(What’s Left of) Our Economy: A Phony “Industry’s” Phony Case Against Solar Tariffs

Tags

China, clean energy, Commerce Department, dumping, green energy, innovation, manufacturing, misinformation, renewable energy, solar energy, solar panels, Southeast Asia, subsidies, tariffs, trade law, transshipment, {What's Left of) Our Economy

What a disgraceful scandal a leader of America’s renewable energy industry just spotlighted! The main evidence presented for imposing steep tariffs on some imports of solar panels has been disavowed by a main source of that evidence!

Except the real scandal is the misinformation-y nature of this claim – which is becoming par for the course for certain supporters of a faster transition to a clean energy-dominated economy..

Let’s begin at the beginning. On March 28, the Commerce Department, one of two federal agencies responsible for administering the U.S. trade law system, agreed to investigate charges by a California-based manufacturer of panels that factories in Southeast Asia are being used by China to circumvent the tariffs that began to be imposed in 2012 on panels and key components made in the People’s Republic. The levies aimed to offset China’s practice of selling these panels at prices far below production costs not because of market forces, but because of subsidies for the manufacturers.

But tariffs to counter this predatory tactic, also called dumping, can sometimes be circumvented by two types of schemes that are also sanctionable by U.S. trade law. Under the first, called transshipment, the guilty parties send their finished goods to other foreign countries, where they’re re-labeled and sent off for final sale in America. Under the second, the guilty parties send the parts and components of finished products to factories in other foreign countries, where they’re assembled and then exported to the United States.

It’s the second practice that formed the basis for this latest circumvention allegation, and as standard in trade law cases, the lawyers for the U.S. plaintiff – a company called Auxin Solar – tried to persuade the Commerce Department to probe whether circumvention was occuring with a brief containing evidence they’d gathered. This is the request approved on March 28, and the investigation is still ongoing.

In an op-ed article yesterday afternoon, though, Gregory Wetstone of the American Council on Renewable Energy made a bombshell accusation. Writing in TheHill.com, Wetstone contended that the research company whose findings Auxin’s lawyers heavily relied on to prove their charges claimed that some of their key data had been used inaccurately.

The lawyers attempted to show circumvention by citing findings from the research firm BloombergNEF documenting that fully 70 percent of the value of the solar panels imported into the United States from some plants in Cambodia, Malaysia, Thailand, and Vietnam came from China. If true, this finding would strongly confirm Auxin’s position that the panels were little more than products sent in pieces from China to Southeast Asia, to be snapped together for shipment to the United States – that is, that the anti-China tariffs had indeed been circumvented.

But according to BloombergNEF, the 70 percent figure only referred to the “cash cost” of the panel inputs. Left out were the upfront capital costs of building the Southeast Asian factories themselves – which they argued made clear that these facilities performed the kind of genuine manufacturing of the imported materials that in turn absolved them of the circumvention charge. In trade law terms, the parts and components and other inputs supposedly underwent substantial transformation, and were not simply disassembled pieces of final products.

As should be clear to anyone familiar with manufacturing, though, the scale of the investment needed to build a factory has no intrinsic relationship to the nature of the work it performs. Moreover, it’s just as reasonable to view the upfront investment as a one-time cost required to launch a simple assembly operation aimed at lasting for many years. So the longer this ruse continues, the greater the importance of the cost of the panel inputs.  

At the same time, plaintiff Auxin’s case doesn’t rely solely or even mainly on reason, or on the 70 percent figure however it’s interpreted. It doesn’t even rely solely or even mainly on trade data showing that remarkably soon after the original tariffs were placed on the Chinese-made solar cells, Chinese shipments to the United States nosedived, and shipments from the four Southeast Asian countries began skyrocketing. Nor does it rely solely or significantly on additional trade data showing that these countries’ imports of Chinese-made solar panel parts, components, and materials have also soared, often exponentially, over the last decade.

Instead, the brief also presents abundant evidence — that’s never been challenged by the tariff opponents — that many of the new Southeast Asian factories exporting so many solar panels to the United States themselves are Chinese-built or -acquired, and therefore -owned. For example:

>”Jinko Solar Group is a producer of solar products, including silicon ingots, wafers, solar cells, and modules, with its production predominantly based in China. After imposition of the [anti-dumping tariffs] in 2015, Jinko Solar built a solar cell and module processing facility in Penang, Malaysia.”

>”JA Solar launched a solar cell processing facility in Penang, Malaysia in 2015. JA Solar produces ingots and wafers in its Chinese facilities. When the company first started exporting solar cells from Malaysia, the company stated that ‘raw materials such as silicon wafers were being imported from China . . . .’”

>”LONGi owns and operates a wholly owned facility in Malaysia. Li Zhenguo, President of Longi Green Tech, touted LONGi’s Malaysia factory as ‘mainly targeting the U.S. market,’ recognizing that ‘Chinese solar products are imposed by about 150% import tariffs by the U.S. {so} {i}t’s almost impossible for China-made products to be sold there.’”

>A company representative has stated that “Trina Solar supplies U.S. orders from Thailand (as opposed to from China). Additionally, the Chairman and CEO of Trina Solar stated that Trina Solar’s projects in the pan-Asia region align the company with the Chinese government’s ‘One Belt, One Road’ initiative.”

>Suzhou Talesun Solar Technology has directly cited the solar tariffs “as the reason for its Thai facility’s existence by stating that it ‘seized the chance to break through the U.S. market through Thai production capacity.’ Talesun’s company website markets its ability to circumvent the orders on CSPV cells and modules from China: ‘with our factories in China and Thailand, we offer a solution adapted to markets affected by anti-dumping laws such as the United States or Europe.’”

>LONGi Green Tech’s president “touted LONGi’s Vietnam factory as ‘mainly targeting the U.S. market,’ recognizing that shipments from China cannot compete based on existing tariffs.”

>”According to the company’s blog, one reason why Boviet’s [an affiliate of Chinese entity Boway] assembly is based out of Vietnam is because ‘Vietnam is not a U.S. listed Anti-dumping and Countervailing region. No tariffs influence Boviet’s U.S. business, and those cost-savings ultimately trickle down to the buyer.’ Boviet Solar also openly advertises that it sources glass for its solar modules from China.”

>”Chinese solar cell manufacturer ET Solar has reported that it was transferring 300 MW of cell capacity from China to be assembled in Cambodia, where it will also assemble modules to target the U.S. market.”

Somehow Hill op-ed author Wetstone and the alternative energy businesses he helps represent missed all of this. Not that anyone should be surprised. Because for many years they’ve been deceptively describing as the U.S. “solar energy industry” a sector that overwhelmingly consists of companies that install solar power systems for homes, businesses, and utilities.

Certainly they create American jobs and facilitate whatever clean energy transition is proceeding. But this sector generates little value or innovation or productivity growth for the U.S. economy. And it has about as much in common with solar manufacturers as nursing home operators have with the cutting-edge American pharmaceutical industry, or as taxi or ride-sharing companies have with U.S.automakers. Therefore, where the solar panels they stick on American roofs and emplace in lots and other vacant or cleared space are concerned, the cheaper the better, no matter where they come from — including China.

In other words, the U.S. “solar energy industry’s” case against tariffs on Southeast Asian panels fails not only on legal and factual grounds (because circumvention of the China levies is so clearly happening). It fails on policy grounds – except for those who don’t mind much of America’s clean energy future, and all the economic and technological and climate benefits it can create, being made by a hostile dictatorship. No wonder these companies and their leaders are so dependent on spreading misinformation to persuade Washington to lift the solar tariffs.

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Those Stubborn Facts: The News Media’s Priorities

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Amber Heard, celebrities, election 2016, Hillary Clinton, Johnny Depp, journalism, media bias, Michael Sussmann, misinformation, news, priorities, Those Stubborn Facts, Trump-Russia

Number of Google News search results today for “Michael Sussmann trial” (regarding misinformation and the 2016 U.S. presidential campaign): 16,300

 

Number of Google News search results today for “Johnny Depp trial”: 1.92 million

Im-Politic: A Mainstream Media Award for Spreading Immigration Misinformation

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Alejandro Mayorkas, Biden, Biden administration, Border Patrol, Department of Homeland Security, Evans Bishop, Haitians, Herblock, Im-Politic, Immigration, Lalo Alcaraz, Library of Congress, Michael Cavna, migrants, misinformation, Texas National Guard, U.S. Customs and Border Patrol, Washington Post

The American Mainstream Media complex has already established the practice of not rescinding major journalism awards it’s handed out for stories that seemed plausible when published or broadcast, but have since been debunked. So I wasn’t surprised to find out yesterday that this national news establishment has taken its biases and its contempt for accuracy to the next level.

But I was disgusted nonetheless – and you should be, too – by the honoring of a political cartoonist whose work was exposed as fraudulent by the time the decision was made. Even worse, the U.S. Library of Congress, a part of the federal government that you and I pay for, has lent its name to this outrage.

The latest recipient of the Herblock Prize (named after the late, famed Washington Post editorial cartoonist) is Lalo Alcaraz, and it’s certainly noteworthy, as reported in the Post, that he’s the first Latino to win.

The problem, however, which was overlooked by the Herb Block Foundation, the Library, Post reporter Michael Cavna, and apparently every single one of his editors, is that Alcaraz has purveyed the falsehood that last year, U.S. Border Patrol agents used whips against migrants from Haiti trying to enter the country illegally. In fact, as shown in the article, he insinuated that such brutality has long been Standard Operating Procedure by the Border Patrol. (For some reason, I couldn’t manage to reproduce an image of the drawing here.)   

When it came out, it was plausible that this incident deserved investigation. After all, even President Biden declared, “I promise you, those people will pay.”

Almost immediately, however the claims of whipping began falling apart. The photographer who took the pictures in question declared that “I didn’t ever see [any agents] whip anybody, with the thing. [The agent he photographed] was swinging it. But I didn’t see him actually take — whip someone with it. That’s something that can be misconstrued when you’re looking at the picture.”

In fact, it quickly turned out that what were described as whips were really split reins. Even Open Borders-happy Alejandro Mayorkas, the Biden administration Secretary of Homeland Security, stated that these reins were being used to ensure control of the horses – before following up by claiming that the pictures “horrified him.”

Late last month, a representative of the Border Patrol agents’ labor union told the New York Post that the accused officers had been cleared of criminal wrongdoing, though the Customs and Border Patrol agency of the Homeland Security department is still conducting an “administrative investigation” that could still cost them their jobs. And in early April, a group of Republican Senators, noting that more than six months had passed for a probe that Mayorkas had promised would be “completed in days, if not weeks,” pressed the administration to release the findings. Yet they still remain secret.

None of this wealth of exculpatory information, however, seems to have impressed Alcaraz – much less persuaded him to apologize for spreading such misinformation. And why should he, when mainstream news organizations like the Washington Post actually continue codding his treatment of the controversy. Indeed, here’s how reporter Cavna described the award-winner’s drawing: “In one work, he drew a rope-wielding member of the U.S. Border Patrol on horseback in the style of an antique engraving — visually evoking last year’s viral photo of an agent trying to stop a Haitian migrant in Texas.”

Alcaraz is lucky in one respect though – he has a chance to make amends. As widely reported, late last week, a Texas National Guard member Evans Bishop drowned in the Rio Grande River while trying to save a migrant struggling to swim across. The Guard isn’t the Border Patrol, but it’s carrying out the same border security mission. How fitting if Alcaraz drew a tribute to his selflessness.  And how seemingly unlikely.

Those Stubborn Facts: Intelligence Failures

Tags

accountability, collusion, Deep State, disinformation, Donald Trump, election 2020, Hunter Biden, Hunter Biden emails, Hunter Biden laptop, intelligence community, misinformation, Never Trumper, The New York Post, Those Stubborn Facts, Trump-Russia

# of former U.S. intelligence/security officials who before Election

2020 insinuated that the Hunter Biden laptop emails reported by the

NY Posts stemmed from a “Russian information campaign” despite

lacking “evidence of Russian involvement”: 51

 

# of such officials who didn’t respond to request for apology: 39

# of such officials who declined to comment to this request: 4

# of such officials who stood by the charge: 5

# of such officials who couldn’t be reached: 2

# of such officials who apologized for the charge: 0

 

(Sources: “Public Statement on the Hunter Biden Emails,” October 19, 2020, https://www.politico.com/f/?id=00000175-4393-d7aa-af77-579f9b330000 & “Spies who lie: 51 ‘intelligence’ experts refuse to apologize for discrediting true Hunter Biden story,” by Post Editorial Board, The New York Post, March 18, 2022, https://nypost.com/2022/03/18/intelligence-experts-refuse-to-apologize-for-smearing-hunter-biden-story/)

Im-Politic: It’s Time for Them to Go

Tags

Anthony S. Fauci, Biden adminstration, CCP Virus, CDC, Centers for Disease Control and Prevention, children, coronavirus, COVID 19, Fauci, FDA, Food and Drug Administration, hospitalization, hospitalizations, Im-Politic, Mary T. Bassett, misinformation, New York State, pediatric vaccination, public health, Rochelle Walensky, schools, testing, vaccinations, vaccine mandates, vaccines, Wuhan virus

As the New Year brings Americans their third calendar year of coping with the CCP Virus, it’s abundantly clear that there’s no such thing as a firing offense when it comes to the nation’s leading public health authorities. And it’s been evident in not one but two cases over the last week alone.

Case number one involves Dr. Anthony S. Fauci, President Biden’s chief medical adviser. Fauci should already be in near-boiling legal water over the likelihood that he lied to Congress in denying that the National Institute of Alergy and Infectious Diseases (NIAID) never funded dangerous gain-of-function virus-related research in China. Now he’s just (unwittingly) admitted that he’s been guilty of pandemic-related fear-mongering of the first order on the vital issue of safeguarding children’s well-being.

Fauci has long warned about the dangers posed to minors by the virus and linked vaccination of pupils (along with mask requirements for them) to the goal of keeping schools safely opened. And he’s focused not only on pediatric infection numbers, but on hospitalization rates – widely considered a far more serious matter because they supposedly reveal the incidence of serious and potentially fatal infections. As he argued on NBC News‘ “Meet the Press” on August 8:

“There are a lot of children now – all you need to do is do a survey of the pediatric hospitals throughout the country, and you’re seeing a considerable number of young people who are not only infected but who are seriously ill….the numbers compared to the elderly are less, but that’s a false comparison. These kids are getting sick. We’ve really got to make sure we protect them.”

The alarmist nature of his comments should have been clear from the start, as, for example, that week, according to the CCP Virus data tracker maintained by the U.S. Centers for Disease Control and Prevention (CDC), the virus-related rate of new hospital admissions for Americans under 17 averaged about 0.14 per 100,000 – which comes to an absolute number of about 100 total hospitalizations among the 73.1 million in that age group as of the latest U.S. Census Bureau figures.

But as I’ve explained, by that time, a national healthcare leader like Fauci should have been aware of the big problem with the hospitalization data in general – they rarely distinguished between patients who were hospitalized because of the virus, and patients hospitalized for other reasons who happened to test positive for the pathogen once admitted. In other words, many “Covid-related hospitalizations” have had nothing to do with Covid.

Here’s how one expert has explained the problem:

“[I]f you look at the children are hospitalized many of them are hospitalized with COVID as opposed to because of COVID. What we mean by that is that if a child goes in the hospital they automatically get tested for COVID and they get counted as a COVID hospitalized individual, when in fact they may go in for a broken leg or appendicitis or something like that.”

“So it’s over counting the number of children who are ‘hospitalized’ with COVID as opposed to because of COVID.”

This expert’s name? Anthony Fauci. But he didn’t make the admission until last week – when total national “Covid-related hospitalizations” for kids still numbered in the low hundreds.

Yet bizarrely, Fauci still favors vaccination for this highly secure demographic cohort, in line with the equally bizarre authorization from the U.S. Food and Drug Administration (FDA) and recommendation from the CDC.  And this even though the jabs for five-to-fifteen years olds are approved only on an “emergency basis”; even though the evidence used seems to consist of a single trial of some 3,100 children; and even though – unlike far more vulnerable older Americans – these vaccine recipients will mostly have many decades from now for any side effects to emerge.

So on the grounds of spreading virus misinformation alone, Fauci should be gone.

Speaking of pediatric hospitalizations and misinformation, it’s also time to sack new New York State Health Commissioner Mary T. Bassett as well. Also last Monday, touting the imperative of pediatric vaccinations, she declared, “Many people continue to think that children do not become infected with COVID. This is not true. Children become infected with COVID and some will become hospitalized. The vaccination coverage remains too low. We need to get child vaccinations up, particularly in the 5-to-11-year-old age group.”

At this time, New York State had recorded 184 child covid hospitalizations (out of a total under-18 population of 4.18 million, according to the latest Census Bureau data). But alarmism wasn’t the worst of Bassett’s offenses. Instead, it was this jaw-dropping admission: 

“The numbers we gave on pediatric admissions weren’t intended to make it seem that children were having an epidemic of infection. These were small numbers that we reported in our health alert. That was based on 50 hospitalizations, and I’ve now given you some larger numbers, but they’re still small numbers. It really is to motivate pediatricians and families to seek the protection of vaccination.”

Lying to the public isn’t a criminal offense – and probably shouldn’t be.  But it sure should be a firing offense. 

According to CDC Director Rochelle Walensky, who should be facing big job security questions herself due to the nation’s crying shortage of CCP Virus testing capability despite the Biden administration’s backing for sweeping vaccine mandates, her agency’s controversial decision last week on isolation for indivduals with asymptomatic cases stemmed partly from the “relatively low rates of isolation for all of this pandemic. Some science has demonstrated less than a third of people are isolating when they need to.”  Given Americans’ truth-challenged public health officials, reluctance to follow their advice and instructions is easy to understand.            

 

Im-Politic: A Phony Iceland CCP Virus Saga

Tags

CCP Virus, coronavirus, COVID 19, hospitalizations, Iceland, Im-Politic, Mainstream Media, misinformation, Reis Thebault, Washington Post, Worldometers.info, Wuhan virus

If you still doubt that the Mainstream Media are determined to uphold the CCP Virus vaccination narrative pushed by America’s public health, political, and business establishments (for starters), whatever the data say, check out the Washington Post‘s article yesterday about Iceland’s experience with vaccinations.

According to reporter Reis Thebault (and his editors), “online misinformation and conspiratorial social media posts” have portrayed the island country as a tale of vaccination failure because despite its high jab rate. Their rationale:

“Just one month after the government scrapped all covid-19 restrictions, masks, social distancing and capacity limits have returned. And U.S. authorities last week warned Americans to stay away.”

But this reasoning is bogus, Post readers are told, and in truth, “infectious-disease experts say Iceland’s outbreak actually illustrates how effective the vaccines are at preventing the virus’s most severe impacts.”

How come? Because “Many of the country’s recent infections have occurred among vaccinated people, but they’ve been overwhelmingly mild. So even as new cases multiplied, Iceland’s rates of covid-19 hospitalizations and deaths have remained low.”

And here’s the kicker: “Of the 1,300 people currently infected, just 2 percent are in the hospital. The country hasn’t recorded a virus death since late May.”

Iceland’s mortality performance is indeed impressive. As the Post‘s very convenient virus tracker shows, the United States is still suffering several hundred virus deaths per day. And that looks like proof positive that the island’s full innoculation rate of 71 percent deserves much and even most credit.

At the same time, the latest U.S. vaccination rate (50.7 percent) may not be low enough relatively speaking to account for this kind of lethality gap between the two countries. Maybe the fact that Iceland’s population is fewer than 360,000 (you read that right), which is 0.11 percent of the American total of some 330,000,000 has something to do with the difference? Not to mention high levels of U.S. demographic diversity versus Iceland’s near genetic homogeneity?

But where the Iceland success story unmistakably falls apart is on the hospitalization front. For all the alarm generated by the virus’ super-contagious Delta variant, the CCP Virus death rate remains remarkably modest – 1.69 percent of all those Americans infected, and 0.19 percent of the entire population.

That’s no doubt why hospitalization rates (reasonably) have attracted so much attention lately in the context of the vaccination debate, which has intensified because of the unexpectedly large numbers of “breakthrough” CCP Virus cases recorded among the fully innoculated. (See, e.g., here.)

As legitimately contended by champions of vaccines (and typically of vaccine mandates and passports and similar restrictions), protecting against serious illness matters crucially, too. So the very low levels of hospitalization among the vaccinated (figures which surely are pretty accurate because anyone who gets sick enough to require hospitalization is likely to seek hospitalization) argue powerfully for getting jabbed. In turn, for humanitarian reasons, they militate for supporting whatever carrots and sticks are needed to overcome hesitancy among the unvaccinated.

Of course, none of this clinches the broader case for maximum vaccination or for mandates, passports, and similar restrictions. The reasons, as I’ve previously explained, range from the unreliability of much CCP Virus-related death data to the immunity already enjoyed by those unvaccinated (either because they’re naturally virus resistant or because they’ve acquired immunity by recovering from the virus).  And don’t forget the low risk of transmission from the unvaccinated to the vaccinated (which follows inevitably from the claim that the vaccines are indeed highly effective). 

But let’s say hypothetically that none of these complications exist, and that hospitalization data really is the gold standard for success against the CCP Virus. In that case, Iceland’s record still wouldn’t look so great, especially compared to America’s. Indeed, Iceland’s hospitalization rate is actually higher today than the United States’.

Thebault’s article reports that “Of the 1,300 [Icelanders] currently infected, just 2 percent are in the hospital.” Here, however, are the U.S. data: 82,352 Americans currently hospitalized by the virus (straight from the Post’s virus tracker) out of 6,676,932 current active virus cases (from the also reliable Worldometers.info site – because the Post doesn’t seem to track current cases, as opposed to cumulative cases).

That’s a hospitalization rate of 1.23 percent. And since the way I was taught arithmetic, 1.23 percent is lower than two percent.

As indicated above, none of this means that vaccines per se are pointless.  Instead, what it does mean is that some skepticism about the jabs’ impact, and about claims that they’d soon bring back normality, is entirely justified, and that consequently, vaccine-uber-alles proponents who live in (glassily transparent) misinformation houses themselves shouldn’t be throwing stones.

Im-Politic: A Solution to the Big Tech Misinformation/Censorship Quandary

Tags

algorithmic amplification, antitrust, Big Tech, censorship, competition, Constitution, Facebook, free expression, free speech, Im-Politic, internet, journalism, Mainstream Media, misinformation, monopoly, news media, Section 230, social media, tech, Twitter

Don’t look now (a heckuva way to begin a piece of writing!), but I may have come up with one solution to the incredibly complex and just as important national dilemma over regulating how gargantuan social media platforms like Facebook and Twitter handle Americans’ speech rights.

First, let me stipulate that I’m anything but an expert on the Constitution, law and regulation of any kind (except maybe in the international trade field), or technology of any kind. But maybe I know enough to have produced a plan that’s outside-the-box enough to break the various legal and political and philosophical logjams that have left the nation with a status quo that seems to satsify no one, but that’s anchored in reality.

In addition, the thoughts below were prompted by a very stimulating panel discussion involving genuine experts in all these fields that took place this past weekend at a wide-ranging policy conference held by the Intercollegiate Studies Institute. (I spoke on a separate panel on China.) So my ideas aren’t coming from completely out of the blue.

The nub of the problem is that Americans across the political spectrum are furious with the platforms’ speech policies, but for radically different reasons. Those to the left of center blast them for posting what they view as misinformation. Their conservative counterparts claim that right-of-center views are too often censored – typically because they’re bogusly accused of spreading misinformation.

All sides seem to agree that the platforms’ practices matter greatly because, due largely to their algorithmic amplification powers, they have such power to turn material viral that they’ve achieved the massive scale needed to become a leading  – and often the leading – way in which Americans receive news, opinion, and other forms of information that affect politics and public policy. But towering obstacles stand in the way of pretty much every proposal for reform advanced so far.

For example, their status as private companies would appear to block any move to empower government to influence their speech practices. Antitrust specialists disagree strongly as to whether they’re now monopolistic or oligopolistic enough under current or even proposed legal standards to warrant breaking up. The companies themselves of course deny any such allegations, and contend that if they needed to downsize, they wouldn’t be able to compete effectively around the world with foreign counterparts – especially those from China. Some have proposed turning them into public utilities, but opponents call that a great way to stifle any further innovation.

So here’s my idea: Turn the platforms into a new type of entity that would be subject to a new body of regulation reflecting both the distinctive importance of free expression in American life and the distinctive (and indeed predominant) role that the platforms now play in enabling individuals and organizations both to disseminate material, and (stemming from an aspect of free expression rights that’s often overlooked, but that’s now unquestionably vulnerable due to the main platforms’ sheer scale and reach) to reach their potential audiences. One possible name: Electronic Speech Companies (ESCs).

As history demonstrates, there’s nothing unusual about the federal government organizing private business into different categories for tax purposes, and there’s nothing unusual about government at any level regulating such businesses with an unusually heavy hand because of their outsized role in providing vital goods and services. That should be clear from the long-established policy of creating utilities. So I don’t see any Constitutional problems with my idea.

I agree that government’s price-setting authority over utilities can stymie innovation. But ensuring that these entities don’t curb free expression any more than (legally) necessary (see below) wouldn’t require creating such authority. I’d permit these ESCs to charge whatever they want for their services and to make money however they like (including selling users’ personal information – which does raise problems of its own, but which are unrelated to the speech issue). As currently required by the controversial Section 230 provision of the Communication Decency Act of 1996, they wouldn’t be able to disseminate any content that’s already illegal under federal criminal law, intellectual property law, electronic communications privacy law, or (most recently) criminal and civil sex trafficking law.

I’d also make them subject to current libel law – which means that plaintiffs would need to prove that false and defamatory information had been spread maliciously and knowingly. Could this rule mean that now-incredibly clogged U.S. courts would become more incredibly clogged? Sure. So let’s also set up a separate court system to handle such cases. Since a dedicated tax court system already exists, why not?

Frivolous suits could be reduced with “loser pays” requirements for court costs. The Big Tech defendants would doubtless still hold a huge advantage by being able to hire the very best legal minds and driving those costs up by dragging out proceedings. But a number of legal non-profits have emerged over the years to help the little guys and gals in these situations, so maybe at least the potentially most important and promising suits wouldn’t be deterred by financial considerations.

What the ESCs wouldn’t be permitted to do is bar or delete or modify any content, or any users, on misinformation grounds. Advocates of continuing to permit and even further encourage or require such practices argue that the platforms’ vast scale requires greater discretionary and often required authority along these lines in the name of any number of good causes – election integrity, public safety, national security, etc. (See, e.g., here.)

But three counter-arguments are more persuasive to me. First, I can’t imagine developing any legal definition of misinformation (as opposed to libel or other well-established Constitutional speech curbs) that would be genuinely neutral substantively and that therefore wouldn’t be easy to abuse massively – and to the great detriment of our democracy’s health, due to the platforms’ scale.

Second, that’s no doubt why such regulations have absolutely no precedent in U.S. history, despite past periods and instances of intolerance dating from the passage of the Alien and Sedition Acts of 1798.

Third, if the ESCs are going to be held liable for disseminating etc misinformation, what excuse will there be to maintain protection for the rest of the news media? I’ve spent much of my multi-decade career in policy analysis finding instances that would unmistakably qualify. Not that ongoing and arguably worsening conventional media irresponsibility is any cause for complacency. But would a government remedy for such an intrinsically nebulous offense really result in a net improvement?

Individual victims of ESC censorship would, however, need remedies for these forms of cancellation, and as with libel and slander, a special court system could handle accusations, using the aforementioned provisions aimed at leveling the legal costs playing field. The Justice Department could file its own suits, too, and some seem likely if only because its own inevitable political sympathies are bound to shift as power in Washington changes hands over time. This prospect, moreover, should help keep the ESCs on their best behavior.

The big danger of my proposal, of course, is that misinformation would keep appearing and metastasizing online, and spreading like wildfire offline due to the ESCs’ extraordinary reach. That can’t be a healthy development. But it’s surely an unavoidable development for anyone valuing any meaningful version of free expression and its crucial corollary – the marketplace of ideas. For empowering a handful of immense ESCs to restrict misinformation threatens to narrow greatly and even fatally the competitive essence of this marketplace.

Throughout U.S. history, Americans have relied on these dynamics, and the common sense of the public, to crown as winners the best ideas and the benefits they bring, and declare as losers those that have either caused or threatened serious dangers. Is anyone out there prepared to deny seriously that the results, though imperfect, have been historically excellent, that the potential for improvement remains just as impressive, or that any alternative yet proposed looks superior? If not, then I hope you’ll consider this ESC plan at least a promising framework for ensuring that these digital giants don’t become the ultimate arbiters.

Im-Politic: How Social Media Could Really Fight Misinformation

Tags

censorship, Facebook, Fox News, Im-Politic, journalism, Mainstream Media, media bias, misinformation, NBC News, social media, The New York Times, The Washington Post, Twitter

During the last three weeks alone, major national news organizations have issued important corrections admitting that they’ve gotten two front-page stories completely wrong, and another has been caught red-handed in a comparably important misstep.

Contrary to two New York Times reports, the Biden administration has confirmed that there was never any credible intelligence indicating that Russia was paying Taliban-linked militants in Afghanistan bounties for killing American soldiers – and therefore no good reason for former President Trump to raise the issue with Russian officials. Contrary to claims in the Times, the Washington Post, and NBC News, the FBI never warned former New York City Mayor and Trump personal lawyer Rudy Giuliani that he was being “targeted” (i.e., “used”) in a Russian misinformation campaign. And contrary to Fox News, the Biden administration has no plans to require Americans to reduce their consumption of red meat sharply.

And it’s not like these are the only badly dropped balls by such news organizations in recent years – or even close. Moreover, since there are no evident penalties for such incompetence or bias (or both), there’s no reason to suppose that the media’s performance will impove significantly. Indeed, it’s clear that the most troubling kinds of “Who guards the guardians?” questions are being raised by these incidents, since it’s the news organizations themselves who – sensibly – are supposed to serve as our democracy’s watchdogs over its other main instit utions. Unless you want any government agencies, at any level, stepping in to play this role?

But perhaps not all hope is lost – at least in principle. For there are powerful actors in America who have tried to stop the spread of misinformation: Facebook and Twitter. As widely known, they’ve taken it on themselves to identify cases of misinformation, label them for users, and on a regular basis punish the perps by limiting their access to their enormous and influential platforms. Why can’t they apply the same policies and practices to journalists and even entire news organizations that admit major mistakes, or whose mistakes have been admitted by politicians or others who have made or benefited from consequent allegations?

Any number of criticisms can be made about how these social media giants currently go about fighting misinformation, ranging from their questionable expertise on subjects they rule on, to the biases they bring to these exercises, to the broader matter of whether most of the transgressions they’ve spotlighted are misinformation at all – as opposed to expressions of opinion or interpretations or analyses of events or data that are completely legitimate.

But when it comes to journalistic retractions or corrections, none of these problems should arise – because the error has already been acknowledged. Similarly, it should be easy for such technologically advanced companies to track and tag repeat offenders, whether individuals or entire organizations, with contemporary versions of (truly deserved) Scarlet Letters.

Equally easy should be justifying suspending them or kicking them off for good if they don’t mend their ways. Indeed, it would be a valuable service to the reading, viewing, and listening public, and because the use of social media is so crucial to news organizations’ business models, would create powerful incentives for journalists to use anonymous sources in particular much more responsibly.

Ideally, in a free market system, quality news would eventually and consistently prevail over the alternative by customers rewarding the good performers with bigger audiences that fattened their bottom lines, and penalizing the bad performers by tuning them out. But for whatever reason or combination of reasons (like growing partisanship or more general political polarization, and the resulting tendency of news consumers to follow only ideologically congenial news outlets), it’s not happening. And when news organizations do report on their industry critically, they rarely shine the spotlight on themselves – and wind up in “Coke versus Pepsi”-like dogfights, or thinly disguised ideological vendettas.

Since in theory, anyway (yes, I keep using this kind of qualification), the social media companies aren’t competing directly with either legacy or on-line news organizations, their misinformation monitoring needn’t be so self-interested. And if they stuck to calling out admitted corrections and retractions or other unmistakably debunked scoops, they’d steer clear of any genuine controversy.

Maybe just as important: If Facebook and Twitter won’t reorient their content policing to focus on or even simply add this relatively simple task, everyone will be entitled to wonder whether their main concern all along has been fighting misinformation, or simply the kinds they don’t like.