E87 -

The power to regulate content moderation is the power to destroy.

Hosts
Paul Matzko
Tech & Innovation Editor
Guests

John Samples directs Cato’s Center for Representative Government, which studies campaign finance regulation, delegation of legislative authority, term limits, and the political culture of limited government and the civic virtues necessary for liberty. He is an adjunct professor at Johns Hopkins University. Samples is the author of The Struggle to Limit Government: A Modern Political History and The Fallacy of Campaign Finance Reform. Prior to joining Cato, Samples served eight years as director of Georgetown University Press, and before that, as vice president of the Twentieth Century Fund. He has published scholarly articles in Society, History of Political Thought, and Telos. Samples has also been featured in mainstream publications like USA Today, the New York Times, and the Los Angeles Times. He has appeared on NPR, Fox News Channel, and MSNBC. Samples received his Ph.D. in political science from Rutgers University.

There’s growing, bi‐​partisan support for government regulation of the internet. The Left wants to censor hate speech while the Right wants to prevent platforms from downvoting conservative speech. Both approaches are filled with free speech landmines. And even a cursory look at the history of government regulation of mass media shows just how even the most well‐​intended government action can easily turn into suppression of political dissent, regulatory capture, and gross violation of civil liberties. John Samples, from Facebook’s independent oversight board, joins the show again to discuss a paper he co‐​wrote with host Paul Matzko about several of those sordid episodes and the lessons we should have already learned.

Transcript

00:04 Paul Matkzo: Welcome to Building Tomorrow, a podcast about how we can create a freer, fairer and more prosperous future. There are people on both sides of the political spectrum who feel like online discourse is out of control. For those on the left, they see examples of people hiding behind a shield of digital anonymity to troll women, use hate speech and doxx critics.

00:26 Paul Matkzo: For those on the political right, they worry the internet platforms like Twitter, Facebook, Google, that they’re censoring conservatives, downgrading right‐​wing voices in search results, newsfeed algorithms, and even shadow banning their accounts.

00:41 Paul Matkzo: Now, these impulses are mirror opposites in one sense. The left is worried that the internet as currently constructed is allowing too much of bad kinds of speech. The right is worried that it tolerates too little of the right kinds of speech. But both perspectives share the core idea that it is time for the government to step in and do something about it. Up until now, the internet has been the free‐​est, most unregulated communications medium probably in human history for the last half century or so but there are now calls from both sides of the aisle for the government to take a stronger hand with the internet.

01:19 Paul Matkzo: If you’re a fan of this podcast, you’ve heard me talk before about my research into the history of broadcast regulation in the 1960s and ‘70s. And some of the new proposals for the regulation of the internet, they bear an uncanny resemblance through the ways we once regulated television and radio. That includes a set of rules known as the Fairness Doctrine that were intended to promote free speech but which ended up being weaponized to censor political dissent by presidents from both political parties. Whoopsies. But now it looks increasingly like our policy makers who are ignorant of their past and arrogant in their belief that they can micro‐​manage a better, fairer internet, may make some of the same avoidable mistakes all over again.

02:03 Paul Matkzo: My guest today is John Samples, who you’ll remember from two episodes ago when we discussed his role on Facebook’s independent Oversight Board. But before all of that John and I co‐​wrote a paper for the Knight First Amendment Institute at Columbia University last year, last fall. It was a cautionary tale about what could go wrong if a new generation of techno‐​progressives and conservative populists try to engineer the internet in similar ways to how their ancestors attempted to fix broadcasting.

02:36 Paul Matkzo: So John, when we were writing this paper, from your perspective, what was it that we were trying to warn the readers about? I mean, this is both the folks at the Knight Institute, the people attending the conference, and anyone who happened to read the paper. What was it we were trying to caution them?

03:00 John Samples: Well, I felt there was… And I know, I believe you shared this view which was we… You and I had worked on different parts in different aspects of the history of the Federal Communications Commission and that was a part of the government that I think the Supreme Court and the government had unwisely decided to exempt in some measure from the First Amendment. So you had essentially a classic licensing regime for broadcasters. And my concern going in was that the Fairness Doctrine, which had governed, and there were other kinds of policy doctrines, that governs podcasting speech for decades, had proven itself to be a potent way to limit and [04:00] ____ speech in what was a much more important now then, than it is now, which is broadcasting.

04:10 John Samples: And so what I saw was that this history as we got into the dynamics of the internet and social media, this history, it was being forgotten. I mean, the Fairness Doctrine had been done away with over 30 years ago or so, and before that it didn’t really emerge for more than a decade. So, it seemed to me the people who are talking about the public square and public oversight of these platforms, social media platforms, hadn’t taken into consideration the history we had and that that history showed that was very difficult for elected officials to stay away and particularly, the Kennedy, Johnson and Nixon era, which raised real questions both overtly and then behind the scenes, to what extent was coverage of an administration shaped by the fact that these network affiliates had to be licensed? Attempts to use that licensing process to affect news judgement, editorial decisions at CBS News, for example.

05:30 John Samples: So all of that seemed to me to be, hold great lessons for talking about public oversight of platforms, and I thought it wasn’t being talked about enough. People were very… All too optimistic about the benevolence of this kind of regulation.

05:49 Paul Matkzo: I’m reminded, almost all of the moments that we describe, including the Fairness Doctrine itself, most of them were well‐​intentioned. I mean, the people who wrote the Fairness Doctrine into administrative law, who enacted it, and depending on what you look at it’s either 1949, 1959. Their intentions were good, and the abuses of those rules, I mean the intentions of the folks who were responsible for abusing the Fairness Doctrine to suppress right wing radio in the ‘60s, there are two different sets of people.

06:27 Paul Matkzo: And I was reminded that at the… When we went to the conference where there were… It was… A lot of the folks at the conference were in favor of using anti‐​trust to crack down on a number of problems they saw in big tech and on social media platforms, problems of everything from hate speech to excessive monopoly power and everything in between or the decline of local journalism and so on. And I kept thinking to myself, there’s a gap here between what these very well‐​intentioned people want to see happen, the methods they’re gonna use, and what might possibly happen, the unintended maleficent potential consequences of these actions.

07:12 Paul Matkzo: And it did feel like we’re not learning anything. We’ve tried this in the past with the best of intentions and it went horribly awry and had terrible complications, terrible consequences for free speech and civil liberties, and we’re at risk of doing that again today with the internet. So I think I share that sense of, “Woah.” I know it’s only 40 years ago that we formally ended the Fairness Doctrine but it’s not that long. We should be able to remember… Are our memories really that bad?

07:45 Paul Matkzo: Now, one of the complications, too, as we wrote the paper and then discussed it is, all the definitions are very slippery, and so people will use the same word and mean something very different by it. One of those things is public interest. All of us agree that everything the government does should be to pursue the public interest, just what’s good for the people, what’s good for the general public. But that word means something very different in broadcasting regulation.

08:18 Paul Matkzo: Or, I think another good example that I’ll ask you to speak to is, what we mean when we talk about the First Amendment and free speech. And in the paper, you actually… One of the sections you wrote was, what is… About First Amendment collectivism, kind of positive First Amendment versus a negative vision of the First Amendment. And so it uses the same words, First Amendment, free speech, but means something radically different. Why don’t you unpack that for our listeners?

08:48 John Samples: Yeah, that’s a… First of all, I didn’t make that term up, because even today in America, the idea of collectivism is, generally speaking, not a word that adds lustre to a concept. You call something collectivist because you’re not supporting it for sure. But it actually was a term that was used by a scholar now, who has written in this last couple of years about this. And essentially, it means that the… In his position, he’s not saying that media or the internet companies should be owned by the government, directed by it, that’s not… One idea of collectivism, but that’s not what he was saying.

09:35 John Samples: I think generally what he was saying was that he wanted there to be somewhat modest interventions to try to make the speech and the way people express themselves serve some general interest. And so for the same writer, and for many others, the idea of the public interest is an attractive standard because, after all, people want, generally speaking, policy that will ultimately be, if it’s going to be made about the public interest, you don’t really find too many people arguing for policies made in the private interest. But I think about a situation that was very controversial, and remains controversial, when this notion of public interest came up, which was the 2004 election campaign, and there was a group that made a video about John Kerry’s service in Vietnam and…

10:46 Paul Matkzo: Swift Boats, right?

10:48 John Samples: Yep, the Swift Boat, the Swift Boat’s danger of slipping into history, I guess. But the Swift Boat, he had been a commander and so on, and it was a very harsh critique of his conduct. And a large… No, even larger television network called Sinclair Network that it was… It had licenses at the time and those licenses were its most important asset. Without those licenses, the value of that company plummeted and it depended on the Federal Communications Commission to approve those licenses. And so there they said they were gonna show the Swift Boat video in itself, and then I think maybe have a wide‐​ranging conversation afterwards, was the initial proposal. Well, there was a gigantic blow‐​up. And I remember one senator saying something like, they should not be allowed to show that video, that they operate with a license, and they have to use the broadcasting spectrum in the public interest. So her assumption was that showing this was not in the public interest, that it represented, I don’t know what, partisan or other interests.

12:12 John Samples: But in… You know, implicitly, she was also saying if these companies’ affiliates use Sinclair, you have out there, they’re nice little affiliates, it’s a shame if something happened to them because they’re not serving the public interest. And in fact, if that were so, that was grounds for taking a license away. Well, Sinclair did as expected, which was first of all… The first back‐​down was changing it, bringing on more kinds of discussion, and one thing and another, and then finally just went away. They really couldn’t take that risk. And so, I think our point in the paper and history suggests is that this notion of public interest is very attractive, and notions like the Fairness Doctrine suggest, oh, we’ll have a better public debate, right? But the reality is quite something else. And you know, even that senator, when she evoked that idea, it’s at least plausible that in her mind, she saw this as a violation of the public interest. But it looked more like just a threat, and it kind of gained leverage over expression that needed to be heard whether or not she agreed with it, so…

13:34 Paul Matkzo: I think… Well, you made this point we ended up taking out of a later version of the draft of our paper, but in the early draft, this I think applies quite broadly, that when we appeal to the public interest to suppress certain forms of speech and to encourage other forms of speech, and that’s kind of that First Amendment collectivism idea, that government should put the thumb on the scale to make sure, not just that all voices have an opportunity to be heard, but that all voices have a right to be heard, they will be heard. And for that to happen, the government has to put a thumb on the scale. That’s the kind of idea there.

14:17 Paul Matkzo: But that when the state pursues that, it really ends up buttressing, helping those who already have power, that it gives power to incumbents, it gives power to those who have political connections, because they’re the ones who can… They’re the ones who have the ears of a senator. They are the ones who have pull with the political class. And I think you made the observation in earlier drafts of our paper about campaign finance was the same way, that there was an early effort by Congress to control the amount of spending on television ads in 1968, in the late ‘60s and early ‘70s, because it was helping political outsiders get a hearing, people like Eugene McCarthy, who was a very, for the time, radical anti‐​war Democrat, and people like George Wallace, who was a radical populist racist challenging from the right.

15:24 Paul Matkzo: So, both radical left and radical right were getting a hearing ’cause they could spend lots of money on targeted television ads in particular states, and sitting members of Congress didn’t like that, and now… Of course, I’m sure in their heads, they thought they were defending the public interest, but the reality was they were securing their own political power, because if you remove the ability to do that, it suppresses outsiders, people on the political margins, and rewards incumbents and those who already have power. I think that applies quite broadly to campaign finance, to broadcasting, to potentially social media and the internet.

16:02 John Samples: Well, that’s why I think… First of all, these kinds of arguments that touch on speech and particularly, money and speech and other [16:15] ____, that they don’t… People don’t come out and say, “Look, this makes it less likely that I’ll be reelected,” or they don’t say, “Well, it’s just some crazy challenges that say kinds of lies about them.” They don’t say things like that. They talk about the dangers of money in politics, and here’s the concern I would have in our current situation, it is true what Mark Zuckerberg says about ads on Facebook. They really do offer a chance for unknown causes for… Look at the ad you mentioned, we hadn’t heard of that group, the ad that was asking me to do this or that. We hadn’t heard of that group.

17:00 Paul Matkzo: Technicalability or whatever. Never heard of them, right, yeah.

17:02 John Samples: Yeah, yeah, they came out of… They didn’t have to raise a great deal of money, actually, to have those ads. They had their say on that issue. And then they would have the challengers online, what he says it’s correct. This ad policy is one that… Ads matter on social media, not just Facebook. So, when people start talking about what should the ads say and all of that kind of stuff, you can see why that’s attractive to people. Some of those specifics we’ve heard about. Some of the ads, strangely, contain things that are not true or said to not be true and so on. But people get around to it. The issue is, what is the ad, the conditions of the ad, all that kind of stuff. That’s what people are concerned about, speech.

18:00 John Samples: And I think elected officials are too, in part because they think it’s unfair, not in the public interest or whatever. The general rule, I think… And Jon Haidt’s first book is really important on this, about exactly what people say. We tend to think of why people have interest and then they just all… This is the interest I’m concerned about, and now I’m going to make up some rationales to pursue that interest, so I’m afraid of the challenger in his ads, so I’m gonna talk about money in politics being bad. It’s not really like that. What Haidt’s work shows is that people so quickly… They have these kinds of fundamental interest and fundamental desires, and they very quickly, without even noticing it, are coming up with rationalizations about why their way needs to be the way.

18:55 John Samples: And so, these are not… In the sense, we’re not… Any of us is culpable in some respects, in the sense that that’s the way the human brain is built. And so, the people who are talking about the public interest haven’t gone through some process where they’re very crudely and kind of cynically making up justifications for something else they believe. It’s just that it’s all… Together, the rest of us, the role of free speech there is to say, “Look, humans are flawed in certain ways. Should we really let elected officials, who have a tremendous advantage anyway, should we let them have some leverage over the content of ads or the spending on ads or ads on the platform?” We won’t have to explain that they’re evil.

19:42 Paul Matkzo: Yeah, there’s that temptation to essentialize… It’s part of party polarization, and well, human nature is that the other side can’t just be wrong, they have to be maniacally evil. So, I tend to think that when it comes to proposals like these, they’re well‐​intentioned, and we just often think, “Hey, hey, maybe consider this whole body of public choice theory before you go about assuming that the government bureaucrats who empower will always look out for the best interests of the citizenry.” It’s unintended consequences, maybe a little bit of naivety rather than the maleficent intent, though, that sometimes exists too, I suppose.

[laughter]

20:27 John Samples: That sometimes exists, we don’t want to conflate it. I think the more experience you have, the more knowledge people have over time of what, that could come into play more, but certainly a lot of people that make the arguments are not trying to manipulate things.

20:49 Paul Matkzo: It’s like this: Some of this is the problem of we’re dealing with relatively new mass media forms that are still growing and maturing, and I think it takes time for folks, for the general public and for policy makers, to realize just how complicated any of these things are. It might sound simple, if you get in a conversation on Twitter about content moderation, they’ll say, “Well, of course, the government should step in and prevent Facebook from airing lies.” If Donald Trump or another political candidate from whatever party, if people lie in their political ads, Facebook should step in and stop the lies. That sounds good on the surface, but determining what’s a lie and what isn’t a lie is very, very complicated and gets very messy very quickly.

21:46 Paul Matkzo: To some extent, the truth is in the eye of the beholder. Not always, but a lot of times, is this political… Is such‐​and‐​such a politician, are they a liar? In a sense, you make a political campaign ad accusing the other politician of being a liar. Well, what’s the difference between them lying versus being mistaken, versus making a statement in the past that they’ve updated since. All those things, you could consider them a lie from one angle or an honest mistake from another, and you’re then asking a third party to step in and decide, Yes/​No, A/B test is this a lie or not? It’s an immensely complicated question, and it’s not a thing that we want even a social media company to be engaged in deciding, let alone a panel of government bureaucrats. There’s a reason why we suspicious of, we don’t say, “freedom of speech except for lies.” We do have slander and the like.

22:57 John Samples: A lot of people do believe or are sometimes surprised to find on both sides, all sides of the political spectrum, are surprised to find that telling falsehoods under certain political speech is really protected. I do think we’re also in a new, and I’ve been thinking about this more and more, a new situation that actually makes all of this tougher. I’m speaking of the social media platforms, and as we said, and it’s generally known, I think, that the platforms don’t have to enforce the First Amendment. They’re not covered by the First Amendment; they’re not required to observe it.

23:41 John Samples: Now, in the general world, the public forum, the world of political speech outside the platforms, we have 100 years of doctrine about First Amendment speech, about incitement, about defamation, and also about falsehoods, telling falsehoods in political life. We’ve gone through a lot of different things. We’ve had periods where incitement to violence justified really shutting down a political party and so on. We’ve made mistakes as a collective, I think, and the court has learned from those. And plus, there’s precedent and these things are… The court has, still has a fairly high reputation, so we don’t have to have an argument every time about where the incitement rule falls and so on, about calls to it and so on, because it’s in that court system and it’s pretty settled.

24:40 John Samples: But the platforms are not underneath the courts in that sense, in the First Amendment sense, and I think there’s a good and some potentially bad thing about that. The good thing is that the First Amendment ideas that we always had about where the line should be drawn and the value of free speech and so on, all of that has to be redone from the bottom up. We have to make the actual arguments. We’re like John Stuart Mill, we have to know what our argument is, we have to know what the arguments against it are, and we have to persuade people, because the policy makers and the people trying to influence them are not required to follow what the court says. We have to actually make that argument and persuade them and win that argument without the help of tradition, the help of the constitutional text and so on.

25:39 John Samples: So that’s a good thing. A potentially bad thing is that we won’t win that argument. It’s possible that we won’t and that we’ll end up with something less than is possible or is valuable for the country. I think that’s, I hope that’s unlikely, it could happen, but I also think in the long run for a country like the United States, that that’s probably not going to be… Mistakes will show up and people will recognize them, and the story could be good initially, or bad and then good, but it’s gonna be good in the end, because the way the culture is, the way the country is, and the way, the power of the arguments, ultimately. I think it’s ultimately rooted in the idea, that if I wanna speak out, I have to tolerate you speaking out about things I don’t wanna hear and don’t like and think of that.

26:32 John Samples: But we’ve got to win that again. But again, it’s a good thing because maybe we got, because we had Roberts, or we had William J. Brennan or whomever, Bill Douglas, or whomever, was always there and they had these works, Oliver Wendell Holmes, and they could talk about Brandeis and Whitney could be quoted and all that stuff. Maybe that’s kind of a complacency that’s been introduced and now we’re called forth to say, we’ve got to really make these arguments, and it really matters. I think that’s a kind of invigorating thing that will help free speech in the long run.

27:11 Paul Matkzo: But it’s… It’s the optimistic take and I… It makes sense that every generation… We talk about this in other avenues, that every generation has a commitment to rediscover the importance of blank, whether it’s the importance of, I don’t know, patriotic sacrifice or the importance of whatever it may be, that… What’s the old saying, you have to refresh the tree of liberty, right wing people… Alt right people like to say this a lot in a disturbing way, but the idea that you had to shed blood every generation to preserve and protect American liberty.

27:52 Paul Matkzo: But that sense applies to issues of civil liberties and free speech as well, which is, we do… You can only pass on a certain… You can pass on the expectation of liberty, but you can’t pass on a robust sense of why it’s important. And so I think every generation does have to relearn some of these lessons and, when you get a new media form, it’s not clear whether the freedoms and protections that have been fought for, struggled for in other forms, in other forums will apply to that new form. And we saw this, actually, I was thinking as we were talking about radio.

28:41 Paul Matkzo: So, one of the things that’s interesting is as mass commercial radio becomes a thing in the 1920s and ‘30s, that, it’s at the same moment as newspapers are actually pushing for greater First Amendment protections, free speech and press rights. Radio is this new thing that people are like, “Well, it’s different than newspapers.” They had this thing called the scarcity principle, where they said that there’s no theoretical limit to the number of newspapers there can be, but there is a theoretical limit to the number of radio stations that can be licensed.

29:19 Paul Matkzo: And so because of that, and some of that was an ex post facto justification, but because of that they said the news freedoms and protections that are being won for the press and for print media, we’re not going to apply them to radio, and they’re actually key decisions. For those who are lawyers, they’ll know Near v. Minnesota, which banned prior restraint on newspaper publishing. While at the same time or within a year of Near v. Minnesota, Trinity United Methodist v. The Federal Radio Commission, basically said, “No, you can do that, but for radio.” So… So you have this new media form, and the question is, are we going to apply all these protections that were fought for in an older media form? And with radio, we said, “No.”

30:06 Paul Matkzo: And there were lots of downstream ill consequences of that for people who care about civil liberties and free speech. And we’re now… Our generation, and then a later generation had to answer that with television in the 1960s, and we’ve discussed that, I think on our last episode, John. And, I know you’ve done a lot of work on that as well, where now this generation has to answer that in regards to the internet and social media. And the initial… The initial salvo in that fight was actually that the internet received far less regulation than these older media forms.

30:44 Paul Matkzo: And the internet flourished as a result. Because of some of the legislation passed in the 1990s and the jurisprudence that invalidated parts of it, and upheld parts of… This is all Communications Decency Act stuff but, in the ‘90s there were some key laws passed and key court decisions made that actually had in a sense greater freedoms and less regulation for this new thing called the internet, these new media forms. And because of that, we have the modern internet, we have modern social media, and… But now we’re returning to that question, are we going to allow… Are we going to keep those protections? Are we going to water them down for a variety of reasons? So, yeah.

31:29 John Samples: Yeah, it’s so… But it is interesting about the way the cycles of ideas, and so, the licensing system, the ownership, really, by government of the broadcasting spectrum, that’s really a ‘20s, ‘30s idea that goes forth from there. And it’s really a managerial… It’s managerial, more collectivist and seeing the government in government to regulation as impersonal and needed and in the public interest. And then you have the… That comes apart on the back side, on the Fairness Doctrine and so on during a liberalizing period in the late ‘70s really to 2000, and so, it just so happens that the internet comes about at a time of high global reform, as it were, in which the state is much more, and the economy in general, and so you have not just one party or one person, like the president driving forth, the Section 230 legislation, you end up with people who are actually concerned about economics and from both parties.

32:36 John Samples: You have a bipartisan supporters for that to create a space that will be friendly to speech and to business success on the internet and to develop the internet. We’re going from that period, we may now well be living in a period and it was more skeptical for the Obama period or before, about those kinds of things and so we’ve switched, so we went from regulation to deregulation from ‘20s to ‘80s, and then from ‘90s, internet comes in, the deregulation period, and now we’ve got to see the extent to which a more regulatory‐​friendly atmosphere leads to changes in the internet.

33:19 John Samples: I really… I think maybe the hopeful thing to say there is, with the FCC and the Fairness Doctrine they had to actually… Both parties had to come to understand that they could hurt each other with it, and so they didn’t want it for that reason, the damage done. The hopeful thing for us is that it’s… Now, the presumption is on the side, the thing that is dug in is the liberal position, a position that government is hands‐​off and you have to overcome that, and so that’s at least a harder argument to overcome… It’s an easier position for liberty than trying to overcome the FCC and its micro‐​management of broadcasting.

34:09 Paul Matkzo: Well, there is that… It is kind of the same odd phenomenon with immigration policy, where if you go back 15 years ago, the liberal, the liberty loving, I guess, position on immigration was more on the right than on the left, where you had the opposition from labor unions, left wing hard hats. Bernie Sanders was a key opponent to immigration reform in 2007, but because Trump is so uniquely unpopular with the left, anything Trump supports has become toxic on the left, and so to the point where since Trump is opposed to immigration liberalization, he’s a nativist in his immigration policy, it has made what was once kind of a left‐​wing hard hat orthodoxy toxic to the point where former opponents, left wing opponents of immigration are now for at least limited immigration liberalization and Bernie Sanders is a key example, ’cause he spanned that whole time period.

35:16 Paul Matkzo: We see the same thing, possibly to some extent happening with calls for internet regulation back during the second Bush administration and the Obama administration, you’d get these periodic calls for a revived Fairness Doctrine or some kind of new style public interest regulation of the internet periodically coming from the Democratic Party, coming from the left. That’s all kind of quieted down because now they realize the Trump administration, if there was a Fairness Doctrine today that the Trump administration could use and weaponize, I’m not sure anyone on the left would feel comfortable with having given that power to the executive. And so, in a funny way, right‐​wing techno‐​skeptical populism has made calls for this regulation, toxic might be a strong word, but it’s, I think, put advocates, left wing advocates for internet regulation on the back foot, at least as long as Trump’s in office.

36:25 John Samples: Yeah, that is very good. Yes, I think the strongest reason to think that over the next four years, despite the fact that the incumbent president now and his opponent in the fall both want to get rid of 230 and seem fairly antagonistic to social media leadership in the Valley. Strongest reason to think that things will stay about the same is that it is not clear that the two parties can come up with legislation that they trust each other enough and the mechanisms and the institutions can be fashioned where they don’t have to trust each other too much to bring this about. Because there is also the danger that if you get the wrong legislation, you can really hurt yourself down the line in a few years, one way or the other, right, and so that kinda, it makes it an unstable situation for writing the… In this kind…

37:35 John Samples: But you also, I think, on the other side of this, want the companies to remain fairly unified against serious regulation, and so if you have a divided government, as it were, that can’t agree to the terms of the law, and the companies remain fairly united in wanting to control the platforms and so on, you’ve got a good chance of coming out with minimal kinds of changes and maybe not so terrible, but if the government’s united and the companies aren’t, watch out.

38:11 Paul Matkzo: Yeah, yeah, that’s when you get in the trouble real quickly, but it does remind me of, you mentioned it earlier, it’s that sense that, well, the Fairness Doctrine, as long as each party could visualize a way to weaponize it to their own partisan benefit, and couldn’t imagine it helping the other side, it was able to be part of the kind of political equilibrium, but as soon as both parties realized, oh wait, I can’t make this solely… The other side’s going to get a turn in power, and when they do, watch out. That comes because of Nixon. The Kennedy administration was able to weaponize the Fairness Doctrine to go after right‐​wing radio critics of his administration, and that seemed fine as long as only people like John F. Kennedy and Lyndon Johnson and center‐​left folks had that power, but then Nixon used Fairness Doctrine, the implication of Fairness Doctrine action to lean on CBS in their coverage of the Vietnam War and his conduct of the Vietnam War.

39:17 Paul Matkzo: And suddenly all these folks who had been involved in the Kennedy effort to weaponize the Fairness Doctrine said, oh wait, that’s right, the other side gets a chance too, and they really cooled on the idea, and it’s interesting ’cause you can see that, it’s something of a, I guess, a rule of how… I don’t know what we could call that law, it is a law of action, but as long as parties, their imaginations only extend to how they can use one of these rules for partisan benefit, not how the other side can, they’ll do it, but they’ll abuse that power, that regulation, they’ll engage in rent‐​seeking behavior, etcetera. But, once they realize that the shoe can fit on the other foot, they really do cool on the idea. And we’re seeing that, I think, happening now. I don’t know if that’s a hopeful take, an optimistic take, but maybe it’s the least bad case, looking at the next, say, four to eight years that both sides will hold off on the extreme internet regulation stuff.

40:23 John Samples: Well, it’s certainly… The situation seems troubling, which is that there does seem to be a great deal of antagonism among elites from both parties for the companies. However, that could be exaggerated, and it may be that the companies have strengths that aren’t being noted right now.

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40:49 Paul Matkzo: I’ll add here at the end that John and I recorded this conversation prior to the big Congressional hearing on tech and anti‐​trust. You might have watched a little bit of it live‐​streamed. It featured the CEOs of Google, Facebook, Apple and Amazon being grilled by both Republicans and Democrats, who used some of the very same talking points we discussed in this conversation. The results of the hearing were a disappointment for those who wanted decisive federal action to take big tech down a notch.

41:23 Paul Matkzo: So John was a little bit prescient when he noted the resilience of the tech companies under fire. Of course, those Congress people who put the hearings on the docket, they couldn’t have predicted the ways that public opinion towards internet platforms would shift for the better as a result of the COVID pandemic, and how tech has helped many people cope with the shut‐​downs and social distancing. The entire hearing felt out of date, a little bit out of touch.

41:50 Paul Matkzo: And as I hoped, in at least this instance, the internet hawks from both the GOP and Democratic Party, they fought with each other as much as they did the tech CEOs. They aren’t on the same page, which makes sweeping new regulation of the internet looking a little less likely in the immediate future than it did even last year. Here’s hoping that holds for quite some time. In any case, it’s pretty clear that robust free speech is alive and well in the new media ecosystem. For example, just by listening to a podcast like this, like Building Tomorrow, we have a point of view that often falls outside the norms of mainstream politics. By doing so, you’re proving that the lack of a Fairness Doctrine for the internet has in no way harmed the quantity and quality of digital speech. So with a little extra sauce on it today, let me say, thank you for listening, and until next time, be well.

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42:46 Paul Matkzo: This episode of Building Tomorrow was produced by Landry Ayres for lib​er​tar​i​an​ism​.org. If you’d like to learn more about libertarianism, check out our online encyclopedia or subscribe to one of our half dozen podcasts.