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Timothy Wu wonders if the First Amendment is 'obsolete,' and believes in 'returning the country to the kind of media environment that prevailed in the 1950s'

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When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author ofThe Curse of Bigness: Antitrust in the New Gilded Ageis known as a staunch advocate of antitrust enforcement, and Bidens choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling whatWiredcalled an antitrust all-star team.

Big Tech critic Tim Wu joins Biden administration to work on competition policy, boomed CNBC, whileMarketwatchadded, Anti-Big Tech crusader reportedly poised to join Biden White House. Chicago law professor Eric Posners piece forProject Syndicatewas titled Antitrust is Back in America.Posner noted Wus appointment comes as Senator Amy Klobuchar has introduced regulatorylegislationthat ostensibly targets companies like Facebook and Google, which a House committee last year concluded haveaccrued monopoly power.

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Wus appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu who introduced the concept of net neutrality and onceexplained it to Stephen Colbert on a roller coaster is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called Is the First Amendment Obsolete? that argues traditional speech freedoms need to be rethought in the Internet/Trump era. He outlined the same ideas in a 2018 Aspen Ideas Festival speech:

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Listening to Wu, who has not responded to requests for an interview, is confusing. He calls himself a devotee of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that these old opinions are so great, its like watchingThe Godfather,you cant imagine anything could be better.

If you hear a but coming in his rhetoric, you guessed right. He does imagine something better. The Cliffs Notes version of Wus thesis:

The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attentionrare. Speech-hostile societies like Russia and China have already shown how to capitalize on this cheap speech era, eschewing censorship and bans in favor of flooding the Internet with pro-government propaganda.

As a result, those who place faith in the First Amendment to solve speech dilemmas should admit defeat and imagine new solutions for repelling foreign propaganda, fake news, and other problems. In some cases, Wu writes, this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control. What might that look like? He writes, without irony: I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.

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More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) boils down to asking whether these platforms should adopt (orbe forced to adopt) norms and policies traditionally associated with twentieth-century journalism.

That last line is what should make speech advocates worry.

Wus appointment may not matter a lot to those concerned about constitutional freedoms because, as Stanford professor Nate Persily puts it, the current Supreme Court would be very hostile to any attempt to water down the First Amendment. If theres one thing thats consistent about the Roberts court, says Persily, its very strong speech protections.

However, theres a paradox embedded in this new Democratic mainstream thinking about speech in the Internet era. As one activist put it to me last week, the new breed of Democratic-leaning thinkers like Wu wants to be anti-corporate and authoritarian at the same time. Their problem, however, is that in order to effect change through authoritative action, they need to enlist the aid and cooperation of corporate power.

This paradox casts even the antitrust all-star team narrative about people like Wu and Khan in a different light. What may begin as a sincere desire by the Biden administration (or, at least, by figures like Wu, who by all accounts is a real antitrust advocate) to break up tech monopolies, may end in negotiation and partnership.

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While the liberal tradition of the party tilts toward antitrust action, the new, more authoritarian form of progressivism currently gaining traction is tempted by the power these companies wield, and instead of breaking these firms up, may be more likely to seek to appropriate their influence.

You can see this mentality in the repeated exchanges between Congress and Silicon Valley executives. An example is the celebrated October 23, 2019 questioning of Mark Zuckerberg by Alexandria Ocasio-Cortez in aHouse Financial Services Committee hearing. The congresswoman, as staunch a believer in the new approach to speech as there is in modern Democratic Party politics, repeatedly asks Zuckerberg questions like, So, you wont take down lies or you will take down lies? and Why you label theDaily Caller, a publication well-documented with ties to white supremacists, as an official fact-checker for Facebook?

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Grasping that everyone whos ever thought about speech issues throughout our history has been concerned with the publication of falsehoods, incitement to violence, libel, hate speech, and other problems, the issue here isnt thewhat, but thewho.The question isnt whether or not you think theDaily Callershould be fact-checking, but whether you think its appropriate to leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC doesnt seem to be upset that Zuckerberg has so much authority, but rather that hes not using it to her liking.

A minority of activists within Democratic Party circles believes that the fundamental reason platforms like Facebook end up being what journalist Matt Stoller describes as speech dumpster fires has to do with the financial model of these companies.

These are advertising monopolies who have centralized control over the discourse, is how Stoller puts it. Hepublished a piecefor the American Economic Liberties Project recently that suggests, A possible reform path would be to remove protections for firmsthatuse algorithms to monetize data. His point is that firms like Facebook are incentivized to push users of all political persuasions toward the most angering, conspiratorial, sensational content, while also discouraging exposure to alternative or debunking points of view a primary driver of our fact-starved political dilemma.

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In another piece the AELP published after January 6th, How To Prevent the Next Social Media-Driven Attack On Democracyand Avoid a Big Tech Censorship Regime,the Project noted that banning Donald Trump from Twitter is ineffective even as a draconian solution, because it doesnt alter the platforms basic incentive structure. Targeting the clickbait ad sales model for regulatory reform isnt a panacea, either, but from the standpoint of traditional liberalism, breaking up surveillance advertising monopolies has to be better than partnering with said monopolies to switch out one elitist concept of speech control for another.

This is where the paradox comes in. Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakups of those same firms. Anyone genuinely interested in clamping down on harmful speech would consciously or unconsciously want the landscape as concentrated as possible, because an information bottleneck makes controlling unwanted speech easier.

This idea of needing a more activist conception of speech control is clear in Wus writing. He speaks about the First Amendment operating as a negative right against coercive government action, while in the modern environment, the government not only needs to secure the freedomtospeak, but freedomfromabuses. He posits a First Amendment that acts as a right that obliges the government to ensure a pristine speech environment. Because that would be difficult to accomplish in the First Amendments current form, he suggests expanding the category of state action itself to encompass the conduct of major speech platforms like Facebook or Twitter.

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This is the subtext of those constant congressional demands that tech platforms fix the problems of unfettered speech. We have another round of such hearings coming this week. The House Energy and Commerce Committee will be having Zuckerberg, Googles Sundar Pichai, and Twitter CEO Jack Dorsey in to discuss, Disinformation Nation: Social Medias Role in Promoting Extremism and Misinformation.

The Committees ranking members and subcommittee chairs, Frank Pallone, Jr. of New Jersey, Mike Doyle of Pennsylvania, and Jan Schakowsky of Illinois, are adopting the now-familiar line of pushing to hold the tech firms accountable for their speech environments,sayingcongress must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.

Do these members of congress, or thinkers like Wu, want to break up these monopolies, or harness them? To date, the answer has run decidedly in one direction. Previous congressional hearings involving tech CEOs Im thinking particularly of anOctober, 2017 hearing of the Senate Judiciary Committeein which Hawaiis Mazie Hirono demanded that the platforms come up with plans to keep bad actors who sow discord from manipulating social media already resulted in an overt partnership between Washington and Silicon Valley over content moderation decisions. The only question is, will that partnership become more expansive, as politicians become increasingly tempted by the power of these companies?

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As Stoller puts it, the Democrats have turned the tech battle into something like aLord of the Ringscontest, where the fight ends up being over the one ring of speech control. Others point out that the situation for new government appointees in the Biden administraiton will be complicated by the input of the intelligence services, whose point of view on this issue is clear and absolute: they love the bottleneck power of the tech monopolies and would oppose any effort to dilute it.

Still others wonder about the wisdom of creating powerful new partnerships with Silicon Valley, given that political realities may change and another set of actors may soon be driving the content moderation machine. Its not like all this ends with the Biden White House, is how Persily puts it.

Wus comment about returning to the kind of media environment that prevailed in the 1950s is telling. This was a disastrous period in American media that not only resulted in a historically repressive atmosphere of conformity, but saw all sorts of glaring social problems covered up or de-emphasized with relative ease, from Jim Crow laws to fraudulent propaganda about communist infiltration to overthrows and assassinations in foreign countries.

The wink-wink arrangement that big media companies had with the government persisted through the early sixties, and enabled horribly destructive lies about everything from the Bay of Pigs catastrophe to the Missile Gap to go mostly unchallenged, for a simple reason: if you give someone formal or informal power to choke off lies, theythemselvesmay now lie with impunity. Its Whac-a-Mole: in an effort to solve one problem, you create a much bigger one elsewhere, incentivizing official deceptions.

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That 1950s period is attractive to modern politicians because it was a top-down system. This was the era in which worship of rule by technocratic experts became common, when the wisdom of the Best and the Brightest was unchallenged. A yearning to return to those times runs through these new theories about speech, and is prevalent throughout todays Washington, a city that seems to think everything should be run by people with graduate degrees.

Going back to a system of stewardship of the information landscape by such types isnt a 21st-century idea. Its a proven 20th-century failure, and signing up Silicon Valley for a journey backward in time wont make it work any better.

This post first appeared at taibbi.substack.com and is republished here with permission.

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