Balkin’s big blind spot

This is post #6 of a multi-part series.

Although Part 4 of Professor Balkin’s paper on “How to regulate … social media” is the shortest part of his paper (with the exception of the opening and concluding sections), it is emblematic of the larger problem with Balkin’s pro-regulation argument. Recall from my previous post the four key ingredients that, according to Balkin, a healthy public square must have. (These four criteria are set forth in Part 3 of Balkin’s paper.) Part 4 adds a fifth criterion to the list — a criterion specific to the digital sphere. To the point, Balkin argues (correctly, I might add) that a healthy digital public square requires a wide variety of social media platforms, or in Balkin’s own words (p. 80), “To achieve a healthy and vibrant public sphere, we also need many different kinds of social media with many different affordances, and many different ways for individuals to participate and make culture.”

I agree 100% with Balkin about the benefits of diversity in the social media market, so what is the problem? Let’s put aside the irony that this is more or less the situation we have now. Today, we have many different types of social media platforms — from Twitter to TikTok and everything in between — each with their own set of community standards and values. The deeper problem with Balkin’s overall stance in favor of social media regulation is that it has an enormous blind spot — a blind spot so big that it will bring down his entire pro-regulation argument like a house of cards.

In brief, Balkin is so single-mindedly committed to social media regulation that he completely misses the following glaring contradiction that would result from any regulatory regime: the fact that regulation will most likely destroy the existing diversity of social media models that Balkin (and I) so much desire by imposing a uniform set of legal requirements on social media firms. Worse yet, Balkin also fails to recognize the very real possibility that regulation might impose onerous compliance costs on social media firms, making it even more difficult for new firms to enter the social media market!

To be fair, Balkin will mention the problem of compliance costs in passing toward the end of his paper (on p. 90), but mark my words: later on, when we reach the last part of the paper (Part 9 on pp. 89-96), the part that contains Balkin’s proposed models for regulation, we will see why all of Balkin’s specific proposals will most likely make matters worse by destroying the existing diversity of social media models.

Note: I will review Parts 5 and 6 of Balkin’s paper in my next 9/11 post.

Regulatory Burdens Should be Capped, Tracked and Disclosed | Americans for  Tax Reform

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to Balkin’s big blind spot

  1. Pingback: PSA: Just say no (to the drug of social media regulation) | prior probability

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