Tim Wu Is Out Of Control

I guess I should start this out by noting that I like Tim Wu quite a bit, and always felt like I learned something in the past when I spoke with him. He was even one of the people who reviewed and provided feedback on my big “protocols, not platforms” article months before it was published.

Tim has been an important voice in thinking through tech policy issues over the last two decades. He coined the term “net neutrality” and has been an advocate for breaking up “big tech” who he views as too powerful. As noted, I’ve learned a lot from him and agree with him that the world would be better if big tech companies weren’t so big (that’s one of the reasons why I wrote that protocols paper in the first place).

But just because you hate big tech, it doesn’t mean that you throw out basic, fundamental rights in pursuit of that goal. Yet Wu seems so focused on “big tech bad” that he’s literally willing to toss out the First Amendment in an effort to achieve his desires, even if all that will do is empower authoritarians and fascists, giving them even more power (which is not exactly a recipe for more competition in any industry, if history is any indication).

I’m confused about where Tim’s mind is at lately, as he seems to have embraced multiple ridiculous, dangerous, authoritarian policy ideas that would be incredibly damaging to the public, almost all of which involve suppressing speech in pursuit of policy goals that Wu supports, without even the slightest concern about the damage it will do to people.

We saw it last year, when he publicly supported having Congress move forward with KOSA, despite dozens of civil liberties and LGBTQ groups noting how its “duty of care” would be used to harm LGBTQ youth, blocking them from accessing information. Then, earlier this year, he signed onto an absolutely ridiculous amicus brief in support of Texas’s social media content moderation law. That brief was full of confused or misleading statements. He’s also been strongly supportive of banning TikTok, which is another attack on the First Amendment.

With all of these instances in the past few years, in each of which he dismisses of basic First Amendment principles, you might have been tempted to think that Wu hates the First Amendment. But even I had thought that would have been a bridge too far for Wu.

That is, until he published his latest op-ed in the NY Times: a full frontal attack on the First Amendment, entitled “The First Amendment is Out of Control.”

Even if he didn’t write that headline (at major publications, editors often write the headlines, rather than the authors themselves), the article is yet another horribly confused, badly argued, fundamentally ridiculous attack on the First Amendment.

The First Amendment is not out of control. Tim Wu is out of control.

He starts out his piece by arguing that the First Amendment used to be about protecting “political dissenters” but more recently has been twisted by judges to “an all-purpose tool of legislative nullification that now mostly protects corporate interests.”

As for the idea that the First Amendment used to protect political dissent, I think folks like Charles Schenk and Eugene Debs might question that claim.

But, more importantly, the idea that the First Amendment is now some sort of awful corporate protection tool is, well, also wrong. The problem is that lawmakers keep trying to pass laws to suppress speech, including the speech of corporations. Don’t do that, and the First Amendment doesn’t get in the way of regulations. It’s pretty straightforward.

The real problem here is that Tim Wu wants to suppress the speech of companies he doesn’t like. And he’s mad that the First Amendment doesn’t allow this. And, even if I don’t like the dominance of those companies either, there are ways to change that which DO NOT involve attacking their First Amendment rights. If only Wu were willing to explore those options, rather than stomping out rights in pursuit of punishing speech he dislikes.

Also, it’s either ironic or stupid that he’s arguing this in the NY Times, which is also a corporation, and which has established some of the most important First Amendment precedents in the last century in both NY Times v. Sullivan and NY Times v. US. Those two cases, from 1964 and 1971, did not establish the idea that corporations are protected by the First Amendment. Courts had ruled on that point much earlier. But the two NY Times cases certainly helped explain why it’s so important for companies to have First Amendment protections as well.

Otherwise, authoritarian leaders could suppress the speech of companies they dislike. They could sue publications into oblivion. They could block them from publishing important news.

Wu is doing some rewriting of history here, mainly because he’s mad that the majority of the Supreme Court in the NetChoice cases rejected his nonsense pro-authoritarian theories in support of Texas’ social media law that would have stripped companies of editorial discretion rights and enabled authoritarian politicians to force companies to host messages they had no interest in associating with.

In the process, he attacks a series of recent First Amendment decisions:

Over the past decade or two, however, liberal as well as conservative judges and justices have extended the First Amendment to protect nearly anything that can be called “speech,” regardless of its value or whether the speaker is a human or a corporation. It has come to protect corporate donations to political campaigns (Citizens United v. Federal Election Commission in 2010), the buying and tracking of data (Sorrell v. IMS Health in 2011), even outright lies (United States v. Alvarez in 2012). As a result, it has become harder for the government to protect its citizens.

Of course, it’s easy to toss this list out without actually digging deep into the details of each case and why they were decided the way they were. They were not designed to make it “harder for the government to protect its citizens,” but rather they were decided (correctly) in an effort to make it harder for the government to suppress the rights of the public.

Each of those cases has supporters and detractors, but if any of those cases had gone differently, it would have led to the suppression of speech in dangerous ways, enabling authoritarians to silence important political dissent (the thing Wu insists the First Amendment has moved away from).

Indeed, Wu’s own argument is undermined by history (which he seems unfamiliar with). Later in the piece, he cites Justice Robert Jackson, who wrote a dissent in Terminiello v. Chicago. That was a First Amendment case in which a horrible racist priest was arrested after giving an inflammatory racist speech. The Supreme Court noted that the ordinance he was arrested under violated the First Amendment. In Robert Jackson’s dissent, he made the now-famous quote about how this type of ruling could “convert the constitutional Bill of Rights into a suicide pact.”

But, as free speech expert (he literally wrote the book on it) Jacob Mchangama noted, the ruling in Terminiello has been important, such as when it was cited in Edwards v. South Carolina to protect black students in South Carolina who had been arrested for protesting segregation. There, the Supreme Court cited the majority opinion in Terminiello to point out that the protestors had the First Amendment right to protest segregation.

Similarly, Mchangama points out that Justice Jackson, who Wu holds up as his north star on the First Amendment, wrote a concurrence in Dennis v. US, in which he supported convicted members of the Communist Party. The concurrence is a broadside against anarchy and Communism, suggesting that the “clear and present danger” test is too lenient. Basically, he says Communists should be arrested before they actually do anything, because if you wait until a “clear and present danger” (a standard that was used to jail Schenk decades earlier, and soon after this case was made obsolete) it would be “too late.”

So, Wu is supporting the views of someone who wished to jail people as a national security threat based on their political leanings, while supporting his dissent in a case that was later key in supporting civil rights of those protesting segregation in the 1960s.

This is important: the nature of the First Amendment is that sometimes it protects the speech of people you dislike or distrust. Because if you don’t protect them, then those same authorities will suppress, stifle, and silence the speech of people you do support and do agree with.

Tim Wu is advocating a full frontal attack on the First Amendment because he greatly dislikes some companies — companies who have done amazing things to enable more speech in the world. Wu doesn’t like some of that speech and therefore looks to take down the First Amendment, even if it would give those like Donald Trump or Texas AG Ken Paxton that much more power to silence and suppress the speech of those they dislike.

I admit that I am perplexed by this side of Tim Wu. He’s a thoughtful explainer of various forces, but seems wholly incapable of thinking through how his desired outcomes would be used to silence the marginalized and the oppressed.

His anger about “big tech” seems to cloud his thinking about nearly everything.

The reasoning in the decision in the NetChoice cases marks a new threat to a core function of the state. By presuming that free speech protections apply to a tech company’s “curation” of content, even when that curation involves no human judgment, the Supreme Court weakens the ability of the government to regulate so-called common carriers like railroads and airlines — a traditional state function since medieval times.

This isn’t just wrong, it’s embarrassingly confused. The government can still regulate common carriers, that is businesses that “carry” commodity items (people, products, data) from point A to point B, and have no ongoing relationship beyond that.

Social media is not that. It’s nothing like a common carrier. A common carrier like an airplane need not allow a customer to travel non-stop on their airlines in perpetuity. But a social media website hosts content in perpetuity. It is not delivering from point A to point B. Nor is it providing a commodity service.

And, more to the point, the reason that the Supreme Court ruled the way it does is that without websites having editorial discretion, the internet cannot function. Perhaps Tim needs to get out of his academic ivory tower, and spend some time actually working in trust & safety, rather than coming up with pie in the sky nonsense about how the internet works.

It might help bring him back to reality. If he wants, I’ll let him moderate the Techdirt comments for a week, and we’ll see how he feels about allowing states to force websites to keep content online after that.