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Jan. 29, 2022 - Doug Collins Podcast
01:09:24
Why is Washington talking about Anti-trust and Why should I care?
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You want to listen to a podcast?
By who?
Georgia GOP Congressman Doug Collins.
How is it?
The greatest thing I have ever heard in my whole life.
I could not believe my ears.
This house, wherever the rules are disregarded, chaos and mob rule.
It has been said today, where is bravery?
I'll tell you where bravery is found and courage is found.
It's found in this minority who has lived through the last year of nothing but rules being broken, people being put down, questions not being answered, and this majority say, be damned with anything else.
We're going to impeach and do whatever we want to do.
Why?
Because we won an election.
I guarantee you, one day you'll be back in the minority and it ain't gonna be that fun.
Hey folks, Doug Collins here.
Can you believe this week?
I mean, Russia's wanting to debate Ukraine.
Joe Biden's calling somebody a son of a, you know, we don't say that on this show.
But you've got the Supreme Court nominee now that is waiting pending Joe Biden's approval because Stephen Breyer's decided to step down.
And this week on the Doug Collins Show, just think about what we've had.
We've had just an amazing discussion on Bitcoin and the process, especially with the markets in such flux.
Of course, we have our friends, Legacy Precious Metals, who are part of this show and who have the diversification of gold and silver.
But we had Bitcoin, another diversification point.
I want you to be able to understand, and we took it from the ground We've had these experts on to talk to you about it.
And today we've got Jess McGlynn.
Jess is going to be talking about antitrust.
Before your eyes glaze over and before you say antitrust, what does that mean?
Let me just remind you of what you're hearing in the marketplace.
Censorship in Facebook and Twitter and Google and Amazon, or not Amazon as much as you're going to find with YouTube and the others.
And you have the new players, Getter and Parler and Rumble coming in.
So again, there's a lot out there, but it's also how you buy and sell your products.
Did you realize that there is a bill going through Congress right now that could actually do away with your Amazon Prime benefits?
Maybe you didn't know that.
Well, you're going to find out a little bit more about it today, and we're going to talk more about the issues of free speech and the issues surrounding what we deal with every day in this new digital economy and this new digital lifestyle that we have, whether it be social media or whether it be purchasing things online, living our life.
I mean, I can't imagine a day that doesn't go through that most people don't either pick up their smartphone or go to their computer to access You know, what they're doing and what they're going to be doing for the rest of the day.
Also, I just want to continue to remind you, we've just kicked it off this week.
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Look forward to this podcast here on tech and antitrust and what it means and what it doesn't mean.
You're going to enjoy it today.
So let's get started.
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Today, folks, here on the Doug Collins Podcast, we have Jessica Malugian on with us from CEI. I'm excited about this podcast because we're going to sort of lay the groundwork for what a lot of people out there think they know, but really don't have, I don't think, as good a grasp on it.
So today, it's going to be great with Jess and I just talking about antitrust.
Now, when we first bring up antitrust, everybody says, well, what is that?
Well, We're going to lay that groundwork for you today.
So Jess, I'm glad to have you on.
Just to talk about this, let's build it up because everybody talks about antitrust and big tech and Section 230 and too big and too small, all this kind of stuff going on.
So let's lay out for the audience today as we get started.
Tell us a little bit about you, where you come from, what's your background, and we'll dig into this stuff.
Well, I'm so happy to be here.
Thanks for having me, Doug.
I'm excited to talk about this stuff today and hopefully clear things up for people and make the news they seem to be getting constantly.
About antitrust a little more understandable and more interesting for everyone.
I am always loath to admit I'm from California, but don't hold that against me.
I live in Northern Virginia now and I work at the Competitive Enterprise Institute where I head up our tech shop and we're a free market think tank and we work mostly on economic issues.
So for me these days that means a lot of big tech antitrust.
Well, and let's go back to this.
Let's start off at ground one.
We're in Collins University or Collins, you know, I'm a part of the Salem broadcast team, and they would like to sort of joke and say the Salem faculty.
Well, let's start off at the basics here.
For somebody driving along, they're working out right now, they're running on their treadmill, maybe they're walking their dog, whatever, listening to this podcast, and they're sitting there saying, oh, Doug, what is antitrust?
What are you talking about?
Jess, what are we talking about when we say antitrust?
Well, I just want to affirm everyone in this.
If you're a little bit confused about what it exactly is, you're right on, because it hasn't meant the same thing in its history of law.
It's changed a lot, and it's in the process of maybe changing again.
And depending on what you're talking about specifically, it can mean different things.
So I think it's really understandable that people who don't Antitrust in the U.S. started about 100 or so years ago, and it really was a lot to do with the size of some of these companies.
That's why we call it It's called antitrust in this country.
In Europe they call it competition law.
But for the U.S. it was about these big trusts that had gotten to a size that frankly made some people, including a lot of politicians in charge, really uncomfortable.
It was unprecedented.
And of course now we look back on the size of Standard Oil It seems like nothing, right?
Everything's relative.
But at the time, antitrust had a lot to do with these companies are big and that makes us uncomfortable and maybe they're kind of acting like bullies in the marketplace was sort of what antitrust was about.
And necessarily that had a lot to do with the aim of antitrust being protecting smaller competitors to those big companies.
And antitrust went on like that for a long time.
And what people learned was that we should probably be taking the economics of the situation into account more.
And also maybe we should be more concerned with consumers and what their experiences are and what might be harming consumers rather than what might be harming competitors.
So there was a big antitrust revolution.
We're now really into the nerd weeds.
Keep hold of my hand, people.
I'm going to take you back, but stay with me for a moment.
We had a big revolution in antitrust.
That was Judge Bork, and he came along and wrote a book and said, hey, we should apply some economics to these questions, and we should make sure that when we're using antitrust law, we're not accidentally hurting consumers because we're trying to help competitors.
So that kind of We've redirected antitrust law to be what our standard is now in the U.S., which is about consumer harm, right?
You can't bring an antitrust case successfully if you can't prove that consumers are being harmed by the behavior of a company.
And we don't care as much about how big that company is.
And we're much more focused on consumers than competitors now.
But these days, that's a little bit of a question again now.
No, it's great.
Now let's unpack that because I think that's a great way to start off this conversation.
A lot of folks, even if they didn't like history at all in school growing up, they remember anything about Teddy Roosevelt.
They remember the trust breakers.
That was what they remember.
Standard Oil, U.S. Steel, those kind of big companies and how they perceived in the marketplace at the time.
That's right about competitors.
An interesting thing for this week in particular, you're bringing up Judge Bork, especially with a Supreme Court opening.
It's interesting that someone who got rejected basically started what we now know as the modern Supreme Court approval process, so to speak, and the very harsh nature of it.
But he brought up this issue and switching it from the competitor to the consumer and that balance that flows there.
So if you're sitting here listening to this this morning, Jess, let's take this a step further.
We now sort of have the basics of what we're looking at, competitor, and then if it's between competitors, we talk about it.
If it goes to the consumer, how it affects that.
But at the end of the day, this is important for the person listening because it affects how they can buy, sell even, or consume products that are on the marketplace, isn't it correct?
Yeah, I think that this really should matter to people because it affects their pocketbook, right?
So the best and quickest example that I think everyone can understand really easily about The difference between protecting competitors and protecting consumers is this.
Let's say there's a big leader in an industry.
They're selling.
It doesn't matter what they're selling.
But they're doing great.
And because they're so big and they're so good at what they do, they can offer consumers a really low price.
And that's great for consumers and that's great for that company.
But let's say one of the company's competitors comes along who isn't doing such a good job and they can't offer that low price.
If they can get the government to bring an antitrust suit, well, what would happen if they were successful?
You'd basically be telling that big company, hey, you're hurting this little guy with your low prices, so stop with those low prices.
And that helps the competitor, but who has to pay the higher price then?
The consumer, right?
And that's what we learned sort of in the first hundred years of U.S. antitrust.
You can sort of only serve one god, right?
And you have to pick the consumer, or else you're going to end up Throwing the consumer under the bus, right?
So what might be good for a lesser performing competitor in terms of keeping the price up doesn't help people.
So that's sort of like at its most basic a great example of why the U.S. standard, thanks to Judge Bork and a lot of economists around him at the time, is now about the consumer, not about competitors.
Now, and to be fair though, and folks who are listening here, there is an argument that sometimes the one that is dominant in the marketplace, just not from a competitor's standpoint, could also be dominant in the marketplace to a consumer disadvantage.
And I think that could be argued with the AT&T issue from, you know, back, I can't believe this now, that was back when I was in high school, you know, back 35, 40 years ago.
In which they broke up, and then we saw a diversification in that telecom industry.
So isn't it more site-specific?
And the concern that we're having today is that everybody's trying to apply one basic blueprint to everything in this field?
Yeah, so I think that when we say consumer harm, it's certainly...
You know, that doesn't mean that anything goes, but that does mean that it's not enough to say the little guy is getting beat up here.
If the consumer is thriving, and it's not just about prices, right?
We also, antitrust officials look at other things, too.
They look at, is there innovation going on, and are there any barriers to entry?
Meaning, is there anything to prevent a new competitor getting into A head-on, head-on with the leader that seems to be unreasonably unfair.
So the AT&T case is a great example and antitrust enthusiasts often like to talk about it and say, what are you talking about?
Breaking up is great, look what happened with AT&T. If you want to talk about breaking up AT&T, you'll have no argument from me, but I will note that what AT&T was is probably one of the best ever examples of a government-created and government-maintained monopoly, right?
We created the whole Federal Communications Commission in order to run AT&T. So that's absolutely right.
You know, and AT&T had the government creating barriers of entry.
There were no competitors allowed.
And what did we see?
We saw stagnation and innovation We didn't see prices coming down like they could have otherwise.
There were a lot of problems for consumers as well as who would have been potential competitors because the government was maintaining this monopoly in exchange for other things.
But the point is when we got rid of that, we took those shackles off.
We saw so much innovation.
We saw So many benefits for consumers, not just with price, but with different products.
And the wireless revolution, it's hard to think that it even could have happened if we hadn't made those reforms.
Well, you know, in my background, in my mind now, I'm a music guy, and people on the show know we love to talk music, and I'm hearing in the background, you know, I'm breaking up, it's hard to do.
You know, it's just like a breakup.
I mean, there's going to be problems, there's going to be small things, there's going to be big things.
And I think AT&T is an anomaly, but I'm also laying some groundwork here, because we're going to get into some interesting discussion here, because, and I want to go back to AT&T for a moment, because you're still seeing, and I love the way you put it, Government sort of operated monopoly, okay?
Because a lot of states, Georgia included, where I live, across the country, they give states, and federal even for that matter, but a lot of states give sort of a protection to what we call as common carriers, utilities, such as energy.
Like in our part of the world, Southern Company, Georgia Power, those kind of things.
I think it's interesting to note that I've always said this, that those companies are guaranteed a profit.
I mean, they're flat guaranteed a profit.
They have to come before.
They always whine and moan about what they can charge and what they can't charge.
But at the end of the day, they're going to make money.
That common carrier mentality now, though, is starting to bleed over into government bureaucrats and officials in the Trade Commission and others who are now touting this common carrier theme a little bit further.
Let's unpack this, what that means, because it sounds good many times to the consumer, but at the end of the day, I don't think it's going to have the sweet effect that they think it's going to have.
Yeah, and I think that that's, again, I mean, it goes back to this sort of very, you know, broad view that I have that, you know, most people are busy living their lives as they should be, right?
They're busy, hopefully, spending time with people they love and doing things that they find fulfilling and productive, and they don't have the time to sit around and think, now, hmm, if my electric utility wasn't protected by, you know, what Would my prices be lower?
Would I have options?
You know, is the infrastructure a natural monopoly?
So we have to regulate it this way.
I mean, these are, in some way, you know, technical questions.
But also, I would imagine to most normal people, deeply boring questions that they would appreciate other people figuring out.
Jess, on a Friday morning, we're sitting here on the Doug Collins podcast and we're talking deeply boring.
Oh, come on!
You know, you're killing me at this point.
I love it.
We're doing the interesting part of skipping to the answer.
But we're sort of used to a certain amount of things being these utility-style monopolies, and I don't think most people question that.
But I would say that one pressure on that idea is that Technology itself evolves.
So if you think about sort of the cable companies and those locally granted monopolies, right?
So there's been a ton written and a ton discussed about how do you inject competition into those situations and do you put down sort of overlapping repetitive networks?
But then what you have happen actually is the Tornado of a human being, for better or worse, whatever your opinion, of Elon Musk that comes around, and he's going to launch a billion satellites into space, and who knows what wireless functions those will have or what streaming functions those will eventually have, right?
You do have this pressure of technology that takes on this idea of...
Okay, here's the utility and it's set in place and in exchange for you going to every house, we're going to tell you how much you can charge.
It kind of blows up that whole paradigm.
And I think that as we go forward with technology, you want to leave space for that, right?
Because that's a great benefit to everyone.
The more competitors and the more options, we don't want to preclude that.
From working to improve our services all the time in ways that, listen, if I could anticipate that, I would be a billionaire like Elon Musk.
But the point that's great about capitalism is we all get to benefit from really smart, innovative entrepreneurs like that.
And we want to leave space for that in our regulatory structure in the U.S. And I think that when you go to a really heavy-handed common carrier You might be choking some of that off that maybe you're not even aware, and maybe it doesn't even exist yet, if that makes sense.
It does.
And we're going to get to the buzzwords here in a little while about net neutrality and all this other stuff.
We'll get into those, you know, but I'm going to bring it back practical.
I like this show to be very practical, and to help you understand this a little better, I'll use a personal example, and Jess, you just brought it up.
Cable, internet, Those kind of issues.
Here in my community, again, local monopolies are granted, and you see this.
And for competition to come about, it's very difficult because at the expense of saying, well, it's too expensive for everybody to run cable to a certain house, we'll protect this area.
And in an accident, what it does is it's almost from a whole different discussion here, a school choice perspective, I'm stuck by the zip code in which I live.
I'll use a real example.
At my studio, we were looking at what we needed for a little higher speed internet so we can do our podcast, we can do our radio, we do TV, we do everything from our studio.
And I am stuck because AT&T, who actually is in my part of the world, refuses to bring fiber across a bridge.
And because they don't want to put the money into it right now.
And then you have other companies who come along and try to...
And yeah, I name names on this one.
You know, you have Charter and Spectrum and all these others.
And they say, oh, we'll give you X amount more megabytes.
And I say, are you running copper?
Are you running fiber?
Well, we're running copper, but we do it better.
No, you're still the same thing.
And so this is where I think for the average everyday person out there, you live in the world of protected, in some ways, trust, if you would, monopolies, but you accept it, but you also rub up against it.
That's why this discussion is so important because now you begin to understand in the bigger picture, if you're frustrated with your cable and internet and volume service, how much more would you be probably if you start then attacking that to all the other issues once you get out onto the internet and you're shopping, your social medias and everything else.
So let's bring this conversation a little bit further.
Right now, there's this idea, and I loved how you described it.
You did a really good job of taking the competitive part and the consumer part.
My concern, Jess, and tell me if I'm wrong here, my concern is we have now conflated those two terms To a point in which we have a bunch who are coming out and heading on Ms. Kahn at Antitrust Division and others that have conflated it to the point where it's not, in my mind, recognizable anymore.
And that's a concern because it becomes hip, and this has become a term that we're really getting nerdy when we talk hipster antitrust kind of thing.
Thank God for our old friends from the Senate, Orrin Hatch and others, a good friend of mine.
We did a lot of stuff together.
But...
But why do you think that is?
What's driving this?
And I see Republicans and conservatives jumping on this.
When did free market conservatives all of a sudden say big is bad, inherently, just because it's big?
Yeah, so I think you're right that it does, in some ways, it's a strange issue and it's taking a strange direction.
And I think that while what's bipartisan about this is that there's anger, What's interesting about it, and again, people are busy doing their own thing.
That's why I'm here to tell you.
When you peel back a little bit and find out what it is both sides are angry about, they're angry about very different things.
From the left, it's a bit...
It's kind of on brand for them.
I think there's a certain skepticism of business, there's skepticism of capitalism, and they just trust government and regulation more.
So I will say that I don't agree with that, but I will say this, they are consistent on that here.
I'll give them that.
And from the right, I think what is happening is the anger about the feeling that there's bias against conservatives from these big tech companies and that these tech companies are politically very left of center.
I think there's anger there that's kind of bleeding over into the antitrust debate against these companies.
And that goes back to what we talked about at the very beginning, which is antitrust has always sort of been a little nebulous, right?
It's a little bit of a tool, what you make of it, what you decided is that day.
And that did not go well for us, right?
That was the big reform that Judge Bork helped us in and helped us really narrow it down and say very clearly and precisely what it should be and what it's not.
And what we see now today is sort of the wrenching open of it again.
And from the left, that has a lot to do with bigger trends we see on the left right now.
Concerns with the outcomes of equity, not the starting place of equity or legal equity, but the result of equity, right?
And things are woke and things are about diversity.
That's a little bit what they want to turn the antitrust tool into from the left.
And from the right, it's a little bit about diversity.
The political power or influence these companies wield and concerns that people on the right have about what that could mean for them, you know, being deplatformed or being kicked off your social media site.
And they, because, you know, traditional antitrust that they've supported doesn't really meet up well with solving that problem, they're willing to stretch antitrust on the right a little bit to try to sweep that up in this too.
So, again, it's another situation where you do have bipartisan anger, but the anger is rooted in very different things, and then necessarily that means that the solution, according to those two groups, there's not a lot of overlap, right?
So you see a lot of legislation introduced, but you don't see a lot of legislation being passed into law, right?
Because you don't have that consensus when it gets down to, what are we going to do about it?
I'm going to give a little background, a little insight, if you would, maybe not background, but insight into Congress on these issues because it's being the ranking member of the Judiciary Committee, which all of this emanates from.
I know Energy and Commerce likes to think they do, but really it emanates in the law, which is in the Judiciary Committee.
I had to deal with this for eight years.
We dealt with it all the time.
And the problem that you're having is what you described is that public sphere frustration Whether you're on the equity side, the big balance sheet side, or you're on the other side saying, well, we fear the power of this company is keeping us politically down or are censored, our views, those kind of issues.
So you've got this problem going on.
The problem is you don't have most members who understand the concept In a whole, you've got some, there's some that are very good at it.
I mean, Ken Buck's a good friend of mine, you know, even Cicelina, David Cicelina, who we disagree on this issue, but he understands the issues and there's several more members.
The problem is, is bringing other members to it.
What I have found, and just in your observation from the Think Tank perspective, Is it concerning to you that you have members who are grasping the emotional issue here?
And I'm not denying this issue.
So for folks who want to start, you know, screaming and yelling, Doug Collins is, you know, X. No, I'm a conservative on this issue.
We've got to fix some of these problems.
But I'm not sure if antitrust is the exactly right way to do it.
And we're going to chase some rabbits here in a minute.
But does that emotional argument on both sides, which seems to be predominant right now, concern you from a, from a over, say a 30, 40 year perspective?
Yeah, because I think that, you know, we would all love to believe that once someone is elected into Congress or placed in a regulatory position in an agency or has some power influence, that they become, you know, magically objective and rational.
But of course that's not true, right?
Everyone is human and everyone is fallible in that way.
And also, you know, especially on the House side, which I'm sure you know, but it's true of everyone who has to earn their They're positioned by being elected.
They are under an enormous amount of pressure.
When their constituents call up and they're really angry and really concerned about what these companies are doing on the speech side, they are under an enormous amount of pressure to do something and say something and, you know, show that they are representing their constituents, that they're getting the message and they care.
But that sort of emotional reaction or political obligation doesn't always make for the best policy, right?
And that's why Congress works like it does, and we have regular order, and there should be It's ridiculous for me to be telling you this, but you should be telling me this, but we have, as I understand it from civics class and too many years in DC, we have these hearings so that we can hear from experts, legal experts, tech experts, people in the business community, people who Feel that there's something wrong.
And we can go through and we can debate the merits of these concerns and we can debate the merits of what it is we're going to do about them.
That's how regular order in Washington should work.
And with this sort of latest round of antitrust bills in both the House and the Senate, I think it's noteworthy that there hasn't been one hearing.
Not one hearing.
So, that's not a good sign.
But you, again, it's ridiculous that I'm telling you this.
You should...
No, I mean, you're right in this, and I think that's the...
You know, the interesting, you know, problem we have here, those hearings typically, though, are not for answers.
And this is, you know, it's coming from a Hill veteran and a leader in those committees.
You know, that is something that they just don't have.
It becomes talking over each other more than it does in that regard.
Now, there are some good discussions that happen behind the scenes and, you know, those are things that, you know, That are moving forward.
Let's chase some rabbits.
I'm from the South and you know everybody says well if you chase rabbits it's used as a bad thing.
From my part of the world rabbits still good meat.
And so let's chase a couple here.
One is, and we beat around it here.
We've sort of beat this one to death a little bit so far.
Not intentionally but we have.
Section 230. Okay?
Which has become the lightning rod for a lot of this kind of debate and That has bled over to antitrust because they perceive it as the dominant marketplace.
It goes back to the older model of antitrust, which is, can there be another Twitter?
Can there be another Facebook?
And frankly, we're finding out there can be, which is an interesting phenomenon here.
But Section 230, I spoke to one of the authors, the original congressman out of California, your home state, who actually dealt with this.
My first hometown congressman.
Great guy, and he is furious, has been for the last few years, about this fact that Section 230, in his opinion, Justice, Department of Justice, through a bad court opinion, has basically not enforced 230 as it is going, and that is from that open content publisher relationship.
How can we get that work?
I mean, how can we have a better conversation about this issue?
Yeah, I think that the a good place to start is to talk about you know what section 230 is precisely and what it is not.
So what it is and I will I Feel completely for the listeners.
I promise to keep this as lively and short as possible, but it will be so helpful for you to know.
You'll be ahead of 99% of America.
It's part of a 1996 Telecom Act, and it came to be because there was this thing that had happened they called the moderator's dilemma, and basically With a bunch of core precedent that I will spare all of you, so feel the love.
There was a concern that the people running what at the time now would be the equivalent of social media sites, but at the time, if you're old enough like I am to remember, they were just sort of boards that you could post to online.
These were the early days of the Internet.
And there was a concern that the companies who ran these, if they went and removed content that was If they went in and took that down so that people would want to spend more time on their site looking at their board because they wouldn't have to encounter content like that.
That they would be then held legally liable for all the things people posted, right?
So it became this big disincentive for the companies that own these boards to clean them up, right?
To curate them.
And that's how it started, innocently enough, as an opportunity to say, this is your board and you can control it how you want, and just because you take something down, Doesn't mean we're going to hold you liable for everything, because that was a real possibility in how the law had been progressing before the Internet.
And that's what Representative Chris Cox and now Senator Ron Wyden, then a Congressman, wrote and did in a very civilized and bipartisan way.
But, of course, there has been sort of an expansion of the original idea.
Some people believe in how the courts have interpreted it.
And it's led today to a very emotional, it reminds me of the net neutrality debate in that way, a very emotional debate that has left, again, we find another, this is another great example, the left and right agree that everybody hates Section 230, but why do they hate it, right?
The Democrats hate it because they say, oh, these companies are not taking down enough You know, garbage, whatever that means to them, because they're protected when they leave it up.
And there's misinformation, whatever that means to you, right?
Who's in charge of what's misinformation?
We don't know.
And we need to get rid of it because they're protected and they're leaving all this stuff up and it's just ruining society.
And the right comes along and says, ah, this Section 230, it helps these companies take down too much conservative content and we've got to get rid of it.
Well, again, we find ourselves in a place where, okay, everybody's angry, everybody has their beef, but the beefs are diametrically opposed.
You take down too much.
You take down not enough.
And that's a problem.
And I will also point out, I think that a lot of people on the right have figured out that what they're really mad at is not Section 230, but the First Amendment.
So the First Amendment says you don't have to carry speech as a private entity that you don't want to carry.
Section 230 kind of makes it legally quick to reach that conclusion and saves a lot of people money getting there.
But that's the First Amendment.
So what can we do to push back on the First Amendment?
And that's where you see these proposals from the right about regulating social media platforms like Facebook and Twitter and whatever else you're using, like common carriers, because that would restrict their ability to take content down.
But I'm going to take an entry, and you did a very good job of laying that out from both the left and the right.
And it's interesting to note, though, and I love how you, and I'm going to interject here, that misinformation category, because you just this week had a very popular but polarizing figure from the right who was completely banned from YouTube permanently for actually posting something that's on the government CDC website.
It's like, okay, that's when I think big tech, and I'm classifying big tech, and I'm not trying to do it in general, but in general, that's where people say, wait, something's wrong here.
This is a problem.
And then you bring that up, that nasty little thing called the First Amendment, and bringing this into power.
But I'm going to make an argument.
Let's talk about this.
I'm going to make an argument on 230, which has, again, led to all this antitrust issue because they don't know any other way to deal with it.
I believe Cox and Wyden and the others who dealt with this, good Latin others who dealt with this back in the day, had in mind, because one of the things we've not talked about here is the publisher aspect of that.
And this is what Congressman Cox at the time, and he's talked to me about and others, is they never envisioned, basically what their envision was is leave it alone.
In other words, if it's on the side, on the comment side, whatever, you just leave it alone.
It's a blackboard.
You remember in college when you had the bulletin boards on the wall and everybody would put up their party?
Well, there was no blackboard manager or bulletin board manager who would go along and say, okay, I see Jess's party.
Well, I'm going to put Pam's party over the top of Jess's party so they can't see it.
They didn't envision that.
And so one of the arguments that's being said and how we get to this is, all right, When you as a platform, even a private platform, begin to Publish, edit, or manipulate the content, you have now taken yourself not into this internet protection role for what others say.
You have now placed yourself in the platform of a newspaper or a magazine or a TV or radio journalism show in which there is a standard of libel or slander.
There's a truth aspect here.
That's what Congressman Cox really was just inflamed about.
I mean, he and I talked about it.
He was very passionate in the way he said it.
He said, this is the line that the court case and others has missed that already could be helping here.
What's your thought?
Yeah, I think that, you know, obviously I... Defer to Congressman Cox because he's a brilliant person and, you know, he's the author of the bill.
And we're very fortunate that we can still go to both of these gentlemen and hear from them.
So I think that's always really valuable.
I just think, you know, through all the frustration that people feel on the right, and I think there is frustration on the left, but again for different reasons, about too much stuff being let, you know, But for our purposes, from the right.
There's an ideological purge on the left.
I mean, I think if you, and I say this from my perspective, I'm not putting words in your mouth, what they're wanting is a more It's an ideologically straight line of belief, it seems to me.
If it goes to something they don't like, they just don't want it in there.
Sometimes from the conservative perspective, I've never really heard conservatives yelling about liberal ideas on these platforms.
They just say, don't take my ideas off the platform.
Yeah, well, I think as people on the right, if we yelled every time we encountered a left idea, we would just...
Go horse by noon, right?
Yeah, we'd have laryngitis permanently.
Yeah, I think that, you know, speaking broadly and unscientifically here, as people on the right, we kind of, we live in a world where we, you know, you turn on the television and you kind of get a left, you know, everything is leftist culturally in our lives these days, right?
Unless you go...
Very deliberately and look for something different.
I think we have, like, our tolerance muscle is more developed that way, and I think that the left is struggling with the fact that the Internet is a place that they don't have that control, right?
You know, Facebook...
For all the conservative concern about Facebook, which I do feel comes from sincere frustration with the experiences people have had, and I'm certainly not here to defend the individual moderation decisions Facebook makes, right?
I don't defend that, but I will point out that Facebook is dominated by conservatives.
Like, if you look at the engagement, which pages people spend the most time on and the most people are going to, it is like a right-wing...
Bloodbath for the left.
I mean, it is Don Bonagino.
Like, it is...
They just...
They cannot get enough of these guys.
Because the people on the right have been really, really smart and clever about using social media.
I mean, they don't get enough credit.
So I want to say that.
And I also want to say when we talk about, you know, the danger in letting these companies control what's on their site, of course we worry about...
Political bias in that sense.
But I think that one thing to keep in mind is there is a whole bunch of content that is constitutionally protected That I promise you, every single person listening to this would never want to see and would never want their children to see.
And big, big platforms like Facebook, for instance, spend an enormous amount of time, energy, money taking those things down before you ever see them.
Right?
If you push back on Facebook's ability to take things down and you're not very, very careful about how you craft that rule, you're going to end up with Facebook being porn book in about three hours.
Because there's a lot of protected content that the Supreme Court has said That's not illegal.
But I don't want to see it and I don't want my kids to see it.
And I'm sure that, you know, the vast majority of America feels the same way.
So I just think this is a situation where emotions are running high, like we said, but you have to be very careful when you start limiting these companies' ability We're at the economic frontier with this, right?
Because they're not quite newspapers, and they're not quite bulletin boards, and they're this other thing, and we're finding our way about how we want to treat them and what the regulatory situation that's most beneficial for us would be with them.
And I think another great point that you made is that we have options now, right?
Getter and Parler and other things.
What I would like to see is each one of those platforms decide for themselves What they're going to leave up and what they're not going to leave up.
And I want consumers to be able to pick their platform environment based on that.
To me, the idea, just like having a newspaper or an evening newscast be perfectly objective, that's kind of impossible.
Beyond the very basic things, what is objective?
We get into those questions like with Global warming questions and stuff.
You know, one person's science is the other person's wackadoodle.
And it's very difficult, right?
But what I would like to see, instead of us working to try to get all of these platforms to be perfectly objective, is I want to see competing unobjective Platforms, right?
So the solution to CNN, when it first started, being leftist wasn't regulating CNN out of being leftist.
It was Fox News, right?
And I think that, you know, that's just, that kind of approach is a little bit more in line with human nature than saying, you know, You know, we're the leftist government and we're going to tell you what to take down.
I hate that.
And I also worry about the practical consequences of saying, in order to protect conservative thought, we're not going to let you take anything down.
And then I think you have to really be careful about that, because you're going to end up with a lot of stuff left up that you won't like.
And I think it's hard when you start talking about speech to kind of like thread the needle where you're not being too, that's really difficult.
And I think that for me the answer is that I want to see more in different platforms and competing biases, right?
Getter and Parler, have at it.
Let it rip.
And that way, if these big companies want to be a little more lefty, I kind of have to care less, right?
Because sometimes it's not about regulating to perfection.
It's about, do I as a user have an exit?
Do I have an option?
And I think for me, that's sort of a more realistic approach.
Well, I think it hits back again, and we've been talking here for a little while, but it goes back to the very understanding of, quote, this antitrust area, and that is, is it competitive between the B2B, business to business, or is it antitrust, the business, into the consumer?
The old African proverb, the only thing that loses when two elephants fight is the grass.
And, you know, if you really think about it, that's sort of the way some of these big companies are.
You've hit on two things that I want to jump into.
And this is good stuff.
One, though, is you talked about Facebook, in particular, Google.
I'm going to bring in some of these other platforms who...
Filter out what we don't want to see, okay?
Like pornography, things like that.
And I don't disagree with you there.
One of my big sticking points, though, with especially Facebook, YouTube, in particular, and some of these other video sites is I did a lot of work with intellectual property protection.
And while they could tell me they could scan billions of posts for, rightfully so, child pornography, other issues of suicide, they were telling me, well, it's harder for us to pick out a movie that's been put on there illegally.
And I'm standing there saying, that's bull.
This is the duality that I think frustrates so many.
And especially from a think tank perspective, how do we let an organization...
Who picks and chooses their virtues, so to speak, on what they take down and not protect the very, you know, from our free enterprise side, you know, you may think that actors and producers and all are billionaires and shouldn't have protection, but music and, you know, I do a lot in the music sphere.
You've got writers out there who are struggling to get by and yet are being ripped off on these platforms.
How can they hold, and from your opinion, sort of the two in each hand?
Yeah, I mean, I think that that's a really legitimate concern and question that they have not done an adequate job of answering.
And this is for me when I always, like, reiterate that, you know, from our perspective at CEI, like, on these two particular debates of Section 230 and antitrust, we get accused of defending big tech companies, and I say, I don't defend big tech companies.
I defend the marketplace.
And for me, this is, you know, this is a real criticism, right?
Like the intellectual property question is something they have to do a better job with.
And I know from the stuff that I work on on my end, that content moderation is very difficult at scale because the volume is so immense.
That being said, they have an amazing amount of artificial intelligence tools and everything else that helps them do it.
And I don't think that you have the same challenges with the intellectual property that I can point to on sort of subjective questions of, you know, what kind of speech does this fall into?
How do we categorize that?
It's much clearer, and I think that those big companies who do have the resources to patrol their platforms have to do a better job at IP. You know, I'm not going to push back with you on that at all.
But I also can't tell you...
And again, if I was smart enough to understand the software and the AI, I would be working at one of these companies, and I assume driving a nicer car than I do.
So I can't tell you what the technical challenges are, although I'm sure there are some.
But, you know, the big companies with the resources do need to do a better job on all that, and you're not going to get any pushback from me on that.
Well, I think it's a marketplace issue, and I think you're right in that.
And I have had many conversations with them about this, and the problem is their answers fall short.
Reason being, I think they've made an economic decision that these things are pleasing to their consumer, so they're not really as concerned about the other side.
And look, I've been on this war for a long time.
And so, look, they've made a choice.
They've made a choice that we will...
We'll do the things that people don't like, but nobody's going to get mad at us for saying, oh, I can watch Fast and Furious for free here.
And not realizing that you're not hurting The Rock, you're not hurting these other folks.
You're hurting, at the end of the day, the filmmakers who are the electricians and everybody else who are on the sets that make a living off this who don't make a billion dollars a year going forward.
The second thing that you did, and I'm so glad you brought this up, this is why this conversation on this kind of format is so good, is I want to go back to this issue of are these platforms, though, and it takes off my last question, What I noticed early on is before they were generating their own content and doing others, they were more acceptable to just use everybody's content.
The more they became into their news side of the house, their content generating side of the house, all of a sudden they became more concerned about the protection of that content, which in my mind puts them Further, as we had a few minutes ago discussion, into this publisher realm, this content owner, where they're actually determining editing is probably the better way to put that, editing function, which was clearly under law and statute.
It has to be a more fair and, we'll say, balanced approach, especially when it comes to taking down comments or adding comments.
That would be more the editorial board role.
That's why, if you're writing for the Washington Post, you just can't write.
From conservatives, we'll say they write whatever they want to write.
But the reality is, they do have to go through an editorial process and can be held accountable, as we've seen in the Covington High School case and other things.
And there's a lot of, you know, just average conservatives or average people out there saying, well, wait, why can't they take my post down, but they leave this post up?
And to me, doesn't that, again, sort of stem into what you said, that there's a very blurry line with the newness of it, but they're acting more as publishers than they are a bulletin board.
Yeah, so I think this brings up a great point, and it doesn't get explained as much in the news coverage of these issues as it should, so it's great we're able to talk about it here today.
What Section 230 says is basically the person who is speaking is the person responsible for that speech.
So that means that when you post something on Twitter, You are liable for what you said, and if it is liabous, then you're on the hook, and Twitter is not, now.
When Twitter sends out a tweet, right?
It wants to tell everyone something.
Twitter is not protected in any special way, right?
Twitter is still liable for its speech, even if it speaks on Twitter.
So what it does is it just, like, really shackles each speaker to responsibility, which I think is a great rule.
But I think what you're talking about are these new...
And when you start...
These sort of new...
Intonations of speech and how do we categorize this legally?
And so one example of that would be like your feed, your algorithm.
So like what Twitter or Facebook shows you in what order, right?
In this sense, it's not just a chronological feed.
You can switch it to chronological where you're just following the people you follow and it's showing you as they post and people think that they really want that.
That's actually the default on Parler.
It's called a chronological feed, and it's just, it's probably the most objective way to do it.
You can toggle that on on Twitter.
You can toggle that on on Facebook.
But what we find is people don't.
Because you kind of don't really want to see everything, your great aunt's daughter's cousin that you feel obligated to follow.
But, you know, there's just too many pictures of her pugs, and it's enough.
And you're trying to get through your day.
Like, in some sense, the way, like, what they show you, what their algorithm decides to show you and when is, you know, some people would argue that that's speech from those companies, which I think is kind of the point you're making, and they have to take some responsibility legally for that speech.
Others would say, and there's a very weird and fun court opinion that takes this on in what you can kind of think conceptually is a nice parallel.
It's about a parade.
And it talks all of, you know, a big court decision about, is a parade speech on the part of the person who picks what floats are in and what floats aren't and what groups can march and what groups can't and what order do they come in?
And the court kind of was like, this is kind of speech.
Like, this is, you know, this is speech.
And what the case was about was that there was a gay rights The group that wanted to be in the parade and the organizers of the parade said, no, this is our parade and you can't force yourself to be here because we don't want to carry your speech.
This is our parade.
You can go do what you want, but at our parade we can exclude you.
And so, you know, that's a great example of how what seems Pretty clear cut can get pretty complicated and pretty nuanced.
And what has the court said in similar situations before?
And how are we as Americans navigating this new stuff, right?
Is your algorithmic feed speech?
Or is that privately protected speech?
Is that speech that you could sue them over?
I mean, these are all great questions.
It's just that we haven't worked out those answers yet, right?
I mean, how long have we been having parades?
And how long did it take for the parade question to be answered?
So I think these are super smart questions to be asking.
But again, I just come back to this where we really need to have...
An unemotional, civilized conversation, like the one we're having here today, instead of what you're seeing in Congress, which is a lot of grandstanding and trying to get on cable news and kind of showboating, that's probably not going to serve any of us well in the long run.
Well, and I think you're seeing that, and I think there's a very disturbing bill for many of us that's going through the Senate right now.
It just got marked up, the American Innovative Choice Act, those that are concerning.
Again, I'm very concerned, and I'm going to use a quick example here because you've hit this perfectly.
When I worked in Congress, we did a bill called the Music Modernization Act.
And the bill actually looked at this online function of music and how people are paid.
Most people do not realize how How federally dominated music is.
I mean, think about it.
A songwriter is not paid simply what they think the market says their song is worth.
They have to go through a three-panel court.
They're determined what Spotify and all these others pay them.
When we started this, I kid you not, Jess, we were operating off of player piano statutes from the early 1900s, 100 years old.
That were still applicable to if you and I wrote a song today about this podcast and we put it to market, we're under those mechanical rights.
It's just nuts, okay?
And you had new platforms such as Spotify, Pandora, Apple Music, all these who went on it, were operating in this weird format.
Most people don't understand how...
This actual platform is working.
What scares me in dealing with that, and it took us almost six years before we got it done, President Trump signed it, and we still have some of the digital companies not wanting to pay even what the last court order said.
It's been four years, and they helped write the Music Modernization Act, and they still don't want to pay the price because they're making money off of it.
But when you go to Congress, and you've been around Congress, you've known...
I'm concerned that big issues like this We're not getting into the depths.
We're being pushed and pulled by what people feel in the moment, the description of the moment.
And this is a concern that, I mean, I would almost throw the brakes on a lot of the legislation that's going on right now because it ends up in a, would you say, or would you agree?
And if you don't, I mean, I understand that completely because this is just a weird area that we're dealing in.
It's almost like they also be a special committee.
Some that put it together, instead of taking it out of the Judiciary Committee, out of Energy and Commerce, put ones who actually are willing to dig, willing to learn, and then come up with something.
Because this is too important for...
We're in 2022. By 2044, by 2055, we're going to be living with a lot of these results.
And the question is, are they going to hold up long term?
Are you fearful we're making decisions now, especially with some of the new regulators, with Kahn, with others, that we're going to actually have problems in the future more than we're going to have benefits in the future?
Yeah, I think that's exactly right, and I'm going to talk about that, but I don't want to forget that I've just had a great idea for you.
You need to have Taylor Swift on your podcast.
Get Taylor.
Taylor Swift has done more, and I just was with David Israelite with NMPA. We talk about Taylor all the time.
Taylor is...
You may not want her music, but from a business perspective, and I know her, I know her team, and I know folks who know her far, far better than I, and I do not know her personally from a distance, but is one of the smartest At branding, at owning copyright, and making people understand that that song, and for those of us who've made a living all of our life, I'm a pastor, I'm a lawyer, I make a living taking what's inside of me, what comes out of my mind, and out of my mouth and out of my hands, and make a living to feed my family.
And you may not think that has the value of laying brick or flying a plane, but it has inherent value to me.
And she understands that completely.
And this whole deal with her re-recording her master's, Brilliant!
And it explains to people that there are two levels here.
We're working on getting more and more of that, but I appreciate you bringing that out.
Well, I mean, listen, she has to be smart as a whip because you don't get to where she is without being.
But, you know, I almost want to apologize to your listeners.
They don't need me.
Now they're going to be looking for Taylor Swift to be on.
But I'll just very briefly bend their ear here and say, you know, the bill that you brought up that just came out of a Senate markup The practical implications of that bill for everyone listening today is very possible a lot of the benefits of Amazon Prime, gone.
Calls into question Amazon's ability to sell generics, so if you go on and buy their Amazon Basics batteries or whatever.
It calls into question that whole business line for them, which I will point out to people, you know, Amazon makes 1% of its sales off of its basics program where you have companies like Target that has...
10 generic brands worth over a billion dollars, 48 brands total.
JC Penney, Kohl's make 40 plus percent of their, and we're talking about Amazon making 1%, and we're talking about making it illegal to protect other companies who sell on Amazon platform.
This gets us right back to the beginning.
That's great for those other companies, maybe, but that is not great for the Americans who right now Could really use some free shipping with Prime, right?
Could really use the convenience of Amazon because inflation is a real problem that This bill doesn't touch and probably exacerbates.
The health crisis we're in, or aren't in, depending on who you ask, is a real problem.
This is the kind of bill that makes this ideological antitrust point, and it ends up hurting consumers.
We're also talking about this same bill that might mean that when you buy your Apple phone, it doesn't have any Apple apps preloaded on it.
Because this bill says Apple's being unfair to other app makers.
That's kind of ridiculous.
I mean, maybe, maybe not.
It's their phone, so I would argue, getting back to the property rights point, that that's the thing.
But what I know for sure is if you stop them from doing that, you're hurting consumers.
And that's not, you know, that shouldn't be what the U.S. Senate is focused on, ever.
But especially right now, when there's real problems that could be solved, right?
And it's exactly like you said.
These are emotional moves of legislation and there's no hearings and we're not thinking seriously enough about the real harm that they could do consumers.
Folks, you're getting a master's level class right now in this.
And it has been wonderful.
But I'm going to jump in here.
And let's go back.
Because we've really developed in this podcast that there are two real basic thrusts of antitrust.
The old traditional antitrust of B2B, competitor to competitor.
And then there's the consumer aspect that has to be what Robert Bort brought in.
But your last comment about the Apple issue.
There should be a balance, and the question is, and go back to the business business, is it such a platform that smaller app makers, do they have, let's go back to traditional, you know, what we know, competitive law, what about a smaller app maker who, if Apple doesn't like it, or Apple may have their own, or Apple just says, look, I'm going to just take it, because that has happened, you know, Is that a concern that is still underlying?
And we get the fact that it's Apple's platform, if they want to have their own app, we get that.
But if you and I developed a widget, an app to go on a phone, and yet Apple won't let us own to this iPhone because of price or competitor, is that not going back to the true, what was set up before is, you know, we can't get into steel because US Steel owns everything.
In that, maybe for the listener out there, that may be a problem which is being addressed wrongly here though.
Yeah, I think it's certainly the wrong solution and I will just point out that, you know, what you see.
So, I think that there's this idea, false idea that there's some magical like perfect number of competitors in a market, right?
Nobody knows except we're supposed to think that maybe somebody at the FTC knows what the perfect number of competitors is.
And in the app stores, you have Apple and Google are the big ones.
And there are actually a lot of smaller ones.
But those are kind of the two big players.
You have the Google Play and you have the Apple App Store.
And what I think is encouraging and speaks to the health of that market, even though there's only two major players, is that they have very different approaches, right?
It's very difficult to get your app to meet the security and privacy standards of Apple's App Store.
It's a closed circuit.
You can only get onto my Apple phone through them.
It's a walled garden.
It's a gatekeeper.
It is all those things.
But there's consumer benefits to that.
I trust those apps more.
I never have to worry about what I'm downloading from the Apple App Store because I know that they've done a ton of work in checking those apps for me.
But if I am a little less risk-adverse about my software life, I can choose to have an Android phone.
And that app store has a very different ecosystem.
And you can sideload apps, which means you don't have to go through their Google Play Store to put those things on your Android phone.
It's much more open.
And I think that...
You know, it's easy to say, well, if there were 20 more big options, it would be even better.
Maybe.
It might just be confusing.
But, you know, that's right.
But I think that, you know, because there's always that threat to Apple, which is a more closed system of Google being a little more lenient and really making a ton from an app that got through their system that wouldn't have gotten through that, there still is that tension, right?
So even if you don't have perfect competition, I think...
Because that's not real, right?
It's never perfect.
But I think that what you have, even in a two major competitive market, is so much better than what you would have with a bill like what you see moving in the Senate, right?
There's so much harm in the regulation that I... I'm just someone that's not going to let the perfect be the enemy of the good, right?
I mean, I wish everything were faster and better and cheaper, but I don't subscribe to the idea that if only we got some bureaucrats in there, all of that would happen, right?
I kind of come in with that bias of skepticism, so.
Yeah, that's just what we need in life.
We need more cubicles in Washington, D.C. determining what the free market ought to look like.
Yeah, that'll work.
Young right out of college say, oh, this is my ideological perfect.
Yeah, right.
Okay, thanks.
I'm so glad that the 22-year-old Doug Collins does not still have some of...
I wish I had the experience back then that I do now.
Yeah.
You know, growing on.
It doesn't mean that they're not good ideas, but they're also ideas that, you know, you have to work out in the marketplace.
And we'll see.
Unfortunately, Congress is not...
I think the only benefit to here is the possibility of this getting bogged down and not working.
So we'll just see how that works.
Folks, you've been listening to this conversation.
It's been a fascinating conversation.
It will not be the last.
If Jess is willing to come back on and go through this again, we just scratched the surface, folks, of really what you need to know.
On this podcast, I try to give you answers, especially from a conservative perspective, but answers on to where we're heading in the future.
This debate on antitrust, this debate on, you know, how we deal with competitor, competitor, consumer, and the interest in this, is affecting your pocketbook.
It is affecting your choices.
It's affecting how you go into this new example of life.
20 years ago, 25 years ago, you didn't have the choices that a keyboard you have now.
Why?
Because you have expansion.
The question is, has it been good?
Bad?
How does it affect?
These are all needed questions that we need to talk about.
Jess, thank you so much for being a part of this podcast today.
It was so fun, and I will come back anytime, except not the episode after Taylor Swift, because I don't want to follow that.
But other than that, it would be my pleasure.
It was so much fun talking with you, and thank you so much for having me.
Well, thanks a bunch.
It's been great and we'll look forward to having you back.
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And like I Like I said, I'm not a person who ever believed in slippers, but when I put these on, I have to tell you, they were the best thing that I've done in a long time.
Now my feet are warm, they're comfortable, they feel like they're wrapped in just this comfort that you can't imagine.
So if you're looking for something, now it's time to know the holidays are a little past, maybe you got a little extra money from Christmas that you're looking to buy yourself something, to treat yourself.
How about my slippers from the folks at MyPillow?
They will take care of you, and right now you can get them For 50% off, if you use code word Collins, C-O-L-L-I-N-S, code word Collins, you get 50% off these slippers.
They will be something that you'll go to our podcast, you'll email me and say, Doug, these are the best slippers I've ever had.
And I guarantee it because it's coming from somebody who didn't wear slippers to somebody who's recommending slippers.
That's a big, big deal.
MySlippers is the one that you want.
But that's just don't stop there.
They still have the pillows.
They still have the sheets.
They still have the bathrobes.
They still have everything that you know that MyPillow folks have been working on.
And you use the code word Collins, you'll get those discounts that we talked about.
So go to 800-986-3994 or MyPillow.com.
Place your order today.
Use code word Collins to get the discounts.
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