Curator

Antitrust edition

Dear Friends,

I have a (much-abused) piece on Israel up at

Persuasion

and on

The UnPopulist

. Any minute now,

Ella Schmidt

will post her piece “Love Island, Missouri” at the partner site

Inner Life

.

Best,

Sam

ANTITRUST

More and more I am becoming convinced that the only issue that actually matters — apart from foreign policy and the activities of the Department of Defense — is antitrust. It’s somehow difficult for Americans to think about antitrust, and pieces on it are rare, but, in Harper’s, longtime antitrust crusader Barry Lynn has one of the best articles I’ve ever read.

Lynn goes back quite a ways, starting with the reign of James I (actually, he’s really describing dynamics unfolding from even before that), and formulating a theory of history that eternally pits monopolization against republican diffusion. In Lynn’s view, the form of the monopoly — whether a monarch, a gilded age tycoon, or a tech hipster mogul spouting progressive ideas — matters far less than the fact of the consolidation of resources.

James I. Monopolist.

The Roundheads did their part to fight against monopolization by lopping off the head of Charles I, but that, really, was only a small piece of the struggle. For Lynn, the Revolutionary War and the establishment of the United States was simply an extension of republican tendencies within the English parliamentary system. “The Constitution, in this light, is the greatest anti-monopoly document in history,” writes Lynn, “a blueprint for an intricate structure of walls and dikes designed to enable people to prevent any ultimate concentration of power in any one office, corporation, church, clique, or person.”

In a sense, the circumstances of the Revolutionary War blinded Americans to its real significance. The real adversary wasn’t monarchy or foreign control — and Americans’ characteristic paranoia about over-large government only halfway addressed the issue. The problem was consolidated power full-stop.

Meanwhile, the successes of the Progressive Era antitrust movements lulled Americans into a false sense of security in a different direction — it was assumed that government had an almost inherent ability to snap into action if monopolization took effect.

But the Friedmanian theorists who dominated American economics in the ‘80s simply undid all those regulations — and just in time for monopolists in the brand-new digital industries to exert an almost-completely-unprecedented control over virtually all aspects of an individual’s life. Writing of Google and its subsidiaries, Lynn argues, “[Web innovation has become] a vast maze of online corridors designed to enclose as much of our digital lives as possible. This in turn enables [Google] to establish the corporation as the middleman, or gatekeeper, between us and almost anyone who wants to sell us some good or idea.”

The point here is not so much to lament the behavior of Google. As Alexei Navalny wrote in a different context (he was talking about Putin and about the erstwhile ‘democratic reformers’ of the ‘90s), “We let the goat in the cabbage warehouse, and then we wonder why it ate all the cabbage. I can’t stand the goat, but I hate those who let it in the cabbage warehouse.”

What’s inexplicable in this context is why government simply got out of the business of governing — which, according to the republican model, should be all about reducing monopolization, particularly in the private sector. A great deal of the blame goes, of course, to the Reagan Revolution and the Chicago School, who opened the warehouse door to the goat, but the greater mystery is why liberals, the warehouse’s guardians, didn’t bother to defend it. No one was more perplexed by this than Robert Bork, who did so much to break antitrust regulations and who, with his usual good sense of humor, wrote that he was astonished at how easy his victory had been. “For reasons that are not entirely clear…[liberals had] abandoned this branch of the law,” Bork wrote. For Lynn, that’s the real sticking point. “Most maddening is that so many people who clearly view themselves as liberal champions—ranging from Elena Kagan to former president Barack Obama—remain under the sway of an antidemocratic, pro-monopoly ideology dating to 1981, in the early days of the Reagan presidency,” Lynn writes.

Robert Bork. A good sense of humor but a bad, bad influence.

Under Biden, the Democrats have — for the first time in decades — started to push back against monopolization, particularly in the digital sphere, but they are pushing uphill. Government is a shadow of what it used to be, and the antitrust crusaders within it have the world’s most powerful corporations arrayed against them, with the public remaining largely indifferent to this unequal battle.

The strange-bedfellows aspect of antitrust came through in the NetChoice v. Moody ruling earlier this year. I’ve been very worked up about this, and I’m pleased that Lynn is equally incensed. NetChoice really represented the best chance to reset the conversation on antitrust and social media, and the Court, led by the liberal majority, botched it — viewing social media algorithms as a “distinctive expressive offering” and therefore deserving of the same First Amendment protections as publications. It wasn’t a binding decision, just an opinion — and apparently the Court’s majority got there just because they found Samuel Alito so annoying to deal with on this subject — but, as Lynn puts it, “the deeply dangerous implications of the liberals’ thinking is clear.” Meanwhile, Alito and Clarence Thomas have got ahold of the right end of the stick — Biden plus Alito plus Thomas makes a curious combination — by espousing a “common carrier” doctrine, which would compel social media companies to equally convey the content of all users, just as we would expect from the postal system or from telephone companies.

Samuel Alito. Just too annoying to deal with.

Were a common carrier doctrine to prevail, we might suddenly be able to work our way out of the maze we’re in. Government would severely curtail social media companies’ ability to use algorithms. We would suddenly find ourselves once again in a public sphere in which people speak for themselves, as opposed to the tech platforms’ algorithms “amplifying” what does or doesn’t get traction. The tech companies might face a severe cut in their profits and they would scream and cry about it, but, basically, they would be okay, and the civil society would have some chance of crawling out of its social media addiction, which is at core the addiction to algorithmic engagement. Meanwhile, in the trenches of the antitrust struggle, reformers like Lina Khan would continue to chip away at the more outsize monopolies and we would begin to reintroduce some of the antitrust safeguards abandoned during the Reagan Revolution.

What is particularly valuable about an analysis like Lynn’s is that it enables us to see something like Court decisions about Facebook from the appropriate long view. Social media algorithms are a new thing in the world, but the underlying dynamics of centripetal and centrifugal energy are not. As Lynn writes of the triumph of parliamentary forces in the English Civil War: “The key to the new rule of law? No provider of an essential service could discriminate in how it treated the people who depended on it.” This probably isn’t the language that Oliver Cromwell would have used, but Lynn is right that the principle stays constant. Over its first two centuries, the United States set up an astonishingly subtle system to guard against the worst effects of monopolization, preventing entities like the postal system or AT&T from misusing their power — and then allowed that system to atrophy just in time for the tech companies to come barging through.

Oliver Cromwell. Net neutrality champion.

It’s not entirely too late — the Supreme Court will have another chance to hear the material underlying NetChoice v. Moody and may come to a different conclusion — but to roll back the monopolization that permeates American life, we do at least need to be able to frame the issue. What’s so frustrating for antitrust advocates like Lynn is that so few people — whether in government or in the public — recognize it as a priority.

TEEN SUICIDE

With his apparently boundless masochism, Andrew Solomon has written a blockbuster New Yorker piece on teen suicide, interviewing dozens of survivors, visiting enough bereaved parents that he finds himself comparing the meticulously-preserved bedrooms of the dead teens, plowing through thousands of pages of lawsuit documents.

Like two detectives approaching the same culprit from entirely different directions, both Lynn and Solomon, in the end, point the finger at social media algorithms.

“Often, the link between the child’s social-media use and their harm is irrefutable,” the personal injury lawyer Matthew Bergman tells Solomon — and case after case follows the same pattern. A child or teen falls into a social media vortex. The algorithm begins to push content that exacerbates an already-destructive cast of mind, resulting in self-harm. As Solomon writes:

Bergman told me of a boy who had been deluged with TikTok videos telling him to jump in front of a train — which he did. Another young man, after a breakup, posted about his heartache and was sent videos telling him to blow his head off — which he did.

The point here is not really the content, and we can spare ourselves the tedious argument about whether rising rates of teen depression and teen suicide are attributable to the smart phones or to something like climate change anxiety (or simply to improved reporting metrics). The point is that the algorithms represent a deliberate design decision that puts culpability (and liability) on the tech companies. “The problem here is not the content itself, but the design of the platform,” personal injury lawyer Jennifer Scullion tells Solomon.

That’s what the Supreme Court fundamentally missed in NetChoice v. Moody — but which also makes social media open to reform. The all-important philosophy of Section 230 remains intact — web platforms are not liable for the third-party content they carry. But algorithms are to social media as nicotine is to cigarettes — the deliberately addictive quality of algorithms, like nicotine, removes responsibility for a deleterious decision from the consumer and places it squarely on the manufacturer. And, in any case, the prevalent use of algorithms make a mockery of Section 230. With algorithms, the social media companies no longer get to claim that they are simply hosting third-party content — in fact, in NetChoice, the Court put them in the category of “publishers” and that, at the same time, opens them up to liability. “Bergman and other lawyers have settled on a strategy of targeting…the algorithms, which are proprietary and therefore arguably qualify as damaging products in themselves,” Solomon writes.

The tide actually does seem to be turning here. A circuit court ruling in Anderson v. TikTok held that TikTok was open to liability for having promoted, through its algorithm, a “blackout challenge” video that resulted in a ten-year-old girl asphyxiating herself. A ruling like that, assuming it’s not struck down by a higher court, presents the possibility of the judicial system finally getting a handle on the damage being done by social media. It wouldn’t come from piecemeal legislation directed at the individual harms caused by content. It would have to be a sweeping reform and would have to target the underlying principle of algorithms — and of the clear incompatibility between the reality of algorithms and the vision of web platforms as articulated in Section 230.

THE DEATH OF LITERACY…AGAIN

The Atlantic has yet-another ‘death of reading’ piece — this one, like all the others, more convincing than not.

You can probably write the piece in your mind without my summarizing it for you and fill in all the quotes. Here, we get Victoria Kahn, a literature professor at Berkeley, dropping her weekly assigned reading from 200 pages a couple of decades ago down to less than half of that — and not even attempting to assign whole books. In an earlier New Yorker article — almost exactly like his one — Amanda Claybaugh, an English professor at Harvard, said, “The last time I taught The Scarlet Letter, I discovered that my students were really struggling to understand the sentences as sentences — like, having trouble identifying the subject and the verb.”

I don’t disagree with the findings here, which seem inarguable, but I’m less inclined to fall into the proscribed requisite reaction, which is to grimly shake my head, wish we were back in the 1960s, and call my city council to push for a ban on cell phones in schools. First of all, young people do know what they’re doing. In The Atlantic piece, Rose Horowitch writes, “A couple of professors told me that their students see reading books as akin to listening to vinyl records — something that a small subculture may still enjoy, but that’s mostly a relic of an earlier time.” And that’s actually a perfectly reasonable adaptation. One way or another, the bulk of their professional lives are going to be online and in digital space — it is important that they dedicate a great deal of energy to that; and, at the same time, it’s not so absurd to treat long-form reading as a luxury. Long-form reading used to be vitally important when it was the only way to access the world outside yourself. That’s no longer the case. Young people are able to inhale a great deal of knowledge through videos and short-form reading — for most polemic and informational writing, books actually are unnecessary; you can get the vast majority of what you need through bursts of quick-twitch reading. It is sad, of course, that very few young people enjoy reading long books, but that’s nothing new. Highly-dedicated, attentive readers are always a rarity; there seemed to be an argument seventy or eighty years ago for the necessity of opening up long-form dedicated reading on a mass scale (the Mortimer Adler school of thought), but it’s not so surprising that technological and social changes have simply moved the world in a different direction.

What’s lacking in The Atlantic piece, like most technology-decrying pieces, is any sense of what a possible adaptation would be. Articles like Horowitch, Solomon, and Lynn’s make you want to throw out all the cell phones and live in the pastoral paradise of pre-technological neighborhood playtime that

Jonathan Haidt

is trying to organize at his

After Babel

Substack. But it just ain’t gonna happen. Kids know better than this, actually. They know that, abundant as the harms are of cell phone addiction, etc, they are going to have ride the wave of it and, hope against hope, somehow become well-adjusted adults — exactly the same struggle with addiction that all the rest of us are dealing with. Meanwhile, the reforms that are being directed against various harms of social media only chip away at the edges. They tend to insist that social media companies more extensively moderate their platforms — which is sometimes abetted through regulations of local governments. But more robust moderation runs into a host of free speech issues and, actually, only aids the monopolists — the large social media companies alone have the resources to enact expensive, expansive moderation regimes, and they like the regulations as a barrier to entry for more cash-strapped competitors.

The only effective way to push back against social media is with the tech companies themselves — and that’s, again, about dealing with the design of the products. The Supreme Court could, with a stroke of the pen, bar algorithmic favoring. If the Supreme Court isn’t bold enough to do that, legislatures and lower courts could make use of the clear discrepancy between Section 230’s view of platforms and the Supreme Court’s current guidance of social media companies as “publications” to impose the sorts of punishing rulings that would compel tech companies to undo the most addiction-currying algorithms on their own, and that might, as a fringe benefit, help to release their monopoly over our attention spans.

We already know the harms of social media. It doesn’t do much to bemoan them. We can try to fix the problem at a structural level — which, really, can only come from government. Until government gets its act together, the best we can do is to adapt.