Note: this is the second post in a multi-part series.
In the Introduction to his paper “How to regulate … social media” (see my previous post), my colleague and friend Jack Balkin invites us to ponder the following question, Why should we regulate social media? And to his credit, Professor Balkin states his thesis up front: “The goal of regulating social media is to create incentives for social media companies to be responsible and trustworthy institutions that will help foster a healthy and vibrant digital public square.”
Alas, Prof Balkin commits the most elementary of intellectual sins: he doesn’t bother to define his terms — in particular, what does he mean by “responsible” or “trustworthy”? — nor does he provide any criteria for deciding whether our digital public square is “healthy” or “vibrant”. (Indeed, if Balkin were my student, this utter failure to define terms would earn him a C minus at best.) As a result, right off the bat, Balkin’s knee-jerk call for Internet regulation looks like just another law professor solution in search of a non-existent problem. After all, isn’t the digital public square — at least in countries like the United States; China, of course, is a different story — already a healthy and vibrant one, however those terms are defined?
The remainder of Professor Balkin’s regulation paper consists of nine separate parts, plus a Conclusion. I will review and respond to each part of Balkin’s essay in the days ahead.