Did you spot the Capitol Hill Fox? 🦊
May she rest in peace. Plus, read about our hard work on the updated FTC merger guidelines, content moderation, and so much more.
Before we get to anything else, we are so excited to announce that Jason Kuznicki has joined us this week as our first Editor-in-Chief! Previously, Jason served as a senior fellow at the Cato Institute and the editor of Cato Books. Jason is no stranger to the intersection of government and technology—he even wrote about it in his first book, Technology and the End of Authority: What Is Government For?. More importantly, hiring Jason also helps us with our scrabble scores as Z is worth 10 points (the most) and K is worth 5 (the third most).
In other news, fellow D.C. residents got to experience a gripping saga of life and death this week via the rapidly (and rabidly) infamous Capitol Hill Fox. Though she first gained notoriety for being very, very cute, the fox soon began to attract controversy by sinking her teeth into a congressman, a journalist, and other passersby near our nation’s legislature. In a victory for the tough-on-crime crowd, the Capitol Hill Fox was finally captured and executed on Tuesday. Still more dramatic, after her death, she tested positive for rabies, putting her squarely in the top 5% of individuals on the Hill most likely to foam at the mouth. Updates to come on whether she’ll be lying in state.
Free Speech. We long agreed with FCC Commissioner Brendan Carr: Imposing common carriage regulation on the Internet is a bad idea. But lately, Carr has learned to love common carriage regulation—as long as it’s imposed on social media publishers he thinks are politically biased, rather than on broadband providers. In testimony to a House FCC oversight hearing last week, he proposed the same ideas Congressional Republicans have been demanding for several years. If anyone should know better, it’s him. In a letter to the Committee, we explain the problems with his proposals, including social media common carriage. Carr himself, we note, understands this point perfectly well; his own arguments against ISP common carriage apply to social media. He’s called it the “Great Title II Headfake—attributing to Title II things it does not do.” As we explain, he’s been engaged in the “Great Common Carriage Headfake” and the “Great Section 230 Headfake” for years, misconstruing both in service of his personal policy preference.
FTC. Last week, we sent a coalition letter to the FTC and DOJ in response to the agencies’ Request for Information on Merger Enforcement. The letter, co-signed by seven antitrust experts, expresses our belief that the agencies should seek public comments and host workshops before and after releasing the updated guidelines. We explain how the exclusion of public discussion may be viewed as indicative of a predetermined outcome and unwillingness to engage with viewpoints inconsistent with the agencies’ preferred policy outcomes. Check out Bilal’s Twitter thread and our previous comments on the 2020 Vertical Merger Guidelines.
On Monday, Andy live-tweeted the FTC and DOJ’s Enforcers Summit. Andy focused on the panel covering Theories of Harm in Non-Horizontal Mergers, with an eye toward novel theories of harm which may make their way into the upcoming revision of the merger guidelines. Check out Andy’s recent work on the FTC, published in WLF Legal Pulse, National Review, and RealClearMarkets.
Content Moderation. Yesterday, Berin appeared on a Broadband Breakfast panel to discuss censorship. In the discussion, Berin (starting at 27:45) clarifies that censorship does not exist unless carried out by the government. Unlike content moderation, which still allows individuals to post on different websites, censorship is the power to use the state to put someone in jail or threaten their livelihood. He also reminds us that the First Amendment is very clear in forbidding our government from getting involved in such opinions about speech, period. Berin also warns about the flurry of bills in Congress that would make content moderation more difficult, especially with respect to Russian propaganda and misinformation. Lastly, this conversation often gets framed as being about Section 230 even though it’s not.
This week, Ari was quoted twice in the Washington Examiner about Elon Musk’s recent purchase of Twitter stock. Ari explains that the takeaway here is that options do exist for constituencies who feel like companies are doing a bad or improper job at content moderation. They can either work on building their own, or they can try to exert pressure on companies to do things differently.
Internet Freedom. Our beloved Shane Tews, chair of the TechFreedom board, joins us for the latest episode of the Tech Policy Podcast. In response to Russia’s invasion, Ukraine has lobbied the international community to impair Russia’s Internet infrastructure. The Russian state itself, meanwhile, has restricted its own citizens’ access to social media and other websites. Shane and Corbin discuss how the Internet works, whether the West can—or should—restrict the Internet in Russia, and whether looming technological advances will help keep the Internet open and resilient. For more, see Shane’s recent article, “Is shutting down the Russian internet an act of tyranny or democracy?”
Rule of Law. A few weeks ago, Corbin noticed something strange about Donald Trump’s latest bonkers lawsuit, a civil racketeering action against Hillary Clinton (among many others) based on a smorgasbord of conspiracy theories. The strange thing was this: Trump filed the suit in Fort Pierce, Florida. Why would he do that? Well, the little Fort Pierce Division of the U.S. District Court for the Southern District of Florida has only one judge, a Trump appointee. Corbin surmised that Trump was engaging in a bit of unethical judge-shopping. From there, one thing led to another: Trump’s legal team did further stupid stuff; then, earlier this week, Corbin’s musings received coverage at Above the Law; and then, today, Corbin published a lead story on the whole kerfuffle for The Bulwark. Check out Corbin’s piece for more, and share it on Twitter.
Follow us on Twitter! Berin @BerinSzoka; Ari @AriCohn; Corbin @CorbinKBarthold; Bilal @BilalKSayyed; Andy @AndyJungTech; Jason @JasonKuznicki; me (Rachel) @MillionthRachel.