Note: this is post #4 of a multi-part series.
Part 2 of Professor Balkin’s “How to regulate … social media” paper — the second-longest part of the paper — contains the core of Balkin’s pro-regulation argument. First off, Professor Balkin identifies three “central functions” that social media platforms perform (p. 75, emphasis in the original) (note: for some unknown reason, Balkin drops search engines from his analysis):
- Social media platforms facilitate public participation in art, politics, and culture.
- Social media platforms organize public conversations so people can easily find and communicate with each other.
- Social media platforms curate public opinion by enforcing community standards and terms of service.
For Prof Balkin, a healthy, vibrant, and well-functioning digital public sphere is one that performs these three central pro-public functions. Therefore, according to Balkin’s argument, regulation of social media platforms is called for to the extent they are not performing these public-regarding functions well.
Alas, my colleague and friend commits two fundamental fallacies. One is the so-called Nirvana Fallacy, which I mentioned when I began this series of blog posts. Simply put, Prof Balkin (like most liberal law professors) assumes that regulation will somehow magically produce ideal results. The other fallacy is what I like to call the Oskar Lange/Abba Lerner Fallacy, named after the two leading proponents of the losing side of the Socialist Calculation Debate of the 1930s and 40s. Specifically, the main weakness of Balkin’s argument is that it simply assumes that social media platforms are unable to perform the above pro-public functions well in the absence of top-down regulation, but in reality, social media platforms might already have a built-in monetary incentive to perform these public-regarding functions even in the absence of regulation.
To see why, ask yourself, What is the real purpose of social media platforms? (Hint, it is the same purpose for which traditional forms of print and broadcast media exist.) Spoiler alert: it is to make money by selling ads. So, what is wrong with selling ads? Why do Balkin and so many of my academic colleagues idealize traditional media but are simultaneously so suspicious of social media’s business model? Both business models are essentially the same. More importantly, by having to rely on ad revenue to stay in business, social media platforms have a monetary incentive to perform Balkin’s three public-regarding functions in order to attract a sufficient critical mass of users and then sell the attention time of these users to ad firms. How would “regulation” improve on this current social media situation?
As it happens, Balkin anticipates my objection in the next part of his paper (Part 3) by pulling the old “bait-and-switch” strategy. I will describe Balkin’s sneaky sleight of hand in my next post …