The "platform or publisher" issue: the public doesn't get it, and that's bad for the future of user-generated content

Just a quick note to start the weekend.

I’m quite struck in eavesdropping on ordinary conversations that “ordinary people” online don’t understand the concept of downstream liability protection for platforms, in either the usual torts like defamation (Section 230 in the US) or copyright infringement (DMCA Safe Harbor, which requires a platform to respond to a complaint and then ask questions later).  The recent developments in the EU, especially for copyright, do make this a lot more problematic for the entire western world.

Furthermore, people have different perceptions of the social consequences of speech.  In the early days, like the late 90s, practically unlimited free speech from any other “nobody” was considered a way to enhance democracy and encourage equality.  That wasn’t questioned at first but has gradually eroded.  But this perception was largely true even during the early days of big social media.  

Remember, Zuckerberg was “person of the year” for Time’s 2010 cover, as “the connector”.  We had an Arab spring, and the takeout of Osama bin Laden by Obama.  But by 2014, things were changing. 

 We saw more evidence of identarianism, as with Ferguson, even while Obama was president.  Radical Islam, now ISIS, was recognized as am essentially identarian theocratic threat, but relatively easy to spot and isolate.  Because of the nature of some aspects of US History, “white nationalism” was becoming a more insidious threat, which connected underground to some people who would support Trump’s 2016 rhetoric (and greatly exacerbated by Charlottesville, and then Pittsburgh and Christchurch).  The identity-centered concerns of some groups on the Left do have some validity, such as security issues when people in various groups assemble.  I say this as a libertarian to centrist “gay conservative” (David Rubin makes sense to me) myself.

Today, we have a “crisis” in the way people perceive the “value” of individual speech.  More people on the Left see it as a manifestation of inherited advantage and privilege (sometimes connected to race).  I personally value nuance and seeking truth and provable facts in debate.  The practical reality is that most people today believe that access and propagation of information should come from social structures (families, countries, religious or tribal authority, and now intersectional groups) and be related to meeting real needs of other people, sometimes in “creative” channels (as Paul Rosenfels used to describe them). This view would require individuals to contribute to others' social capital as understood by localism before they could have a soapbox to be heard globally. 

  

So now we see the public as a whole seeing the big social media platforms as publishers, who should no longer just allow anyone on to self-publish anything.  Generally, (leftist) activists want speech to be justified by follow-up of action (as Burt Neuborne explained in Madison’s Music) so that, at least politically, people will come together in enough numbers (as “foot soldiers” or “proles”) to make real political change.  A parallel idea exists with gun control:  if you want to claim the natural right to own a gun, you ought to belong to a volunteer fire department, so to speak (the “justification” clause regarding militia, which the Supreme Court says is not actually incorporated into exercising the natural right, as Eugene Volokh has explained). 

So, we are likely to see a future where there will be many more “publishers” than in the past (before the Internet) but they will have to be screened to ensure the legitimacy of their intentions.  They generally will need to be running a real business (actually conducting commerce and selling things) or doing legitimate organizing and activism.   That is how the tech world is seeing things, as being pressured by the corporate world, which in turn has become unexpectedly responsive to the threats of the established Left (read – organize boycotts).  The Left is about getting people to show up and protest, not to film and remain spectators (which is what conservatives like to do, including myself).

  

No wonder, big tech seems favorable to the Left and to collectivists, and has turned against conservatives, not so much directly about ideology, but because conservatives tend to act individually, not in groups.  (David Pakman is a “liberal” but has gotten in trouble because he also is a very strong individualist, unusual on the Left.)   Indeed, Tech has fallen into a spell related to Herbert Marcuse and to neo-Marxism.  Another way to perceive what is going on is to ponder Nassim Nicholas Taleb’s “skin in the game” or the idea of “no spectators” as expressed by Burning Man in Nevada or even the Netflix satire “Rebirth”.

  

My own situation is related to the idea that my setup is very old, dating as far back as 1996, before my first “do ask do tell” book was self-published (1997).  I don’t have advanced video skills, because I did all my stuff before YouTube really took off.  My setup has multiple entry points, set up over time, so it may sound like it has redundancies and seem non-transparent.  Yet, I am trying to do something about this, but it will take until the end of 2021 (there’s a lot of detail I can’t cover in one post).

  

The redundancies and multiplicity of access routes, and my strategy of simply letting people find me, was very effective in the early years but could be a source of criticism and even threats of shutdown now, because I don’t “play ball” with the tribal climate today.  This observation reminds me of the “media manipulation” policies and takedowns of “coordinated inauthentic behaviors” by Facebook in 2018, which are not quite the same things operationally.  They are basically related not just to spam (as usually understood) but to the inflation of metrics (especially on large social media platforms) to convey the misleading impression of more popularity of a speaker than actually exists or "earned".  In the future, social media will pay much more attention to the “authentic” metrics of all speakers --- does this content pay its own way?  Does it fill real needs of consumers?  The use of persistent identifiers clouds these questions (COPPA and CCPA, in different ways) as does the practice of patronage.  It’s much healthier if consumers really pay for what they consume -- but paywalls are just too cumbersome.  We have a lot of work to do.

  

I will also say this.  I don’t have particularly good numbers in the legitimate sense, but I know that my content,, however "gratuitous", has been politically influential about certain issues (it was very important in ending “don’t ask don’t tell” some years ago).  In perhaps two instances my hidden participation has turned out to be very critical for the final outcome of a situation. But that’s because the “right” people find it and the nuanced ideas about moral ambiguity (sometimes traceable to some bizarre ironies or incidents in my own narrative history) stick.  Yet that doesn’t seem to be as acceptable a way for global speakers to operate now as it had been twenty years ago, because it gives covert intellectual “elites” with no direct responsibilities for others who need them, too much covert power.  That is a real problem for me.  Back in 2005, there was an argument going around that McCain-Feingold campaign finance reform would shut down political blogging because it could give bloggers too much covert power – the FEC eventually calmed that situation down (as I have explained in the past), and then we had Citizen’s United and various other rulings.  But now the problem is coming back just with pressure on Tech itself, and gain from political candidates (like Biden and Warren).  So yes, I am watching this carefully.