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

26 Monday Jul 2021

Posted by Alan Tonelson in Im-Politic

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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.

Those Stubborn Facts: U.S. Journalism Gets a Global Failing Grade, Too

12 Monday Jul 2021

Posted by Alan Tonelson in Those Stubborn Facts

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fake news, journalism, Mainstream Media, news, news media, Those Stubborn Facts

Number of countries examined in Reuters Institute for the Study of Journalism survey: 46

Overall level of “trust in the news”, 2021: 44 percent

Change from 2020: +8 percentage points

Level of “trust in the news” in the U.S., 2021: 29 percent

Change from 2020: None

U.S. journalism’s rank in trustworthiness: 46th

(Sources: “Executive Summary and Key Findings of the 2021 Report,” Reuters Institute Digital News Report 2021, Reuters Institute for the Study of Journalism, June, 2021, pp. 9 ff, The Reuters Institute Digital News Report 2021 (ox.ac.uk))

 

Following Up: Welcome Shrinkage of China’s Ties with U.S. News Organizations

31 Monday May 2021

Posted by Alan Tonelson in Following Up

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Boston Globe, Chicago Tribune, China, China Daily, ChinaWatch, Following Up, Houston Chronicle, journalism, Mainstream Media, news media, propaganda, The Los Angeles Times, The New York Times, The Wall Street Journal, The Washington Free Beacon, The Washington Post, transparency

Since Memorial Day is – or at least should be – a remembance and tribute to what’s best about America, it seems appropriate to report some good news: Some of the nation’s leading news organizations have cut some not-at-all-trivial ties with China.

These ties concern their decision to stop distributing with their print editions and posting on their websites a Chinese government propaganda vehicle called ChinaWatch. As I wrote more than two years ago, their decision to present ChinaWatch and the form of this presentation created two problems. First, although the Constitution’s First Amendment should authorize giving even possibly genocidal, increasingly hostile dictatorships the right to present their material in the United States, journalistic ethics and (I believe) the law should require the clear labeling of any such material as foreign government products.

I argued that neither the Chinese government nor the news organization’s carrying their material met these obligations.

Second, since ChinaWatch was paid advertising, it became a source of revenue for the news organizations that featured it, and because these news organizations covered the Chinese government, its appearance raised conflict of interest questions that at least should have – but weren’t – have been forthrightly acknowledged. Importantly, some news organizations have received millions of dollars from Beijing – not decisive sums in terms of the overall finances of some of them, but not trivial, either.

Happily, these problems have now been reduced, although not eliminated. The New York Times said about a year after my post that it had stopped accepting such material from all state-run media. According to this Tibetan dissident publication, the same goes for The Wall Street Journal. The Washington Post says it has not run or distributed ChinaWatch specifically since 2019.

Official U.S. government lobbying records show, however, that multi-million dollar relationships still exist between several major U.S. news organizations and Beijing’s propaganda machine. As reported last week by the Washington Free Beacon, over the last six months,

“China Daily [the parent organization of ChinaWatch] paid more than $1.6 million for advertising in Time magazine, the Los Angeles Times, Financial Times, and Foreign Policy magazine, according to disclosures filed with the Justice Department. The Beijing-controlled news agency paid another $1 million to American newspapers, including the L.A. Times, Chicago Tribune, and Houston Chronicle, to print copies of its own publications.”

And unlike the The New York Times, the Post, and the Journal, the Free Beacon observes,

“Many of the newspapers [still] working with China Daily face severe financial problems. The Los Angeles Times furloughed workers last year as advertising revenue cratered during the coronavirus pandemic. Papers like the Chicago Tribune and Boston Globe have failed to turn a profit for years.”

The nation’s news organizations have more than enough credibility problems these days (see, e.g., here and here). Severing all official ties with Chinese and other foreign government media, or at least making every effort to publicize them to their readers, could only help them regain some of that trust.

Im-Politic: The Mainstream Media’s Approval Ratings (Rightly) Keep Sinking

24 Thursday Dec 2020

Posted by Alan Tonelson in Im-Politic

≈ 1 Comment

Tags

Fox News, Gallup, globalism, Hunter Biden, Im-Politic, Joe Biden, journalism, Mainstream Media, media bias, MSM, news media, Sean Hannity, Trump

Some RealityChek readers have noted (and kind of griped) that I spend a lot of time here attacking the performance of the Mainstream Media (MSM) – and they’re right. This focus stems from two related reasons: First, this performance (as I’ve documented extensively*) has not only been genuinely terrible when it comes to getting facts and their obvious implications straight, but it’s been genuinely terrible in an overwhelmingly pro-globalist vein, including on trade, immigration, and foreign policy issues, and of course on the highest profile of all critics of these views – President Trump.

Second, media performance deserves attention because they’re supposed to play such a crucial watchdog role in our democratic republic. Yet their biases have been so flagrant, and even so deliberate, that these news outlets are no longer serving as a source of reliable, trustworthy information, and consequently keep weakening the foundations of accountable government.

Anyone skeptical should take a look at a new Gallup poll that tries to measure how Americans view the ethics of major occupations. I know that pollsters didn’t exactly cover themselves with glory during the last presidential election, but journalists coming in tenth of the fifteen categories mentioned has “epic fail” written all over it. The only occupations ranking lower? Lawyers, business executives, advertisers, car salesmen (apparently new and used) and Members of Congress. (They came in dead last.)

To be sure, Gallup didn’t single out MSM journalists in its survey, so reporters and editors with a less America First-y outlook, as with many (but by no means all) newspeople in conservative outlets like Fox News were undoubtedly included in the ranks of the mistrusted. But the highly skewed partisan divide reported strongly suggests that it’s the MSM (which, being mainstream, is by definition the media that reach the biggest audiences) that’s got the biggest problem.

If this wasn’t the case, why would only 28 percent of Americans considering themselves political independents give journalists “very high” ratings for ethics and honesty? (The figures for Republicans and Democrats were five percent and 48 percent, respectively.)

It would be great to think that, with Mr. Trump out of public office (if not necessarily the limelight), the MSM might recover some of its integrity. But the timid coverage of apparent president-elect Joe Biden so far, and of the worrisome foreign business dealings of his son, Hunter, don’t justify much optimism. 

As Fox News-talker Sean Hannity (not my favorite) complained during the presidential campaign, the MSM in effect put Biden into a “candidate protection program.” If this approach continues into his likely administration, the next Gallup report could show media trustworthiness sinking further – and America’s democratic republic under even greater strain.

*During my long tenure at the U.S. Business and Industry Council (USBIC), I first began going after news coverage of trade and globalization issues (as well as policy decisions and proposals) in 1997 or so in two series of reports sent around by fax called “Globalization Follies” and “Globalization Factline.” Eventually, they were all posted on the organization’s AmericanEconomicAlert.org website. But shortly after I left USBIC, in 2014, the website seemed to have gone dark, and the only decent set of surviving records is in my computer files.

Glad I Didn’t Say That! One Clueless Peacock

28 Tuesday Apr 2020

Posted by Alan Tonelson in Uncategorized

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Andy Lack, CCP Virus, coronavirus, COVID 19, Gallup, Glad I Didn't Say That!, journalism, Mainstream Media, media, MSNBC, NBC News, news media, polls, Trump, Wuhan virus

“Journalism is under attack from coronavirus and the White House. But we’re winning.”

– Andy Lack, Chairman of NBC News and MSNBC, April 27, 2020

Share of Americans approving President Trump’s coronavirus response: 60 percent

Share of Americans’ approving the news media’s coronavirus response: 44 percent

– Gallup poll, March 25, 2020

(Sources: “Journalism is under attack from coronavirus and the White House. But we’re winning,” by Andy Lack, “Self Explanatory,” Think, NBC News, April 27, 2020, https://www.nbcnews.com/think/opinion/journalism-under-attack-coronavirus-white-house-we-re-winning-ncna1192306 and “Coronavirus Response: Hospitals Rated Best, News Media Worst,” by Justin McCarthy, “Politics,” Gallup.com, March 25, 2020, https://news.gallup.com/poll/300680/coronavirus-response-hospitals-rated-best-news-media-worst.aspx)

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