About the Trump Articles of Impeachment

The White House’s response to the Articles of Impeachment omitted an important argument against the Articles. The argument concerns the longstanding understanding by every just society that “ex post facto laws” are unjust.

An ex post facto law is one that retroactively criminalizes actions that were taken prior to the law’s adoption. Article I, section 9, clause 3 of the U.S. Constitution provides that Congress shall pass no ex post facto law—for good reason.

Thomas Jefferson’s take on ex post facto laws was this:

“The sentiment that ex post facto laws are against natural right is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe them. The federal constitution indeed interdicts them in criminal cases only; but they are equally unjust in civil as in criminal cases, and the omission of a caution which would have been right, does not justify the doing what is wrong.”

A primary reason all U.S. laws are published is to give citizens fair warning of what they are prohibited from doing. Theoretically, ignorance of the law does not excuse the commission of a crime because remaining ignorant was a failure by the criminal to fulfill his duty to learn the law. That rationale for punishing people does not work if the law is unknowable. The destructiveness to social order and the villainy of ex post facto laws cannot be overstated.

For the reason explained below, if the alleged acts of “high crimes and misdemeanors” specified in The Articles of Impeachment against Trump are crimes or misdemeanors (something the White House’s response denies), they are ex post facto crimes or misdemeanors, i.e., they are prohibited by the Constitution. Consequently, the supporters of the Impeachment are violating and undermining the Constitution they swore to support and defend— while they don somber expressions and are otherwise acting as though they are bearing faith and allegiance to the Constitution.

The language of statutes is important, but the text alone is not the law. Among other things, courts interpret statutory language to make more explicit what the language was intended to mean or torture the language until it confesses a constitutionally permitted meaning (sadly, courts also too often find intentions or meanings that are either different from the ordinary meaning of a statute’s language or are simply figments of the judges imaginations, e.g., “emanations of the penumbras”). So, regardless of what a statute says, its language means whatever the courts say it means—which can be very different from the meaning of the actual language of a statute.

More important, “customs and usage” play an important role in how laws are interpreted and applied. For example, in 1986, the U.S. Supreme Court upheld Georgia’s sodomy laws that criminalized certain sexual acts that were common among homosexuals. [Bowers v. Hardwick] In 2003, however, asserting “that the sodomy statutes in colonial America in the 17th century were largely unenforced,” the Supreme Court declared that to enforce sodomy laws was unconstitutional. [Lawrence v. Texas] While the court cited equal protection and due process as the foundation of its ruling, as Bowers and Hardwick made clear, those foundations would not have been availing absent the changes in societal customs and usage between the two decisions and in Lawrence v. Texas the court relied on the fact that “the sodomy statutes in colonial America in the 17th century were largely unenforced” as a reason the law could not be enforced.

All federal employees take an oath of office to faithfully perform their duties. “Faithfully” connotes that the person swearing will put the interests of the people ahead of her own. Nevertheless, one would be hard-pressed to name any president or a member congress who has not used the powers bestowed on her to serve her personal and political purposes—with little, if any regard for the effects it might have on interests the people, the country, or the Constitution. In fact, members of congress regularly cast votes to increase their pay or benefits or to exempt themselves from the laws they impose on others—despite their clear and significant conflict of interest, and in derogation of their oath to uphold the Constitution’s requirement for the equal protection of laws. Custom and usage indicate that members of Congress are more equal than other people. Similarly, all presidents have used their presidential powers and privileges to advance their personal and political interests—at the expense of the people. In fact, it appears that most, if not all presidential utterances are designed to advance their political interests. In short, the use of power to advance a politician’s interests is commonplace and essentially never punished, especially against presidents. While it would be great if new laws were passed to prevent congresspeople and presidents from engaging in such self-serving, unfaithful activity, it would be patently unfair to ex post facto impeach all of them for having followed these longstanding customs.

When a usage becomes custom, justice dictates that the custom, rather than the dead letters on a page in a long-ignored statute book, must be the law. The fairness and justice of this rule are evidenced in every refereed competition. For example, each umpire or crew of umpires has his/its own way of calling a game. In baseball, some umps enforce larger strike zones than do others. In football or basketball, some referees prefer the strict application of the rules while others prefer to “let ‘em play.” Either style can be just—so long as the calls are within the bounds of what is customary and both sides are permitted/required to play by the same take on the rules. On the other hand, using one style for one team and the other style for the other team is patently unjust. Proof that humans naturally consider biased officiating to be unjust can be seen on the faces of the outraged fans, and the sheepishness on the faces of the honest fans who know their team was the beneficiary of injustice.

This argument is not “whataboutism.” It is not saying that Trump can do something because others did something similar. Neither is it saying that arguments in favor of impeachment must be rejected because of the hypocrisy of the people making the argument. This is an argument that if over a long period of time “everyone” is doing something contrary to a dead-letter law and “no one” is punished for doing it, then it is manifestly unjust to suddenly and without reasonable advance notice resuscitate the dead letter law and punish people in reliance on the revived zombie law.

Things would be much better if presidents and other politicians were not incautious in their exercise of power, but “…the omission of a caution which would have been right, does not justify the doing what is wrong.” The Articles of Impeachment are an unjustifiable wrong.

Medicare For All? At What Cost To Us and The Rest Of The World?

AUTHOR’S NOTE: Many positive things about Big Pharma and no negative things about government mal-regulation of Big Pharma (of which there is much of both) are discussed. Nothing in this post should be viewed as an endorsement of or excuse for the many negative aspects and consequences of Big Pharma or the federal government. Those are both big and important topics and many improvements could be made for both. Those matters, however, are not relevant to the points made in this post.

Similarly, this post focuses on many of America’s positive deeds that benefit all of mankind. Of course, over its history and recently, America has committed many detrimental deeds and will commit more. Those deeds, however, are likewise not relevant to the point being made.

🙛

The Immorality of Medicare For Less Than All” explained how policies that are motivated primarily by empathy often create more miseries than they relieve and that supporting policies that create more net misery is immoral—regardless of how much misery would be relieved. Condemning people who oppose a net negative empathy-motivated policy is a sign of ignorance or evil motives rather than a sign of superior empathy. Consequently, to support policies without a good understanding of the policy’s negative consequences is irresponsible and immoral.

Why Not Provide Medicare To Everyone In The World?” gave an example of a net negative policy—despite all of its extremely positive benefits to some. It explained how Medicare for Everyone in the world (“MFE”) could not possibly work and would cause everyone in the world, including Americans in every income bracket, to consume less healthcare than the poor in America do today. That case was made by focusing only on the stark and devastating math concerning MFE. As such, it only scratched the surface of the negative consequences of MFE.

The math of Medicare for Americans (“MFA”) is significant, but a case based solely on the math is less compelling than is the math-only case against MFE. One must do more than scratch the surface to sort out why supporting MFA is also immoral.

Nevertheless, noting the math of MFA give context and continuity to the discussion. About 330 million people live in America today.[i] America’s annual GDP[ii] is about $21.5 trillion.[iii] That means that Americans are producing about $65,000 per person/yr. ($180 /person/day) of goods and services. As is the case with world consumption discussed in a prior post, Americans cannot sustain consumption in excess of their production. America’s production is about six times more than the world’s average of $11,225/person/yr.[iv] Compare that to Europe’s 750 million[v] people producing $18.8 trillion[vi] ($25,000/person) and one might think that everything would be fine with the U.S. having less GDP/person.

THE ELEPHANT IN THE ROOM

As conceded in earlier posts, universal healthcare bestows great benefits on some people. For example, poor people receiving otherwise unavailable healthcare is large and an almost unalloyed benefit. While opponents to universal healthcare attack universal systems elsewhere as being inferior to the American healthcare systems (many of which attacks are quite persuasive), universal healthcare systems in other countries generally do deliver most of the benefits conceded above, people are not rebelling against their systems, and—so far—have been sustainable.[vii] (This post will overlook the fact that, by their constant need to tinker with their systems, those countries reveal that even people in those countries do not believe all is well with their healthcare systems.)

In light of the above, one might be tempted to conclude that those other countries’ experiences prove that America can afford to adopt a universal healthcare program and the benefits would be great. The elephant in the room (the thing about which nary a word is spoken) is that American plays a different role from all other countries in many important respects, including healthcare. In short, if America were to adopt a universal healthcare system, healthcare would not only be worse in America, healthcare everywhere would suffer and universal healthcare would become impractical essentially everywhere.

Let’s sort out why that is true.

THE INDISPENSABLE NATION-AMERICA’S ROLE IN THE WORLD TODAY

  • Funding of World Initiatives. Making the world a better place is expensive. Many international organizations have been formed to achieve global goals. For example, in 2000, the U.N. established the Millennial Development Goals to improve standards of living of the poorest people on earth by 2015. The most urgent of those goals were achieved well before the deadline. “As a founding member of the United Nations and the host for its headquarters, the United States has been a chief guide and major funder of the organization for more than seventy years…The United States remains the largest donor to the United Nations, contributing more than $10 billion in 2017, roughly one-fifth of the body’s collective budget.” ”Similarly, America’s 4.3% of world population funds over 12% of the operations of the World Bank, “that helps the world’s poorest countries.” The U.S. is a disproportionate supplier of direct foreign aid and is often the only country to play a dominant role in assisting other countries when natural disasters strike. Individual Americans contribute heavily and disproportionately to other global initiatives [viii] (because in America more than any other large country, it is possible to become rich enough to afford to make significant contributions to the world by inventing, developing, manufacturing, marketing, and delivering goods and services that other people value more than the money it takes to buy them).
  • Defense. The countries that have universal healthcare systems that Americans are urged to emulate are mostly NATO members. America’s population is only 35%[ix] of NATO’s, but its defense spending is 63% [x] of NATO’s total. When other wars come, as they inevitably will, the U.S. will likely pay a disproportionate share of the war’s costs (in both blood and treasure) as it has ever since most of her allies have become more collectivist, thereby leaving them with insufficient ability to afford to do their fair share.
  • America Keeps Sea Lanes Open. International trade has been crucial in enabling wealthy countries to thrive and impoverished countries to rise out of abject poverty. As discussed in “Exploitation—Part IV (c), Exploiting Exploitation−The Path To Prosperity,” what impoverished countries need most is a functional political/economic system. Such systems, however, are less likely to succeed without an ability to create wealth by trading what they produce with willing cash buyers outside their borders.[xi] The more markets they can reach, the greater and faster their rise out of poverty. The more pirates or blockades keep products from reaching markets, the less and slower they can take advantage of free trade.[xii] America has been the overwhelming leader[xiii] in enabling billions of people to rise from poverty by keeping trade routes open.
  • The World’s Customer. As mentioned above, to create wealth of their own, people in other lands need customers. In 2017, America imported $2.4 trillion of goods and services from abroad, which amount is about 1/3 of the top 20 importers total and twice the next two largest importers, China and Germany, respectively?[xiv] (2019 U.S. imports are projected to have grown to $2.9 trillion, while predictions for China show a slowing of imports.) Without American purchasers, wealth creation and standards of living of everyone in the world would be much lower.
  • Research and Development. With less than 4.3% of the world’s population, the approximate $510 Billion[xv] spent annually on R&D by Americans is 25% of all investments in R&D in the world, which is exceeded only by China at 27%, which is likely falling due to China’s financial woes.

Since this post is about healthcare, it is worth noting that “In 2004, U.S. medical R&D spending represented 57 percent of the global total. By 2014, the U.S. share had fallen to 44 percent with Asia [despite it having only 4.3% of the world’s population]… Once the undisputed center of global innovation in medicine, the U.S. is steadily losing ground to Asia and Europe [but is still the leader].”[xvi] Confirmation of the greatness of America’s contributions advancements in medical science is that the first many pages of a Google search yield no relevant data. Using Bing, I found a website that presented statistics concerning the quantity of “cited” American medical research on a “per person” basis.[xvii] Presented in that fashion, America’s efforts appear flaccid. For example, “Citable documents per million population” for Switzerland were over 70,000 compared to America’s 31,000. Doing the math, however, reveals that Americans produced 10 million cited medical papers while Switzerland produced 0.6 million. With less than half the population of Europe, America produced only slightly fewer “citable” medical science documents as Europe did, i.e., America’s citable medical science per person is twice that of Europe’s.

 

  • Drug Prices. Everyone who debates the merits/demerits of universal healthcare knows that Americans pay more for prescription drugs than other people. The difference is massive, e.g., three times what the Brits pay and 16 times the Brazilians.[xviii] Few, however, appear to know neither why that is true or what to make of that fact. Let’s sort out why drug prices are so high in America and its effects everyone in the world and their progeny.

Why not have the federal government negotiate with Big Pharma?

Hopefully, the answer is evident by now, but let’s leave no doubt about it. “One perennial proposal to reduce health care costs has been to have the federal government negotiate drug prices with pharmaceutical manufacturers.”[xix] This quote is from a persuasive article that argues that such negotiations would likely cause drug prices to fall, and “Artificially depressing prices is a sure way to depress future research and the stream of new treatments. Depressing future research would, of course, would enable drug prices in America to be lower but at the cost of human lives and suffering that could have been avoided. Because America is less collectivist than other wealthy nations, Americans are the only people left in the world wealthy enough to fund (via high prices) fulsome medical R&D, certification, and administrative costs for drug improvements. (BTW: I’ve seen no research or articles that give America credit for funding R&D and regulatory certification conducted by foreign companies that cash in on the inflated drug prices paid overwhelmingly by Americans.)

The international cost of Medicare for All in America.

The stark reality is that either America, the wealthiest and most prosperous nation on earth, funds robust medical R&D and drug certifications, and the overhead associated therewith, or R&D funding will be anemic. Slashing the prices drug companies can receive for drugs would not only slow to a crawl the pace of medical improvements, it would (1) put many highly trained and skilled researchers and other Big Pharma employees (of which there are currently about one million) on the streets looking for jobs—which will drive down salaries, and bump lower-skilled workers out of jobs, (2) slash Big Pharma’s market value, thereby hurting people’s investments and destroying wealth that could have been used for investment in all industries—which slows job growth, (3) cause people buy less of everything due to lower pay—which produces job losses, (4) increase the need for unemployment compensation and welfare payments, (5) reduce the amount of taxes paid, and on and on—with each problem making the other problems worse. The ripple effects through the economies around the world would be huge. The cost of lost opportunities to cure medical conditions is inestimable.

Significant shocks to America’s economy (which MFA would necessarily inflict) would reduce America’s ability to do all the positive things it does for the world. With the destabilization of the Western World and its allies that MFA would inflict, the relative strength of its enemies will increase.

The above discussion of the compounding problems that MFA would unleash at home and abroad are only snippets of the disaster that would unfold, but hopefully, the above is sufficient to make the case. MFA in America is a really bad idea.

🙛

AUTHOR’S NOTES:

Fairness. That America carries so much of the world’s burdens on her shoulders is patently unfair. However, complaints by U.S. politicians about other countries’ freeloading will do virtually nothing to enable those countries to reduce their wealth redistribution sufficiently to become wealthy enough to carry a fair share of the burden. Similarly, it isn’t fair that inventors earn nothing on their failed attempts to invent and, usually, only a small single-digit percentage of the value of successful inventions. Neither is it fair that honest people/companies that produce things of great benefit to consumers are penalized with high tax rates, while those who produce little or nothing are rewarded with the fruits of the labor of others. That, however, is how the world works and will likely change for the better very little absent considerable changes to the cultures. However, the fact that “the system” is unfair is not a reason to make the world a worse place for ourselves and our progeny.

The Big Pharma/Government Axis can and should be reformed. And we should get on with reforming it. On the other hand, because taking the profit out of Big Pharma would make matters worse, the key will be reducing Big Pharma’s costs, e.g., reductions in regulatory compliance costs and the “lobbying” cost of obtaining reasonable regulations.


[i]

World Population 2019

[ii] “[GDP] represents the total dollar value of all goods and services produced over a specific time period, often referred to as the size of the economy.

[iii] See, “FRED Gross Domestic Product.“ An interesting fact: With 4.3% of the globe’s people, America produces  25% of Global GDP. See “Global GDP (gross domestic product) at current prices from 2014 to 2024 (in billion U.S. dollars).”

[iv] See “Why Not Provide Medicare To Everyone In The World?

[v] See “World Population Review.”

[vi] See “European Union GDP.

[vii] See “Is Canada’s healthcare system as bad as Donald Trump says?

[viii] See “Should the Federal Government Negotiate Drug Prices?

[ix] See “NATO Countries | North Atlantic Treaty Organization Members 2019.”

[x] See “List of countries by military expenditures.”

[xi] See “Exploitation—Part IV (a), Exploiting Exploitation−The Cause.” ,” especially “Two Cheers for Sweatshops.

[xii] See “Trump’s Tariffs—A Sad Realization.”

[xiii] See “Securing the World’s Commercial Sea Lanes” and “At the most basic level, the mission of our Navy is to defend our homeland while keeping global sea lanes open and free. In fact, the latter actually helps us do the former, since so much of our nation’s prosperity and security comes for the free flow of maritime commerce.”

[xiv] See ““Leading import countries worldwide in 2017.

[xv] See “List of countries by research and development spending

[xvi] See “U.S. Slipping as Global Leader in Medical Research.”

[xvii] See “What countries have lead the world in medical research and innovation during the time period between 1995 and 2014?” (This is a bit dated, but is likely because Big Tech’s algorithms do not want this data to be found.)”

[xviii] See “From Scientific American, “How the U.S. Pays 3 Times More for Drugs,” “Researchers from Britain’s University of Liverpool also found U.S. prices were consistently higher than in other European markets. Elsewhere, U.S. prices were six times higher than in Brazil and 16 times higher than the average in the lowest-price country, which was usually India.”

[xix] See “Should the Federal Government Negotiate Drug Prices?.”

Why Not Provide Medicare To Everyone In The World?

The Selfish Leftist Heart” pointed out that Medicare for All (“MFA”) is a misleading moniker for proposals that provide health insurance coverage for only a select, relatively wealthy group of people who happen to live in America. “The Immorality of Medicare For Less Than All” explained how (1) MFA supporters give themselves too much credit for being empathetic when they sanguinely and uncritically condone proposals that deny billions of poorer people their “human right”[i] to healthcare, and (2) if the first point was brought to their attention, many of them would switch their demands to “Medicare For Everyone in the World” (“MFE”). The post ended with this: “However, neither MFA for Americans only nor everyone in the world is a moral proposition” and a promise to explain why that is true in this post. This post will sort out what is immoral about MFE.

🙛

Author’s Note: An essential premise for the following argument that support for MFA is immoral is the following:

No matter how positive the benefits of a policy are (e.g., every poor person in the world getting all the healthcare they need would be immensely positive), the policy is, nevertheless, bad if its negative consequences are greater than its positive consequences. Supporting proposals that do more harm than good is immoral.

🙛

Why not MFE? In a word, math.

About 7.75 billion humans are alive today.[ii] The sum of the annual GDP[iii] of every country totals about $87 trillion.[iv] That means that humans are producing goods and services of a mere $11,225 per person per year ($30/day). Over the long haul, humans cannot consume more goods and services than they produce. So, the average consumption per person per year cannot sustainably exceed $11,225. If some people consume more than that amount, there will be less than that amount available to be consumed by others. Just under one billion people live on less than $2/day (which is about one billion fewer than were living at that level in 1990).[v]

The average per-person consumption (which includes the consumption of healthcare) of Americans in the bottom 10% is over $15,000 per year.[vi] So, if world GDP were redistributed so that consumption by all the people of the world were equalized, the amount of consumption of “poor” Americans would fall about 25% from what they currently consume, i.e., MFE would mean more healthcare coverage for billions of desperately poor people, but vastly less healthcare for all Americans, including the about 11 million “poor” Americans to which MFA would provide healthcare coverage. Because food and shelter are higher human priorities than healthcare, the resources people would have to consume healthcare would be what is left over after sufficient resources are used to obtain food and shelter. Consequently, what would be available American poor people for healthcare would fall by more than 25%.

However, having healthcare coverage does not mean that healthcare, much less high-quality/timely healthcare, can be obtained. The infrastructure to deliver timely healthcare to most poor people in the world does not exist even if there were sufficient medical professionals to provide healthcare to everyone. Significant doctor shortages exist across the even wealthy parts of the world.[vii] Those shortages exist with billions of people having little to no access to healthcare. Nationalized healthcare systems typically impose long wait-times, do not provide the latest drugs if pharmaceutical companies refuse to slash their prices to near the cost of production (which drug companies will not always do), and decide not to provide healthcare when a bureaucrat determines that the cost/benefits analysis is not in the patient’s (or bureaucrat’s) favor. Passing a law to provide something does not magically cause the thing to materialize.

On the contrary, demanding the production of more of something (e.g., healthcare) typically causes the price of the thing demanded to rise. This is because the currently available volume of things is that which is economically feasible to deliver at the existing market price. In order to fund the motivation and means to produce more of the thing, the cost of the thing must rise.[viii]/sup> Demanding more healthcare be provided means either that the cost of healthcare will rise or the production system will become uneconomic/dysfunctional. For example, if providers are ordered to produce healthcare at a below-market price the number of people willing to stay in the healthcare business and the number of people deciding to enter the healthcare business will fall.

A man-made law cannot change the natural laws of economics any more than a law banning hurricanes would change the incidence of hurricanes. (Unsurprisingly, laws that ignore the natural laws of economics usually create more damage than hurricanes, albeit of a different sort.)[ix]

Given these realities, providing the level of healthcare that is available to America’s poor to all the poor of the world would require more money than the world can produce.

No moral person who is aware of reality could support the MFE. The same is true of MFA. Let’s sort that out in the next post.


[i] Healthcare is not something to which people have a human right. More on that in a future post.

[ii]World Population 2019

[iii] “[GDP] represents the total dollar value of all goods and services produced over a specific time period, often referred to as the size of the economy.

[iv] See, “Global GDP (gross domestic product) at current prices from 2014 to 2024 (in billion U.S. dollars).”

[v] See “Poverty.”

[vi] See “Finance and Economics Discussion Series Divisions of Research & Statistics and Monetary Affairs Federal Reserve Board, Washington, D.C.,”pg. 39.

[vii] See “Europe faces a shortage of doctors,”U.S. faces 90,000 doctor shortage by 2025, medical school association warns,” “Poor salaries and overwork led to shortage of doctors in China,” “Dubious cure for doctor shortage. ‘The number of doctors per 1,000 people [in Japan] is 2.2 — about two-thirds of the average level in industrialized economies.,” “India suffering critical shortage of doctors…”

[viii] See “Wealth” and “Income Inequality Is More Than It’s Cracked Up To Be.”

[ix] The discussion in this paragraph highlights a major confusion that confounds the public debate about “the cost of healthcare.” Providers of healthcare incur costs to research, invent, develop, produce, and deliver healthcare and consumers of healthcare incur costs to purchase healthcare. These two kinds of “healthcare costs” have few things in common and, in many respects conflict with each other, yet when people argue for or against MFA, they mindlessly draw no distinctions between the two. This adds major irrationality and confusion to those debates. The topic is well worth sorting out in a future post.

The Immorality of Medicare For Less Than All

The Selfish Leftist Heart” pointed out that, despite presumed morality of their proposals and their apparent sincerity, viable American politicians never actually propose what they say they are proposing, “Medicare for All” (“MFA”). Instead, they propose MFA only for people who reside in America, all of whom are wealthy compared to the billions of vastly poorer people around the world (but, of course, those people cannot improve politicians’ election prospects).

With some exceptions,[i] few, if any non-politician Americans clamor for MFA in order to gain personal benefits (though many personally do benefit from supporting MFA,[ii] while others support MFA from immoral, fallacious or misguided reasons[iii]). On the contrary, many, probably a majority of those people believe they will have to pay some part of the cost of MFA. They are happy to sacrifice for the goal they presume to be laudable. Their motivation is typically a belief that they are supporting a good cause, i.e., MFA is the moral thing to do. (Although a review of a couple of pages of search results produced no article in which the author(s) actually attempted a moral argument that supports the morality of their stance. Rather, the authors merely asserted MFA’s morality and proceeded on the strength of their unsubstantiated premise[iv]—in so doing they also revealed that they do not understand what “moral” means.[v]) Nevertheless, in order to sort out an important issue about MFA, let’s assume that someone has made a case that MFA for Americans is the moral thing to do. What about the billions of poorer people left out in the cold?

It is commonplace for MFA supporters to condemn those who do not support MFA as having insufficient (if not no) empathy. If, however, empathy is the reason to support MFA for those who cannot afford healthcare, how can those condemners justify limiting their empathy to the lucky few who happen to reside within America’s borders, i.e., people who already have much more access to healthcare (e.g., ambulance services, world-class hospitals and doctors and many charitable organizations) than the bottom few of billions in the world? If funding MFA by fleecing millionaire and billionaire is a morally acceptable way to achieve the glorious goal of MFA, how can good people morally deny the “human right” to healthcare to the more desperate billions of poorer people in the world? Are the MFA proponents vastly less empathetic than they believe themselves to be? Are they tribalistic, America First people? Are they just pretending to be empathetic? Do they have no heart? Whatever the reason, if asked about their heartlessness toward poorer people, supporters of MFA for Americans only would have some explaining to do.

On the other hand, I’ve never seen MFA champions asked/challenged about this conundrum, and I suspect that the vast majority of them have never considered how constricted and discriminatory their empathy must be to support those proposals. (Full consideration of a topic is typically not a strong suit of champions.) Confronting this issue would surely create cognitive dissonance. How might they deal with the dissonance?

My guess is that most of them would respond by attacking the questioner, but some would grapple with the issue and ultimately relieve their cognitive dissidence (from realizing that they have been supporting a racially discriminatory and insufficiently empathetic proposal) and restore their empathetic self-image by switching their demand to “Medicare For Everyone in the World.”  After all, it was not long ago that no American politician would dare insist that America’s MFA cover U.S. inhabitants who did not follow U.S. immigration law to get here. Recently, when enough leftists realized that excluding “illegal aliens” from MFA caused cognitive dissidence, leftists began insisting that “undocumented immigrants” be covered, and Democrat politicians jumped to the front of that parade.[vi] If leftists believe, as many do, that healthcare is a human right and MFA is the moral thing to do, is there a reason to believe that they would not assuage their cognitive dissidence and restore their empathetic pose by demanding MFA for everyone in the world? I think not.

However, neither MFA for Americans only nor everyone in the world is a moral proposition. Let’s sort out why that is true in the next post.


[i] The 30.4 million (11.3%) U.S. inhabitants who do not currently have healthcare coverage expect to directly and immediately benefit. See “Health Insurance Coverage: Early Release of Estimates From the National Health Interview Survey, 2018.” [The 11.3 % figure adjusts the 13.3% figure presented in this report (which was the percentage of uninsured Americans younger than 65) to take into account the 15% of Americans who are covered by Medicare.]

[ii] Many, perhaps most, people who support MFA gain from combinations of the following:

  1. The dopamine rush from believing their support is doing something moral/noble,
  2. Reducing the risk that they will be vilified, shunned, derided, ridiculed, or fired from their job by the mob that favors MFA,

[iii] Some of the supports of MFA believe they will gain from some or all of the following reasons:

  1. They believe their desire for revenge against you name it, (e.g., drug or insurance companies, political opponents, the millionaires and billionaires who they believe will pay for it, all of the above) will be satisfied,
  2. A belief in the promises of politicians that MFA will lower their own cost of health insurance, and
  3. A reduction in their risk of destitution and lack of healthcare if they lose their job or otherwise run out of money.

[iv] See  “Ady Barkan makes a moral case for single payer at first-ever Medicare for All hearing” and “Bernie Sanders: Why We Need Medicare for All.”

[v]     Consider the following claim in WE CAN AFFORD TO HAVE HEALTH CARE FOR ALL IN THE U.S:  “The core argument in favor of universal health care is the moral one, especially for people of faith. 26-year-old Alec Smith of Minnesota died in 2017 because he could not afford insulin. That is immoral.” In light of Webster’s definition of “moral:”

1      a: of or relating to principles of right and wrong in behavior : ETHICAL

//moral judgments

b: expressing or teaching a conception of right behavior

//moral poem

c: conforming to a standard of right behavior

//took a moral position on the issue though it cost him the nomination

d: sanctioned by or operative on one’s conscience or ethical judgment

//a moral obligation

e: capable of right and wrong action

// moral agent

As you can see, “moral” has to do with a person’s behavior. The moral “argument” made about Alec Smith in the above quote was “That is immoral.” Who in the story about Alec Smith did the immoral act, and what wrongdoing was committed by that person? The correct answers are no one in the Alec story engaged in immoral conduct. If the cat, who has no capacity to be moral or immoral, or misfortune caused the woeful outcome, the outcome cannot be is immoral—outcomes are not acts.

[vi] See “Where Democrats Stand.”

The Selfish Leftist Heart

A droning accusation that many leftists fling at their conservative and libertarian society-mates is that they lack empathy, i.e., non-leftists are heartless. They typically ascribe self-serving motives to the alleged lack of empathy. There is a good reason to believe that those leftists are so busy projecting their own heartless selfishness on others that they do not realize that those castigations are boomerangs.

An examination of their cries for “Medicare for All,” “Universal Healthcare,” or “Socialized Medicine” reveals their lack of self-awareness.

The Democrats running for president preen their supposed virtue by proposing policies for “universal” healthcare.[i] They claim that healthcare is a “human right.”[ii] None of them, however, are proposing universal healthcare. They are merely proposing universal healthcare for the wealthiest, most powerful and most privileged people ever to walk the Earth, people residing in America. They are proposing healthcare for the elitist of the elite people in human history. The heartlessness of the Democrat candidates is revealed by their unwillingness to fleece the wealthy in order to provide the “human right” of welfare to everyone in the world.

Of course, none of the candidates will say anything that would tarnish their self-congratulations by admitting how stingy they are with the money they could take from the wealthy to serve humanity, i.e., admit that they are only extending healthcare the smallest group that will serve their selfish political interests. They do not extend their feigned beneficence even to all of South America, much less the devastatingly poor of Africa, Asia, and Oceana. Contrary to the empathetic image of themselves they serve up to the public, their empathy is severely constricted.

Bernie Sanders is most explicit on such matters. He believes that “open borders” is a Koch brothers’ idea.[iii] He would severely limit who could get into America so that the money he takes from millionaires and billionaires[iv] is spent in a way that serves his political objectives (human rights and universal coverage be damned). But, even with open borders, the “human right” of healthcare for all will be unaddressed for all but about 5% of humanity. Heartless!


[i] For example, see “Health Care as a Human Right – Medicare For All.”

[ii] See “Bernie Sanders schools Vox on immigration.”

[iii] Id.

[iv]Bernie Sanders says billionaires | Mic Check.”

Fix Climate Change For The Children!

Recently, a friend commented on and shared an article on Facebook titled, “Climate Change Fears of Teen Activist Are Empirically Baseless.” A commenter responded, as if he was saying something dispositive about the shared article, with this:

“These media sources are moderately to strongly biased toward conservative causes through story selection and/or political affiliation.”

True! Also true, however, is that there are sources that are moderately to strongly biased toward non-conservative causes… So, the ad hominem attack on the article is a classic sound and fury signifying nothing.

As if biased reporting on climate change were not a big enough problem, people in government agencies tend to be moderately to strongly biased toward causes that will lead to greater governmental power. Even if a scientist at NASA held a different view of the matter than the one NASA wanted to present (or was ordered to present by the president), speaking up against the climate change narrative would likely be hazardous to her career. (The same is true of professors at universities.) Moreover, many, if not almost all scientists want their research to be funded and their reports published, and some work is more likely to be funded and published than other work. Whether their work gets noticed depends on the receptivity of biased news outlets. Diogenes would have fared just poorly had he changed his search to a disinterested man. When someone who has a stake in the outcome of her assertion professes something to be true, skepticism is warranted.

Highly honest, smart, and educated climatologists disagree about the extent, if any, to which humans are affecting climate, how big the problem is, and whether elevated atmospheric CO2 concentrations will do more harm than good or vice versa. Even if there were a consensus of climate scientists on all three of those issues (which there is not[i]) a consensus by scientists about a non-falsifiable claim is not proof the claim is true. Neither is a consensus considered to be scientific by respectable scientists. As Nobel laureate physicist Richard Fineman put it, “Science is the belief in the ignorance of experts.”[ii] A belief in the edicts of experts might, on occasion, happen to be valid, but a belief is not scientific.

In its efforts to catastrophize the issue (to increase the importance of international organizations?), the IPCC’s first climate change report in 1990 predicted a 3° per decade rise in global temperature. The IPCC relied on scientific studies, including NASA’s (the source upon which the Facebook responder relied). “Measurements” of how much the temperature has increased over the three decades since 1990 are around 1.3° per decade. Skepticism about IPCC’s motives and its summary of reports (many claim that the actual report is vastly more scientific (circumspect and fair) than the summary written for public and politician consumption and use. There are strong reasons to be skeptical of the IPCC and its reports.

Both global warming and global cooling create problems. On balance, however, the problems of global cooling are far more and more serious than those of global warming. “The NASA Earth Observatory notes three particularly cold intervals: one beginning about 1650, another about 1770, and the last in 1850, all separated by intervals of slight warming.” Humans, of course, played no significant role in bringing on or recovering from the Little Ice Age. Because no one fully understands why those cycles occur or their exact periodicity, the possibility (probability?) that the Earth is on the verge of another Little Ice Age cannot be reasonably ruled out, i.e., no one knows that we will not soon need every extra degree of warming we can muster. Because increasing global temperatures significantly will take a long time, if we will need more heat, the last thing we should do is to spend resources to slow warming.

Humans constantly confront a Pandora’s box of problems (and always will, no matter how many problems are solved). Climate change may very well be one of them. However, to address a problem, resources must be devoted to it. Resources spent on one problem are not available to be spent on other problems. If the goal is to leave our grandchildren a better world, getting the prioritization of the most efficacious use of resources is essential, i.e., getting the biggest bangs for each buck must be the goal.[iii]

Science has much to say about problems confronting humans, how much addressing each problem might cost, and the probability that spending resources on a problem will mitigate the problem. Science has essentially nothing to say about how the multiple conflicting values implicated by a massive reallocation of resources should be weighted in prioritization of multiple catastrophic problems.

Consequently, the prioritization of priorities is ultimately a moral question. Science is of essentially no use concerning what is and is not moral, much less the weighting of various moral values. Sadly, however, philosophers must rely on scientific studies (about which much skepticism is warranted) to set moral priorities. Complicating matters, philosophers do not agree concerning the prioritization of various moral values.

For climatologists to demand that resources be spent on meteorological problems (protecting and promoting the importance of their work) “to protect our grandchildren’s future,” is, at a minimum, self-serving.

Given the above-described problems with doing something about AGW, it is irresponsible for a non-climatologists (1) not to be skeptical of AGW claims and the prudence of attempting its proposed remedies, or (2) to demand, without a comprehensive understanding of all the issues involved and the uncertainty of good results, that humans devote massive amounts of our scarce resources to global warming efforts and away from other problems that have higher chances of improving the lives of our grandchildren.


[i] See “Julia Hartley-Brewer meets Matt Ridley.”

[ii] See “Richard Feynman’s Philosophy of Science.”

[iii] See “Cost-Effective Approaches to Save the Environment, with Bjorn Lomborg.”

Free Speech and Big Tech – What To Do

As sorted out in “Free Speech and Big Tech – The Conundrum,” Big Tech taking upon itself the role of deciding what speech is to be heard and not heard over the preeminent modern means of communication is so damaging to human rights and flourishing, all options should be on the table, carefully examined, and subjected to searing debate to tease out a policy that has a high probability of doing more good than harm.” But, as sorted out in “Free Speech and Big Tech – How To Make Things Worse,” permitting the government to moderate what speech would make matters worse. What to do?

As is typically the case when addressing complex social/economic/legal issues, there are no solutions[i] to this problem; there are only trade-offs. Whatever is done to mitigate the infringement on speech made possible by Section 230, Big Tech’s ability to provide its good stuff to society will be diminished. Although Section 230 hints that it will deliver platform neutrality, immunity is not conditioned on neutrality.[ii] Therefore, the goal should be to change existing law (either through legislation or judicial determination that aspects of Section 230 are unconstitutional) as little as possible, but as much as necessary to break the pact (Section 230) between politicians and Big Tech that results in the infringement of speech which the Big Tech-Government Complex determines to be detrimental to their continued aggregations of mutually beneficial power. Because free speech is so essential to human flourishing, doing nothing to address the extant infringement on free speech by the Big Tech-Government Complex should not be an option.

The stated purposes and most of the language of Section 230 of the Communications Decency Act are sound. In particular, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity,” and “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation” are were accurate and consistent with the Enlightenment ideas. Permitting Big Tech to block or filter content that is “obscene, lewd, lascivious, filthy, excessively violent, [or] harassing,” conflicts little, if any with The Enlightenment ideas—so long as Big Tech does not (1) distort the plain meaning of the words such that Big Tech uses its interpretations of those words to continue with its blocking and filtering of political/social/cultural/scientific ideas that are not simpatico with Big Tech’s biased preferences, or (2) block/filter the obscene, lewd, etc. language of disfavored speakers and not block/filter similar content of favored speakers.

If Big Tech distorts the plain meaning of the words, “obscene, lewd,” etc. or selectively blocked content, Big Tech would not be providing “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” and would be harmfully infringing on free speech which it and the government want to suppress. More important, if Big Tech were to do that, it would be publishing curated news and opinions just as newspapers and magazines do, i.e., it would be a publisher. However, unless Section 230 is changed, “No provider or user of an interactive computer service [Big Tech] shall be treated as the publisher.”

Note that Section 230 grants immunity from publishing liability to Big Tech when it curates content on its platforms to suppress content it deems objectionable for any reason or no reason while it denies such immunity to non-Big Tech publishers who are similarly curating similar content on their platforms. Such a discriminatory application of the law is a violation of the right to equal protection of the law. That portion of Section 230 that denies equal protection should be struck down as unconstitutional, or changed.

Amending Section 230 would be preferable to judicially striking the “otherwise objectionable” language in Section 230. If all defenses for providers of neutral platforms on which users might post defamation were struck down, operating neutral platforms would likely be untenable—which would be a travesty. Also, striking down all immunity would not preserve the valuable distinction between publishers and neutral platform providers, which distinction is essential to a proper balance between the free exchange of ideas (humans’ primary means of finding truth and wisdom) and protecting the rights of individuals not to be defamed. Only legislation could strike a reasonable balance between these conflicting values.

Legislation could repeal immunity concerning “otherwise objectionable” speech and grant to Big Tech an affirmative defense to defamation claims. With such a law, Big Tech defendants would be entitled to a directed verdict if, in a contested pretrial hearing, the defendant can convince a judge that its algorithms or other means of curating content on its platform do not discriminate for or against speech concerning any political, social, cultural, or scientific matter. The trial court’s findings would be subject to appellate review.

The standard of proof for the preliminary hearing should be no less than “by a preponderance of the evidence.” However, Congress should monitor the outcomes of such trials and make periodic assessments as to whether the evidentiary standard is achieving an acceptable level of uninfringed speech. If Congress finds that such level is not being achieved, the standard of proof should be raised to “beyond a reasonable doubt.” If, however, speech remains too infringed, further measures will be required to preserve free speech.


[i] See “Solutions.”

[ii] See “WHY THE INTERNET’S MOST IMPORTANT LAW EXISTS AND HOW PEOPLE ARE STILL GETTING IT WRONG.”

Free Speech and Big Tech – The Legislative Betrayal

Before we sort out what to do about Big Tech’s assaults on free speech, let’s examine the special treatment Congress granted to Big Tech, which treatment enabled it to infringe so broadly on free speech and sort out the implications and consequences of that legislation.

To get a clear picture of the situation, one must first recognize that people who publish slanderous or libelous words (“defame”) have committed a tort against the person(s) defamed are liable for damages caused by their tort. Publishers of such defamation are liable as a joint participant in the defamation.

When Big Tech came up with the idea of creating platforms on which users would post comments, Big Tech executives knew (1) their platforms would facilitate the propagation of much defamation by users, and (2) they would face huge, potentially untenable, liabilities if they were to be held responsible for the defamation posted on their platforms by users.

Before the internet, the established law was: “Distributors, such as booksellers, newsvendors, and libraries, merely distribute content and hence bear liability only upon a showing of knowledge or negligence. Common carriers, such as telephone companies, transmit information mechanically with no opportunity to review its content. Therefore, common carriers are not liable for the transfer of harmful data.”[i] In 1991 a court had held that Compuserve[ii] was a distributor rather than a publisher of content, i.e., not liable for defamation posted by users. On May 24, 1995, however, a New York Supreme Court ruled that “Prodigy was liable as the publisher of the content created by its users because it exercised editorial control over the messages on their bulletin boards in three ways: 1) by posting Content Guidelines for users, 2) by enforcing those guidelines with “Board Leaders,” and 3) by utilizing screening software designed to remove offensive language.”[iii] In response, Big Tech, that was doing things identical or similar to what Prodigy had been held liable for, ramped up lobbying efforts to obtain a federal law shielding Big Tech from publisher liability. By that time, Big Tech was in a position to greatly affect what was heard or said about Representatives and Senators. Big Tech’s lobbying efforts paid off in less than nine months.[iv]

Big Tech’s argument to Congress (at least for public consumption—more on this below) to justify a liability shield for content published on their platforms by users was that, unlike publishers who pick and choose what to publish (thereby being directly involved in the act of publishing the defamation), Big Tech, subject to a few, reasonably objective and appropriate exceptions, would not be involved curating or filtering what was published by users. Their platforms were to be open public forums available to all.

A necessary and proper role of democratic-republican governments is to ensure that public forums exist. Cass Sunstein put it this way, “The idea (the “Public Forum Doctrine”[v]) is, in addition to saying the government can’t censor speech of which it disapproves, it has to maintain spaces open for expressive activity. Parks and streets; and this is a historically-based idea, that streets and parks have been open for expressive activity. Supreme Court has actually said that’s part of what free speech tradition requires. And that’s important because it gives us an opportunity, if we want to use the streets, to have access to people with whom we have a beef–so, we can protest.”[vi] Consequently, it was appropriate and beneficial to the public for Congress to enable Big Tech to deliver on the promise of the greatest and most effective and unbiased forum for free speech humans have ever experienced.  Adopting a law that, in effect, would accomplish approximately the opposite of a neutral forum open to all (and putting their interests ahead of the public’s interest in free speech in the process), however, was a betrayal of the American people.

The 1996 law, 47 U.S. Code § 230. Protection for private blocking and screening of offensive material (“Section 230”) codified the betrayal. This law is startlingly short but directly enabled the unfathomably long list of Big Tech’s destructive abuses of blocking and filtering powers. Amending Section 230 could be a means to address the Big Tech problem. Sorting out the contrast between what the law proclaimed it would do and what it did is essential to understanding the issues involved.[vii]

The findings of Section 230 were reasonably accurate—in 1996:

(a) Findings The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

The finding, “(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops” could not be found today—after more than 20 years the law’s consequences, quite the opposite. As Big Tech has honed its algorithms, finding the facts/truth about something is easy only if the facts/truth comport with the biases of Big Tech. Facts/truth that do not so comport crop up, if at all, after many pages of search results comprised of debunking, biased “fact checks,” counter-takes, and ridicule of the searched proposition, while the most effective critics of Big Tech’s biased “facts/truth” are suppressed, ridiculed, demonetized, and/or de-platformed.

Proof that Big Tech designs their algorithms to serve up what Big Tech leftists want users to see rather than give “users a great degree of control over the information that they receive” is in prior posts in this series. In Douglas Murray’s insightful new book, “The Madness of Crowds: Gender, Race and Identity,” another way to make the point glaringly obvious was presented. Take a look at these two screenshots of Google searches that I took on 10/9/19.

SW Couples

SB Couples

The first search was for images of “straight white couples.” You will see that only 16 of the first 36 images presented were of possibly straight white couples. Six of that 16, however, were of a white couple who lost a court battle seeking equal treatment under the law for straight couples, most with controversial protest signs behind them. (Is that what typically comes to mind when you think of straight white couples?). So, only 11 of 36 different examples of straight white couples were presented. Worse, only four of the 36 results were of normal, reasonably happy, white couples. The second search was for “straight black couples.” Compared to the search for straight white couples, the search for straight black couples produced twice as many different examples of straight black couples. Moreover, 15 (as opposed to only four for whites) of the examples were of normal, reasonably happy, black couples. Note also, that when searching for “straight white couples,” Google took it upon itself to eliminate results that were limited to “straight” white couples, but did not do so for black couples. Obviously, according to Google’s biases, being a happy straight black couple is OK, but being a happy straight white couple is not.

Based on the examples given in Murray’s book, it appears that the results Google presents now have been tamed down after his book was published. Little doubt, Google will return to its more aggressive “nudging” when the hullabaloo of the book wears off. By reporting that Google’s search results in non-Western foreign countries evince none of the shenanigans described above proves that Google can tweak its algorithms to give “users a great degree of control over the information that they receive,” but chooses not to do so in Western countries.

As if the above was not bad enough, the following screenshot of Google results for “straight white couples” leaves no doubt about what Google executives want you to think about straight white couples and the lengths to which they will go to get you and everyone else to think it as Google executives do. The below image is an example of groupthink and attempted brain-washing of the highest and most evil order. A free society cannot allow this to go on for much longer.

SW Couples HteIf “(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse…” was true before Section 230’s adoption, it has not been true after. Big Tech has been and is shutting down as much diversity of political thought as rapidly as Big Tech believes it can, which is a great deal. The more they have done, the more it becomes unnoteworthy, and the more they can do without effective hue and cry.

It is truer now than in 1996 that “(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.” That is why it is so important that Congress undo the damage that Section 230 enabled Big Tech to inflict.

The policies Congress was trying to implement were laudable:

    (b) Policy It is the policy of the United States—

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;

(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

If only the laudable stated policy objectives had been sincere.

Note that the removal of the “disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material” has not worked out as advertised. Though many blocking and filtering technologies are thankfully now available to parents, Big Tech is using blocking and filtering technologies to achieve other ends, i.e., to restrict, bury deep in search results, and eliminate access by adults to content Big Tech believes, in its own, arrogant, biased, and uncircumspect opinion, to be objectionable. To defend itself against criticism of that practice, Big Tech testifies that what it is doing is necessary to keep out of search results and platform posts what essentially everyone believes should not be in our K-12 school libraries. Because Big Tech is fully capable of producing multiple search engines equivalent to movie ratings (G, GP, GP-13, R, M, etc.) to overcome the stated obstacle to real free speech in the public forum, this defense is merely a smokescreen for their treatment adults as their who must be indoctrinated (propagandized) in the ideologies approved by the Big Tech-Government Complex. That is precisely the opposite of achieving “a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity” for adults while providing “technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services.” They could do both, but they falsely proclaim that Big Tech is not capable of delivering on the policies Section 230 purports to deliver. In practice, the language of the “Findings” and the “Policies” of Section are false advertising to provide cover for technologies and powers that enable Big Tech to coordinate with the federal government to enhance the powers of both.

The protections the law created were a mixed bag:

(c) Protection for “Good Samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil Liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph.

To divine in 1996 that all Big Tech executives will always be “Good Samaritans” in the use of blocking and screening powers granted to them by Section 230 was both naively presumptuous,[viii] a dereliction of duty, and a violation of their oaths of office. Congresspeople could have been responsible had they defined in the law what Big Tech had to do and what standards they had to meet to avail themselves of immunities a Good Samaritan would deserve, but, as you can see from the text, they did not. On the contrary, they granted blanket immunity, i.e., they, in effect, deemed Big Tech executives to be “Good Samaritans” regardless of their future conduct. As it turned out, far from being Good Samaritans, Big Tech executives now play the role of priests who pass by on the far side of the road when they see a non-leftist naked, bruised, and abandoned on the internet highway (unlike the priests of the Bible, however, the Big Tech priests, at a minimum, appear to sneer at and often smear the abandoned soul as they pass)—all with, IMO, solemn perjurious denials and arrogant impunity.

The coup de gras of the betrayal is in subsection (c)(2)(A): “No provider or user of an interactive computer service shall be held liable on account of— (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable…” [Emphasis added.]

This subsection appears to be specifying the few, reasonably objective, and appropriate authorizations to block or filter user content that a responsible Congress would impose on people who seek immunity from otherwise established law. Given that a court can be called upon to determine whether the platform provider was acting in good faith when blocking or filtering “obscene, lewd, lascivious, filthy, or excessively violent” content, this immunity is unobjectionable. A reasonable exception could be taken to the grant to Big Tech the power to determine what is “harassing,” but that grant is not blatantly objectionable. What is blatantly objectionable is the unreasonable delegation of the functional equivalent of governmental power to block “otherwise objectionable” content and effectively placing Big Tech’s blocking and filtering power beyond the review of the courts. Adding “otherwise objectionable” to the list of items permitted to be blocked renders all the previously listed standards superfluous, window dressing for the delegation of abusive power, mere feigns for the knockout punch to people’s natural right to free speech.

The “the functional equivalent of governmental power” claim is founded on the mutuality of interests between government functionaries and Big Tech. The Congresspeople who enacted the law knew that Big Tech executives, like they, are unsympathetic to (or, at a minimum were in a conflict of interest with) the Constitutional principle of “limited government.” People in power typically want unlimited power and Big Tech wanted a grant of immunity to exercise powers that Congress did and could not exercise itself. (Whether Congress can delegate a power it does not have is an interesting constitutional question that will not be sorted out here). Consequently, Congresspeople knew that Big Tech executives would use any blocking and filtering immunity delegated to them to promote posts that support Congress freeing itself from limitations and squelch contrary posts. Consequently, Section 230 was an undermining of the Constitution’s purpose of securing people’s natural rights, which violates their oath of office.

Passing Section 230 created the near-perfect, “you scratch my back, and I’ll scratch yours” arrangement, with each party having the power to do great damage to the other if they stopped scratching. In other words, to maintain the mutually beneficial arrangement, Big Tech must either infringe on speech in the dominant modern public forum in a way that suits Congress so as not to loses the favors of Section 230, and Congress must to either ensure that the government does not prevent Big Tech from doing what it wants to do, or Big Tech will adjust the filters so as to wreak havoc on political careers. The especially delicious icing on this corrupt cake was that by granting such a valuable right to Big Tech, Congress enabled Big Tech to make enough money to thrive even after it delivers luxurious scratches to the backs of Congresspeople.

The phrases, “effectively beyond the review of the courts is the power to block or filter content that Big Tech believes, in good faith, is, in some way objectionable to Big Tech,” refers to the fact that the phrase “otherwise objectionable” in Section 230 is not a standard. Objectionable to whom? Is 66/100% objectionable (i.e., 99 and 44/100% pure/unobjectionable) enough to block speech? Is something objectionable to any madcap moderator sufficient to block, no matter how unfounded, irrational, or biased the objection? When the intent is to grant unlimited power to a third party to do one’s bidding in the public square, unconstitutional vagueness will do the trick.

With the above context in mind, we are in a position to sort out “What to do.” We’ll do that next.


[i] See “Communications Decency Act 230 – Berkeley Law Research,” Page 403.

[ii] See “Cubby v. CompuServe.”

[iii] See “Stratton Oakmont v. Prodigy Services Co.”

[iv] See “47 U.S. Code § 230. Protection for private blocking and screening of offensive material.”

[v] See “Public Forum Doctrine.”

[vi] See or listen to “Cass Sunstein on #Republic” at about 6:30.

[vii] The law is comprised of five subsections (a) – (e). Because they are irrelevant to this post, discussions of subsections (d) and (e) will be omitted.

[viii]Power tends to corrupt, and absolute power corrupts absolutely.”

Free Speech and Big Tech – The Conundrum

As described earlier in this series,[i] major social media companies, Google/YouTube, Facebook, Twitter, Instagram, etc. (“Big Tech”) infringe on the free speech of people whose views are not in sink with the ideology of the members of Big Tech’s top brass. That the members of Big Tech companies’ top brass are ideologically simpatico is conceded even by left-leaning think tanks. For example, a Brookings report said, “We know that an overwhelming majority of technology entrepreneurs subscribe to a liberal ideology. Despite the claims by companies such as Google, I believe that political biases affect how these companies operate… Empirical evidence support this intuition; By analyzing a dataset consisting of 10.1 million U.S. Facebook users, a 2014 study demonstrated that liberal users are less likely than their conservative counterparts to get exposed to news content that oppose their political views. Another analysis of Yahoo! search queries concluded that ‘more right-leaning a query it is, the more negative sentiments can be  found in its search results.’”[ii] The Washington Post confirms that Big Tech discriminates against non-leftists.[iii]/ As if that were not enough proof, Mark Zuckerburg was caught saying, “It’s just that breaking up these companies, whether it’s Facebook or Google or Amazon, is not actually going to solve the issues. And, you know, it doesn’t make election interference less likely. It makes it more likely because now the companies can’t coordinate and work together.”[iv]

As explained in the first two blogs in this series, [v] Big Tech’s selective suppression of free speech is “a big problem.” (Big Tech’s services create other serious problems, e.g., psychiatric problems for individuals,[vi] societal problems,[vii] and have increased the pace at which the cavern between competing ideologies widens, which rends society’s cohesion. All and each of these problems could be reasons to take governmental action to address them, but this series is focused exclusively on the biggest of Big Tech’s negative effects, infringement of free speech.)

While the negative effects of Big Tech’s infringement of free speech (and other domains) are huge, so are Big Tech’s positive effects in many domains. Big Tech provides incomprehensibly fantastic and desirable services. Although productivity increases attributable to information technology have been hard to find or quantify,[viii] the fact that Big Tech’s services are used/consumed in massive quantities is strong evidence that consumers find Big Tech’s services to be very valuable, i.e., are effective means by which people invent and produce things and pursue happiness. Consequently, it is reasonable to conclude that Big Tech deserves significant credit for increases in both productivity and happiness compared to what would have occurred without their services.

So, Big Tech creates huge positive and huge negative effects. We tinker with Big Tech at our peril. However, it is more perilous not to infringe upon Big Tech’s suppression of free speech. However, the extent to which regulations will reduce Big Tech’s ability to retain or increase the positive consequences of its services if Big Tech’s suppression of free speech is suppressed is an open question, but it could very seriously reduce the value of Big Tech’s services. Therein lies a conundrum, i.e., we are damned if we do suppress Big Tech’s suppression of free speech and damned if we don’t. Making matters more complicated, transferring to the government the power to control what speech should be suppressed or promoted is a surefire way to make matters worse.[ix]

Effectively addressing the huge problems Big Tech’s suppression of free speech is creating will not be easy, especially if we demand, as we should, that the policy not undermine our constitutional values. Nevertheless, Big Tech’s negative effects on free speech are so damaging to societies’ ability to enable human flourishing is so overwhelming, all options should be carefully examined and subjected to searing debate to tease out a policy that has a high probability of doing more good than harm.

The biggest hurdles to overcome concerning the regulation of Big Tech’s suppression of free speech are constitutional. The Constitution prohibits governments from infringing upon the rights of American citizens (a) to utter and publish their speech,[x] (b) to assemble peaceably with others (e.g., via a corporation) to exercise their rights as they please (e.g., to achieve political objectives), and (c) to not be deprived of life, liberty, or property, without due process of law.[xi] (Note, however, uttering or publishing words to commit a crime or a tort is not the exercise of free speech.[xii])

Big Tech companies are formed by citizens who have assembled with others to exercise their constitutional rights to speak and create portals to facilitate free speech—among other things. Consequently, Big Tech companies, like other publishers, have the constitutional right to publish whatever they want.

On the other hand, Big Tech’s ability to provide the goods and services of search and social media that Americans have grown to love if it were subject to criminal and tort liability like publishers would be severely curtailed. Publishers of speech are jointly and severally liable with the authors of criminal or defamatory content. [Big Tech was granted immunity from such liability in 1996.[xiii] More on this in later posts.] Big Tech could not survive in the form we now know it (could not provide as many positive societal effects) if it were made liable for the criminal and defamatory content that populates its search results and feeds. The resulting tidal wave of lawsuits would vastly weaken them, perhaps to extinction or uselessness.

Consequently, effectively addressing the problem without undermining America’s core principles will be very hard. Telling private companies what they can and cannot do falsely presumes that regulators will selflessly prescribe what they believe is in the best interest of society and knows enough to determine what is in the best interest of society. Regulation is fraught with negative consequences (some intended, some unanticipated), a corruption factory, and is often unconstitutional. All too often, regulations exacerbate the problem they intend to solve.[xiv]

George Gilder has predicted that cloud computing, upon which Big Tech currently relies to do its good and evil, will soon become a thing of the past, i.e., that we don’t need to do anything about Big Tech’s abuses.[xv] On the chance that Gilder’s prediction will not get the job done, let’s sort out what might be done in the next blog.


[i] See “Free Speech and Big Tech – The Problem,” “Free Speech and Big Tech – The Most Negative Consequence,” and “Free Speech and Big Tech – How To Make Things Worse.”

[ii] See “Regulating free speech on social media is dangerous and futile.”

[iii][iii] See one of many examples “Did Facebook bury conservative news? Ex-staffers say yes.”

[iv]/ See “All Hands On Deck.”

[v] See “Free Speech and Big Tech – The Problem” and “Free Speech and Big Tech – The Most Negative Consequence.”

[vi] See “Jordan Peterson: The Psychology of Social Media” and “https://www.youtube.com/results?search_query=psychological+problems+created+by+social+media.”

[vii] See “What Impact Has Social Media Truly Had On Society.”

[viii] See “Productivity Paradox.”

[ix] See “Free Speech and Big Tech – How To Make Things Worse.”

[x] See:

The First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” and

The Fourteenth Amendment: “No state shall… deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[xi] The Fifth Amendment: “No person shall be… deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

[xii] The right to free speech is the right to express ideas, no matter how mean, despicable, offensive, fallacious or untenable an idea is. That right does not mean that one is free to say anything with impunity. One can be sued if she uses speech to commit a tort.  For example, yelling fire in a crowded theater for the purpose of causing a stampede that will injure people, inciting violence, and defaming people (slander or libel) are not considered to be an expression of an idea, “speech.” They are wrongful acts against others, i.e., torts. Publishing tortious words of others is also a tort.

Torts, however, are not crimes. A tort is a civil wrong that causes a claimant to suffer loss or harm resulting in legal liability for the person who commits the tortious act. The Constitution places limitations on what federal and state governments can do but it does not place limits on what people acting in non-governmental capacities can do.

[xiii] See “47 U.S. Code § 230 (c).”

[xiv] Perhaps the best example is the Dodd-Frank Wall Street Reform and Consumer Protection Act following the 2008 banking crisis. The bill was to solve the problem that banks had been “too big to fail,” which was why they had to be bailed out. After its implementation, the big banks got bigger and many smaller banks could not absorb the extra cost of regulatory compliance and closed their doors. See “The “Too Big to Fail Banks” are Bigger and more Powerful. The Financial Crisis has not Ended … It’s Only Gotten Worse” and “Dodd-Frank at 5 — helping big banks get bigger.”

[xv] See “George Gilder: Forget Cloud Computing, Blockchain is the Future.”

 

Free Speech and Big Tech – How To Make Things Worse

Now that we’ve sorted out how bad it is that Big Tech has as much power over free speech that it now has, we can move on to what to do about the problem. Before we do, however, let’s sort how the typical, knee-jerk reaction would make matters worse.

The typical, knee-jerk reaction when businesses run amok is for people, especially politicians who want more power, demand that government regulates the misbehaving business. That is a proper response concerning some kinds of business misbehavior. However, “as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefits.”[i] Another general rule is that regulation of industry almost always winds up creating so much red tape that only the big, long-established companies can compete in the regulated business, i.e., small startups that could produce a higher quality or cheaper good or service are at a disadvantage because the cost of regulatory compliance is a large percentage of a small company’s cost structure and a small percentage of a large company’s cost structure. (Perhaps the best proof of this is Mark Zuckerberg’s call for more government regulation of search and social media.[ii]) New regulations almost always cede more power to a government that is already exercising much too much power already and facilitates even more corruption than already exists.

In light of all of that, for the regulation of a business to be warranted, the harm should be very significant, the regulation should very significantly reduce the likelihood of misbehavior, and the benefits of the foregoing exceed the inevitable negative consequences described above plus some unanticipated, “unintended” consequences. The government regulating search and social media would not come close to meeting this test.

As bad as all of the above described negative consequences of regulation are, they are not the worst consequences of government regulation of search and social media. The worst problem with the government regulating search and social media is that the government would have the power to harness some, if not all, of the power to control, infringe upon free speech that Big Tech now has. It is not just that having and exercising that power would be unconstitutional, which it would be, it is that having that much power would ultimately, if not immediately snuff out the remaining flickers of The Enlightenment ideas that are so essential to truth and a free society.[iii]


[i] “…as a rule, regulation is acquired by the industry and is designed and operated primarily for its benefits…Regulatory capture.

[ii] See “Mark Zuckerberg: The Internet needs new rules. Let’s start in these four areas” and “Zuckerberg Wants to Regulate the Internet. Here’s Why.”

[iii] See “Free Speech and Big Tech – The Problem.”