The Federal Election Commission Is Bad Enough

Chris Hughes, a founder of Facebook, has proposed Congress create a new agency to “create guidelines for acceptable speech on social media.”

As Hughes notes, this proposal “may seem un-American.” That’s because it is. At the very least, Hughes’ plan contravenes the past fifty years of American constitutional jurisprudence, and the deeply held values that undergird it. Let’s examine his case for such a momentous change.

He notes that the First Amendment does not protect all speech. Child porn and stock fraud are not protected by the First Amendment. True threats as harassment are also illegal. Incitement to violence as understood by the courts can also be criminalized. All true, though more complex than he admits.

The fact that the courts have exempted some speech from First Amendment protection does not mean judges should create new categories of unprotected speech. Hughes needs to make a case for new exemptions from the First Amendment. He does not do so. Instead he calls for an agency to regulate online speech. But, barring drastic changes to First Amendment jurisprudence, his imagined agency would not have the authority to broadly regulate Americans’ speech online.

However, Hughes’ old firm, Facebook, can and does regulate speech that is protected from government restrictions. In particular, Facebook suppresses or marginalizes extreme speech (sometimes called “hate speech”), “fake news” about political questions, and the speech of foreign nationals.

Facebook is not covered by the First Amendment.  You can support or decry their decisions about such speech, but it would be “un-American” to say Facebook and other private companies do not have the power to regulate such speech on their platforms. And I might add that you can exit Facebook and speak in other forums, online and off. A federal speech agency would not be so easily avoided.

Hughes may think that Facebook is doing a poor job of regulation and that its efforts require the help of a new government agency (which would be subject to the First Amendment). But if we ended up with government speech codes imposed by private companies, the courts might well swing into action on the side of free speech. In that sense, the new agency would actually vitiate private efforts at content moderation. We might well end up with more of the online speech Hughes and other critics want to restrict.

In sum, Hughes’ agency is a bad idea in itself. It is unlikely to accomplish his goals. The agency might even weaken private efforts to limit some extreme speech. Of course, if judicial doctrines changed to accommodate new speech restrictions imposed by this new agency, America really would change for the worse. It is encouraging, however, how little support and how much criticism Hughes’ proposal has received from his fellow Progressives. (See the critiques by Ari Roberts and Daphne Keller linked here).   Conservatives should feel free to chime in.

Why Measles Making the News Is a Sign of Progress

A set of measles outbreaks in Washington state, New York City, and elsewhere, is making national headlines and frightening parents around the United States. Counter-intuitively, measles making the news is a sign of progress. Not long ago, measles was so common that it was simply not newsworthy. Suffering from the extremely infectious disease, which causes spotty rashes and a hacking cough, was widespread and often deadly.

It was once the case that even royalty fell victim to diseases now easily preventable with routine shots given during childhood. Measles killed the un-vaccinated King Kamehameha II of Hawaii, and his queen, Kamamalu, in the 1800s. A century prior to that, King Louis XIV of France lost his brother, son, grandson, and great-grandson to smallpox. Smallpox once claimed approximately 400,000 lives annually in Europe in the late 18th century, and in the 20th century, it caused hundreds of millions of deaths around the world. Thanks to vaccines, smallpox was eradicated in 1980.

As recently as the late 1950s and early 1960s, nearly twice as many children died from measles as from the polio disease. Thanks, once again, to vaccines, polio was eliminated from the United States in 1979.

Recent coverage by the Washington Post of the current measles outbreaks contains an amazing anecdote of a measles victim’s visit to a doctor: “the doctor, who had never seen measles, misdiagnosed the man’s fever and cough as bronchitis.” That measles is now so rare that even a trained medical doctor cannot recognize it, when just a generation ago it was a common childhood ailment, is truly a triumph of medical progress.

 

As recently as 1990, measles caused over 22 deaths per 100,000 people globally. Thanks to the measles vaccine and rising global vaccination rates, that figure fell to just over 1 per 100,000  people by 2016, the most recent year for which there is data. That represents a decline in measles deaths of over 95 percent.

The current uptick in measles cases is troubling. But the fact that measles cases are making the news at all is a testament to medical progress.

Armslist and Bias against Conservatives Online

Last week, conservatives once again cried “bias” after Facebook banned a spate of popular fringe pundits and conspiracy theorists. Meanwhile, the week’s most important content moderation story went, for the most part, unnoticed. Had conservatives paid more attention to the Wisconsin Supreme Court’s ruling in Daniel v. Armslist, they might feel differently about the utility of platform intermediary liability protections like Section 230 of the Communications Decency Act, a bedrock indemnity that prevents internet platforms from liability for user behavior. While usually understood merely as a shield for social media firms, it guards a wide variety of services that utilize user-generated content, such as classified advertising or individual websites’ comments sections.

Armslist is essentially a digital classified ads section for guns. Daniel, the daughter of a shooting victim, sought to hold Armslist liable for the use of its platform by her mother’s murderer. Her suit alleged that certain features of Armslist’s site were negligently designed, without regard for how they might be used by persons prohibited from buying firearms. According to the complaint, Armslist should have anticipated that its lack of user registration requirements and the ability to search for in-state, background check-free sales would be misused by patrons prohibited from possessing firearms. In most states, it is perfectly legal to privately sell a firearm to your neighbor without utilizing the services of a federally licensed dealer. The imposition of broad liability on services that help to coordinate legal activities would burden and perhaps preclude Americans’ right to sell and buy firearms, a legal activity.

The suit against Armslist represents a growing trend of attempts to circumvent CDA 230’s protections by suing platforms for features that enable certain kinds of harmful user behavior, rather than simply suing over the behavior itself. Snapchat was recently sued for the creation of a speedometer filter by plaintiffs who were struck by a Snapchat user driving at over a hundred miles an hour (the driver was speeding in pursuit of a high speedometer reading on the Snapchat app, attempting to impress her friends with her foolishness). Thankfully, in both the Snapchat case and now in Daniel v. Armslist, judges have understood that “no matter how artfully pled”, these suits attempt to hold platforms responsible for user behavior and are therefore precluded by CDA 230.

Digital classified ads services and speedometers are neutral tools. Chief Justice Patience D. Roggensack writes in Armslist: “All of these features can be used for lawful purposes, so the CDA immunizes interactive computer service providers from liability when these neutral tools are used for unlawful purposes.” So long as a given feature can be used lawfully, service providers cannot be held liable for their unlawful use: doing so would unreasonably burden lawful users of the tool in question. Just because Uber can be used to summon a getaway vehicle after a heist does not render Uber a getaway car-hailing service. Had Armslist been decided differently, or if CDA 230’s protections were to be limited or eliminated, these tools would not be commercially viable. 

The conservative claims about social media bias may lead to legislative revisions to CDA 230. Those revisions could easily restrict current CDA 230 protections for businesses like Armslist. Indeed, some on the left would see removing such protections as a goal of revising CDA 230. The Armslist decision shows that the harm done to the Second Amendment would be real and permanent. Are the speculative gains of seizing control of Facebook’s content moderation really worth the risks to the Second Amendment? Won’t this be a case of unintended consequences of the sort conservatives used to warn us about so many, many years ago?

Apple v. Pepper: A Chip Off the Old Illinois Brick?

In yesterday’s decision in Apple v. Pepper, Justice Brett Kavanaugh joined the four liberal Justices to rule that class action lawyers can sue Apple on behalf of consumers who allegedly paid uncompetitively high prices for iPhone apps, even though the consumers bought the apps not from Apple itself but from third-party developers who were paying a commission to the tech giant. The majority rejected Apple’s defense under the so-called Illinois Brick doctrine, under which only direct purchasers of a good or service, but not purchasers further down the distribution chain, can sue over monopoly pricing (everyone agrees that current law empowers the developers themselves to sue Apple for alleged monopolistic behavior). Kavanaugh, on behalf of the majority, said Apple lost the benefit of the Illinois Brick defense when it inserted itself into the supply chain as a retailer through its Apple Store, thus making itself in practice an intermediary even if it was not itself the party deciding what to charge app buyers. 

The significance of yesterday’s ruling is probably not in its proximate consequences for the iPhone supply chain, which are still uncertain (the ruling allows the plaintiffs to proceed, but doesn’t mean they’ll win). As Justice Neil Gorsuch observed in dissent, the Court’s mini-rule is “pointless and easily evaded”: 

To evade the Court’s test, all Apple must do is amend its contracts. Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers’ payments will flow the other way: directly to the developers, who will then remit commissions to Apple. No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred—and presumably more efficient—distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule.

The wider worry, as Gorsuch points out, is that the majority (significantly joined by Kavanaugh) did not merely resolve a technical puzzle about how the law’s language applies to an unusually designed supply chain, but seemed inclined along the way to adopt an ungenerous and narrow reading of Illinois Brick. And that is significant because in the overall scheme of antitrust law, Illinois Brick serves as a major check against runaway litigation (aside from its own logic, it restrains multiple and duplicative suits over the same behavior). For that reason, the antitrust plaintiff’s bar has long sought to knock down the defense. Yesterday’s outcome gives it a passing chip at most, but will bear watching as a harbinger. 

Montana Governor Bullock Is a Tax-Hiker

Montana Governor Steve Bullock is entering the Democratic race for the White House.

NPR reports that “Bullock’s more moderate positions could be problematic in a party that’s been moving more toward the left.” But Bullock’s frequent pushing for tax hikes since he entered office in 2013 puts him squarely in the Democratic fold.

Cato scores the tax and spending policies of the nation’s governors in its biennial fiscal report cards. We assign letter grades from A to F.

Bullock received a C in 2018, a C in 2016, and a D in 2014. The governor’s grades were pulled down by his support for tax increases. He advocated tax increases on individual income, gasoline, cigarettes, beer, wine, and other items. Bullock also vetoed tax reforms passed by the state legislature.

Transit Continues Its Death Spiral

Nationwide transit ridership in the first quarter of 2019 was 2.6 percent below the same quarter in 2018, according to data released by the Federal Transit Administration (FTA) last week. Transit’s most recent downward spiral began in 2014, and ridership over the twelve months prior to March 31 was 8.6 percent below the same twelve months four years ago.

Ridership is declining for all major forms of transit travel. First quarter bus ridership was 2.1 percent below 2018 while first quarter rail ridership declined by 3.2 percent. Commuter rail, light rail, heavy rail, and streetcars all lost riders.

Since transit agencies depend on fare revenues to cover part of their operating costs, declining ridership can force them to cut service or raise fares, either of which is likely to lose them more riders. This is known in the industry as the “transit death spiral,” and even major agencies such as the Bay Area Rapid Transit District (BART) are worried about it.

The FTA data show that first quarter ridership had fallen in all but twelve of the nation’s fifty largest urban areas. It even fell in Seattle, the one urban area that has, up until 2019, consistently shown ridership growth.

Ridership over the past four years has declined in every state except Washington.

Thanks to Seattle’s previous ridership growth, Washington is the only state that saw more transit riders in the year prior to April 2019 than the same period four years ago. To understand why ridership in Seattle was growing, it is first necessary to look at where ridership has declined the most.

An Encouraging Sign for Harm Reduction Advocates

A New Hampshire high school student who is remarkably knowledgeable about the various harm reduction strategies that are underused to address the overdose crisis engaged Senator Cory Booker (D-NJ) in a discussion of the subject during a campaign stop in Littleton, NH. The video of the exchange is here.

Senator Booker, who is seeking the Democratic nomination for President in 2020, is a former mayor of Newark, NJ, a city with major drug overdose problems. He had a sophisticated conversation with the student and agreed with her on the need for safe syringe programs. At about 1:50 into the video Booker was asked if he would support needle exchange programs and safe injection sites. He responded that as mayor of Newark he established the needle exchange program in that city and “fully supports” establishing safe injection sites.

As I detail in my Policy Analysis on harm reduction, both needle exchange programs and safe injection sites have been shown for decades to reduce the spread of HIV and hepatitis, reduce overdoses, and increase the number of addicts obtaining rehab. 

While needle exchange programs are legal in the US, and are even promoted by the Surgeon General, the Centers for Disease Control and Prevention, and the American Medical Association, many states have anti-paraphernalia laws that inhibit their creation.

Safe injection sites exist in over 120 cities in Europe, Canada, and Australia, and have been in use for over 30 years. One even operates in the US clandestinely, because federal law prohibits safe injection sites in this country. Several cities are attempting to establish safe injection sites in the US, including Seattle, San Francisco, Boston, and New York. In Philadelphia, a nonprofit that includes former Pennsylvania Governor Edward Rendell on its board is attempting to establish a “Safehouse” in that city, funded entirely with private money, but is being thwarted by the Department of Justice.

While the Senator seemed to wrongly accept the mistaken narrative that the opioid manufacturers are to blame for much of the problem, it is gratifying to learn that Senator Booker has an appreciation for harm reduction in general, and needle exchange and safe injection sites in particular. And, to his credit, he has also expressed enlightened views regarding cannabis legalization

As more members of Congress join the growing ranks of mayors of major US cities in endorsing safe syringe programs, momentum will hopefully build for states to remove any remaining obstacles to needle exchange programs and for Congress to remove the federal obstacles to safe injection sites.