A Biden Appointee's Troubling Views On The First Amendment

Columbia law professor Timothy Wu wonders if the First Amendment is "obsolete," and believes in "returning the country to the kind of media environment that prevailed in the 1950s.”

Jonathan Knee, James Ledbetter, and Timothy Wu attend a Michael Wolff book launch party in 2019.

When Columbia law professor Timothy Wu was appointed by Joe Biden to the National Economic Council a few weeks back, the press hailed it as great news for progressives. The author of The Curse of Bigness: Antitrust in the New Gilded Age is known as a staunch advocate of antitrust enforcement, and Biden’s choice of him, along with the appointment of Lina Khan to the Federal Trade Commission, was widely seen as a signal that the new administration was assembling what Wired called an “antitrust all-star team.”

“Big Tech critic Tim Wu joins Biden administration to work on competition policy,” boomed CNBC, while Marketwatch added, “Anti-Big Tech crusader reportedly poised to join Biden White House.” Chicago law professor Eric Posner’s piece for Project Syndicate was titled “Antitrust is Back in America.” Posner noted Wu’s appointment comes as Senator Amy Klobuchar has introduced regulatory legislation that ostensibly targets companies like Facebook and Google, which a House committee last year concluded have accrued “monopoly power.”

Wu’s appointment may presage tougher enforcement of tech firms. However, he has other passions that got less ink. Specifically, Wu — who introduced the concept of “net neutrality” and once explained it to Stephen Colbert on a roller coaster — is among the intellectual leaders of a growing movement in Democratic circles to scale back the First Amendment. He wrote an influential September, 2017 article called “Is the First Amendment Obsolete?” that argues traditional speech freedoms need to be rethought in the Internet/Trump era. He outlined the same ideas in a 2018 Aspen Ideas Festival speech:

Listening to Wu, who has not responded to requests for an interview, is confusing. He calls himself a “devotee” of the great Louis Brandeis, speaking with reverence about his ideas and those of other famed judicial speech champions like Learned Hand and Oliver Wendell Holmes. In the Aspen speech above, he went so far as to say about First Amendment protections that “these old opinions are so great, it’s like watching The Godfather, you can’t imagine anything could be better.”

If you hear a “but…” coming in his rhetoric, you guessed right. He does imagine something better. The Cliff’s Notes version of Wu’s thesis:

— The framers wrote the Bill of Rights in an atmosphere where speech was expensive and rare. The Internet made speech cheap, and human attention rare. Speech-hostile societies like Russia and China have already shown how to capitalize on this “cheap speech” era, eschewing censorship and bans in favor of “flooding” the Internet with pro-government propaganda.

— As a result, those who place faith in the First Amendment to solve speech dilemmas should “admit defeat” and imagine new solutions for repelling foreign propaganda, fake news, and other problems. “In some cases,” Wu writes, “this could mean that the First Amendment must broaden its own reach to encompass new techniques of speech control.” What might that look like? He writes, without irony: “I think the elected branches should be allowed, within reasonable limits, to try returning the country to the kind of media environment that prevailed in the 1950s.”

— More ominously, Wu suggests that in modern times, the government may be more of a bystander to a problem in which private platforms play the largest roles. Therefore, a potential solution (emphasis mine) “boils down to asking whether these platforms should adopt (or be forced to adopt) norms and policies traditionally associated with twentieth-century journalism.”

That last line is what should make speech advocates worry.

Wu’s appointment may not matter a lot to those concerned about constitutional freedoms because, as Stanford professor Nate Persily puts it, the current Supreme Court would be very hostile to any attempt to water down the First Amendment. “If there’s one thing that’s consistent about the Roberts court,” says Persily, “it’s very strong speech protections.”

However, there’s a paradox embedded in this new Democratic mainstream thinking about speech in the Internet era. As one activist put it to me last week, the new breed of Democratic-leaning thinkers like Wu wants to be anti-corporate and authoritarian at the same time. Their problem, however, is that in order to effect change through authoritative action, they need to enlist the aid and cooperation of corporate power.

This paradox casts even the “antitrust all-star team” narrative about people like Wu and Khan in a different light. What may begin as a sincere desire by the Biden administration (or, at least, by figures like Wu, who by all accounts is a real antitrust advocate) to break up tech monopolies, may end in negotiation and partnership.

While the liberal tradition of the party tilts toward antitrust action, the new, more authoritarian form of progressivism currently gaining traction is tempted by the power these companies wield, and instead of breaking these firms up, may be more likely to seek to appropriate their influence.

You can see this mentality in the repeated exchanges between Congress and Silicon Valley executives. An example is the celebrated October 23, 2019 questioning of Mark Zuckerberg by Alexandria Ocasio-Cortez in a House Financial Services Committee hearing. The congresswoman, as staunch a believer in the new approach to speech as there is in modern Democratic Party politics, repeatedly asks Zuckerberg questions like, “So, you won't take down lies or you will take down lies?” and “Why you label the Daily Caller, a publication well-documented with ties to white supremacists, as an official fact-checker for Facebook?”

CSPAN @cspan

"So, you won't take down lies or you will take down lies? I think that's just a pretty simple yes or no." Complete exchange between @RepAOC @AOC and Mark Zuckerberg at today's House Financial Services Cmte hearing. Full video here: cs.pn/2W2BqB2

Grasping that everyone who’s ever thought about speech issues throughout our history has been concerned with the publication of falsehoods, incitement to violence, libel, hate speech, and other problems, the issue here isn’t the what, but the who. The question isn’t whether or not you think the Daily Caller should be fact-checking, but whether you think it’s appropriate to leave Mark Zuckerberg in charge of naming anyone at all a fact-checker. AOC doesn’t seem to be upset that Zuckerberg has so much authority, but rather that he’s not using it to her liking.

A minority of activists within Democratic Party circles believes that the fundamental reason platforms like Facebook end up being what journalist Matt Stoller describes as speech “dumpster fires” has to do with the financial model of these companies.

“These are advertising monopolies who have centralized control over the discourse,” is how Stoller puts it. He published a piece for the American Economic Liberties Project recently that suggests, “A possible reform path would be to remove protections for firms that use algorithms to monetize data.” His point is that firms like Facebook are incentivized to push users of all political persuasions toward the most angering, conspiratorial, sensational content, while also discouraging exposure to alternative or debunking points of view — a primary driver of our fact-starved political dilemma.

In another piece the AELP published after January 6th, “How To Prevent the Next Social Media-Driven Attack On Democracy—and Avoid a Big Tech Censorship Regime,” the Project noted that banning Donald Trump from Twitter is ineffective even as a draconian solution, because it doesn’t alter the platforms’ basic incentive structure. Targeting the clickbait ad sales model for regulatory reform isn’t a panacea, either, but from the standpoint of traditional liberalism, breaking up surveillance advertising monopolies has to be better than partnering with said monopolies to switch out one elitist concept of speech control for another.

This is where the paradox comes in. Every time a Democratic Party-aligned politician or activist says he or she wants the tech companies to take action to prevent, say, the dissemination of fake news, one has to realize that it makes little sense for those same actors to then turn around and advocate for breakups of those same firms. Anyone genuinely interested in clamping down on “harmful” speech would consciously or unconsciously want the landscape as concentrated as possible, because an information bottleneck makes controlling unwanted speech easier.

This idea of needing a more activist conception of speech control is clear in Wu’s writing. He speaks about the First Amendment operating as a “negative right against coercive government action,” while in the modern environment, the government not only needs to secure the freedom to speak, but freedom from abuses. He posits a First Amendment that acts as a “right that obliges the government to ensure a pristine speech environment.” Because that would be difficult to accomplish in the First Amendment’s current form, he suggests “expanding the category of ‘state action’ itself to encompass the conduct of major speech platforms like Facebook or Twitter.”

This is the subtext of those constant congressional demands that tech platforms fix the “problems” of unfettered speech. We have another round of such hearings coming this week. The House Energy and Commerce Committee will be having Zuckerberg, Google’s Sundar Pichai, and Twitter CEO Jack Dorsey in to discuss, “Disinformation Nation: Social Media's Role in Promoting Extremism and Misinformation.”

The Committee’s ranking members and subcommittee chairs, Frank Pallone, Jr. of New Jersey, Mike Doyle of Pennsylvania, and Jan Schakowsky of Illinois, are adopting the now-familiar line of pushing to hold the tech firms “accountable” for their speech environments, saying congress “must begin the work of changing incentives driving social media companies to allow and even promote misinformation and disinformation.”

Do these members of congress, or thinkers like Wu, want to break up these monopolies, or harness them? To date, the answer has run decidedly in one direction. Previous congressional hearings involving tech CEOs — I’m thinking particularly of an October, 2017 hearing of the Senate Judiciary Committee in which Hawaii’s Mazie Hirono demanded that the platforms come up with plans to keep bad actors who “sow discord” from manipulating social media — already resulted in an overt partnership between Washington and Silicon Valley over “content moderation” decisions. The only question is, will that partnership become more expansive, as politicians become increasingly tempted by the power of these companies?

As Stoller puts it, the Democrats have turned the tech battle into something like a Lord of the Rings contest, where the fight ends up being over the “one ring” of speech control. Others point out that the situation for new government appointees in the Biden administraiton will be complicated by the input of the intelligence services, whose point of view on this issue is clear and absolute: they love the bottleneck power of the tech monopolies and would oppose any effort to dilute it.

Still others wonder about the wisdom of creating powerful new partnerships with Silicon Valley, given that political realities may change and another set of actors may soon be driving the content moderation machine. “It’s not like all this ends with the Biden White House,” is how Persily puts it.

Wu’s comment about “returning… to the kind of media environment that prevailed in the 1950s” is telling. This was a disastrous period in American media that not only resulted in a historically repressive atmosphere of conformity, but saw all sorts of glaring social problems covered up or de-emphasized with relative ease, from Jim Crow laws to fraudulent propaganda about communist infiltration to overthrows and assassinations in foreign countries.

The wink-wink arrangement that big media companies had with the government persisted through the early sixties, and enabled horribly destructive lies about everything from the Bay of Pigs catastrophe to the Missile Gap to go mostly unchallenged, for a simple reason: if you give someone formal or informal power to choke off lies, they themselves may now lie with impunity. It’s Whac-a-Mole: in an effort to solve one problem, you create a much bigger one elsewhere, incentivizing official deceptions.

That 1950s period is attractive to modern politicians because it was a top-down system. This was the era in which worship of rule by technocratic experts became common, when the wisdom of the “Best and the Brightest” was unchallenged. A yearning to return to those times runs through these new theories about speech, and is prevalent throughout today’s Washington, a city that seems to think everything should be run by people with graduate degrees.

Going back to a system of stewardship of the information landscape by such types isn’t a 21st-century idea. It’s a proven 20th-century failure, and signing up Silicon Valley for a journey backward in time won’t make it work any better.