A Biden Appointee's Troubling Views On The First Amendment
Columbia law professor 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."
Matt Taibbi
Mar 23
Jonathan Knee, James Ledbetter, and Timothy Wu attend Michael Wolff's book
launch party in 2019.
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 of The Curse of Bigness: Antitrust in the
New Gilded Age is known as a staunch advocate of antitrust enforcement, and
Biden's 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 what Wired called an "antitrust all-star
team."
"Big Tech critic Tim Wu joins Biden administration to work on competition
policy," boomed CNBC, while Marketwatch added, "Anti-Big Tech crusader
reportedly poised to join Biden White House." Chicago law professor Eric
Posner's piece for Project Syndicate was titled "Antitrust is Back in
America." Posner noted Wu's appointment comes as Senator Amy Klobuchar has
introduced regulatory legislation that ostensibly targets companies like
Facebook and Google, which a House committee last year concluded have
accrued "monopoly power."
Wu's 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 once explained 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:
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, it's like watching The Godfather, you
can't imagine anything could be better."
If you hear a "but." coming in his rhetoric, you guessed right. He does
imagine something better. The Cliff's Notes version of Wu's thesis:
- The framers wrote the Bill of Rights in an atmosphere where speech was
expensive and rare. The Internet made speech cheap, and human attention
rare. 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."
- 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 (or be forced to adopt) norms and
policies traditionally associated with twentieth-century journalism."
That last line is what should make speech advocates worry.
Wu's 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 there's one thing that's consistent about the
Roberts court," says Persily, "it's very strong speech protections."
However, there's 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.
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 a House
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 won't
take down lies or you will take down lies?" and "Why you label the Daily
Caller, a publication well-documented with ties to white supremacists, as an
official fact-checker for Facebook?"
CSPAN @cspan
"So, you won't take down lies or you will take down lies? I think that's
just a pretty simple yes or no." Complete exchange between @RepAOC @AOC and
Mark Zuckerberg at today's House Financial Services Cmte hearing. Full video
here: cs.pn/2W2BqB2
October 23rd 2019
8,743 Retweets25,410 Likes
Grasping that everyone who's 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 isn't the
what, but the who. The question isn't whether or not you think the Daily
Caller should be fact-checking, but whether you think it's appropriate to
leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC
doesn't seem to be upset that Zuckerberg has so much authority, but rather
that he's 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. He published a piece for the American
Economic Liberties Project recently that suggests, "A possible reform path
would be to remove protections for firms that use 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.
In another piece the AELP published after January 6th, "How To Prevent the
Next Social Media-Driven Attack On Democracy-and Avoid a Big Tech Censorship
Regime," the Project noted that banning Donald Trump from Twitter is
ineffective even as a draconian solution, because it doesn't alter the
platforms' basic incentive structure. Targeting the clickbait ad sales model
for regulatory reform isn't 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 Wu's 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 freedom to speak,
but freedom from abuses. 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 Amendment's
current form, he suggests "expanding the category of 'state action' itself
to encompass the conduct of major speech platforms like Facebook or
Twitter."
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, Google's Sundar Pichai, and Twitter CEO Jack Dorsey in
to discuss, "Disinformation Nation: Social Media's Role in Promoting
Extremism and Misinformation."
The Committee's 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, saying congress "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 - I'm
thinking particularly of an October, 2017 hearing of the Senate Judiciary
Committee in which Hawaii's 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?
As Stoller puts it, the Democrats have turned the tech battle into something
like a Lord of the Rings contest, 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. "It's not
like all this ends with the Biden White House," is how Persily puts it.
Wu's 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, they themselves may now lie with impunity.
It's Whac-a-Mole: in an effort to solve one problem, you create a much
bigger one elsewhere, incentivizing official deceptions.
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 today's 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 isn't a 21st-century idea. It's a proven 20th-century failure, and
signing up Silicon Valley for a journey backward in time won't make it work
any better.
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