In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
The Costs of Paternalism
Glen Whitman is the lead essayist for this month’s Cato Unbound, and he offers some challenges to the “new” or “soft” paternalism. This isn’t the paternalism that forbids you from doing what you want — it’s more like the paternalism that cleverly arranges choices and default rules so that you tend to make the choices that state planners would prefer. (These choices, you’re told along the way, coincide with your “true” preferences. A remarkable feat of administrative insight.)
One of Glen’s arguments isn’t closely related to the rest, and so it might go unnoticed. Which would be a shame:
[Cass] Sunstein and [Richard] Thaler define their “libertarian paternalist” spectrum in terms of the cost of choice: “The libertarian paternalist insists on preserving choice, whereas the non-libertarian paternalist is willing to foreclose choice. But in all cases, a real question is the cost of exercising choice, and here there is a continuum rather than a sharp dichotomy.” Even outright bans, such as motorcycle helmet laws, lie on the spectrum because “[t]hose who are required to wear motorcycle helmets can decide to risk the relevant penalty, and to pay it if need be.” This framing ignores the question of who imposes the cost and how. To see why this is bizarre, notice that a 10-cent tax on Twinkies is relatively low-cost, while having to drive 20 miles to the nearest 7-11 is relatively high-cost. In Sunstein and Thaler’s rubric, the state-imposed tax is more “libertarian” than the self-imposed cost of living far from civilization.
I’ve spent a lot of time trying to figure out how libertarians see the world differently from other people. The above is a good example. We worry about who or what imposes a cost, rather than tending to treat them all alike.
Is the cost we’re considering based on a dumb fact of nature? The result of a market process? (A functional or a dysfunctional one?) Or — and here’s where we raise our eyebrows — does the cost spring from the decision of another human being, or of a group thereof?
Among non-libertarians, there’s a strong tendency to collapse all the different types of costs together. You’re unfree if you have a family you feel obliged to support. You’re unfree if you live far from civilization. You’re unfree if you get cancer. You’re unfree if your personal tastes are expensive. You’re unfree — I infer — if you’re thrown in a prison camp. Just another type of cost to pay. Something seems way off here to me.
That’s because political unfreedom is different. Political unfreedom isn’t the result of bad luck, or your moral code, or your freely made but unwise choices. Other humans did it to you, and those other humans could stop doing it if they wanted. Whitman’s argument above is that we should think carefully about which people get to impose costs, and how, and to what end — even though other costs exist, even though the world remains full of dysfunctional markets, bad personal choices, and brute facts of nature.
Now, these cost-imposers may act with a smile on their face, or they may be brutal about it. They may have a representative government to validate their acts, or not. But political and non-political costs should never be confused. Political freedom is the freedom from arbitrary interference on the part of other people. We find it striking, and worrisome, when we see political theorists who aren’t so careful about the distinction. (For more on this idea, see Tom Palmer, writing in last month’s Cato Unbound.)
Now, the obvious rejoinder is that our decisions are continually subject to the arbitrary interference from other people. And this is quite true, even apart from the trivial example that we are all constrained equally from killing each other, in a clever little constraint-on-constraint. Other constraints abound.
And yet if we could find a means to eliminate first one and then another kind of arbitrary interference, again and again, the libertarian would view this as a steady improvement in the state of our politics. Living in society with others shouldn’t mean submission to them. And it certainly shouldn’t mean that — given the existence of some inescapable costs — whatever other costs some favored people want to throw on are just fine too.