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Over at the Federalist Society’s blog, there has been an ongoing debate about what to do about Section 230. While there has long-been variety in what we call conservatism in the United States, the most prominent strains have agreed on at least the following: Constitutionally limited government, free markets, and prudence in policy-making. You would think all of these values would be important in the Section 230 debate. It seems, however, that some are willing to throw these principles away in pursuit of a temporary political victory over perceived “Big Tech censorship.” 

Constitutionally Limited Government: Congress Shall Make No Law

The First Amendment of the United States Constitution states: “Congress shall make no law… abridging the freedom of speech.” Originalists on the Supreme Court have noted that this makes clear that the Constitution protects against state action, not private action. In other words, the Constitution protects a negative conception of free speech, not a positive conception.

Despite this, some conservatives believe that Section 230 should be about promoting First Amendment values by mandating private entities are held to the same standards as the government. 

For instance, in his Big Tech and the Whole First Amendment, Craig Parshall of the American Center for Law and Justice (ACLJ) stated:

What better example of objective free speech standards could we have than those First Amendment principles decided by justices appointed by an elected president and confirmed by elected members of the Senate, applying the ideals laid down by our Founders? I will take those over the preferences of brilliant computer engineers any day.

In other words, he thinks Section 230 should be amended to only give Big Tech the “subsidy” of immunity if it commits to a First Amendment-like editorial regime. To defend the constitutionality of such “restrictions on Big Tech”, he points to the Turner intermediate scrutiny standard, in which the Supreme Court upheld must-carry provisions against cable networks. In particular, Parshall latches on to the “bottleneck monopoly” language from the case to argue that Big Tech is similarly situated to cable providers at the time of the case.

Turner, however, turned more on the “special characteristics of the cable medium” that gave it the bottleneck power than the market power itself. As stated by the Supreme Court:

When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.

Turner v. FCC, 512 U.S. 622, 656 (1994).

None of the Big Tech companies has the comparable ability to silence competing speakers with a flick of the switch. In fact, the relationship goes the other way on the Internet. Users can (and do) use multiple Big Tech companies’ services, as well as those of competitors which are not quite as big. Users are the ones who can switch with a click or a swipe. There is no basis for treating Big Tech companies any differently than other First Amendment speakers.

Like newspapers, Big Tech companies must use their editorial discretion to determine what is displayed and where. Just like those newspapers, Big Tech has the First Amendment right to editorial discretion. This, not Section 230, is the bedrock law that gives Big Tech companies the right to remove content.

Thus, when Rachel Bovard of the Internet Accountability Project argues that the FCC should remove the ability of tech platforms to engage in viewpoint discrimination, she makes a serious error in arguing it is Section 230 that gives them the right to remove content.

Immediately upon noting that the NTIA petition seeks clarification on the relationship between (c)(1) and (c)(2), Bovard moves right to concern over the removal of content. “Unfortunately, embedded in that section [(c)(2)] is a catch-all phrase, ‘otherwise objectionable,’ that gives tech platforms discretion to censor anything that they deem ‘otherwise objectionable.’ Such broad language lends itself in practice to arbitrariness.” 

In order for CDA 230 to “give[] tech platforms discretion to censor,” they would have to not have that discretion absent CDA 230. Bovard totally misses the point of the First Amendment argument, stating:

Yet DC’s tech establishment frequently rejects this argument, choosing instead to focus on the First Amendment right of corporations to suppress whatever content they so choose, never acknowledging that these choices, when made at scale, have enormous ramifications. . . . 

But this argument intentionally sidesteps the fact that Sec. 230 is not required by the First Amendment, and that its application to tech platforms privileges their First Amendment behavior in a unique way among other kinds of media corporations. Newspapers also have a First Amendment right to publish what they choose—but they are subject to defamation and libel laws for content they write, or merely publish. Media companies also make First Amendment decisions subject to a thicket of laws and regulations that do not similarly encumber tech platforms.

There is the merest kernel of truth in the lines quoted above. Newspapers are indeed subject to defamation and libel laws for what they publish. But, as should be obvious, liability for publication entails actually publishing something. And what some conservatives are concerned about is platforms’ ability to not publish something: to take down conservative content.

It might be simpler if the First Amendment treated published speech and unpublished speech the same way. But it doesn’t. One can be liable for what one speaks, writes, or publishes on behalf of others. Indeed, even with the full protection of the First Amendment, there is no question that newspapers can be held responsible for delicts caused by content they publish. But no newspaper has ever been held responsible for anything they didn’t publish.

Free Markets: Competition as the Bulwark Against Abuses, not Regulation

Conservatives have long believed in the importance of property rights, exchange, and the power of the free market to promote economic growth. Competition is seen as the protector of the consumer, not big government regulators. In the latter half of the twentieth century into the twenty-first century, conservatives have fought for capitalism over socialism, free markets over regulation, and competition over cronyism. But in the name of combating anti-conservative bias online, they are willing to throw these principles away.

The bedrock belief in the right of property owners to decide the terms of how they want to engage with others is fundamental to American conservatism. As stated by none other than Bovard (along with co-author Jim Demint in their book Conservative: Knowing What to Keep):

Capitalism is nothing more or less than the extension of individual freedom from the political and cultural realms to the economy. Just as government isn’t supposed to tell you how to pray, or what to think, or what sports teams to follow or books to read, it’s not supposed to tell you what to do with your own money and property.

Conservatives normally believe that it is the free choices of consumers and producers in the marketplace that maximize consumer welfare, rather than the choices of politicians and bureaucrats. Competition, in other words, is what protects us from abuses in the marketplace. Again as Bovard and Demint rightly put it:

Under the free enterprise system, money is not redistributed by a central government bureau. It goes wherever people see value. Those who create value are rewarded which then signals to the rest of the economy to up their game. It’s continuous democracy.

To get around this, both Parshall and Bovard make much of the “market dominance” of tech platforms. The essays take the position that tech platforms have nearly unassailable monopoly power which makes them unaccountable. Bovard claims that “mega-corporations have as much power as the government itself—and in some ways, more power, because theirs is unchecked and unaccountable.” Parshall even connects this to antitrust law, stating:  

This brings us to another kind of innovation, one that’s hidden from the public view. It has to do with how Big Tech companies use both algorithms plus human review during content moderation. This review process has resulted in the targeting, suppression, or down-ranking of primarily conservative content. As such, this process, should it continue, should be considered a kind of suppressive “innovation” in a quasi-antitrust analysis.

How the process harms “consumer welfare” is obvious. A more competitive market could produce social media platforms designing more innovational content moderation systems that honor traditional free speech and First Amendment norms while still offering features and connectivity akin to the huge players.

Antitrust law, in theory, would be a good way to handle issues of market power and consumer harm that results from non-price effects. But it is difficult to see how antitrust could handle the issue of political bias well:

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Neither antitrust nor quasi-antitrust regimes are well-suited to dealing with the perceived harm of anti-conservative bias. However unfulfilling this is to some conservatives, competition and choice are better answers to perceived political bias than the heavy hand of government. 

Prudence: Awareness of Unintended Consequences

Another bedrock principle of conservatism is to be aware of unintended consequences when making changes to long-standing laws and policies. In regulatory matters, cost-benefit analysis is employed to evaluate whether policies are improving societal outcomes. Using economic thinking to understand the likely responses to changes in regulation is fundamental to American conservatism. Or as Bovard and Demint’s book title suggests, conservatism is about knowing what to keep. 

Bovard has argued that since conservatism is a set of principles, not a dogmatic ideology, it can be in favor of fighting against the collectivism of Big Tech companies imposing their political vision upon the world. Conservatism, in this Kirkian sense, doesn’t require particular policy solutions. But this analysis misses what has worked about Section 230 and how the very tech platforms she decries have greatly benefited society. Prudence means understanding what has worked and only changing what has worked in a way that will improve upon it.

The benefits of Section 230 immunity in promoting platforms for third-party speech are clear. It is not an overstatement to say that Section 230 contains “The Twenty-Six Words that Created the Internet.” It is important to note that Section 230 is not only available to Big Tech companies. It is available to all online platforms who host third-party speech. Any reform efforts at Section 230 must know what to keep.In a sense, Section (c)(1) of Section 230 does, indeed, provide greater protection for published content online than the First Amendment on its own would offer: it extends the First Amendment’s permissible scope of published content for which an online service cannot be held liable to include otherwise actionable third-party content.

But let’s be clear about the extent of this protection. It doesn’t protect anything a platform itself publishes, or even anything in which it has a significant hand in producing. Why don’t offline newspapers enjoy this “handout” (though the online versions clearly do for comments)? Because they don’t need it, and because — yes, it’s true — it comes at a cost. How much third-party content would newspapers publish without significant input from the paper itself if only they were freed from the risk of liability for such content? None? Not much? The New York Times didn’t build and sustain its reputation on the slapdash publication of unedited ramblings by random commentators. But what about classifieds? Sure. There would be more classified ads, presumably. More to the point, newspapers would exert far less oversight over the classified ads, saving themselves the expense of moderating this one, small corner of their output.

There is a cost to traditional newspapers from being denied the extended protections of Section 230. But the effect is less third-party content in parts of the paper that they didn’t wish to have the same level of editorial control. If Section 230 is a “subsidy” as critics put it, then what it is subsidizing is the hosting of third-party speech. 

The Internet would look vastly different if it was just the online reproduction of the offline world. If tech platforms were responsible for all third-party speech to the degree that newspapers are for op-eds, then they would likely moderate it to the same degree, making sure there is nothing which could expose them to liability before publishing. This means there would be far less third-party speech on the Internet.

In fact, it could be argued that it is smaller platforms who would be most affected by the repeal of Section 230 immunity. Without it, it is likely that only the biggest tech platforms would have the necessary resources to dedicate to content moderation in order to avoid liability.

Proposed Section 230 reforms will likely have unintended consequences in reducing third-party speech altogether, including conservative speech. For instance, a few bills have proposed only allowing moderation for reasons defined by statute if the platform has an “objectively reasonable belief” that the speech fits under such categories. This would likely open up tech platforms to lawsuits over the meaning of “objectively reasonable belief” that could deter them from wanting to host third-party speech altogether. Similarly, lawsuits for “selective enforcement” of a tech platform’s terms of service could lead them to either host less speech or change their terms of service.

This could actually exacerbate the issue of political bias. Allegedly anti-conservative tech platforms could respond to a “good faith” requirement in enforcing its terms of service by becoming explicitly biased. If the terms of service of a tech platform state grounds which would exclude conservative speech, a requirement of “good faith” enforcement of those terms of service will do nothing to prevent the bias. 

Conclusion

Conservatives would do well to return to their first principles in the Section 230 debate. The Constitution’s First Amendment, respect for free markets and property rights, and appreciation for unintended consequences in changing tech platform incentives all caution against the current proposals to condition Section 230 immunity on platforms giving up editorial discretion. Whether or not tech platforms engage in anti-conservative bias, there’s nothing conservative about abdicating these principles for the sake of political expediency.

In the latest congressional hearing, purportedly analyzing Google’s “stacking the deck” in the online advertising marketplace, much of the opening statement and questioning by Senator Mike Lee and later questioning by Senator Josh Hawley focused on an episode of alleged anti-conservative bias by Google in threatening to demonetize The Federalist, a conservative publisher, unless they exercised a greater degree of control over its comments section. The senators connected this to Google’s “dominance,” arguing that it is only because Google’s ad services are essential that Google can dictate terms to a conservative website. A similar impulse motivates Section 230 reform efforts as well: allegedly anti-conservative online platforms wield their dominance to censor conservative speech, either through deplatforming or demonetization.

Before even getting into the analysis of how to incorporate political bias into antitrust analysis, though, it should be noted that there likely is no viable antitrust remedy. Even aside from the Section 230 debate, online platforms like Google are First Amendment speakers who have editorial discretion over their sites and apps, much like newspapers. An antitrust remedy compelling these companies to carry speech they disagree with would almost certainly violate the First Amendment.

But even aside from the First Amendment aspect of this debate, there is no easy way to incorporate concerns about political bias into antitrust. Perhaps the best way to understand this argument in the antitrust sense is as a non-price effects analysis. 

Political bias could be seen by end consumers as an important aspect of product quality. Conservatives have made the case that not only Google, but also Facebook and Twitter, have discriminated against conservative voices. The argument would then follow that consumer welfare is harmed when these dominant platforms leverage their control of the social media marketplace into the marketplace of ideas by censoring voices with whom they disagree. 

While this has theoretical plausibility, there are real practical difficulties. As Geoffrey Manne and I have written previously, in the context of incorporating privacy into antitrust analysis:

The Horizontal Merger Guidelines have long recognized that anticompetitive effects may “be manifested in non-price terms and conditions that adversely affect customers.” But this notion, while largely unobjectionable in the abstract, still presents significant problems in actual application. 

First, product quality effects can be extremely difficult to distinguish from price effects. Quality-adjusted price is usually the touchstone by which antitrust regulators assess prices for competitive effects analysis. Disentangling (allegedly) anticompetitive quality effects from simultaneous (neutral or pro-competitive) price effects is an imprecise exercise, at best. For this reason, proving a product-quality case alone is very difficult and requires connecting the degradation of a particular element of product quality to a net gain in advantage for the monopolist. 

Second, invariably product quality can be measured on more than one dimension. For instance, product quality could include both function and aesthetics: A watch’s quality lies in both its ability to tell time as well as how nice it looks on your wrist. A non-price effects analysis involving product quality across multiple dimensions becomes exceedingly difficult if there is a tradeoff in consumer welfare between the dimensions. Thus, for example, a smaller watch battery may improve its aesthetics, but also reduce its reliability. Any such analysis would necessarily involve a complex and imprecise comparison of the relative magnitudes of harm/benefit to consumers who prefer one type of quality to another.

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Consider the case of The Federalist again. The allegation is that Google is imposing their anticonservative bias by “forcing” the website to clean up its comments section. The argument is that since The Federalist needs Google’s advertising money, it must play by Google’s rules. And since it did so, there is now one less avenue for conservative speech.

What this argument misses is the balance Google and other online services must strike as multi-sided platforms. The goal is to connect advertisers on one side of the platform, to the users on the other. If a site wants to take advantage of the ad network, it seems inevitable that intermediaries like Google will need to create rules about what can and can’t be shown or they run the risk of losing advertisers who don’t want to be associated with certain speech or conduct. For instance, most companies don’t want to be associated with racist commentary. Thus, they will take great pains to make sure they don’t sponsor or place ads in venues associated with racism. Online platforms connecting advertisers to potential consumers must take that into consideration.

Users, like those who frequent The Federalist, have unpriced access to content across those sites and apps which are part of ad networks like Google’s. Other models, like paid subscriptions (which The Federalist also has available), are also possible. But it isn’t clear that conservative voices or conservative consumers have been harmed overall by the option of unpriced access on one side of the platform, with advertisers paying on the other side. If anything, it seems the opposite is the case since conservatives long complained about legacy media having a bias and lauded the Internet as an opportunity to gain a foothold in the marketplace of ideas.

Online platforms like Google must balance the interests of users from across the political spectrum. If their moderation practices are too politically biased in one direction or another, users could switch to another online platform with one click or swipe. Assuming online platforms wish to maximize revenue, they will have a strong incentive to limit political bias from its moderation practices. The ease of switching to another platform which markets itself as more free speech-friendly, like Parler, shows entrepreneurs can take advantage of market opportunities if Google and other online platforms go too far with political bias. 

While one could perhaps argue that the major online platforms are colluding to keep out conservative voices, this is difficult to square with the different moderation practices each employs, as well as the data that suggests conservative voices are consistently among the most shared on Facebook

Antitrust is not a cure-all law. Conservatives who normally understand this need to reconsider whether antitrust is really well-suited for litigating concerns about anti-conservative bias online. 

Municipal broadband has been heavily promoted by its advocates as a potential source of competition against Internet service providers (“ISPs”) with market power. Jonathan Sallet argued in Broadband for America’s Future: A Vision for the 2020s, for instance, that municipal broadband has a huge role to play in boosting broadband competition, with attendant lower prices, faster speeds, and economic development. 

Municipal broadband, of course, can mean more than one thing: From “direct consumer” government-run systems, to “open access” where government builds the back-end, but leaves it up to private firms to bring the connections to consumers, to “middle mile” where the government network reaches only some parts of the community but allows private firms to connect to serve other consumers. The focus of this blog post is on the “direct consumer” model.

There have been many economic studies on municipal broadband, both theoretical and empirical. The literature largely finds that municipal broadband poses serious risks to taxpayers, often relies heavily on cross-subsidies from government-owned electric utilities, crowds out private ISP investment in areas it operates, and largely fails the cost-benefit analysis. While advocates have defended municipal broadband on the grounds of its speed, price, and resulting attractiveness to consumers and businesses, others have noted that many of those benefits come at the expense of other parts of the country from which businesses move. 

What this literature has not touched upon is a more fundamental problem: municipal broadband lacks the price signals necessary for economic calculation.. The insights of the Austrian school of economics helps explain why this model is incapable of providing efficient outcomes for society. Rather than creating a valuable source of competition, municipal broadband creates “islands of chaos” undisciplined by the market test of profit-and-loss. As a result, municipal broadband is a poor model for promoting competition and innovation in broadband markets. 

The importance of profit-and-loss to economic calculation

One of the things often assumed away in economic analysis is the very thing the market process depends upon: the discovery of knowledge. Knowledge, in this context, is not the technical knowledge of how to build or maintain a broadband network, but the more fundamental knowledge which is discovered by those exercising entrepreneurial judgment in the marketplace. 

This type of knowledge is dependent on prices throughout the market. In the market process, prices coordinate exchange between market participants without each knowing the full plan of anyone else. For consumers, prices allow for the incremental choices between different options. For producers, prices in capital markets similarly allow for choices between different ways of producing their goods for the next stage of production. Prices in interest rates help coordinate present consumption, investment, and saving. And, the price signal of profit-and-loss allows producers to know whether they have cost-effectively served consumer needs. 

The broadband marketplace can’t be considered in isolation from the greater marketplace in which it is situated. But it can be analyzed under the framework of prices and the knowledge they convey.

For broadband consumers, prices are important for determining the relative importance of Internet access compared to other felt needs. The quality of broadband connection demanded by consumers is dependent on the price. All other things being equal, consumers demand faster connections with less latency issues. But many consumers may prefer slower speeds and connections with more latency if it is cheaper. Even choices between the importance of upload speeds versus download speeds may be highly asymmetrical if determined by consumers.  

While “High Performance Broadband for All” may be a great goal from a social planner’s perspective, individuals acting in the marketplace may prioritize other needs with his or her scarce resources. Even if consumers do need Internet access of some kind, the benefits of 100 Mbps download speeds over 25 Mbps, or upload speeds of 100 Mbps versus 3 Mbps may not be worth the costs. 

For broadband ISPs, prices for capital goods are important for building out the network. The relative prices of fiber, copper, wireless, and all the other factors of production in building out a network help them choose in light of anticipated profit. 

All the decisions of broadband ISPs are made through the lens of pursuing profit. If they are successful, it is because the revenues generated are greater than the costs of production, including the cost of money represented in interest rates. Just as importantly, loss shows the ISPs were unsuccessful in cost-effectively serving consumers. While broadband companies may be able to have losses over some period of time, they ultimately must turn a profit at some point, or there will be exit from the marketplace. Profit-and-loss both serve important functions.

Sallet misses the point when he states the“full value of broadband lies not just in the number of jobs it directly creates or the profits it delivers to broadband providers but also in its importance as a mechanism that others use across the economy and society.” From an economic point of view, profits aren’t important because economists love it when broadband ISPs get rich. Profits are important as an incentive to build the networks we all benefit from, and a signal for greater competition and innovation.

Municipal broadband as islands of chaos

Sallet believes the lack of high-speed broadband (as he defines it) is due to the monopoly power of broadband ISPs. He sees the entry of municipal broadband as pro-competitive. But the entry of a government-run broadband company actually creates “islands of chaos” within the market economy, reducing the ability of prices to coordinate disparate plans of action among participants. This, ultimately, makes society poorer.

The case against municipal broadband doesn’t rely on greater knowledge of how to build or maintain a network being in the hands of private engineers. It relies instead on the different institutional frameworks within which the manager of the government-run broadband network works as compared to the private broadband ISP. The type of knowledge gained in the market process comes from prices, including profit-and-loss. The manager of the municipal broadband network simply doesn’t have access to this knowledge and can’t calculate the best course of action as a result.

This is because the government-run municipal broadband network is not reliant upon revenues generated by free choices of consumers alone. Rather than needing to ultimately demonstrate positive revenue in order to remain a going concern, government-run providers can instead base their ongoing operation on access to below-market loans backed by government power, cross-subsidies when it is run by a government electric utility, and/or public money in the form of public borrowing (i.e. bonds) or taxes. 

Municipal broadband, in fact, does rely heavily on subsidies from the government. As a result, municipal broadband is not subject to the discipline of the market’s profit-and-loss test. This frees the enterprise to focus on other goals, including higher speeds—especially upload speeds—and lower prices than private ISPs often offer in the same market. This is why municipal broadband networks build symmetrical high-speed fiber networks at higher rates than the private sector.

But far from representing a superior source of “competition,” municipal broadband is actually an example of “predatory entry.” In areas where there is already private provision of broadband, municipal broadband can “out-compete” those providers due to subsidies from the rest of society. Eventually, this could lead to exit by the private ISPs, starting with the least cost-efficient to the most. In areas where there is limited provision of Internet access, the entry of municipal broadband could reduce incentives for private entry altogether. In either case, there is little reason to believe municipal broadband actually increases consumer welfarein the long run.

Moreover, there are serious concerns in relying upon municipal broadband for the buildout of ISP networks. While Sallet describes fiber as “future-proof,” there is little reason to think that it is. The profit motive induces broadband ISPs to constantly innovate and improve their networks. Contrary to what you would expect from an alleged monopoly industry, broadband companies are consistently among the highest investors in the American economy. Similar incentives would not apply to municipal broadband, which lacks the profit motive to innovate. 

Conclusion

There is a definite need to improve public policy to promote more competition in broadband markets. But municipal broadband is not the answer. The lack of profit-and-loss prevents the public manager of municipal broadband from having the price signal necessary to know it is serving the public cost-effectively. No amount of bureaucratic management can replace the institutional incentives of the marketplace.

As Thomas Sowell has noted many times, political debates often involve the use of words which if taken literally mean something very different than the connotations which are conveyed. Examples abound in the debate about broadband buildout. 

There is a general consensus on the need to subsidize aspects of broadband buildout to rural areas in order to close the digital divide. But this real need allows for strategic obfuscation of key terms in this debate by parties hoping to achieve political or competitive gain. 

“Access” and “high-speed broadband”

For instance, nearly everyone would agree that Internet policy should “promote access to high-speed broadband.” But how some academics and activists define “access” and “high-speed broadband” are much different than the average American would expect.

A commonsense definition of access is that consumers have the ability to buy broadband sufficient to meet their needs, considering the costs and benefits they face. In the context of the digital divide between rural and urban areas, the different options available to consumers in each area is a reflection of the very real costs and other challenges of providing service. In rural areas with low population density, it costs broadband providers considerably more per potential subscriber to build the infrastructure needed to provide service. At some point, depending on the technology, it is no longer profitable to build out to the next customer several miles down the road. The options and prices available to rural consumers reflects this unavoidable fact. Holding price constant, there is no doubt that many rural consumers would prefer higher speeds than are currently available to them. But this is not the real-world choice which presents itself. 

But access in this debate instead means the availability of the same broadband options regardless of where people live. Rather than being seen as a reflection of underlying economic realities, the fact that rural Americans do not have the same options available to them that urban Americans do is seen as a problem which calls out for a political solution. Thus, billions of dollars are spent in an attempt to “close the digital divide” by subsidizing broadband providers to build infrastructure to  rural areas. 

“High-speed broadband” similarly has a meaning in this debate significantly different from what many consumers, especially those lacking “high speed” service, expect. For consumers, fast enough is what allows them to use the Internet in the ways they desire. What is fast enough does change over time as more and more uses for the Internet become common. This is why the FCC has changed the technical definition of broadband multiple times over the years as usage patterns and bandwidth requirements change. Currently, the FCC uses 25Mbps down/3 Mbps up as the baseline for broadband.

However, for some, like Jonathan Sallet, this is thoroughly insufficient. In his Broadband for America’s Future: A Vision for the 2020s, he instead proposes “100 Mbps symmetrical service without usage limits.” The disconnect between consumer demand as measured in the marketplace in light of real trade-offs between cost and performance and this arbitrary number is not well-explained in this study. The assumption is simply that faster is better, and that the building of faster networks is a mere engineering issue once sufficiently funded and executed with enough political will.

But there is little evidence that consumers “need” faster Internet than the market is currently providing. In fact, one Wall Street Journal study suggests “typical U.S. households don’t use most of their bandwidth while streaming and get marginal gains from upgrading speeds.” Moreover, there is even less evidence that most consumers or businesses need anything close to upload speeds of 100 Mbps. For even intensive uses like high-resolution live streaming, recommended upload speeds still fall far short of 100 Mbps. 

“Competition” and “Overbuilding”

Similarly, no one objects to the importance of “competition in the broadband marketplace.” But what is meant by this term is subject to vastly different interpretations.

The number of competitors is not the same as the amount of competition. Competition is a process by which market participants discover the best way to serve consumers at lowest cost. Specific markets are often subject to competition not only from the firms which exist within those markets, but also from potential competitors who may enter the market any time potential profits reach a point high enough to justify the costs of entry. An important inference from this is that temporary monopolies, in the sense that one firm has a significant share of the market, is not in itself illegal under antitrust law, even if they are charging monopoly prices. Potential entry is as real in its effects as actual competitors in forcing incumbents to continue to innovate and provide value to consumers. 

However, many assume the best way to encourage competition in broadband buildout is to simply promote more competitors. A significant portion of Broadband for America’s Future emphasizes the importance of subsidizing new competition in order to increase buildout, increase quality, and bring down prices. In particular, Sallet emphasizes the benefits of municipal broadband, i.e. when local governments build and run their own networks. 

In fact, Sallet argues that fears of “overbuilding” are really just fears of competition by incumbent broadband ISPs:

Language here is important. There is a tendency to call the construction of new, competitive networks in a locality with an existing network “overbuilding”—as if it were an unnecessary thing, a useless piece of engineering. But what some call “overbuilding” should be called by a more familiar term: “Competition.” “Overbuilding” is an engineering concept; “competition” is an economic concept that helps consumers because it shifts the focus from counting broadband networks to counting the dollars that consumers save when they have competitive choices. The difference is fundamental—overbuilding asks whether the dollars spent to build another network are necessary for the delivery of a communications service; economics asks whether spending those dollars will lead to competition that allows consumers to spend less and get more. 

Sallet makes two rhetorical moves here to make his argument. 

The first is redefining “overbuilding,” which refers to literally building a new network on top of (that is, “over”) previously built architecture, as a ploy by ISPs to avoid competition. But this is truly Orwellian. When a new entrant can build over an incumbent and take advantage of the first-mover’s investments to enter at a lower cost, a failure to compensate the first-mover is free riding. If the government compels such free riding, it reduces incentives for firms to make the initial investment to build the infrastructure.

The second is defining competition as the number of competitors, even if those competitors need to be subsidized by the government in order to enter the marketplace.  

But there is no way to determine the “right” number of competitors in a given market in advance. In the real world, markets don’t match blackboard descriptions of perfect competition. In fact, there are sometimes high fixed costs which limit the number of firms which will likely exist in a competitive market. In some markets, known as natural monopolies, high infrastructural costs and other barriers to entry relative to the size of the market lead to a situation where it is cheaper for a monopoly to provide a good or service than multiple firms in a market. But it is important to note that only firms operating under market pressures can assess the viability of competition. This is why there is a significant risk in government subsidizing entry. 

Competition drives sustained investment in the capital-intensive architecture of broadband networks, which suggests that ISPs are not natural monopolies. If they were, then having a monopoly provider regulated by the government to ensure the public interest, or government-run broadband companies, may make sense. In fact, Sallet denies ISPs are natural monopolies, stating that “the history of telecommunications regulation in the United States suggests that monopolies were a result of policy choices, not mandated by any iron law of economics” and “it would be odd for public policy to treat the creation of a monopoly as a success.” 

As noted by economist George Ford in his study, The Impact of Government-Owned Broadband Networks on Private Investment and Consumer Welfare, unlike the threat of entry which often causes incumbents to act competitively even in the absence of competitors, the threat of subsidized entry reduces incentives for private entities to invest in those markets altogether. This includes both the incentive to build the network and update it. Subsidized entry may, in fact, tip the scales from competition that promotes consumer welfare to that which could harm it. If the market only profitably sustains one or two competitors, adding another through municipal broadband or subsidizing a new entrant may reduce the profitability of the incumbent(s) and eventually lead to exit. When this happens, only the government-run or subsidized network may survive because the subsidized entrant is shielded from the market test of profit-and-loss.

The “Donut Hole” Problem

The term “donut hole” is a final example to consider of how words can be used to confuse rather than enlighten in this debate.

There is broad agreement that to generate the positive externalities from universal service, there needs to be subsidies for buildout to high-cost rural areas. However, this seeming agreement masks vastly different approaches. 

For instance, some critics of the current subsidy approach have identified a phenomenon where the city center has multiple competitive ISPs and government policy extends subsidies to ISPs to build out broadband coverage into rural areas, but there is relatively paltry Internet services in between due to a lack of private or public investment. They describe this as a “donut hole” because the “unserved” rural areas receive subsidies while “underserved” outlying parts immediately surrounding town centers receive nothing under current policy.

Conceptually, this is not a donut hole. It is actually more like a target or bullseye, where the city center is served by private investment and the rural areas receive subsidies to be served. 

Indeed, there is a different use of the term donut hole, which describes how public investment in city centers can create a donut hole of funding needed to support rural build-out. Most Internet providers rely on profits from providing lower-cost service to higher-population areas (like city centers) to cross-subsidize the higher cost of providing service in outlying and rural areas. But municipal providers generally only provide municipal service — they only provide lower-cost service. This hits the carriers that serve higher-cost areas with a double whammy. First, every customer that municipal providers take from private carriers cuts the revenue that those carriers rely on to provide service elsewhere. Second, and even more problematic, because the municipal providers have lower costs (because they tend not to serve the higher-cost outlying areas), they can offer lower prices for service. This “competition” exerts downward pressure on the private firms’ prices, further reducing revenue across their entire in-town customer base. 

This version of the “donut hole,” in which the revenues that private firms rely on from the city center to support the costs of providing service to outlying areas has two simultaneous effects. First, it directly reduces the funding available to serve more rural areas. And, second, it increases the average cost of providing service across its network (because it is no longer recovering as much of its costs from the lower-cost city core), which increases the prices that need to be charged to rural users in order to justify offering service at all.

Conclusion

Overcoming the problem of the rural digital divide starts with understanding why it exists. It is simply more expensive to build networks in areas with low population density. If universal service is the goal, subsidies, whether explicit subsidies from government or implicit cross-subsidies by broadband companies, are necessary to build out to these areas. But obfuscations about increasing “access to high-speed broadband” by promoting “competition” shouldn’t control the debate.

Instead, there needs to be a nuanced understanding of how government-subsidized entry into the broadband marketplace can discourage private investment and grow the size of the “donut hole,” thereby leading to demand for even greater subsidies. Policymakers should avoid exacerbating the digital divide by prioritizing subsidized competition over market processes.

During last week’s antitrust hearing, Representative Jamie Raskin (D-Md.) provided a sound bite that served as a salvo: “In the 19th century we had the robber barons, in the 21st century we get the cyber barons.” But with sound bites, much like bumper stickers, there’s no room for nuance or scrutiny.

The news media has extensively covered the “questioning” of the CEOs of Facebook, Google, Apple, and Amazon (collectively “Big Tech”). Of course, most of this questioning was actually political posturing with little regard for the actual answers or antitrust law. But just like with the so-called robber barons, the story of Big Tech is much more interesting and complex. 

The myth of the robber barons: Market entrepreneurs vs. political entrepreneurs

The Robber Barons: The Great American Capitalists, 1861–1901 (1934) by Matthew Josephson, was written in the midst of America’s Great Depression. Josephson, a Marxist with sympathies for the Soviet Union, made the case that the 19th century titans of industry were made rich on the backs of the poor during the industrial revolution. This idea that the rich are wealthy due to their robbing of the rest of us is an idea that has long outlived Josephson and Marx down to the present day, as exemplified by the writings of Matt Stoller and the politics of the House Judiciary Committee.

In his Myth of the Robber Barons, Burton Folsom, Jr. makes the case that much of the received wisdom on the great 19th century businessmen is wrong. He distinguishes between the market entrepreneurs, which generated wealth by selling newer, better, or less expensive products on the free market without any government subsidies, and the political entrepreneurs, who became rich primarily by influencing the government to subsidize their businesses, or enacting legislation or regulation that harms their competitors. 

Folsom narrates the stories of market entrepreneurs, like Thomas Gibbons & Cornelius Vanderbilt (steamships), James Hill (railroads), the Scranton brothers (iron rails), Andrew Carnegie & Charles Schwab (steel), and John D. Rockefeller (oil), who created immense value for consumers by drastically reducing the prices of the goods and services their companies provided. Yes, these men got rich. But the value society received was arguably even greater. Wealth was created because market exchange is a positive-sum game.

On the other hand, the political entrepreneurs, like Robert Fulton & Edward Collins (steamships), and Leland Stanford & Henry Villard (railroads), drained societal resources by using taxpayer money to create inefficient monopolies. Because they were not subject to the same market discipline due to their favored position, cutting costs and prices were less important to them than the market entrepreneurs. Their wealth was at the expense of the rest of society, because political exchange is a zero-sum game.

Big Tech makes society better off

Today’s titans of industry, i.e. Big Tech, have created enormous value for society. This is almost impossible to deny, though some try. From zero-priced search on Google, to the convenience and price of products on Amazon, to the nominally free social network(s) of Facebook, to the plethora of options in Apple’s App Store, consumers have greatly benefited from Big Tech. Consumers flock to use Google, Facebook, Amazon, and Apple for a reason: they believe they are getting a great deal. 

By and large, the techlash comes from “intellectuals” who think they know better than consumers acting in the marketplace about what is good for them. And as noted by Alec Stapp, Americans in opinion polls consistently put a great deal of trust in Big Tech, at least compared to government institutions:

One of the basic building blocks of economics is that both parties benefit from voluntary exchanges ex ante, or else they would not be willing to engage in it. The fact that consumers use Big Tech to the extent they do is overwhelming evidence of their value. Obfuscations like “market power” mislead more than they inform. In the absence of governmental barriers to entry, consumers voluntarily choosing Big Tech does not mean they have power, it means they provide great service.

Big Tech companies are run by entrepreneurs who must ultimately answer to consumers. In a market economy, profits are a signal that entrepreneurs have successfully brought value to society. But they are also a signal to potential competitors. If Big Tech companies don’t continue to serve the interests of their consumers, they risk losing them to competitors.

Big Tech’s CEOs seem to get this. For instance, Jeff Bezos’ written testimony emphasized the importance of continual innovation at Amazon as a reason for its success:

Since our founding, we have strived to maintain a “Day One” mentality at the company. By that I mean approaching everything we do with the energy and entrepreneurial spirit of Day One. Even though Amazon is a large company, I have always believed that if we commit ourselves to maintaining a Day One mentality as a critical part of our DNA, we can have both the scope and capabilities of a large company and the spirit and heart of a small one. 

In my view, obsessive customer focus is by far the best way to achieve and maintain Day One vitality. Why? Because customers are always beautifully, wonderfully dissatisfied, even when they report being happy and business is great. Even when they don’t yet know it, customers want something better, and a constant desire to delight customers drives us to constantly invent on their behalf. As a result, by focusing obsessively on customers, we are internally driven to improve our services, add benefits and features, invent new products, lower prices, and speed up shipping times—before we have to. No customer ever asked Amazon to create the Prime membership program, but it sure turns out they wanted it. And I could give you many such examples. Not every business takes this customer-first approach, but we do, and it’s our greatest strength.

The economics of multi-sided platforms: How Big Tech does it

Economically speaking, Big Tech companies are (mostly) multi-sided platforms. Multi-sided platforms differ from regular firms in that they have to serve two or more of these distinct types of consumers to generate demand from any of them.

Economist David Evans, who has done as much as any to help us understand multi-sided platforms, has identified three different types:

  1. Market-Makers enable members of distinct groups to transact with each other. Each member of a group values the service more highly if there are more members of the other group, thereby increasing the likelihood of a match and reducing the time it takes to find an acceptable match. (Amazon and Apple’s App Store)
  2. Audience-Makers match advertisers to audiences. Advertisers value a service more if there are more members of an audience who will react positively to their messages; audiences value a service more if there is more useful “content” provided by audience-makers. (Google, especially through YouTube, and Facebook, especially through Instagram)
  3. Demand-Coordinators make goods and services that generate indirect network effects across two or more groups. These platforms do not strictly sell “transactions” like a market maker or “messages” like an audience-maker; they are a residual category much like irregular verbs – numerous, heterogeneous, and important. Software platforms such as Windows and the Palm OS, payment systems such as credit cards, and mobile telephones are demand coordinators. (Android, iOS)

In order to bring value, Big Tech has to consider consumers on all sides of the platform they operate. Sometimes, this means consumers on one side of the platform subsidize the other. 

For instance, Google doesn’t charge its users to use its search engine, YouTube, or Gmail. Instead, companies pay Google to advertise to their users. Similarly, Facebook doesn’t charge the users of its social network, advertisers on the other side of the platform subsidize them. 

As their competitors and critics love to point out, there are some complications in that some platforms also compete in the markets they create. For instance, Apple does place its own apps inits App Store, and Amazon does engage in some first-party sales on its platform. But generally speaking, both Apple and Amazon act as matchmakers for exchanges between users and third parties.

The difficulty for multi-sided platforms is that they need to balance the interests of each part of the platform in a way that maximizes its value. 

For Google and Facebook, they need to balance the interests of users and advertisers. In the case of each, this means a free service for users that is subsidized by the advertisers. But the advertisers gain a lot of value by tailoring ads based upon search history, browsing history, and likes and shares. For Apple and Amazon they need to create platforms which are valuable for buyers and sellers, and balance how much first-party competition they want to have before they lose the benefits of third-party sales.

There are no easy answers to creating a search engine, a video service, a social network, an App store, or an online marketplace. Everything from moderation practices, to pricing on each side of the platform, to the degree of competition from the platform operators themselves needs to be balanced right or these platforms would lose participants on one side of the platform or the other to competitors. 

Conclusion

Representative Raskin’s “cyber barons” were raked through the mud by Congress. But much like the falsely identified robber barons of the 19th century who were truly market entrepreneurs, the Big Tech companies of today are wrongfully maligned.

No one is forcing consumers to use these platforms. The incredible benefits they have brought to society through market processes shows they are not robbing anyone. Instead, they are constantly innovating and attempting to strike a balance between consumers on each side of their platform. 

The myth of the cyber barons need not live on any longer than last week’s farcical antitrust hearing.

The great Dr. Thomas Sowell

One of the great scholars of law & economics turns 90 years old today. In his long and distinguished career, Thomas Sowell has written over 40 books and countless opinion columns. He has been a professor of economics and a long-time Senior Fellow at the Hoover Institution. He received a National Humanities Medal in 2002 for a lifetime of scholarship, which has only continued since then. His ability to look at issues with an international perspective, using the analytical tools of economics to better understand institutions, is an inspiration to us at the International Center for Law & Economics.

Here, almost as a blog post festschrift as a long-time reader of his works, I want to briefly write about how Sowell’s voluminous writings on visions, law, race, and economics could be the basis for a positive agenda to achieve a greater measure of racial justice in the United States.

The Importance of Visions

One of the most important aspects of Sowell’s work is his ability to distill wide-ranging issues into debates involving different mental models, or a “Conflict of Visions.” He calls one vision the “tragic” or “constrained” vision, which sees all humans as inherently limited in knowledge, wisdom, and virtue, and fundamentally self-interested even at their best. The other vision is the “utopian” or “unconstrained” vision, which sees human limitations as artifacts of social arrangements and cultures, and that there are some capable by virtue of superior knowledge and morality that can redesign society to create a better world. 

An implication of the constrained vision is that the difference in knowledge and virtue between the best and the worst in society is actually quite small. As a result, no one person or group of people can be trusted with redesigning institutions which have spontaneously evolved. The best we can hope for is institutions that reasonably deter bad conduct and allow people the freedom to solve their own problems. 

An important implication of the unconstrained vision, on the other hand,  is that there are some who because of superior enlightenment, which Sowell calls the “Vision of the Anointed,” can redesign institutions to fundamentally change human nature, which is seen as malleable. Institutions are far more often seen as the result of deliberate human design and choice, and that failures to change them to be more just or equal is a result of immorality or lack of will.

The importance of visions to how we view things like justice and institutions makes all the difference. In the constrained view, institutions like language, culture, and even much of the law result from the “spontaneous ordering” that is the result of human action but not of human design. Limited government, markets, and tradition are all important in helping individuals coordinate action. Markets work because self-interested individuals benefit when they serve others. There are no solutions to difficult societal problems, including racism, only trade-offs. 

But in the unconstrained view, limits on government power are seen as impediments to public-spirited experts creating a better society. Markets, traditions, and cultures are to be redesigned from the top down by those who are forward-looking, relying on their articulated reason. There is a belief that solutions could be imposed if only there is sufficient political will and the right people in charge. When it comes to an issue like racism, those who are sufficiently “woke” should be in charge of redesigning institutions to provide for a solution to things like systemic racism.

For Sowell, what he calls “traditional justice” is achieved by processes that hold people accountable for harms to others. Its focus is on flesh-and-blood human beings, not abstractions like all men or blacks versus whites. Differences in outcomes are not just or unjust, by this point of view, what is important is that the processes are just. These processes should focus on institutional incentives of participants. Reforms should be careful not to upset important incentive structures which have evolved over time as the best way for limited human beings to coordinate behavior.

The “Quest for Cosmic Justice,” on the other hand, flows from the unconstrained vision. Cosmic justice sees disparities between abstract groups, like whites and blacks, as unjust and in need of correction. If results from impartial processes like markets or law result in disparities, those with an unconstrained vision often see those processes as themselves racist. The conclusion is that the law should intervene to create better outcomes. This presumes considerable knowledge and morality on behalf of those who are in charge of the interventions. 

For Sowell, a large part of his research project has been showing that those with the unconstrained vision often harm those they are proclaiming the intention to help in their quest for cosmic justice. 

A Constrained Vision of Racial Justice

Sowell has written quite a lot on race, culture, intellectuals, economics, and public policy. One of the main thrusts of his argument about race is that attempts at cosmic justice often harm living flesh-and-blood individuals in the name of intertemporal abstractions like “social justice” for black Americans. Sowell nowhere denies that racism is an important component of understanding the history of black Americans. But his constant challenge is that racism can’t be the only variable which explains disparities. Sowell points to the importance of culture and education in building human capital to be successful in market economies. Without taking those other variables into account, there is no way to determine the extent that racism is the cause of disparities. 

This has important implications for achieving racial justice today. When it comes to policies pursued in the name of racial justice, Sowell has argued that many programs often harm not only members of disfavored groups, but the members of the favored groups.

For instance, Sowell has argued that affirmative action actually harms not only flesh-and-blood white and Asian-Americans who are passed over, but also harms those African-Americans who are “mismatched” in their educational endeavors and end up failing or dropping out of schools when they could have been much better served by attending schools where they would have been very successful. Another example Sowell often points to is minimum wage legislation, which is often justified in the name of helping the downtrodden, but has the effect of harming low-skilled workers by increasing unemployment, most especially young African-American males. 

Any attempts at achieving racial justice, in terms of correcting historical injustices, must take into account how changes in processes could actually end up hurting flesh-and-blood human beings, especially when those harmed are black Americans. 

A Positive Agenda for Policy Reform

In Sowell’s constrained vision, a large part of the equation for African-American improvement is going to be cultural change. However, white Americans should not think that this means they have no responsibility in working towards racial justice. A positive agenda must take into consideration real harms experienced by African-Americans due to government action (and inaction). Thus, traditional justice demands institutional reforms, and in some cases, recompense.

The policy part of this equation outlined below is motivated by traditional justice concerns that hold people accountable under the rule of law for violations of constitutional rights and promotes institutional reforms to more properly align incentives. 

What follows below are policy proposals aimed at achieving a greater degree of racial justice for black Americans, but fundamentally informed by the constrained vision and traditional justice concerns outlined by Sowell. Most of these proposals are not on issues Sowell has written a lot on. In fact, some proposals may actually not be something he would support, but are—in my opinion—consistent with the constrained vision and traditional justice.

Reparations for Historical Rights Violations

Sowell once wrote this in regards to reparations for black Americans:

Nevertheless, it remains painfully clear that those people who were torn from their homes in Africa in centuries past and forcibly brought across the Atlantic in chains suffered not only horribly, but unjustly. Were they and their captors still alive, the reparations and retribution owed would be staggering. Time and death, however, cheat us of such opportunities for justice, however galling that may be. We can, of course, create new injustices among our flesh-and-blood contemporaries for the sake of symbolic expiation, so that the son or daughter of a black doctor or executive can get into an elite college ahead of the son or daughter of a white factory worker or farmer, but only believers in the vision of cosmic justice are likely to take moral solace from that. We can only make our choices among alternatives actually available, and rectifying the past is not one of those options.

In other words, if the victims and perpetrators of injustice are no longer alive, it is not just to hold entire members of respective races accountable for crimes which they did not commit. However, this would presumably leave open the possibility of applying traditional justice concepts in those cases where death has not cheated us.

For instance, there are still black Americans alive who suffered from Jim Crow, as well as children and family members of those lynched. While it is too little, too late, it seems consistent with traditional justice to still seek out and prosecute criminally perpetrators who committed heinous acts but a few generations ago against still living victims. This is not unprecedented. Old Nazis are still prosecuted for crimes against Jews. A similar thing could be done in the United States.

Similarly, civil rights lawsuits for the damages caused by Jim Crow could be another way to recompense those who were harmed. Alternatively, it could be done by legislation. The Civil Liberties Act of 1988 was passed under President Reagan and gave living Japanese Americans who were interned during World War II some limited reparations. A similar system could be set up for living victims of Jim Crow. 

Statutes of limitations may need to be changed to facilitate these criminal prosecutions and civil rights lawsuits, but it is quite clearly consistent with the idea of holding flesh-and-blood persons accountable for their unlawful actions.

Holding flesh-and-blood perpetrators accountable for rights violations should not be confused with the cosmic justice idea—that Sowell consistently decries—that says intertemporal abstractions can be held accountable for crimes. In other words, this is not holding “whites” accountable for all historical injustices to “blacks.” This is specifically giving redress to victims and deterring future bad conduct.  

End Qualified Immunity

Another way to promote racial justice consistent with the constrained vision is to end one of the Warren Court’s egregious examples of judicial activism: qualified immunity. Qualified immunity is nowhere mentioned in the statute for civil rights, 42 USC § 1983. As Sowell argues in his writings, judges in the constrained vision are supposed to declare what the law is, not what they believe it should be, unlike those in the unconstrained vision who—according to Sowell— believe they have the right to amend the laws through judicial edict. The introduction of qualified immunity into the law by the activist Warren Court should be overturned.

Currently, qualified immunity effectively subsidizes police brutality, to the detriment of all Americans, but disproportionately affecting black Americans. The law & economics case against qualified immunity is pretty straightforward: 

In a civil rights lawsuit, the goal is to make the victim (or their families) of a rights violation whole by monetary damages. From a legal perspective, this is necessary to give the victim justice. From an economic perspective this is necessary to deter future bad conduct and properly align ex ante incentives going forward. Under a well-functioning system, juries would, after hearing all the evidence, make a decision about whether constitutional rights were violated and the extent of damages. A functioning system of settlements would result as a common law develops determining what counts as reasonable or unreasonable uses of force. This doesn’t mean plaintiffs always win, either. Officers may be determined to be acting reasonably under the circumstances once all the evidence is presented to a jury.

However, one of the greatest obstacles to holding police officers accountable in misconduct cases is the doctrine of qualified immunity… courts have widely expanded its scope to the point that qualified immunity is now protecting officers even when their conduct violates the law, as long as the officers weren’t on clear notice from specific judicial precedent that what they did was illegal when they did it… This standard has predictably led to a situation where officer misconduct which judges and juries would likely find egregious never makes it to court. The Cato Institute’s website Unlawful Shield details many cases where federal courts found an officer’s conduct was illegal yet nonetheless protected by qualified immunity.

Immunity of this nature has profound consequences on the incentive structure facing police officers. Police officers, as well as the departments that employ them, are insufficiently accountable when gross misconduct does not get past a motion to dismiss for qualified immunity… The result is to encourage police officers to take insufficient care when making the choice about the level of force to use. 

Those with a constrained vision focus on processes and incentives. In this case, it is police officers who have insufficient incentives to take reasonable care when they receive qualified immunity for their conduct.

End the Drug War

While not something he has written a lot on, Sowell has argued for the decriminalization of drugs, comparing the War on Drugs to the earlier attempts at Prohibition of alcohol. This is consistent with the constrained vision, which cares about the institutional incentives created by law. 

Interestingly, work by Michelle Alexander in the second chapter of The New Jim Crow is largely consistent with Sowell’s point of view. There she argued the institutional incentives of police departments were systematically changed when the drug war was ramped up. 

Alexander asks a question which is right in line with the constrained vision:

[I]t is fair to wonder why the police would choose to arrest such an astonishing percentage of the American public for minor drug crimes. The fact that police are legally allowed to engage in a wholesale roundup of nonviolent drug offenders does not answer the question why they would choose to do so, particularly when most police departments have far more serious crimes to prevent and solve. Why would police prioritize drug-law enforcement? Drug use and abuse is nothing new; in fact, it was on the decline, not on the rise, when the War on Drugs began.

Alexander locates the impetus for ramping up the drug war in federal subsidies:

In 1988, at the behest of the Reagan administration, Congress revised the program that provides federal aid to law enforcement, renaming it the Edward Byrne Memorial State and Local Law Enforcement Assistance Program after a New York City police officer who was shot to death while guarding the home of a drug-case witness. The Byrne program was designed to encourage every federal grant recipient to help fight the War on Drugs. Millions of dollars in federal aid have been offered to state and local law enforcement agencies willing to wage the war. By the late 1990s, the overwhelming majority of state and local police forces in the country had availed themselves of the newly available resources and added a significant military component to buttress their drug-war operations. 

On top of that, police departments were benefited by civil asset forfeiture:

As if the free military equipment, training, and cash grants were not enough, the Reagan administration provided law enforcement with yet another financial incentive to devote extraordinary resources to drug law enforcement, rather than more serious crimes: state and local law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seize when waging the drug war. This dramatic change in policy gave state and local police an enormous stake in the War on Drugs—not in its success, but in its perpetual existence. Suddenly, police departments were capable of increasing the size of their budgets, quite substantially, simply by taking the cash, cars, and homes of people suspected of drug use or sales. Because those who were targeted were typically poor or of moderate means, they often lacked the resources to hire an attorney or pay the considerable court costs. As a result, most people who had their cash or property seized did not challenge the government’s action, especially because the government could retaliate by filing criminal charges—baseless or not.

As Alexander notes, black Americans (and other minorities) were largely targeted in this ramped up War on Drugs, noting the drug war’s effects have been to disproportionately imprison black Americans even though drug usage and sales are relatively similar across races. Police officers have incredible discretion in determining who to investigate and bring charges against. When it comes to the drug war, this discretion is magnified because the activity is largely consensual, meaning officers can’t rely on victims to come to them to start an investigation. Alexander finds the reason the criminal justice system has targeted black Americans is because of implicit bias in police officers, prosecutors, and judges, which mirrors the bias shown in media coverage and in larger white American society. 

Anyone inspired by Sowell would need to determine whether this is because of racism or some other variable. It is important to note here that Sowell never denies that racism exists or is a real problem in American society. But he does challenge us to determine whether this alone is the cause of disparities. Here, Alexander makes a strong case that it is implicit racism that causes the disparities in enforcement of the War on Drugs. A race-neutral explanation could be as follows, even though it still suggests ending the War on Drugs: the enforcement costs against those unable to afford to challenge the system are lower. And black Americans are disproportionately represented among the poor in this country. As will be discussed below in the section on reforming indigent criminal defense, most prosecutions are initiated against defendants who can’t afford a lawyer. The result could be racially disparate even without a racist motivation. 

Regardless of whether racism is the variable that explains the disparate impact of the War on Drugs, it should be ended. This may be an area where traditional and cosmic justice concerns can be united in an effort to reform the criminal justice system.

Reform Indigent Criminal Defense

A related aspect of how the criminal justice system has created a real barrier for far too many black Americans is the often poor quality of indigent criminal defense. Indigent defense is a large part of criminal defense in this country since a very high number of criminal prosecutions are initiated against those who are often too poor to afford a lawyer (roughly 80%). Since black Americans are disproportionately represented among the indigent and those in the criminal justice system, it should be no surprise that black Americans are disproportionately represented by public defenders in this country.

According to the constrained vision, it is important to look at the institutional incentives of public defenders. Considering the extremely high societal costs of false convictions, it is important to get these incentives right.

David Friedman and Stephen Schulhofer’s seminal article exploring the law & economics of indigent criminal defense highlighted the conflict of interest inherent in government choosing who represents criminal defendants when the government is in charge of prosecuting. They analyzed each of the models used in the United States for indigent defense from an economic point of view and found each wanting. On top of that, there is also a calculation problem inherent in government-run public defender’s offices whereby defendants may be systematically deprived of viable defense strategies because of a lack of price signals. 

An interesting alternative proposed by Friedman and Schulhofer is a voucher system. This is similar to the voucher system Sowell has often touted for education. The idea would be that indigent criminal defendants get to pick the lawyer of their choosing that is part of the voucher program. The government would subsidize the provision of indigent defense, in this model, but would not actually pick the lawyer or run the public defender organization. Incentives would be more closely aligned between the defendant and counsel. 

Conclusion

While much more could be said consistent with the constrained vision that could help flesh-and-blood black Americans, including abolishing occupational licensing, ending wage controls, promoting school choice, and ending counterproductive welfare policies, this is enough for now. Racial justice demands holding rights violators accountable and making victims whole. Racial justice also means reforming institutions to make sure incentives are right to deter conduct which harms black Americans. However, the growing desire to do something to promote racial justice in this country should not fall into the trap of cosmic justice thinking, which often ends up hurting flesh-and-blood people of all races in the present in the name of intertemporal abstractions. 

Happy 90th birthday to one of the greatest law & economics scholars ever, Dr. Thomas Sowell. 

Twitter’s decision to begin fact-checking the President’s tweets caused a long-simmering distrust between conservatives and online platforms to boil over late last month. This has led some conservatives to ask whether Section 230, the ‘safe harbour’ law that protects online platforms from certain liability stemming from content posted on their websites by users, is allowing online platforms to unfairly target conservative speech. 

In response to Twitter’s decision, along with an Executive Order released by the President that attacked Section 230, Senator Josh Hawley (R – MO) offered a new bill targeting online platforms, the “Limiting Section 230 Immunity to Good Samaritans Act”. This would require online platforms to engage in “good faith” moderation according to clearly stated terms of service – in effect, restricting Section 230’s protections to online platforms deemed to have done enough to moderate content ‘fairly’.  

While seemingly a sensible standard, if enacted, this approach would violate the First Amendment as an unconstitutional condition to a government benefit, thereby  undermining long-standing conservative principles and the ability of conservatives to be treated fairly online. 

There is established legal precedent that Congress may not grant benefits on conditions that violate Constitutionally-protected rights. In Rumsfeld v. FAIR, the Supreme Court stated that a law that withheld funds from universities that did not allow military recruiters on campus would be unconstitutional if it constrained those universities’ First Amendment rights to free speech. Since the First Amendment protects the right to editorial discretion, including the right of online platforms to make their own decisions on moderation, Congress may not condition Section 230 immunity on platforms taking a certain editorial stance it has dictated. 

Aware of this precedent, the bill attempts to circumvent the obstacle by taking away Section 230 immunity for issues unrelated to anti-conservative bias in moderation. Specifically, Senator Hawley’s bill attempts to condition immunity for platforms on having terms of service for content moderation, and making them subject to lawsuits if they do not act in “good faith” in policing them. 

It’s not even clear that the bill would do what Senator Hawley wants it to. The “good faith” standard only appears to apply to the enforcement of an online platform’s terms of service. It can’t, under the First Amendment, actually dictate what those terms of service say. So an online platform could, in theory, explicitly state in their terms of service that they believe some forms of conservative speech are “hate speech” they will not allow.

Mandating terms of service on content moderation is arguably akin to disclosures like labelling requirements, because it makes clear to platforms’ customers what they’re getting. There are, however, some limitations under the commercial speech doctrine as to what government can require. Under National Institute of Family & Life Advocates v. Becerra, a requirement for terms of service outlining content moderation policies would be upheld unless “unjustified or unduly burdensome.” A disclosure mandate alone would not be unconstitutional. 

But it is clear from the statutory definition of “good faith” that Senator Hawley is trying to overwhelm online platforms with lawsuits on the grounds that they have enforced these rules selectively and therefore not in “good faith”.

These “selective enforcement” lawsuits would make it practically impossible for platforms to moderate content at all, because they would open them up to being sued for any moderation, including moderation  completely unrelated to any purported anti-conservative bias. Any time a YouTuber was aggrieved about a video being pulled down as too sexually explicit, for example, they could file suit and demand that Youtube release information on whether all other similarly situated users were treated the same way. Any time a post was flagged on Facebook, for example for engaging in online bullying or for spreading false information, it could similarly lead to the same situation. 

This would end up requiring courts to act as the arbiter of decency and truth in order to even determine whether online platforms are “selectively enforcing” their terms of service.

Threatening liability for all third-party content is designed to force online platforms to give up moderating content on a perceived political basis. The result will be far less content moderation on a whole range of other areas. It is precisely this scenario that Section 230 was designed to prevent, in order to encourage platforms to moderate things like pornography that would otherwise proliferate on their sites, without exposing themselves to endless legal challenge.

It is likely that this would be unconstitutional as well. Forcing online platforms to choose between exercising their First Amendment rights to editorial discretion and retaining the benefits of Section 230 is exactly what the “unconstitutional conditions” jurisprudence is about. 

This is why conservatives have long argued the government has no business compelling speech. They opposed the “fairness doctrine” which required that radio stations provide a “balanced discussion”, and in practice allowed courts or federal agencies to determine content  until President Reagan overturned it. Later, President Bush appointee and then-FTC Chairman Tim Muris rejected a complaint against Fox News for its “Fair and Balanced” slogan, stating:

I am not aware of any instance in which the Federal Trade Commission has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.

And recently conservatives were arguing businesses like Masterpiece Cakeshop should not be compelled to exercise their First Amendment rights against their will. All of these cases demonstrate once the state starts to try to stipulate what views can and cannot be broadcast by private organisations, conservatives will be the ones who suffer.

Senator Hawley’s bill fails to acknowledge this. Worse, it fails to live up to the Constitution, and would trample over the rights to freedom of speech that it gives. Conservatives should reject it.

Yet another sad story was caught on camera this week showing a group of police officers killing an unarmed African-American man named George Floyd. While the officers were fired from the police department, there is still much uncertainty about what will happen next to hold those officers accountable as a legal matter. 

A well-functioning legal system should protect the constitutional rights of American citizens to be free of unreasonable force from police officers, while also allowing police officers the ability to do their jobs safely and well. In theory, civil rights lawsuits are supposed to strike that balance.

In a civil rights lawsuit, the goal is to make the victim (or their families) of a rights violation whole by monetary damages. From a legal perspective, this is necessary to give the victim justice. From an economic perspective this is necessary to deter future bad conduct and properly align ex ante incentives going forward. Under a well-functioning system, juries would, after hearing all the evidence, make a decision about whether constitutional rights were violated and the extent of damages. A functioning system of settlements would result as a common law develops determining what counts as reasonable or unreasonable uses of force. This doesn’t mean plaintiffs always win, either. Officers may be determined to be acting reasonably under the circumstances once all the evidence is presented to a jury.

However, one of the greatest obstacles to holding police officers accountable in misconduct cases is the doctrine of qualified immunity. Qualified immunity started as a mechanism to protect officers from suit when they acted in “good faith.” Over time, though, the doctrine has evolved away from a subjective test based upon the actor’s good faith to an objective test based upon notice in judicial precedent. As a result, courts have widely expanded its scope to the point that qualified immunity is now protecting officers even when their conduct violates the law, as long as the officers weren’t on clear notice from specific judicial precedent that what they did was illegal when they did it. In the words of the Supreme Court, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” 

This standard has predictably led to a situation where officer misconduct which judges and juries would likely find egregious never makes it to court. The Cato Institute’s website Unlawful Shield details many cases where federal courts found an officer’s conduct was illegal yet nonetheless protected by qualified immunity.

Immunity of this nature has profound consequences on the incentive structure facing police officers. Police officers, as well as the departments that employ them, are insufficiently accountable when gross misconduct does not get past a motion to dismiss for qualified immunity. On top of that, the regular practice of governments is to indemnify officers even when there is a settlement or a judgment. The result is to encourage police officers to take insufficient care when making the choice about the level of force to use. 

Economics 101 makes a clear prediction: When unreasonable uses of force are not held accountable, you get more unreasonable uses of force. Unfortunately, the news continues to illustrate the accuracy of this prediction.

In the wake of the launch of Facebook’s content oversight board, Republican Senator Josh Hawley and FCC Commissioner Brendan Carr, among others, have taken to Twitter to levy criticisms at the firm and, in the process, demonstrate just how far the Right has strayed from its first principles around free speech and private property. For his part, Commissioner Carr’s thread makes the case that the members of the board are highly partisan and mostly left-wing and can’t be trusted with the responsibility of oversight. While Senator Hawley took the approach that the Board’s very existence is just further evidence of the need to break Facebook up. 

Both Hawley and Carr have been lauded in rightwing circles, but in reality their positions contradict conservative notions of the free speech and private property protections given by the First Amendment.  

This blog post serves as a sequel to a post I wrote last year here at TOTM explaining how There’s nothing “conservative” about Trump’s views on free speech and the regulation of social media. As I wrote there:

I have noted in several places before that there is a conflict of visions when it comes to whether the First Amendment protects a negative or positive conception of free speech. For those unfamiliar with the distinction: it comes from philosopher Isaiah Berlin, who identified negative liberty as freedom from external interference, and positive liberty as freedom to do something, including having the power and resources necessary to do that thing. Discussions of the First Amendment’s protection of free speech often elide over this distinction.

With respect to speech, the negative conception of liberty recognizes that individual property owners can control what is said on their property, for example. To force property owners to allow speakers/speech on their property that they don’t desire would actually be a violation of their liberty — what the Supreme Court calls “compelled speech.” The First Amendment, consistent with this view, generally protects speech from government interference (with very few, narrow exceptions), while allowing private regulation of speech (again, with very few, narrow exceptions).

Commissioner Carr’s complaint and Senator Hawley’s antitrust approach of breaking up Facebook has much more in common with the views traditionally held by left-wing Democrats on the need for the government to regulate private actors in order to promote speech interests. Originalists and law & economics scholars, on the other hand, have consistently taken the opposite point of view that the First Amendment protects against government infringement of speech interests, including protecting the right to editorial discretion. While there is clearly a conflict of visions in First Amendment jurisprudence, the conservative (and, in my view, correct) point of view should not be jettisoned by Republicans to achieve short-term political gains.

The First Amendment restricts government action, not private action

The First Amendment, by its very text, only applies to government action: “Congress shall make no law . . . abridging the freedom of speech.” This applies to the “State[s]” through the Fourteenth Amendment. There is extreme difficulty in finding any textual hook to say the First Amendment protects against private action, like that of Facebook. 

Originalists have consistently agreed. Most recently, in Manhattan Community Access Corp. v. Halleck, Justice Kavanaugh—on behalf of the conservative bloc and the Court—wrote:

Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law . . . abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” §1. The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech… In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities. By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty. (Emphasis added).

This was true at the adoption of the First Amendment and remains true today in a high-tech world. Federal district courts have consistently dismissed First Amendment lawsuits against Facebook on the grounds there is no state action. 

For instance, in Nyawba v. Facebook, the plaintiff initiated a civil rights lawsuit against Facebook for restricting his use of the platform. The U.S. District Court for the Southern District of Texas dismissed the case, noting 

Because the First Amendment governs only governmental restrictions on speech, Nyabwa has not stated a cause of action against FaceBook… Like his free speech claims, Nyabwa’s claims for violation of his right of association and violation of his due process rights are claims that may be vindicated against governmental actors pursuant to § 1983, but not a private entity such as FaceBook.

Similarly, in Young v. Facebook, the U.S. District Court for the Northern District of California rejected a claim that Facebook violated the First Amendment by deactivating the plaintiff’s Facebook page. The court declined to subject Facebook to the First Amendment analysis, stating that “because Young has not alleged any action under color of state law, she fails to state a claim under § 1983.”

The First Amendment restricts antitrust actions against Facebook, not Facebook’s editorial discretion over its platform

Far from restricting Facebook, the First Amendment actually restricts government actions aimed at platforms like Facebook when they engage in editorial discretion by moderating content. If an antitrust plaintiff was to act on the impulse to “break up” Facebook because of alleged political bias in its editorial discretion, the lawsuit would be running headlong into the First Amendment’s protections.

There is no basis for concluding online platforms do not have editorial discretion under the law. In fact, the position of Facebook here is very similar to the newspaper in Miami Herald Publishing Co. v. Tornillo, in which the Supreme Court considered a state law giving candidates for public office a right to reply in newspapers to editorials written about them. The Florida Supreme Court upheld the statute, finding it furthered the “broad societal interest in the free flow of information to the public.” The U.S. Supreme Court, despite noting the level of concentration in the newspaper industry, nonetheless reversed. The Court explicitly found the newspaper had a First Amendment right to editorial discretion:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. 

Online platforms have the same First Amendment protections for editorial discretion. For instance, in both Search King v. Google and Langdon v. Google, two different federal district courts ruled Google’s search results are subject to First Amendment protections, both citing Tornillo

In Zhang v. Baidu.com, another district court went so far as to grant a Chinese search engine the right to editorial discretion in limiting access to democracy movements in China. The court found that the search engine “inevitably make[s] editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information.” Much like the search engine in Zhang, Facebook is clearly making editorial judgments about what information shows up in newsfeed and where to display it. 

None of this changes because the generally applicable law is antitrust rather than some other form of regulation. For instance, in Tornillo, the Supreme Court took pains to distinguish the case from an earlier antitrust case against newspapers, Associated Press v. United States, which found that there was no broad exemption from antitrust under the First Amendment.

The Court foresaw the problems relating to government-enforced access as early as its decision in Associated Press v. United States, supra. There it carefully contrasted the private “compulsion to print” called for by the Association’s bylaws with the provisions of the District Court decree against appellants which “does not compel AP or its members to permit publication of anything which their `reason’ tells them should not be published.”

In other words, the Tornillo and Associated Press establish the government may not compel speech through regulation, including an antitrust remedy. 

Once it is conceded that there is a speech interest here, the government must justify the use of antitrust law to compel Facebook to display the speech of users in the newsfeeds of others under the strict scrutiny test of the First Amendment. In other words, the use of antitrust law must be narrowly tailored to a compelling government interest. Even taking for granted that there may be a compelling government interest in facilitating a free and open platform (which is by no means certain), it is clear that this would not be narrowly tailored action. 

First, “breaking up” Facebook is clearly overbroad as compared to the goal of promoting free speech on the platform. There is no need to break it up just because it has an Oversight Board that engages in editorial responsibilities. There are many less restrictive means, including market competition, which has greatly expanded consumer choice for communications and connections. Second, antitrust does not even really have a remedy for free speech issues complained of here, as it would require courts to engage in long-term oversight and engage in compelled speech foreclosed by Associated Press

Note that this makes good sense from a law & economics perspective. Platforms like Facebook should be free to regulate the speech on their platforms as they see fit and consumers are free to decide which platforms they wish to use based upon that information. While there are certainly network effects to social media, the plethora of options currently available with low switching costs suggests that there is no basis for antitrust action against Facebook because consumers are unable to speak. In other words, the least restrictive means test of the First Amendment is best fulfilled by market competition in this case.

If there were a basis for antitrust intervention against Facebook, either through merger review or as a standalone monopoly claim, the underlying issue would be harm to competition. While this would have implications for speech concerns (which may be incorporated into an analysis through quality-adjusted price), it is inconceivable how an antitrust remedy could be formed on speech issues consistent with the First Amendment. 

Conclusion

Despite now well-worn complaints by so-called conservatives in and out of the government about the baneful influence of Facebook and other Big Tech companies, the First Amendment forecloses government actions to violate the editorial discretion of these companies. Even if Commissioner Carr is right, this latest call for antitrust enforcement against Facebook by Senator Hawley should be rejected for principled conservative reasons.

[TOTM: The following is part of a blog series by TOTM guests and authors on the law, economics, and policy of the ongoing COVID-19 pandemic. The entire series of posts is available here.

This post is authored by Ben Sperry, (Associate Director, Legal Research, International Center for Law & Economics).]

The visceral reaction to the New York Times’ recent story on Matt Colvin, the man who had 17,700 bottles of hand sanitizer with nowhere to sell them, shows there is a fundamental misunderstanding of the importance of prices and the informational function they serve in the economy. Calls to enforce laws against “price gouging” may actually prove more harmful to consumers and society than allowing prices to rise (or fall, of course) in response to market conditions. 

Nobel-prize winning economist Friedrich Hayek explained how price signals serve as information that allows for coordination in a market society:

We must look at the price system as such a mechanism for communicating information if we want to understand its real function… The most significant fact about this system is the economy of knowledge with which it operates, or how little the individual participants need to know in order to be able to take the right action. In abbreviated form, by a kind of symbol, only the most essential information is passed on and passed on only to those concerned. It is more than a metaphor to describe the price system as a kind of machinery for registering change, or a system of telecommunications which enables individual producers to watch merely the movement of a few pointers, as an engineer might watch the hands of a few dials, in order to adjust their activities to changes of which they may never know more than is reflected in the price movement.

Economic actors don’t need a PhD in economics or even to pay attention to the news about the coronavirus to change their behavior. Higher prices for goods or services alone give important information to individuals — whether consumers, producers, distributors, or entrepreneurs — to conserve scarce resources, produce more, and look for (or invest in creating!) alternatives.

Prices are fundamental to rationing scarce resources, especially during an emergency. Allowing prices to rapidly rise has three salutary effects (as explained by Professor Michael Munger in his terrific twitter thread):

  1. Consumers ration how much they really need;
  2. Producers respond to the rising prices by ramping up supply and distributors make more available; and
  3. Entrepreneurs find new substitutes in order to innovate around bottlenecks in the supply chain. 

Despite the distaste with which the public often treats “price gouging,” officials should take care to ensure that they don’t prevent these three necessary responses from occurring. 

Rationing by consumers

During a crisis, if prices for goods that are in high demand but short supply are forced to stay at pre-crisis levels, the informational signal of a shortage isn’t given — at least by the market directly. This encourages consumers to buy more than is rationally justified under the circumstances. This stockpiling leads to shortages. 

Companies respond by rationing in various ways, like instituting shorter hours or placing limits on how much of certain high-demand goods can be bought by any one consumer. Lines (and unavailability), instead of price, become the primary cost borne by consumers trying to obtain the scarce but underpriced goods. 

If, instead, prices rise in light of the short supply and high demand, price-elastic consumers will buy less, freeing up supply for others. And, critically, price-inelastic consumers (i.e. those who most need the good) will be provided a better shot at purchase.

According to the New York Times story on Mr. Colvin, he focused on buying out the hand sanitizer in rural areas of Tennessee and Kentucky, since the major metro areas were already cleaned out. His goal was to then sell these hand sanitizers (and other high-demand goods) online at market prices. He was essentially acting as a speculator and bringing information to the market (much like an insider trader). If successful, he would be coordinating supply and demand between geographical areas by successfully arbitraging. This often occurs when emergencies are localized, like post-Katrina New Orleans or post-Irma Florida. In those cases, higher prices induced suppliers to shift goods and services from around the country to the affected areas. Similarly, here Mr. Colvin was arguably providing a beneficial service, by shifting the supply of high-demand goods from low-demand rural areas to consumers facing localized shortages. 

For those who object to Mr. Colvin’s bulk purchasing-for-resale scheme, the answer is similar to those who object to ticket resellers: the retailer should raise the price. If the Walmarts, Targets, and Dollar Trees raised prices or rationed supply like the supermarket in Denmark, Mr. Colvin would not have been able to afford nearly as much hand sanitizer. (Of course, it’s also possible — had those outlets raised prices — that Mr. Colvin would not have been able to profitably re-route the excess local supply to those in other parts of the country most in need.)

The role of “price gouging” laws and social norms

A common retort, of course, is that Colvin was able to profit from the pandemic precisely because he was able to purchase a large amount of stock at normal retail prices, even after the pandemic began. Thus, he was not a producer who happened to have a restricted amount of supply in the face of new demand, but a mere reseller who exacerbated the supply shortage problems.

But such an observation truncates the analysis and misses the crucial role that social norms against “price gouging” and state “price gouging” laws play in facilitating shortages during a crisis.

Under these laws, typically retailers may raise prices by at most 10% during a declared state of emergency. But even without such laws, brick-and-mortar businesses are tied to a location in which they are repeat players, and they may not want to take a reputational hit by raising prices during an emergency and violating the “price gouging” norm. By contrast, individual sellers, especially pseudonymous third-party sellers using online platforms, do not rely on repeat interactions to the same degree, and may be harder to track down for prosecution. 

Thus, the social norms and laws exacerbate the conditions that create the need for emergency pricing, and lead to outsized arbitrage opportunities for those willing to violate norms and the law. But, critically, this violation is only a symptom of the larger problem that social norms and laws stand in the way, in the first instance, of retailers using emergency pricing to ration scarce supplies.

Normally, third-party sales sites have much more dynamic pricing than brick and mortar outlets, which just tend to run out of underpriced goods for a period of time rather than raise prices. This explains why Mr. Colvin was able to sell hand sanitizer for prices much higher than retail on Amazon before the site suspended his ability to do so. On the other hand, in response to public criticism, Amazon, Walmart, eBay, and other platforms continue to crack down on third party “price-gouging” on their sites

But even PR-centric anti-gouging campaigns are not ultimately immune to the laws of supply and demand. Even Amazon.com, as a first party seller, ends up needing to raise prices, ostensibly as the pricing feedback mechanisms respond to cost increases up and down the supply chain. 

But without a willingness to allow retailers and producers to use the informational signal of higher prices, there will continue to be more extreme shortages as consumers rush to stockpile underpriced resources.

The desire to help the poor who cannot afford higher priced essentials is what drives the policy responses, but in reality no one benefits from shortages. Those who stockpile the in-demand goods are unlikely to be poor because doing so entails a significant upfront cost. And if they are poor, then the potential for resale at a higher price would be a benefit.

Increased production and distribution

During a crisis, it is imperative that spiking demand is met by increased production. Prices are feedback mechanisms that provide realistic estimates of demand to producers. Even if good-hearted producers forswearing the profit motive want to increase production as an act of charity, they still need to understand consumer demand in order to produce the correct amount. 

Of course, prices are not the only source of information. Producers reading the news that there is a shortage undoubtedly can ramp up their production. But even still, in order to optimize production (i.e., not just blindly increase output and hope they get it right), they need a feedback mechanism. Prices are the most efficient mechanism available for quickly translating the amount of social need (demand) for a given product to guarantee that producers do not undersupply the product  (leaving more people without than need the good), or oversupply the product (consuming more resources than necessary in a time of crisis). Prices, when allowed to adjust to actual demand, thus allow society to avoid exacerbating shortages and misallocating resources.

The opportunity to earn more profit incentivizes distributors all along the supply chain. Amazon is hiring 100,000 workers to help ship all the products which are being ordered right now. Grocers and retailers are doing their best to line the shelves with more in-demand food and supplies

Distributors rely on more than just price signals alone, obviously, such as information about how quickly goods are selling out. But even as retail prices stay low for consumers for many goods, distributors often are paying more to producers in order to keep the shelves full, as in the case of eggs. These are the relevant price signals for producers to increase production to meet demand.

For instance, hand sanitizer companies like GOJO and EO Products are ramping up production in response to known demand (so much that the price of isopropyl alcohol is jumping sharply). Farmers are trying to produce as much as is necessary to meet the increased orders (and prices) they are receiving. Even previously low-demand goods like beans are facing a boom time. These instances are likely caused by a mix of anticipatory response based on general news, as well as the slightly laggier price signals flowing through the supply chain. But, even with an “early warning” from the media, the manufacturers still need to ultimately shape their behavior with more precise information. This comes in the form of orders from retailers at increased frequencies and prices, which are both rising because of insufficient supply. In search of the most important price signal, profits, manufacturers and farmers are increasing production.

These responses to higher prices have the salutary effect of making available more of the products consumers need the most during a crisis. 

Entrepreneurs innovate around bottlenecks 

But the most interesting thing that occurs when prices rise is that entrepreneurs create new substitutes for in-demand products. For instance, distillers have started creating their own hand sanitizers

Unfortunately, however, government regulations on sales of distilled products and concerns about licensing have led distillers to give away those products rather than charge for them. Thus, beneficial as this may be, without the ability to efficiently price such products, not nearly as much will be produced as would otherwise be. The non-emergency price of zero effectively guarantees continued shortages because the demand for these free alternatives will far outstrip supply.

Another example is car companies in the US are now producing ventilators. The FDA waived regulations on the production of new ventilators after General Motors, Ford, and Tesla announced they would be willing to use idle production capacity for the production of ventilators.

As consumers demand more toilet paper, bottled water, and staple foods than can be produced quickly, entrepreneurs respond by refocusing current capabilities on these goods. Examples abound:

Without price signals, entrepreneurs would have far less incentive to shift production and distribution to the highest valued use. 

Conclusion

While stories like that of Mr. Colvin buying all of the hand sanitizer in Tennessee understandably bother people, government efforts to prevent prices from adjusting only impede the information sharing processes inherent in markets. 

If the concern is to help the poor, it would be better to pursue less distortionary public policy than arbitrarily capping prices. The US government, for instance, is currently considering a progressively tiered one-time payment to lower income individuals. 

Moves to create new and enforce existing “price-gouging” laws are likely to become more prevalent the longer shortages persist. Platforms will likely continue to receive pressure to remove “price-gougers,” as well. These policies should be resisted. Not only will these moves not prevent shortages, they will exacerbate them and push the sale of high-demand goods into grey markets where prices will likely be even higher. 

Prices are an important source of information not only for consumers, but for producers, distributors, and entrepreneurs. Short circuiting this signal will only be to the detriment of society.  

Since the LabMD decision, in which the Eleventh Circuit Court of Appeals told the FTC that its orders were unconstitutionally vague, the FTC has been put on notice that it needs to reconsider how it develops and substantiates its claims in data security enforcement actions brought under Section 5. 

Thus, on January 6, the FTC announced on its blog that it will have “New and improved FTC data security orders: Better guidance for companies, better protection for consumers.” However, the changes the Commission highlights only get to a small part of what we have previously criticized when it comes to their “common law” of data security (see here and here). 

While the new orders do list more specific requirements to help explain what the FTC believes is a “comprehensive data security program”, there is still no legal analysis in either the orders or the complaints that would give companies fair notice of what the law requires. Furthermore, nothing about the underlying FTC process has changed, which means there is still enormous pressure for companies to settle rather than litigate the contours of what “reasonable” data security practices look like. Thus, despite the Commission’s optimism, the recent orders and complaints do little to nothing to remedy the problems that plague the Commission’s data security enforcement program.

The changes

In his blog post, the director of the Bureau of Consumer Protection at the FTC describes how new orders in data security enforcement actions are more specific, with one of the main goals being more guidance to businesses trying to follow the law.

Since the early 2000s, our data security orders had contained fairly standard language. For example, these orders typically required a company to implement a comprehensive information security program subject to a biennial outside assessment. As part of the FTC’s Hearings on Competition and Consumer Protection in the 21st Century, we held a hearing in December 2018 that specifically considered how we might improve our data security orders. We were also mindful of the 11th Circuit’s 2018 LabMD decision, which struck down an FTC data security order as unenforceably vague.

Based on this learning, in 2019 the FTC made significant improvements to its data security orders. These improvements are reflected in seven orders announced this year against an array of diverse companies: ClixSense (pay-to-click survey company), i-Dressup (online games for kids), DealerBuilt (car dealer software provider), D-Link (Internet-connected routers and cameras), Equifax (credit bureau), Retina-X (monitoring app), and Infotrax (service provider for multilevel marketers)…

[T]he orders are more specific. They continue to require that the company implement a comprehensive, process-based data security program, and they require the company to implement specific safeguards to address the problems alleged in the complaint. Examples have included yearly employee training, access controls, monitoring systems for data security incidents, patch management systems, and encryption. These requirements not only make the FTC’s expectations clearer to companies, but also improve order enforceability.

Why the FTC’s data security enforcement regime fails to provide fair notice or develop law (and is not like the common law)

While these changes are long overdue, it is just one step in the direction of a much-needed process reform at the FTC in how it prosecutes cases with its unfairness authority, particularly in the realm of data security. It’s helpful to understand exactly why the historical failures of the FTC process are problematic in order to understand why the changes it is undertaking are insufficient.

For instance, Geoffrey Manne and I previously highlighted  the various ways the FTC’s data security consent order regime fails in comparison with the common law: 

In Lord Mansfield’s characterization, “the common law ‘does not consist of particular cases, but of general principles, which are illustrated and explained by those cases.’” Further, the common law is evolutionary in nature, with the outcome of each particular case depending substantially on the precedent laid down in previous cases. The common law thus emerges through the accretion of marginal glosses on general rules, dictated by new circumstances. 

The common law arguably leads to legal rules with at least two substantial benefits—efficiency and predictability or certainty. The repeated adjudication of inefficient or otherwise suboptimal rules results in a system that generally offers marginal improvements to the law. The incentives of parties bringing cases generally means “hard cases,” and thus judicial decisions that have to define both what facts and circumstances violate the law and what facts and circumstances don’t. Thus, a benefit of a “real” common law evolution is that it produces a body of law and analysis that actors can use to determine what conduct they can undertake without risk of liability and what they cannot. 

In the abstract, of course, the FTC’s data security process is neither evolutionary in nature nor does it produce such well-defined rules. Rather, it is a succession of wholly independent cases, without any precedent, narrow in scope, and binding only on the parties to each particular case. Moreover it is generally devoid of analysis of the causal link between conduct and liability and entirely devoid of analysis of which facts do not lead to liability. Like all regulation it tends to be static; the FTC is, after all, an enforcement agency, charged with enforcing the strictures of specific and little-changing pieces of legislation and regulation. For better or worse, much of the FTC’s data security adjudication adheres unerringly to the terms of the regulations it enforces with vanishingly little in the way of gloss or evolution. As such (and, we believe, for worse), the FTC’s process in data security cases tends to reject the ever-evolving “local knowledge” of individual actors and substitutes instead the inherently limited legislative and regulatory pronouncements of the past. 

By contrast, real common law, as a result of its case-by-case, bottom-up process, adapts to changing attributes of society over time, largely absent the knowledge and rent-seeking problems of legislatures or administrative agencies. The mechanism of constant litigation of inefficient rules allows the common law to retain a generally efficient character unmatched by legislation, regulation, or even administrative enforcement. 

Because the common law process depends on the issues selected for litigation and the effects of the decisions resulting from that litigation, both the process by which disputes come to the decision-makers’ attention, as well as (to a lesser extent, because errors will be corrected over time) the incentives and ability of the decision-maker to render welfare-enhancing decisions, determine the value of the common law process. These are decidedly problematic at the FTC.

In our analysis, we found the FTC’s process to be wanting compared to the institution of the common law. The incentives of the administrative complaint process put a relatively larger pressure on companies to settle data security actions brought by the FTC compared to private litigants. This is because the FTC can use its investigatory powers as a public enforcer to bypass the normal discovery process to which private litigants are subject, and over which independent judges have authority. 

In a private court action, plaintiffs can’t engage in discovery unless their complaint survives a motion to dismiss from the defendant. Discovery costs remain a major driver of settlements, so this important judicial review is necessary to make sure there is actually a harm present before putting those costs on defendants. 

Furthermore, the FTC can also bring cases in a Part III adjudicatory process which starts in front of an administrative law judge (ALJ) but is then appealable to the FTC itself. Former Commissioner Joshua Wright noted in 2013 that “in the past nearly twenty years… after the administrative decision was appealed to the Commission, the Commission ruled in favor of FTC staff. In other words, in 100 percent of cases where the ALJ ruled in favor of the FTC, the Commission affirmed; and in 100 percent of the cases in which the ALJ ruled against the FTC, the Commission reversed.” In other words, the FTC nearly always rules in favor of itself on appeal if the ALJ finds there is no case, as it did in LabMD. The combination of investigation costs before any complaint at all and the high likelihood of losing through several stages of litigation makes the intelligent business decision to simply agree to a consent decree.

The results of this asymmetrical process show the FTC has not really been building a common law. In all but two cases (Wyndham and LabMD), the companies who have been targeted for investigation by the FTC on data security enforcement have settled. We also noted how the FTC’s data security orders tended to be nearly identical from case-to-case, reflecting the standards of the FTC’s Safeguards Rule. Since the orders were giving nearly identical—and as LabMD found, vague—remedies in each case, it cannot be said there was a common law developing over time.  

What LabMD addressed and what it didn’t

In its decision, the Eleventh Circuit sidestepped fundamental substantive problems with the FTC’s data security practice (which we have made in both our scholarship and LabMD amicus brief) about notice or substantial injury. Instead, the court decided to assume the FTC had proven its case and focused exclusively on the remedy. 

We will assume arguendo that the Commission is correct and that LabMD’s negligent failure to design and maintain a reasonable data-security program invaded consumers’ right of privacy and thus constituted an unfair act or practice.

What the Eleventh Circuit did address, though, was that the remedies the FTC had been routinely applying to businesses through its data enforcement actions lacked the necessary specificity in order to be enforceable through injunctions or cease and desist orders.

In the case at hand, the cease and desist order contains no prohibitions. It does not instruct LabMD to stop committing a specific act or practice. Rather, it commands LabMD to overhaul and replace its data-security program to meet an indeterminable standard of reasonableness. This command is unenforceable. Its unenforceability is made clear if we imagine what would take place if the Commission sought the order’s enforcement…

The Commission moves the district court for an order requiring LabMD to show cause why it should not be held in contempt for violating the following injunctive provision:

[T]he respondent shall … establish and implement, and thereafter maintain, a comprehensive information security program that is reasonably designed to protect the security, confidentiality, and integrity of personal information collected from or about consumers…. Such program… shall contain administrative, technical, and physical safeguards appropriate to respondent’s size and complexity, the nature and scope of respondent’s activities, and the sensitivity of the personal information collected from or about consumers….

The Commission’s motion alleges that LabMD’s program failed to implement “x” and is therefore not “reasonably designed.” The court concludes that the Commission’s alleged failure is within the provision’s language and orders LabMD to show cause why it should not be held in contempt.

At the show cause hearing, LabMD calls an expert who testifies that the data-security program LabMD implemented complies with the injunctive provision at issue. The expert testifies that “x” is not a necessary component of a reasonably designed data-security program. The Commission, in response, calls an expert who disagrees. At this point, the district court undertakes to determine which of the two equally qualified experts correctly read the injunctive provision. Nothing in the provision, however, indicates which expert is correct. The provision contains no mention of “x” and is devoid of any meaningful standard informing the court of what constitutes a “reasonably designed” data-security program. The court therefore has no choice but to conclude that the Commission has not proven — and indeed cannot prove — LabMD’s alleged violation by clear and convincing evidence.

In other words, the Eleventh Circuit found that an order requiring a reasonable data security program is not specific enough to make it enforceable. This leaves questions as to whether the FTC’s requirement of a “reasonable data security program” is specific enough to survive a motion to dismiss and/or a fair notice challenge going forward.

Under the Federal Rules of Civil Procedure, a plaintiff must provide “a short and plain statement . . . showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), including “enough facts to state a claim . . . that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In FTC v. D-Link, for instance, the Northern District of California dismissed the unfairness claims because the FTC did not sufficiently plead injury. 

[T]hey make out a mere possibility of injury at best. The FTC does not identify a single incident where a consumer’s financial, medical or other sensitive personal information has been accessed, exposed or misused in any way, or whose IP camera has been compromised by unauthorized parties, or who has suffered any harm or even simple annoyance and inconvenience from the alleged security flaws in the DLS devices. The absence of any concrete facts makes it just as possible that DLS’s devices are not likely to substantially harm consumers, and the FTC cannot rely on wholly conclusory allegations about potential injury to tilt the balance in its favor. 

The fair notice question wasn’t reached in LabMD, though it was in FTC v. Wyndham. But the Third Circuit did not analyze the FTC’s data security regime under the “ascertainable certainty” standard applied to agency interpretation of a statute.

Wyndham’s position is unmistakable: the FTC has not yet declared that cybersecurity practices can be unfair; there is no relevant FTC rule, adjudication or document that merits deference; and the FTC is asking the federal courts to interpret § 45(a) in the first instance to decide whether it prohibits the alleged conduct here. The implication of this position is similarly clear: if the federal courts are to decide whether Wyndham’s conduct was unfair in the first instance under the statute without deferring to any FTC interpretation, then this case involves ordinary judicial interpretation of a civil statute, and the ascertainable certainty standard does not apply. The relevant question is not whether Wyndham had fair notice of the FTC’s interpretation of the statute, but whether Wyndham had fair notice of what the statute itself requires.

In other words, Wyndham boxed itself into a corner arguing that they did not have fair notice that the FTC could bring a data security enforcement action against the under Section 5 unfairness. LabMD, on the other hand, argued they did not have fair notice as to how the FTC would enforce its data security standards. Cf. ICLE-Techfreedom Amicus Brief at 19. The Third Circuit even suggested that under an “ascertainable certainty” standard, the FTC failed to provide fair notice: “we agree with Wyndham that the guidebook could not, on its own, provide ‘ascertainable certainty’ of the FTC’s interpretation of what specific cybersecurity practices fail § 45(n).” Wyndham, 799 F.3d at 256 n.21

Most importantly, the Eleventh Circuit did not actually get to the issue of whether LabMD actually violated the law under the factual record developed in the case. This means there is still no caselaw (aside from the ALJ decision in this case) which would allow a company to learn what is and what is not reasonable data security, or what counts as a substantial injury for the purposes of Section 5 unfairness in data security cases. 

How FTC’s changes fundamentally fail to address its failures of process

The FTC’s new approach to its orders is billed as directly responsive to what the Eleventh Circuit did reach in the LabMD decision, but it leaves so much of what makes the process insufficient in place.

First, it is notable that while the FTC highlights changes to its orders, there is still a lack of legal analysis in the orders that would allow a company to accurately predict whether its data security practices are enough under the law. A listing of what specific companies under consent orders are required to do is helpful. But these consent decrees do not require companies to admit liability or contain anything close to the reasoning that accompanies court opinions or normal agency guidance on complying with the law. 

For instance, the general formulation in these 2019 orders is that the company must “establish, implement, and maintain a comprehensive information/software security program that is designed to protect the security, confidentiality, and integrity of such personal information. To satisfy this requirement, Respondent/Defendant must, at a minimum…” (emphasis added), followed by a list of pretty similar requirements with variation depending on the business. Even if a company does all of the listed requirements but a breach occurs, the FTC is not obligated to find the data security program was legally sufficient. There is no safe harbor or presumptive reasonableness that attaches even for the business subject to the order, nonetheless companies looking for guidance. 

While the FTC does now require more specific things, like “yearly employee training, access controls, monitoring systems for data security incidents, patch management systems, and encryption,” there is still no analysis on how to meet the standard of reasonableness the FTC relies upon. In other words, it is not clear that this new approach to orders does anything to increase fair notice to companies as to what the FTC requires under Section 5 unfairness.

Second, nothing about the underlying process has really changed. The FTC can still investigate and prosecute cases through administrative law courts with itself as initial court of appeal. This makes the FTC the police, prosecutor, and judge in its own case. In the case of LabMD, who actually won after many appeals, this process ended in bankruptcy. It is no surprise that since the LabMD decision, each of the FTC’s data security enforcement cases have been settled with consent orders, just as they were before the Eleventh Circuit opinion. 

Unfortunately, if the FTC really wants to evolve its data security process like the common law, it needs to engage in an actual common law process. Without caselaw on the facts necessary to establish substantial injury, “unreasonable” data security practices, and causation, there will continue to be more questions than answers about what the law requires. And without changes to the process, the FTC will continue to be able to strong-arm companies into consent decrees.

Every 5 years, Congress has to reauthorize the sunsetting provisions of the Satellite Television Extension and Localism Act (STELA). And the deadline for renewing the law is quickly approaching (Dec. 31). While sunsetting is, in the abstract, seemingly a good thing to ensure rules don’t become outdated, there are an interlocking set of interest groups who, generally speaking, only support reauthorizing the law because they are locked in a regulatory stalemate. STELA no longer represents an optimal outcome for many if not most of the affected parties. The time is now for finally allowing STELA to sunset, and using this occasion to further reform the underlying regulatory morass it is built upon.

Since the creation of STELA in 1988, much has changed in the marketplace. At the time of the 1992 Cable Act (the first year data from the FCC’s Video Competition Reports is available), cable providers served 95% of multichannel video subscribers. Now, the power of cable has waned to the extent that 2 of the top 4 multichannel video programming distributors (MVPDs) are satellite providers, without even considering the explosion in competition from online video distributors like Netflix and Amazon Prime.

Given these developments, Congress should reconsider whether STELA is necessary at all, along with the whole complex regulatory structure undergirding it, and consider the relative simplicity with which copyright and antitrust law are capable of adequately facilitating the market for broadcast content negotiations. An approach building upon that contemplated in the bipartisan Modern Television Act of 2019 by Congressman Steve Scalise (R-LA) and Congresswoman Anna Eshoo (D-CA)—which would repeal the compulsory license/retransmission consent regime for both cable and satellite—would be a step in the right direction.

A brief history of STELA

STELA, originally known as the 1988 Satellite Home Viewer Act, was originally justified as necessary to promote satellite competition against incumbent cable networks and to give satellite companies stronger negotiating positions against network broadcasters. In particular, the goal was to give satellite providers the ability to transmit terrestrial network broadcasts to subscribers. To do this, this regulatory structure modified the Communications Act and the Copyright Act. 

With the 1988 Satellite Home Viewer Act, Congress created a compulsory license for satellite retransmissions under Section 119 of the Copyright Act. This compulsory license provision mandated, just as the Cable Act did for cable providers, that satellite would have the right to certain network broadcast content in exchange for a government-set price (despite the fact that local network affiliates don’t necessarily own the copyrights themselves). The retransmission consent provision requires satellite providers (and cable providers under the Cable Act) to negotiate with network broadcasters for the fee to be paid for the right to network broadcast content. 

Alternatively, broadcasters can opt to impose must-carry provisions on cable and satellite  in lieu of retransmission consent negotiations. These provisions require satellite and cable operators to carry many channels from network broadcasters in order to have access to their content. As ICLE President Geoffrey Manne explained to Congress previously:

The must-carry rules require that, for cable providers offering 12 or more channels in their basic tier, at least one-third of these be local broadcast retransmissions. The forced carriage of additional, less-favored local channels results in a “tax on capacity,” and at the margins causes a reduction in quality… In the end, must-carry rules effectively transfer significant programming decisions from cable providers to broadcast stations, to the detriment of consumers… Although the ability of local broadcasters to opt in to retransmission consent in lieu of must-carry permits negotiation between local broadcasters and cable providers over the price of retransmission, must-carry sets a floor on this price, ensuring that payment never flows from broadcasters to cable providers for carriage, even though for some content this is surely the efficient transaction.

The essential question about the reauthorization of STELA regards the following provisions: 

  1. an exemption from retransmission consent requirements for satellite operators for the carriage of distant network signals to “unserved households” while maintaining the compulsory license right for those signals (modification of the compulsory license/retransmission consent regime);
  2. the prohibition on exclusive retransmission consent contracts between MVPDs and network broadcasters (per se ban on a business model); and
  3. the requirement that television broadcast stations and MVPDs negotiate in good faith (nebulous negotiating standard reviewed by FCC).

This regulatory scheme was supposed to sunset after 5 years. Instead of actually sunsetting, Congress has consistently reauthorized STELA ( in 1994, 1999, 2004, 2010, and 2014).

Each time, satellite companies like DirecTV & Dish Network, as well as interest groups representing rural customers who depend heavily on satellite for cable television, strongly supported the renewal of the legislation. Over time, though, the reauthorization has led to amendments supported by major players from each side of the negotiating table and broad support for what is widely considered “must-pass” legislation. In other words, every affected industry found something they liked about the compromise legislation.

As it stands, the sunset provision of STELA has meant that it gives each side negotiating leverage during the next round of reauthorization talks, and often concessions are drawn. But rather than simplifying this regulatory morass, STELA reauthorization simply extends rules that have outlived their purpose.

Current marketplace competition undermines the necessity of STELA reauthorization

The marketplace is very different in 2019 than it was when STELA’s predecessors were adopted and reauthorized. No longer is it the case that cable dominates and that satellite and other providers need a leg up just to compete. Moreover, there are now services that didn’t even exist when the STELA framework was first developed. Competition is thriving.

Wikipedia:

RankServiceSubscribersProviderType
1.Xfinity21,986,000ComcastCable
2.DirecTV19,222,000AT&TSatellite
3.Spectrum16,606,000CharterCable
4.Dish9,905,000Dish NetworkSatellite
5.Verizon Fios TV4,451,000VerizonFiber-Optic
6.Cox Cable TV4,015,000Cox EnterprisesCable
7.U-Verse TV3,704,000AT&TFiber-Optic
8.Optimum/Suddenlink3,307,500Altice USACable
9.Sling TV*2,417,000Dish NetworkLive Streaming
10.Hulu with Live TV2,000,000Hulu(Disney, Comcast, AT&T)Live Streaming
11.DirecTV Now1,591,000AT&TLive Streaming
12.YouTube TV1,000,000Google(Alphabet)Live Streaming
13.Frontier FiOS838,000FrontierFiber-Optic
14.Mediacom776,000MediacomCable
15.PlayStation Vue500,000SonyLive Streaming
16.CableOne Cable TV326,423Cable OneCable
17.FuboTV250,000FuboTVLive Streaming

A 2018 accounting of the largest MVPDs by subscribers shows that satellite is 2 of the top 4, and that over-the-top services like Sling TV, Hulu with LiveTV, and YouTube TV are gaining significantly. And this does not even consider (non-live) streaming services such as Netflix (approximately 60 million US subscribers), Hulu (about 28 million US subscribers) and Amazon Prime Video (which has about 40 million users in the US). It is not clear from these numbers that satellite needs special rules in order to compete with cable, or that the complex regulatory regime underlying STELA is necessary anymore.

On the contrary, there seems to be a lot of reason to believe that content is king, and the market for the distribution of that content is thriving. Competition among platforms is intense, not only among MVPDs like Comcast, DirecTV, Charter, and Dish Network, but from streaming services like Netflix, Amazon Prime Video, Hulu, and HBONow. Distribution networks heavily invest in exclusive content to attract consumers. There is no reason to think that we need selective forbearance from the byzantine regulations in this space in order to promote satellite adoption when satellite companies are just as good as any at contracting for high-demand content (for instance DirecTV with NFL Sunday Ticket). 

A better way forward: Streamlined regulation in the form of copyright and antitrust

As Geoffrey Manne said in his Congressional testimony on STELA reauthorization back in 2013: 

behind all these special outdated regulations are laws of general application that govern the rest of the economy: antitrust and copyright. These are better, more resilient rules. They are simple rules for a complex world. They will stand up far better as video technology evolves–and they don’t need to be sunsetted.

Copyright law establishes clearly defined rights, thereby permitting efficient bargaining between content owners and distributors. But under the compulsory license system, the copyright holders’ right to a performance license is fundamentally abridged. Retransmission consent normally requires fees to be paid for the content that MVPDs have available to them. But STELA exempts certain network broadcasts (“distant signals” for “unserved households”) from retransmission consent requirements. This reduces incentives to develop content subject to STELA, which at the margin harms both content creators and viewers. It also gives satellite an unfair advantage vis-a-vis cable in those cases it does not need to pay ever-rising retransmission consent fees. Ironically, it also reduces the incentive for satellite providers (DirecTV, at least) to work to provide local content to some rural consumers. Congress should reform the law to allow copyright holders to have their full rights under the Copyright Act again. Congress should also repeal the compulsory license and must-carry provisions that work at cross-purposes and allow true marketplace negotiations.

The initial allocation of property rights guaranteed under copyright law would allow for MVPDs, including satellite providers, to negotiate with copyright holders for content, and thereby realize a more efficient set of content distribution outcomes than is otherwise possible. Under the compulsory license/retransmission consent regime underlying both STELA and the Cable Act, the outcomes at best approximate those that would occur through pure private ordering but in most cases lead to economically inefficient results because of the thumb on the scale in favor of the broadcasters. 

In a similar way, just as copyright law provides a superior set of bargaining conditions for content negotiation, antitrust law provides a superior mechanism for policing potentially problematic conduct between the firms involved. Under STELA, the FCC polices transactions with a “good faith” standard. In an important sense, this ambiguous regulatory discretion provides little information to prospective buyers and sellers of licenses as to what counts as “good faith” negotiations (aside from the specific practices listed).

By contrast, antitrust law, guided by the consumer welfare standard and decades of case law, is designed both to deter potential anticompetitive foreclosure and also to provide a clear standard for firms engaged in the marketplace. The effect of relying on antitrust law to police competitive harms is — as the name of the standard suggest — a net increase in the welfare of consumers, the ultimate beneficiaries of a well functioning market. 

For instance, consider a hypothetical dispute between a network broadcaster and a satellite provider. Under the FCC’s “good faith” oversight, bargaining disputes, which are increasingly resulting in blackouts, are reviewed for certain negotiating practices deemed to be unfair, 47 CFR § 76.65(b)(1), and by a more general “totality of the circumstances” standard, 47 CFR § 76.65(b)(2). This is both over- and under-inclusive as the negotiating practices listed in (b)(1) may have procompetitive benefits in certain circumstances, and the (b)(2) totality of the circumstances standard is vague and ill-defined. By comparison, antitrust claims would be adjudicated through a foreseeable process with reference to a consumer welfare standard illuminated by economic evidence and case law.

If a satellite provider alleges anticompetitive foreclosure by a refusal to license, its claims would be subject to analysis under the Sherman Act. In order to prove its case, it would need to show that the network broadcaster has power in a properly defined market and is using that market power to foreclose competition by leveraging its ownership over network content to the detriment of consumer welfare. A court would then analyze whether this refusal of a duty to deal is a violation of antitrust law under the Trinko and Aspen Skiing standards. Economic evidence would need to be introduced that supports the allegation. 

And, critically, in this process, the defendants would be entitled to raise evidence in their case — both evidence suggesting that there was no foreclosure, as well as evidence of procompetitive justifications for decisions that otherwise may be considered foreclosure. Ultimately, a court, bound by established, nondiscretionary standards would weigh the evidence and make a determination. It is, of course, possible, that a review for “good faith” conduct could reach the correct result, but there is simply not a similarly rigorous process available to consistently push it in that direction.

The above-mentioned Modern Television Act of 2019 does represent a step in the right direction, as it would repeal the compulsory license/retransmission consent regime applied to both cable and satellite operators. However, it is imperfect as it does leave must carry requirements in place for local content and retains the “good faith” negotiating standard to be enforced by the FCC. 

Expiration is better than the status quo even if fundamental reform is not possible

Some scholars who have written on this issue, and very much agree that fundamental reform is needed, nonetheless argue that STELA should be renewed if more fundamental reforms like those described above can’t be achieved. For instance, George Ford recently wrote that 

With limited days left in the legislative calendar before STELAR expires, there is insufficient time for a sensible solution to this complex issue. Senate Commerce Committee Chairman Roger Wicker (R-Miss.) has offered a “clean” STELAR reauthorization bill to maintain the status quo, which would provide Congress with some much-needed breathing room to begin tackling the gnarly issue of how broadcast signals can be both widely retransmitted and compensated. Congress and the Trump administration should welcome this opportunity.

However, even in a world without more fundamental reform, it is not clear that satellite needs distant signals in order to compete with cable. The number of “short markets”—i.e. those without access to all four local network broadcasts—implicated by the loss of distant signals is relatively few. Regardless of how bad the overall regulatory scheme needs to be updated, it makes no sense to continue to preserve STELA’s provisions that benefit satellite when it is no longer necessary on competition grounds.

Conclusion

Congress should not only let STELA sunset, but it should consider reforming the entire compulsory license/retransmission consent regime as the Modern Television Act of 2019 aims to do. In fact, reformers should look to go even further in repealing must-carry provisions and the good faith negotiating standard enforced by the FCC. Copyright and antitrust law are much better rules for this constantly evolving space than the current sector-specific rules. 

For previous work from ICLE on STELA see The Future of Video Marketplace Regulation (written testimony of ICLE President Geoffrey Manne from June 12, 2013) and Joint Comments of ICLE and TechFreedom, In the Matter of STELA Reauthorization and Video Programming Reform (March 19, 2014).