. The real solution is to build competitive networks.

    The real danger is not the suppression of individual speech, it was the denial of services like AWS that shut down Parlour. Or the denial of financial services.

    It is not a healthy society where the ability to perform business can be denied to groups due to political differences.

    • #7