Jack Balkin’s final grade: D minus

This is my last post in this series.

Yale Law School Professor Jack Balkin concludes his social media regulation paper with the following paragraph, which I will quote in full below:

“We should regulate social media because we care about the digital public sphere. Social media have already constructed a digital public sphere in which they are the most important players. Our goal should be to make that digital public sphere vibrant and healthy, so that it furthers the goals of the free speech principle—political democracy, cultural democracy, and the growth and spread of knowledge. To achieve those ends, we need trustworthy intermediate institutions with the right kinds of norms. The goal of regulation should be to give social media companies incentives to take on their appropriate responsibilities in the digital public sphere.”

Before proceeding, notice that Prof Balkin’s conclusion consists of five separate sentences. The ideas expressed in all of these concluding sentences, however, are either vacuous or tautological. For starters, consider Sentence #1 (emphasis added): “We should regulate social media because we care about the digital public sphere.” Bullshit! We could just as well argue that we should leave social media alone for the same reason: precisely because “we care” about the digital public square.

Similarly, Sentence #2 is just as vacuous as #1, setting forth the following non-sequitur (emphasis added): “Social media have already constructed a digital public sphere in which they are the most important players.” Sigh. Of course social media platforms are “the most important players” in this space; without these platforms, there would be no digital public square to speak of. So what?

Sentence #3, however, is the most vacuous sentence of them all (emphasis added): “Our goal should be to make that digital public sphere vibrant and healthy, so that it furthers … political democracy, cultural democracy, and the growth and spread of knowledge.” Alas, as I mentioned previously, Balkin doesn’t bother to define what he means by “vibrant” and “healthy”; nor does he make a persuasive case that regulation would achieve these lofty but undefined goals instead of making matters worse.

Next, Sentence #4 contains this brilliant piece of circular reasoning (emphasis added), “To achieve those ends [i.e. a healthy and vibrant digital public square], we need trustworthy intermediate institutions with the right kinds of norms.” Again, however, Balkin does not spell out what these “norms” are; nor does he explain how regulation would generate these optimal social media norms. Worse yet, when it comes to Internet governance, Balkin simply assumes that governments are more trustworthy than private companies, an assumption that is dubious at best.

Finally, Sentence #5 concludes with this vacuous and empty observation (emphasis added), “The goal of regulation should be to give social media companies incentives to take on their appropriate responsibilities in the digital public sphere.” But above and beyond the formulation and even-handed enforcement of their content moderation policies (and, I might add, the reduction of enforcement errors), what are these “appropriate responsibilities”?

This omission on Prof Balkin’s part shows us the overall problem with his call for social media regulation. To the point, Balkin never provides us with a well-defined yardstick for deciding whether social media policies are furthering or hindering the goals of a “healthy and vibrant” digital public square. By contrast, I would argue that our digital public square has never been healthier or more vibrant (defined in terms of the number of social media options we have and the general level of freedom we have on each platform), I would further argue that social media regulation, by increasing compliance costs and liability risks, would very likely make matters worse by discouraging new entrants from entering the social media market.

It’s time to bring this review to a close by assigning Professor Balkin’s work a letter grade. Although I am generally an easy grader, Balkin is a law professor at Yale, so I will grade him on a curve. In particular, given his susceptibility to the Nirvana Fallacy (a rookie mistake), his vacuous and woefully inadequate reasoning (see above), and his utter inability to define key terms, Balkin’s work merits a “D minus” at best.

Grade D Minus - D Minus Grade Png Transparent PNG - 388x316 - Free Download  on NicePNG

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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2 Responses to Jack Balkin’s final grade: D minus

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

  2. Pingback: Social Media Regulation Redux | prior probability

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