& BRIEFLY NOTED: For 2022-02-08 Tu: First: Free Speech, vs. Free Profiting-by-Lying by Spotify: The very sharp Ben Thompson seems to me to have this one completely wrong. Free expression is a very powerful value indeed in America. Free profiting-by-lying—juicing your profit numbers by spreading misinformation to scare the shit out of your readers, and leading them to ruin their lives, all because by so doing you can glue their eyeballs to a screen and sell them ads—is not fine, but ugly and contemptible. It, rightly, is a very powerful value only to those who glee in hacking for profit the brains of their users, to their detriment. Spotify having Joe Rogan in its podcast directory is free speech. Spotify paying Joe Rogan in the nine figures to make his podcasts Spotify-exclusive and then spend money like water to grow his audience and monetize their now-exclusive property is the second. Daniel Ek at Spotify knows this damned well. But he hopes he may be able to ride this one out if he can get enough useful idiots to say that Spotify is defending free speech. And Ben Thompson has fallen for it LINK: <https://stratechery.com/2022/spotify-and-joe-rogan-culture-and-principles-music-versus-podcasts-and-the-long-run/>
I think that the First Amendment might be nearing the same crossroads that engendered critical race theory. Between 1954 (ish) and 2005 (ish), we regulated racial issues with the nondiscrimination principle. This was the right move in its time, when the problem was Jim Crow, and we could turn legal formalism against it. But things have changed, and we've seen that nondiscrimination doesn't work any more. Indeed, formal nondiscrimination has been weaponized by the neo-Confederates.
I would submit that the same is true for modern First Amendment jurisprudence, born of the McCarthy Red Scare--also around 1954-ish. It was another dream of legal formalism, adapted to the problems of its time. But it relied on reasonably responsible mass media and a norm that political discourse would match legal discourse--intentionally misleading, but not intentionally false. With the erosion of norms against lying and the emergence of Murdoch's Völkischer Beobachter, this predicate is gone, and the First Amendment has been weaponized by the neo-Confederates.
(Additionally, the public-private distinction scoping the First Amendment is less applicable these days. Monopolies with shunning power are a bit too close to Leviathan for my comfort.)
Since the federal courts are now run by the neo-Confederates, there's not much that can be done about this--at least in the short run. But we might want to reexamine our notions of free expression. Legally, DeLong is correct and Thompson is wrong. But Thompson might be the future.
I think that the First Amendment might be nearing the same crossroads that engendered critical race theory. Between 1954 (ish) and 2005 (ish), we regulated racial issues with the nondiscrimination principle. This was the right move in its time, when the problem was Jim Crow, and we could turn legal formalism against it. But things have changed, and we've seen that nondiscrimination doesn't work any more. Indeed, formal nondiscrimination has been weaponized by the neo-Confederates.
I would submit that the same is true for modern First Amendment jurisprudence, born of the McCarthy Red Scare--also around 1954-ish. It was another dream of legal formalism, adapted to the problems of its time. But it relied on reasonably responsible mass media and a norm that political discourse would match legal discourse--intentionally misleading, but not intentionally false. With the erosion of norms against lying and the emergence of Murdoch's Völkischer Beobachter, this predicate is gone, and the First Amendment has been weaponized by the neo-Confederates.
(Additionally, the public-private distinction scoping the First Amendment is less applicable these days. Monopolies with shunning power are a bit too close to Leviathan for my comfort.)
Since the federal courts are now run by the neo-Confederates, there's not much that can be done about this--at least in the short run. But we might want to reexamine our notions of free expression. Legally, DeLong is correct and Thompson is wrong. But Thompson might be the future.