The Lolbertarians are at it again

"Censorship = Free Speech", "The State is uniquely coercive", and other such galaxy-brained takes

Sometimes you think libertarians can't get any dumber and then they never fail to disappoint you. Justice Thomas of the United States Supreme Court gestured that companies like Facebook and Google could be regulated as utilities and libertarians lost whatever little minds they had left.

Zero HP Lovecraft @0x49fa98

Only libertarians could come up with a take as galaxy-brained as "censorship is a form of free speech"

Libertarian Party of Texas @LPTexas

This is horrific news for freedom of speech. Clarence Thomas is basically saying government can seize the means of social media production and force companies to host speech they find objectionable. https://t.co/oztINxp8ci

Ignoring the "seize the means of social media production" for a moment (however fun that might be), I want to attempt to explain/understand the mindset that leads to the "galaxy-brained" libertarian takes Zero here is making fun of (and then breakdown those takes).

Part 1: The State/Non-State Distinction

The entire mindset sits around a single distinction, the State/Non-State distinction, and the consensual/coercive character of interactions and relationships between State actors and non-State actors.

The question remains: is this distinction legitimate? Does it describe an objective difference in reality, or is it the result of an ideological delusion? Is the state a fundamentally different institution? In other words, is it different from corporations in KIND, or simply in degree?

I argue the distinction is not legitimate, and the State differs from corporations in degree, not in kind. In other words, every institution sets rules within a given territory, but the State is the biggest kid on the block/most powerful institution, and therefore its rules are the final/ultimate rules. It is the institution that is deferred to. For clarity, I will assume that the State is "that institution that possesses sovereignty."

The Sovereign always sets the property norms AND enforces them:

“The relation between property and sovereignty is contested. The protection of both persons and property are two core government functions. These functions come into conflict when the exercise of a property right harms others. How do we determine when that exercise is legitimately viewed as a self-regarding act that does not affect others, and when such an exercise does harm others and thus comes within the legitimate sphere of government regulation? Property norms help answer this question by orienting us in a moral universe through background understandings that define legitimate interests. Norms orient us, first, by telling us who is an owner with regard to any particular entitlement in a resource, and second, by telling owners when they are obligated to take into account the effects of their actions on others. In so doing, property norms define which externalities we must pay attention to and seek (if possible) to prevent.”

(from “How property norms construct the externalities of ownership” by Joseph Singer)

If the current State is supplanted by another institution that decides what the rules are (ex: revolutions), that new institution would then become the State (whatever it may want to call itself).

But can we perhaps establish a weaker/more minimal difference between State and "private" institution that fulfills our intuition that the State is somehow different, but also recognizes that the State is yet another institution in competition for influence and power with other institutions? I believe one could do this as such:

The State is a formalized institution recognized by the people of a territory as being the legitimate sovereign of that territory. Rather than wondering where laws are coming from, the State exists to clarify the decrees of sovereignty: it exists to provide a place for people to turn when it isn't clear what the rules are. You can call yourself whatever you want, but if you are the final decision maker of the rules in a territory, you are functionally equivalent to a State.

That a corporation cannot exist without being recognized by the State (perhaps paying taxes, filing regulatory forms, etc.) is simply an extension of this. The biggest kid on the block makes the rules, whether that kid is the United States Congress or a future Tesla-ocracy on Mars. The State is not an institution that is different in kind from other institutions. "State" is a designator granted to the institution that possesses sovereignty. Yes, the State licenses, delegates, etc. But the State of a territory at any point in time is not all powerful (or how would History have occurred at all?) Is it feasible Jeff Bezos could launch a coup against the United States? No. Is it possible he could? Yes (although he would need military support, etc). If the current US government vanished overnight (everything from local offices to the President), new rule-making organizations (most likely warlords) would fill the vacuum and act as States (aka final rule-makers).

Now that I have presented a positive case for my claim that the State is Yet Another Institution and not a unique kind of institution, I wish to refute two separate arguments that libertarians make to attempt to justify their claim that the State is a uniquely coercive entity:

The Monopoly on Legitimate Violence makes the State unique

No. Being able to determine what violence is legitimate/allowed/okay and what violence is not does not make the State a different kind of institution. If we want to be pretentious we could say that "the monopoly on legitimate violence is insufficient to make the State ontologically distinct from other institutions." The biggest kid on the block, the most powerful institution, will decide what violence is okay and what violence is not. This does not rely on the institution being different or unique in any way. It just demands the institution is the most powerful one in the given Territory.

Private Interactions are Consensual - State Interactions are Not

The question of "consent" is always a difficult one. What does it mean to consent to something? Generally this relies on the presence/absence of force. If one has a gun put up to one's head, one is not making free choices. One does not consent to robbing a bank when one's family is being held at gunpoint, threatened until the bank vault has been emptied. This is of course one example of a situation where you "have no choice," which is just an extension of the force argument: can one truly be said to have consented to something when there are no alternatives? One is effectively forced to affirm the only option (and so it would be nonsense for the institution providing that option to claim "everybody loves us and what we do!!!")

Fact 1: Consensual contracts are entered into in a context that is not entirely consensual.

No matter how many times it is dealt with, the objection that libertarianism does insist that people face the consequences of their own free choices pops up like a game of whack-a-mole. Libertarianism represents a genuinely consensual politics because, while it is true that contracts are considered binding once freely entered, only consensual contracts are permitted.

But this is just the same old question-begging blindness to metaphysical baggage all over again. Contracts and other choices take place in a context, and the context is not itself a consensually entered contract[1]. As a simple example, who ‘owns’ what, and what ‘ownership’ does and does not entail in specific situations, is the tip of the iceberg of the non-consensual context in which every contract is entered, and in the shadow of which it is bargained.

If you happen to find a given nonconsensual context pleasing for ideological or personal reasons it is more likely to be invisible to you. But even then it isn’t something you created by giving consent.

In this manner, plenty of interactions between Non-State Actors are not entirely (or perhaps much at all) consensual.

Fact 2: If one has no choice/has no alternatives, one's choice cannot be understood as truly consensual.

This is the core of the "Exit" mindset. "If you don't like it, go use a different provider of the service", "go build your own X!" Of course, this mindset is nonsense. There isn't a diverse array of employers/polities/[insert institution looking for consent here] that you can approve of by "voting with your feet." At BEST, this justification is highly bounded. And considering that everyone from payment processors to app stores to server providers seem to engage in concerted actions to shut down alternatives that would provide that diversity is just another nail in the coffin for the "exit" nonsense. And, in that sense, the usage of many Non-State institutions does not represent genuine content (it is rather that people do not have the diverse array of choices the fabled Free Market is supposed to provide).

Any ideology built around "Exit" would need an economic system significantly distinct from what we call "capitalism" today.

…The other mechanism, “Exit”, involves ensuring that there is a free market of diverse polities so that folks are all equally free to “vote with their feet”. The only large-scale government allowed will have the sole purpose of ensuring the superman this universal equal freedom to choose the kind of society he wants to live in from the free market of available societies.

Setting aside the ludicrous positivism involved in thinking that civilizations are the kind of thing that can be designed…

(from “Exit or Voice, or, do you prefer your liberalism grape or cherry?” by ZippyCatholic)

In the face of a steep decline in the power of organized labor and the defunding and defanging of federal regulatory agencies, options for American workers to highlight corporate abuses — without risking their job or reputation — are extremely limited. In the choice between exit and voice, most people just try to find a different job, or voice their concerns by griping to their coworkers rather than confronting their boss. This leaves rotten practices and people in place, perpetuating abuse and malfeasance.

(From “Corporations Would Literally Kill You to Turn a Profit” by Nicole Aschoff in Jacobin)

So, if we simply take "freedom of association" to be a good, we can't even say that the "capitalism" we live under does a good job of providing this. Yes, in any system you will be limited by material realities and necessities to some degree. But it is clear that this system we live under does far more to limit freedom of association than it claims. Instead, it is a deeply coercive system. If we want this to end, we need a system of local and small-scale ownership. We need unified incentive structures.

Ultimately, anything that doesn't distribute ownership to the people (and not to some abstraction or representation of the People but to individuals and families, etc.) will lead to immiseration.

So, it appears that the State does not differ in kind from non-State institutions. It does not have a special relation to consent that isn't present in the "Private" realm, nor is its supposed monopoly on legitimate violence special (given that its as meaningful as the existence of gravity and becomes diffused via deputization through property norms).

But where does that leave us? Certainly I do not wish to say the State can do whatever it wants. This is not an argument of "the Private sector is barely consensual so who cares, let the State run amok!" The State HAS limits. But it is important to understand that the State has a duty to limit other institutions as well from infringing on the rights of individuals. We have to understand the State as a referee and ground the proper ruleset on protecting the least powerful in society (individuals as opposed to the institutions that govern much of their lives). Being laissez-faire is, as we will see below, simply surrendering to a Might makes Right doctrine.

I can understand how a lolbert might say “you say being laissez-faire is just letting the most powerful win, but isn’t the state, according to you, the most powerful institution? How is what you saying different from ‘allowing the most powerful to win?’ Aren’t we at worst allowing the second-most powerful institutions win instead?” This is understandable but misguided.

The problem is not with the most powerful institutions making the rules. That is simply how the world works. Every institution makes rules for its territory (every corporation, bank, social club, school, fraternity, etc. does this). The biggest institution just has the most power to enforce its rules (hence, sovereignty/final decision maker).

The real problem is with the standards those institutions use to decide what the rules and norms should be. We must understand that there is no such thing as a neutral institution, and that therefore the most powerful institution is always endorsing and enforcing a particular vision of the Good. The question becomes: what is that vision/what is the standard for delineating between proper and improper action? Is it simply the State saying “let the powerful do what they want” or is there a more substantive notion that must be at play?

In order to better explain this, I intend to shift from the general to the particular: let us discuss the libertarian cope in the face of yesterday's news that Justice Thomas believed social media sites should be regulated as utilities.

Part 2: Free Speech, Utilities, and the limits of Institutions versus Individuals

The most important thing to keep in mind as we engage in this part of the argument:

You have to decide who you are defending. If you simply say "anything that isn't formally defined as the State is a priori consensual and therefore can do whatever it wants," you will simply hand over the reigns to the most powerful institutions and individuals amongst the populace. Tyranny by corporation and tyranny by State are two sides of the same coin. Failure to grasp either one simply makes you a bootlicker of a different kind.

With that understood, we need to recall the proper understanding of the Public/Private distinction as noted before, we need to recall how freedom broadly arises and more narrowly arises in the issue of “free speech,” and we need to add to these by properly understanding what a utility is and how that impacts limits on actions by the State and other institutions against individuals. And throughout this, we will understand the importance of Power dynamics and relationships between entities (individuals and institutions).

The Public/Private Distinction, Properly Understood

When we look at government overstepping its bounds,

it must refer to a government that has encroached into the Private Sphere where it lacks authority, not solely a government "making too many regulations" or "spending too much money" or "making me do things I don't like."

If the public sphere is the realm of shared norms, politics, employment, etc. while the private sphere is the intimate realm of the domestic, the Home, the State should be limited to the Public Sphere. In this sense, we have a substantive and meaningful notion of Private: there are zones, physical regions or particular relationships and/or institutions, that cannot be invaded because they are social goods (think marital bedrooms, as the Supreme Court described in Poe v Ullman and endorsed in Griswold v Connecticut).

The government has every right to govern the Public sphere, but lacks authority in the Private sphere (because these institutions and relationships are social goods and their invasion by the State would compromise them in a meaningful way).

The Public Square and Utilities

As we noted earlier in this piece, “Exit” is nonsense. There is not a diverse array of options for providers of the same (or roughly equivalent) goods/services that the Free Market promises (because the Free Market isn’t real, and laissez-faire takes us further from it). You can’t just “find another provider.” And as we noted, consent is not legitimate when you don’t have a reasonable choice between roughly equivalent options.

The Public Square has historically been an important place, where any individual could share an opinion or engage in a protest without fearing retribution (ideally). What I will argue is that the dominant social media companies are in effect the Virtual Public Square, distinct from (but analogous to) the Physical Public Square. Banning people from social media platforms because of their distasteful opinions is the Virtual analog of letting people protest...but only in specially designated "protest zones" where they won't cause any annoyance to other people. In the same way that this has a chilling impact on protest and free speech on college campuses and in other regimes, the removal of individuals from the Virtual Public Square is a violation of our reasonable right to have access to the Public Square.

On this note, many private businesses do NOT provide anything close to a Virtual Public Square. They don't provide anything close to an Agora (the open-air public marketplaces where any merchant could sell their wares). Small businesses are, by and large, private. They possess no significant market power. They are subject to competition both locally and from faraway lands via the internet. This is fine. Good, even. Competition is a good thing.

Which brings us to the concept of utilities. A utility is not something essential to survival (electricity is not treated as a non-utility because the Amish don't use it, nor is water treated as a non-utility because some people get their water from a river and boil it when they need). Rather, it is something that all people should have access to if they choose they wish to use it, AND is something that tends to benefit from monopolization (and therefore individuals must be protected against rent-seeking and price gouging). How do we define what people *should* have access to? Welcome to the realm of morality. We know that social networks benefit from something akin to monopolization: network effects mean the value of a social network scales exponentially with the number of people on it. A social network with one million people is infinitely more valuable than a social network with one person. In that way, the largest social media sites indeed represent Public Squares; in fact, vastly more important and impactful Public Squares than any physical square has ever been, given the global reach and near-instantaneous communication possible on these platforms.

If individuals are to have freedom of speech, that means they must have access to spaces where their speech matters. The State cannot tell you "preach in an alley" and then claim that because it allows you to preach that means you have freedom of speech. They must allow you reasonable access to the Public Square for any kind of speech or protest, however distasteful, so long as it does not harass or threaten others and is not obscene.

Self-Expression and the Limits of the State (and other Institutions)

The final recourse attempt lolberts try to take is through the value of self-expression. The idea that the State has no right to limit the self-expression of any individual. I have talked about the nonsense of autonomy repeatedly in the past and do not wish to repeat myself, so let’s discuss why self-expression fails in a couple other ways. Since we already broke down the nonsense of “consent” and “exit” above, let’s discuss a new problem…

The Antinomies of Autonomy (or, Intractable Conflicts of Self-Expressing Individuals)

What happens when the self-expression of individual A is mutually incompatible with the self-expression of individual B? How do we decide who gets to express themselves? Certainly we need a standard outside of self-expression to do so!

For instance, when it comes to censorship on social media platforms, you have two rivaling claims to self-expression: that of the censored, and that of the censor. So who wins?

Herein lies the problem with laissez-faire foolishness: if I take a categorical stance that “the State cannot infringe on any individual’s self-expression,” you hand over the reigns to the most powerful in society. Here is what I mean: if both the censor and censored want to express themselves, the censor wins because the censor has control of the platform the censored is using. The censor is more powerful. This dynamic plays out everywhere. Whether it is the State or corporations, someone sets the rules, and individuals with little power (so, the vast majority of people) simply suffer what they must.

What the laissez-faire ideology has done is taken four centuries of Natural Rights theory to finally come up with the revolutionary take that Might makes Right. The State has no business preventing the powerful from expressing themselves and if their expression limits your expression, even if the expression of one powerful person meaningfully limits the expression of a million powerless people, so be it. Freedom of association only applies to the powerful (a.k.a. the wealthy). Everyone else must suffer what they must.

Laissez-faire provides no more substantive standard than Might makes Right. The State has the authority, dare I say the duty, to delineate proper vs improper self-expression on more morally substantive lines than Might makes Right. All States necessarily endorse and enforce visions of the moral Good. Is this Good reducible to Might makes Right or is it a more substantive notion? This is especially important given that corporations are intended to make money and that profit and market equilibriums do not necessarily reflect what is best for society. This is why the State being active is superior to laissez-faire.

If you want to know why libertarians are rightly called corporate bootlickers, there is your answer.

Remember:

Freedom does not exist when material power is concentrated and decision making is formally distributed to the people, allowing an oligarchy to launder their interests through the legitimization scheme of “voting”. Freedom exists when material power is distributed, and all decision makers in the polity are visible/de-obfuscated and able to be held accountable.

So if freedom, properly understood, relies on a relatively broad distribution of material power, it should be clear that the corporate tyrannies that libertarians seem to love are the opposite of freedom. How can we take someone claiming "freedom and democracy are good" seriously when our workplaces are tyrannical hierarchies and this is totally fine to those "libertarians"? They are bootlickers in all but name.

And here we provide another reminder:

It is reasonable that there are certain things some people want to do that are wrong (kidnapping and murdering children, for instance). The mere fact that the State is preventing you from doing something you want to do is not enough to demonstrate "oppression." You must first prove that what you want to do is justified. Only when we have demonstrated that a State is preventing you from doing something that is justified can we declare the State to be oppressive.

Which means that, again, the State infringing on the self-expression of an institution is not inherently wrong. If we assume that access to the public square (both Physical and Virtual) is good, as I believe it is, then the government has every right to step in and ensure that people have access to that if they want it. That means any other actor, individual or institutional, trying to limit access to the public square must be constrained. The only limits should be obscenity and harassment/threats.

If the internet has created a Virtual Public Square, as I have argued it does, then the platforms that control that Virtual Public Square must also allow for the same reasonable access if we are to respect the free speech rights of individuals. And since neither "exit" nor "consent" nor "self-expression" are sufficient justifications for the restriction of the Virtual Public Square, we have a case whereby these corporations are utilities and deserve to be regulated as such.