The Jury Talks Back


“Conservatives” Demand Government Tell YouTube What Speech It Can Allow

Filed under: Uncategorized — Patterico @ 11:48 am

So there’s a kerfuffle going on with YouTube, Steven Crowder, and a Vox writer named Carlos Maza.* Maza complained to YouTube about Crowder, and YouTube came back with a bunch of inconsistent and changing statements about their position, resulting in a decision to demonetize Crowder. He can still put up videos on YouTube, but he won’t get paid, which is likely a genuine financial hit.

This has caused conservatives to call for government intervention. This is wrong.

Let me start by emphasizing that, like the other big social media platforms, YouTube’s “policy” is inconsistent, and is often applied against conservatives in a distinctly one-sided manner. There are several reasons for this. Social media giants tend to be run by doctrinaire leftists. (The recent court decision allowing James Damore’s lawsuit against Google to go to discovery may shed light on Silicon Valley’s hostility to conservative viewpoints.) Also, they have too much content for them to monitor that content in a rational way, often leading to inconsistent bannings and suspensions that utterly ignore context and often mistake satire for genuine virulence. In their zeal to eliminate anything not politically correct, they’re even whitewashing history:

This absurd P.C. virus — and the resultant bias against conservatives — deserves pushback, in the form of loud and consistent criticism. And, if you’re so inclined, in the form of developing alternative platforms for free expression.

Given this insanity, I believe that social media should follow the rules that our country has set out for the government. The bigger the company, and the more users they have, the more free range for expression they should allow. The biggest ones should essentially allow anything that would be protected under the First Amendment. That’s my view, and while it’s not shared by everyone — Ken White held the opposite position, for example, in a debate I saw at Reason’s offices in Culver City — I think I’m right.

But the social media companies don’t have to agree with me.

And when they don’t, running to the central government is the wrong solution.

Everywhere I look, from the Kurt Schlichters of the world to the Ted Cruzes, conservative demagogues are suggesting that we should rely on government to decide what private companies must allow in terms of speech.

As conservatives have always said: “Government will fix the problem.”

Private companies engaged in providing a platform for speech are entitled to have the government stay the hell out of their decisionmaking. Because this is speech we’re talking about, and I don’t trust the government to regulate it.

Two mindless tropes are invoked as a justification for allowing government to decree what speech is and is not allowed.

The first is the mythical “publisher/platform” distinction. Swarms of people on Twitter think they have played the ultimate trump card when they declare something like this:

First, let’s be clear: that is not how things are now, and if you think otherwise, you’re wrong.

The article that Ken White links in that tweet makes the point that a lot of people are confused about this, including U.S. Senators:

One jaw-dropping moment during the Senate’s hearing on Tuesday came when Sen. Ted Cruz asked Facebook CEO Mark Zuckerberg, “Does Facebook consider itself a neutral public forum?” Unsatisfied by Zuckerberg’s response that Facebook is a “platform for all ideas,” Sen. Cruz continued, “Are you a First Amendment speaker expressing your views, or are you a neutral public forum allowing everyone to speak?”

After more back-and-forth, Sen. Cruz said, “The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum. Do you consider yourself a neutral public forum, or are you engaged in political speech, which is your right under the First Amendment?” It was a baffling question. Sen. Cruz seemed to be suggesting, incorrectly, that Facebook had to make a choice between enjoying protections for free speech under the First Amendment and enjoying the additional protections that Section 230 offers online platforms.

Online platforms are within their First Amendment rights to moderate their online platforms however they like, and they’re additionally shielded by Section 230 for many types of liability for their users’ speech. It’s not one or the other. It’s both.

Indeed, one of the reasons why Congress first passed Section 230 was to enable online platforms to engage in good-faith community moderation without fear of taking on undue liability for their users’ posts. In two important early cases over Internet speech, courts allowed civil defamation claims against Prodigy but not against Compuserve; since Prodigy deleted some messages for “offensiveness” and “bad taste,” a court reasoned, it could be treated as a publisher and held liable for its users’ posts. Former Rep. Chris Cox recalls reading about the Prodigy opinion on an airplane and thinking that it was “surpassingly stupid.” That revelation led to Cox and then Rep. Ron Wyden introducing the Internet Freedom and Family Empowerment Act, which would later become Section 230.

The misconception that platforms can somehow lose Section 230 protections for moderating users’ posts has gotten a lot of airtime lately—even serving as the flawed premise of a recent Wired cover story. It’s puzzling that Sen. Cruz would misrepresent one of the most important laws protecting online speech—particularly just a few days after he and his Senate colleagues voted nearly unanimously to undermine that law. (For the record, it’s also puzzling that Zuckerberg claimed not to be familiar with Section 230 when Facebook was one of the largest Internet companies lobbying to undermine it.)

It’s unbelievable how pervasive this mistaken notion is. Evidently it’s part of our ubiquitous “the law is what I want it to be” legal philosophy.

So there is no “publisher/platform” distinction. Should there be? No.

Townhall is a publisher. Should Townhall have been allowed to fire me for criticizing Trump? I say: yes, absolutely. Do the demagogues who want to regulate YouTube disagree? Does Kurt Schlichter think the central government should issue a decree ordering Townhall to rehire me?

Am I allowed to ban commenters at my blog for espousing Nazi ideology? Or should the government order me to allow them to comment?

As Paula Bolyard says:

Ah, I hear you say, but we’re not saying the government should order you not to moderate, or order you not to demonetize opinions you dislike. We’re just saying that you should lose your Section 230 protections when you do! As the EFF article points out, however, that will lead to less free expression, not more:

It’s foolish to suggest that web platforms should lose their Section 230 protections for failing to align their moderation policies to an imaginary standard of political neutrality. Trying to legislate such a “neutrality” requirement for online platforms—besides being unworkable—would be unconstitutional under the First Amendment. In practice, creating additional hoops for platforms to jump through in order to maintain their Section 230 protections would almost certainly result in fewer opportunities to share controversial opinions online, not more: under Section 230, platforms devoted to niche interests and minority views can thrive.

The day the government takes away my Section 230 protection, and makes me liable for the stupid chuckleheaded things people say in my comment section … that’s the day I close comments. You can bet on that. How does that lead to greater free expression?

The second trope in defense of regulation is monopoly. People say: well, Patterico, we’re not saying you or Townhall have to open up your sites to everyone. But Twitter and YouTube are monopolies!

Ken White has a question for those of you who make this argument:

I have a problem with the mindset that says: sure, you can control your own Web site. But if it gets really popular, that’s when government gets to step in and tell me what to do. After all, we can’t have this freedom thing get out of control!

Some people are really wedded to monopoly law. I oppose it, as a free marketeer, believing that anything that resembles a monopoly tends to arise out of government interference. As Ludwig von Mises said:

It is a fact that with many commodities in many countries monopoly prices prevail, and moreover, some articles are sold at monopoly prices on the world market. However, almost all of these instances of monopoly prices are the outgrowth of government interference with business. They were not created by the interplay of the factors operating on a free market. They are not products of capitalism, but precisely of the endeavors to counteract the forces determining the height of the market prices. It is a distortion of fact to speak of monopoly capitalism. It would be more appropriate to speak of monopoly interventionism or of monopoly statism.

As Richard Ebeling explains:

[T]here may be a single seller in a market due to their ownership or control of a vital resources or raw material without which a product cannot be successfully produced and marketed. This was a hypothetical possibility pointed out by Austrian economists, Ludwig von Mises and Israel M. Kirzner.

However, if we allow time to pass, that is, if we look beyond the situation at a moment in time, we can see countervailing market forces that likely will be set in motion if there are potential profits to be made from selling this resource-specific product.

First, this situation would create incentives to prospect for and extract any possible alternative supplies of this resource or raw material outside the control of the “monopolist,” so competitors could enter his market at some point in the future.

Second, and more immediately as well as over time, if this is a profitable product, there would be incentives for competitors to market substitutes to his product out of alternative types of resources or raw materials outside of the monopolist’s control, and offer their substitute products at lower prices than the monopolist’s price. Thus, over time, competitive market forces would either eliminate or weaken even a “monopoly” position of this type.

The Austrian-born economist, Joseph A. Schumpeter, argued that the essence of the dynamic market economy is the innovative entrepreneurs who introduces the new, better, and improved products as well as new methods of production. To understand what Schumpeter called the competitive process of “creative destruction,” it is necessary to look beyond any seemingly “monopoly” situation at a moment in time, and take the longer historical perspective of the market as a dynamic process through time.

Textbook conceptions of “perfect competition” and “monopoly” are of little relevance or help, therefore, for understanding how markets actually work.

There has never been an example in history of a company preventing others from entering the market purely because the company was successful. Companies that temporarily seemed to be monopolies — IBM, Microsoft, etc. — ended up being displaced by nimbler competitors.

Frankly, I think it would be easier for a rival to YouTube to emerge than a rival to Twitter or Facebook. There is less need for an initial critical mass. If YouTube really gets out of control to the point where it actually bothers a lot of users, competitors will emerge.

The demagogues use the term “monopoly” to justify the government telling it what speech is and is not allowed. As conservatives have always done, we will trust the government, who will tell the “overbearingly” popular sites what speech is and is not allowed there. For the greater good.

And don’t worry, because the left will never grab that power and use it to conservatives’ detriment, using the power of the law backed by weapons, against which there is no competitive alternative.

Government for the win!

Once again: the fact that I hold these views does not mean I approve of YouTube’s conduct. As Ken White characterizes conservatives’ disingenuous arguments these days: “Not wanting government coercion to stop x = supporting x.” It’s not true. There’s a difference between thinking something is wrong, and thinking that the solution is to whine to the feds about it.

To the demoagogues who disagree with me, I say:

Your trust in government to fix the things that bother you is touching.


*If you want to read all the details of the feud, like was Steven Crowder rude to the guy (yes) or is Carlos Maza a good guy (no; he advocates violence, for example), you can do so elsewhere, because that’s not the point of this post. You could convince me that Steven Crowder is a prince of a guy or that Carlos Maza is the devil incarnate, and it would not change my opinion.


  1. This entire article is based on a false premise. Conservatives, like Cruz, aren’t wanting the government to take over social media or regulate them like we do financial institutions, but rather strip them of the protections the government has already afforded them as a platform when they have now decidedly acted as publishers. Furthermore, by acting in the way they have, YouTube is guilty of deceptive business practices. First, they courted creators like Crowder to grow their business by promising a piece of their profits as long as the channel follows their policies, then after declaring Crowder did not violate their policy they make up new rules and stop him from receiving funds he was contractually owed.

    While this isn’t a first amendment issue, it is one of the government’s making by having granting protections to these networks in the first place under the 1996 law. Asking the Government to fix that issue isn’t the same as asking them to take over social media.

    Comment by Sean — 6/8/2019 @ 12:38 pm

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