prior probability

This is post #5 of a multi-part series.

In Part 3 of his paper “How to regulate … social media”, Yale Professor Balkin finally gets around to defining what he means by a “healthy” and “vibrant” digital public sphere. (In a previous post, I had taken Balkin to task for his failure to define these terms.)

For Balkin, a healthy and vibrant public sphere requires four key ingredients:

1. First off (p. 78), Balkin claims that a healthy public square requires “knowledge institutions” and “knowledge professionals” who produce knowledge and shape public opinion.
2. Balkin further claims on pp. 78-79 of his paper that a healthy public square requires “lots of different institutions” with the qualification that these knowledge institutions “can’t all be owned or controlled by a small number of people.”
3. Next, Balkin claims that a healthy public square requires not only a plethora of knowledge institutions {a condition, I might add, that appears to exist today}; in addition, “these institutions have to have professional norms that guide how they produce, organize, and distribute knowledge” (p. 79).
4. Lastly, Balkin adds a fourth and final criterion that his idealized public square must meet. According to Balkin (p. 79), his idealized group of knowledge institutions and knowledge professionals must be “trustworthy and trusted” (emphasis in the original).

Once again, however, Professor Balkin has fallen prey to the Nirvana Fallacy: he presents a Utopian picture of an ideal public square, he contrasts this ideal world to the imperfect status quo, and then he assumes that government regulation would be best way to reach this state of perfection. Sigh.

But I want to make a further and deeper critique of Balkin’s ideal public square. Specifically, is it really so ideal? After all, another word for “knowledge professional” is “expert” — and one man’s trusted “expert” is another man’s dime-a-dozen “pundit”. Moreover, as Philip Tetlock has shown (see here, for example), our “experts” and “pundits” (depending on which term you prefer) have been wrong on so many issues so many times that I wonder whether we would not, in fact, be better off without them

I also want to push back on Prof Balkin’s assumption that the current status quo is so bad that it needs to be fixed through some form of government regulation — as if our government can be more trusted than Balkin’s idealized “knowledge professionals”. Even if you are inclined to agree with Balkin that a healthy public square requires “lots of different institutions”, doesn’t today’s Internet world satisfy this condition with flying colors? From Wikipedia to Google Scholar, and everything in between, today’s Internet contains a veritable plethora of knowledge institutions, especially when we compare the status quo to the awful pre-Internet age that Balkin so idolizes, when there were only three major broadcast networks.

Most importantly, notice the sneaky intellectual sleight of hand at work in this part of Professor Balkin’s paper. Balkin defines the terms “healthy” and “vibrant” by referring to concepts that also need to be defined. What, for example, do these so-called “professional norms” consist of? How can we tell when an institution is both “trustworthy and trusted”? Alas, my colleague and friend does not say. Instead, he has pulled off a classic bait-and-switch — substituting “trustworthy” and “trusted” for “healthy” and “vibrant” — circular reasoning at its finest!

Note: I will review the next part of Balkin’s paper (Part 4) in my next post …

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):

1. Social media platforms facilitate public participation in art, politics, and culture.
2. Social media platforms organize public conversations so people can easily find and communicate with each other.
3. 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 …

Note: this is post #3 of a multi-part series.

The most technical part of Jack Balkin’s latest work, which is titled “How to regulate (and not regulate) social media”, is Part 1 of the paper, where Professor Balkin identifies three different types of Internet services and organizes them hierarchically as follows:

1. Basic Services. At the bottom of Balkin’s Internet hierarchy are firms that provide “basic Internet services”, including domain name registration providers like GoDaddy and Wix, Internet service providers like AT&T and Verizon (FYI: here is a list of the largest Internet providers in the US), and data storage providers or “cloud” services such as Amazon Web Services and Microsoft Azure.
2. Payment Services. In the middle of this cyber-hierarchy are firms like Visa, MasterCard, and PayPal that provide electronic payment services over the Internet.
3. Information and Networking Services. At the top of Balkin’s hierarchy are firms like Google and Facebook–that is, firms that offer Internet search engines or social media platforms.

Why does Professor Balkin draw these distinctions between (i) basic Internet services and (ii) payment services and (iii) information/networking services? In short, because Balkin is willing to leave the first two categories completely alone, since “content moderation … is not their job” (p. 74). Instead, Balkin argues we should treat payment and basic services the same way we treat public accommodations (i.e. all customers should be allowed to use all such payment and basic Internet services as long as they are not using those services to engage in an illegal activity), or as Balkin himself puts it (p. 73), “Let the bits flow freely and efficiently. Don’t try to engage in content regulation at this level.”

The key question for me, then, is this, Why won’t Prof Balkin extend this “hands off” or laissez faire logic to business firms that provide information or networking services? In other words, what makes search engines or social media platforms so dangerous or harmful that they must be regulated? What about text messages, for example? Should text messages also be subject to content regulations? Professor Balkin will address these questions in the next part of his paper (Part II), which I will review and respond to in my next post …

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.

Jack M. Balkin, a liberal law professor at Yale, recently wrote an essay titled “How to regulate (and not regulate) social media.” (The full essay is available here, via the Journal of Free Speech Law.) Suffice it to say (for now) that his essay is part of a growing chorus of legal scholars calling for greater regulation of the Internet. These scholars, however, are guilty of committing the Nirvana Fallacy: they assume that public regulation will somehow magically produce optimal results or at least better results than the status quo. The late great Ronald Coase demolished this fallacy years ago, but because of Professor Balkin’s academic stature (he is Knight Professor of Constitutional Law and the First Amendment at Yale Law School), and because of my interest in social media and information technology law generally, starting tomorrow I will be taking a closer look at Balkin’s arguments and will be writing up a multi-part review of/response to Balkin’s essay.

Here is a link to the above Tweet; check out the full thread for various proposed solutions.

Check out this homage to the late great puzzle master Martin Gardner. Here is one of his mathematical puzzles: “Imagine heating a metal ring enough so it expands. What happens to the hole, does it get bigger or smaller?”

SLoG stands for State & Local Government Law Blog, and this new legal blog is available for your edification here. You’re welcome! (Hat tip: Brian Leiter.)

Once again, I am assigning the award-winning film “The Social Network,” along with episode 4 of “Tiger King,” in my business law survey course. (For your reference, see my Fall 2021 Syllabus, the first four pages of which are pictured below. Click on a specific image to see a larger version of that page.) This term, however, will most likely be the last time I assign “The Social Network,” which depicts the events leading up to the creation and meteoric rise of Facebook. In brief, I have three objections against this film. One is that the movie, as of August 31, is no longer available on Netflix. Another is that it is somewhat sexist, especially in light of today’s hyper-sensitive #MeToo environment. (“The Social Network” has no female leads and fails the infamous Bechdel test.) But my main objection is that this movie is now horribly dated. When the film was first released in 2010, Facebook was the darling of Silicon Valley — a scrappy little startup with a fun and innovative way to bring real-life friends closer together. Today, by contrast, Facebook has for all practical purposes become an evil Big Tech behemoth, along with Apple, Google, and Microsoft. Though come to think of it, perhaps this real-life role reversal makes “The Social Network” more relevant than ever!