This is post #7 of a multi-part series.

Thus far, I have carefully reviewed the first four parts, plus the intro, of Professor Balkin’s new paper “How to … regulate social media”. That portion of the paper is mere throat-clearing, so to speak, providing the context for Balkin’s overall pro-regulation argument. In Parts 5 and 6 of his paper, however, Balkin finally gets around to explaining in earnest why social media must be regulated.

To appreciate Balkin’s contribution, let me engage in some background throat-clearing myself. To the point, whenever someone calls for government regulation — whether it be regulation of social media or regulation of hair dressers — one should always ask two questions: (1) What is the problem that the call for regulation is designed to solve? And (2) will the proposed regulation solve the problem, or will it make it worse? (Shout out to my intellectual hero, Ronald Coase.)

With this background in mind, let’s now turn to Parts 5 and 6 of Balkin’s paper. According to Balkin (pp. 81-82), the problem with social media today — i.e. the problem that he wants to fix via regulation — is the overproduction of propaganda and conspiracy theories and the underproduction of “knowledge” — another term, by the way, that Balkin does not bother to define. Additionally, Parts 5 and 6 explain why social media over-produces so much, for lack of a better word, “intellectual garbage” (e.g. propaganda, fake news, and conspiracy theories) and under-produces informed opinions or true “knowledge”. According to Balkin (p. 82), the reason for this sad state of affairs is that social media firms are “profit-making technology companies” that are “solely market-driven.”

Is Balkin serious? Is that the best he can muster?

Let me not waste any more of our time. In brief, there are three fundamental flaws with Balkin’s pro-regulation argument. One is empirical: he provides no evidence whatsoever that conspiracy theories, fake news, etc. are being over-produced or are crowding out “knowledge”. For my part, I do not dispute that conspiracy theories and fake news do, in fact, spread on social media, but my reply to Balkin and his elitist ilk is that the optimal level of such garbage is not zero.

Another problem is that Balkin has his pro-regulation blinders on again. What do I mean by this? I mean that Professor Balkin fails to realize that all media companies — from ABC News and CNN to The New York Times and the Washington Post — are all profit-making companies that are ultimately market-driven. (I already made this critique in a previous post, which is titled “Professor, they run ads,” with the “they” referring to all media companies, not just social media ones.)

But the biggest problem with Balkin’s argument — and the biggest blind spot in his overall liberal law professor world view — is his distorted picture of the market incentives of social media companies. For Balkin, the reason why conspiracy theories and fake news and other forms of intellectual garbage spread on the Internet is because social media platforms need to cater to the tastes, however low-brow or deranged, of all its users, and furthermore, the reason why social media companies cater to these tastes is because these firms are “solely market-driven”.

Alas, Balkin is wrong. Market incentives are features, not bugs. Social media companies have many incentives to clean up their acts and curb the spread of misleading or even dangerous information, and that is why social media firms spend so much time and effort on their content moderation policies, even in the absence of the heavy hand of government regulation. These companies might not always get it right. (Often, it is conservative voices that are censored.) But my larger point here is that social media companies don’t need the government telling them what to do.

Having made this stinging critique of Balkin’s pro-regulation argument, I now want give Professor Balkin his due. Although Balkin’s pro-regulating stance is for the most part misguided for the reasons I have provided above, in Parts 5 and 6 of his paper Balkin also highlights two legitimate concerns about social media — concerns that might justify some form of public regulation.

One legitimate concern is the private cost of content moderation, or as Balkin himself puts it (p. 83), “Quick, accurate, at-scale content moderation is hard to achieve.” The other potential concern is what Balkin refers to as “the dangers of surveillance capitalism” (p. 84). In exchange for “free” access to Instagram and Gmail, for example, Facebook and Google are able to collect and aggregate enormous amounts of end user data and then use that data not only to sell ads, but also to “nudge” their users in potentially ominous directions.

Like I said, these are legitimate concerns, and Balkin is right to bring them up. The main difference between Balkin and me, however, is that I tend to have more faith in markets than in governments when it comes to finding solutions. Edward Snowden taught us that lesson years ago …

Note: I will review the last third of Balkin’s nine-part paper (i.e., Parts 7 to 9) next week, starting on Tuesday.