On Richard Epstein on Regulating “Big Tech”

Source: American Institute for Economic Research.

“At the core of Epstein’s analysis is his identification of conditions under which so-called ‘big tech’ firms might be prevented by the common law from deplatforming, or refusing to platform, customers. Specifically, the law sometimes holds that firms that are monopolists have obligations to the public that are more extensive than those firms would have were they not monopolists.

“And so if companies such as Twitter and Facebook have monopoly power, they are subject to the Anglo-American common-law rule that (as described by Epstein) ‘no private monopoly has the right to turn away customers.’ Such monopolists must serve all customers on terms that are ‘fair, reasonable and nondiscriminatory.’ A useful acronym for this requirement is ‘FRAND.'”

Epstein appears to say that the common good justifies government regulation of a monopolist enterprise, but I don’t think that’s what he means.

A different way to read his argument is to note simply that the common law provides a safety valve for disputes involving monopolist behavior. Because the safety valve exists, such disputes can be resolved by adjudication, short of violence or vigilantism.

In other words, FRAND allows the rule of law to prevail by giving disputants something to focus their conflicting claims upon.

Ultimately, however, no monopoly is perfect or capable of infinite extension. None is wholly immune from either competition or entropy.

Thus, the back side of Epstein’s argument is that it shouldn’t be necessary to forcibly break up monopolies — because lesser remedies exist.

34 thoughts on “On Richard Epstein on Regulating “Big Tech”

  1. The market will provide remedies for the dissatisfied.


    Yes, there may be substantial customer loss by deplatforming the president. But will it outweigh the economic gain or, more likely, the loss of reputation which leads to economic losses.

    Does Twitter, et.al., want to be in the same category as Parler or Gab?

    FYI, Jack Dorsey agonized for a long time about the vitriolic messaging by the president. For reasons such as keeping open platforms and the simple fact that censoring the president is a serious undertaking.

    But, as Popeye used to say, “I can stands so much, and I can’t stands no more”. The assault on Congress by crazed insurrectionists who have been asserting that they “followed their president” sealed the deal.

    Some capitalists do actually think about their place in the scheme of things.

    Liked by 2 people

      1. About the same as patent medicine sales from the back of a wagon.

        Social media did for Trump the same as it does for many fringe nuts. They can bully, threaten, insult, extort and expose without the “discomfort” of face to face confrontation.

        And therein lies the bramble bush.

        Talk that would earn a punch in the nose, or worse, risks nothing more than a “thumbs down” icon.

        And it is all bumper sticker worthy with an equal amount of nuance.

        Would we tolerate a bullhorn wielding anarchist bellowing threats and insults daily at an intersection? Disturbing the peace at the very least.

        Yet, that is what social media does millions of times a day as political discourse fades to violence. Anonymity and vitriol worthy of a Marine DI in your face without the physical confrontation.

        Liked by 3 people

    1. RE: “The market will provide remedies for the dissatisfied.”

      The law can do the same, within limits that don’t include governmental use of force or idealistic pursuit of the “common good.”


  2. It is not necessary, or good, to substitute government control of content for private. All that is necessary is to remove section 230 protections from platforms that filter content beyond actual obscenity and violence.


  3. Things that would be censored by Twitter

    “If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable–and let it come! I repeat it, sir, let it come.

    It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace– but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! ”

    “What country before ever existed a century and half without a rebellion? And what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.”


      1. “If ye love wealth better than liberty, the tranquility of servitude better than the animating contest of freedom, go home from us in peace. We ask not your counsels or arms. Crouch down and lick the hands which feed you. May your chains set lightly upon you, and may posterity forget that ye were our countrymen.”


        1. That is a classic ad hominem response. You have no facts or logic that refute the point I made. That Patrick Henry rhetoric WAS grotesquely overblown. And decent people thought so at the time. The American colonists had more actual liberty than just about anyone anywhere in the world at that time.

          Beyond that, ALL of your blather about Liberty is now a proven joke given that when – for the first time in our lives – our liberties actually came under threat from a renegade President inciting dangerous people to violence – people with all the humanity and reason of a lynch mob – YOU stood firmly with the bad guys, the imbeciles and the insurrectionists.

          Liked by 2 people

          1. “We have been considerably more free under Trump than were under Obama.”

            Says the man stuck in his compound for the last year.

            In fact, there is no meaningful way that you are more or less free now than you were four, eight or twelve years ago. My choice of words was spot on. Blather. I should have added “empty.”

            Liked by 2 people

          2. I did not say I had lost any liberty under Trump. I said he is the first actual threat to our liberty in our lifetime. The takeover of the government by force threatens ALL of our liberties. The gun-toting and murderous shitheads whom he mobilized to stop the peaceful transfer of power were stopped this time, but the threat remains.

            Liked by 1 person

    1. This last was, of course, a private letter from Jefferson and not posted on a platform for 80 million people. Note, too, that it was in 1787 or so, which was about a year or two into the new nation which I am sure Jefferson was not trying to tear apart.

      The others were a call to arms for secession from England. Not to overthrow the government, but to leave it.

      The suggestion that the folks who attack Congress looking for Congressmen and the VP to kill were suffering so badly that the oppression was unbearable is pretty hard to swallow. And the idea that they were doing this at the behest of the sitting president solely to help him stay in office is even more outrageous. Not to mention that after he sent the mob to the Capitol, the president goes home to watch it all unfold on TV.

      I think the patriots of the 18th Century would roll their eyes in disgust that the oath of office meant nothing to the president and his minions.

      “I just need you to find 11,000 more votes and say you “recalculated”.” A paraphrase of words that go against the notion of states’ rights especially when threats of criminal prosecution for not doing so were obvious.

      Liked by 2 people

      1. All irrelevant

        The point is that Twitter would block Patrick Henry and Thomas Jefferson.

        Big Tech sees us as too weak minded to place stirring patriotic rhetoric in perspective. Under such rules, we are all limited to the depth of the weakest mind.

        I don’t need another Nanny to protect me.


        1. Protect you? How about the VP who was within a few seconds of being found by your “patriots” if it weren’t for the Capitol policeman who risked his life as a decoy.

          No. I agree that censorship has a rough history, but closing down a determined effort to overthrow our government by the president and a bunch of ignorant savages bent on bloodshed just because they felt the call of their leader is not useful nor needed.

          Liked by 2 people

          1. Twitter is not just censoring plans for violence, it is shutting down opinion that, in their great wisdom, might lead to violence,

            Oddly, that doesn’t include BLM statements that all cops are bad and deserving of attack.

            That’s the problem with censorship. It is always subjective. Your tribe is threatening us, my tribe is just standing up to threats.

            We are better off with the ugly speech in plain sight than in clandestine meetings of like minds.


          2. Does that mean you approve of occasional attacks on government if the incendiary tweets are continuing?
            Collateral damage in the interest of untrammeled hate speech and lies?

            Here is the thing I find curious. You want to rescind 230 protections. I understand that. Yet you don’t want those same platforms to censor the postings of their customers.

            Can’t have it both ways. Twitter would be sued daily just from Trump’s posts.

            Liked by 2 people

          3. No, I just do not agree that free speech inherently leads to violence. I believe people can have strong opinions and not commit acts of aggression. Violence is only justified as an answer to violence, not to words.

            People have said awful things about me on a regular basis, I haven’t harmed anyone. I expect the same of others.

            Regarding 230 protections. I’m not the one wanting things both ways. 230 protections are there for neutral platforms for content provided by others. But when the content is so filtered that the platform is determining the content, those protections are no longer appropriate.


          4. “I believe people can have strong opinions and not commit acts of aggression.”

            I do too.

            But we just witnessed thousands who cannot make that distinction. And there is no doubt they acted willingly in response to words from the sitting president. Not just from the rally, but from months of exhortation and propaganda that the election was stolen.

            This is a serious matter. Because of their actions and the abuse of free speech by a sitting president, we may end up with restrictions we didn’t want or necessarily deserve.

            Neutral content? Posting names and addresses of innocent folks, from both sides in some issues, but predominantly the right in this election fiasco. You agree with that? The results are, of course, threats.

            And we are now learning that the gangs that attacked planned and organized this attack via various social media communications.

            You don’t see that as a problem? Or do you not care, expecting everyone to arm themselves to protect against insurrections?

            Liked by 2 people

          5. The result was 1 policeman killed by a rioter, 1 rioter killed by a policeman and three others whose passion exceeded their stamina. Of course it could have been worse.

            But as bad as it could have been, it is not nearly so bad as the consequences of
            squelching the marketplace of ideas.

            When people can speak their peace they get feedback or validation, either of which tend to reduce the impulse to act. But when people feel they haven’t had the chance to state their case. their anger festers and in their minds, the worst of their opponents intent is confirmed.

            Violence becomes their only way to make their point. It’s a while lot better to let them say something you don’t like than to have them believe you dismiss their beliefs without a hearing.

            SO Jefferson is correct, we are better off bearing the consequences of too much liberty than too little.


          6. “ Violence becomes their only way to make their point.”

            All the censorship by social media took place AFTER the assault on Congress. So your point is pointless.

            Liked by 1 person

          7. How would you know from inside your bubble?

            I have been seeing posts from conservative authors pulled shortly after appearing since Sept. and “fact check” tags at least as long.

            Just because the left wing contacts you have get through doesn’t mean censorship of conservative views hasn’t been intense.


          8. So fact checks are bad?

            Free speech for conservatives but not for the fact checkers?

            Heaven forbid we should call out liars so they have to defend their positions.

            That is called “debate”.

            A concept unknown to the thousands of gang members attacking Congress to undo the election in Trump’s favor.

            Liked by 2 people

          9. Yes, Fact Checks of OPINIONS by the platform provider are bad. If you debate something I post, that is the marketplace of ideas.

            I don’t do Twitter, but on Facebook, “factchecked” posts couldn’t be forwarded or shared, and the “fact checking” was biased. Would you want to participate in a forum where Rush Limbaugh decided what was true and what was not?

            But again, the social media sites get liability protection under section 230 because they are supposedly neutral platforms for the opinions of others. If they decide to become participants or arbiters of the debate, then those liability protections are no longer justified.


          10. Moderation for obscenity, civility and actual threats of violence, OK.

            But opinion or content or even veracity are none of the moderators business.


          11. “Violence becomes their only way to make their point. ”

            That statement is utter nonsense. But even so, I think it is based on a “fact” that you just made up – that these shitheads had been “censored.” It would be better for them if they had been because the stuff they put out on social media is going to bite them in the ass when they are brought to trial.

            Liked by 1 person

          12. You seem to be caught on the horns of a dilemma. On the one hand you believe that the marketplace can deal with just about any issue and yet you call for the government to do something about social media companies trying to purge or flag falsehoods. Which is it? Surely, in your philosophy, the only proper response is take your business elsewhere? Parler seems to have found a new home with a Russian company providing the servers needed. Why not just go there.


          13. “But opinion or content or even veracity are none of the moderators business.”

            Uh, if we are talking about the social media companies it IS literally THEIR business. If they believe that their overall business is jeopardized by the likes of liars and agitators like Trump or by hosting conspiracy enablers like Parler they have a fiduciary duty to their investors to act on that belief.


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