For this week’s “Big Ideas with Ben Weingarten” podcast, I joined legendary classical liberal legal theorist and longtime University of Chicago Law School professor, now at New York University Law, Richard Epstein. We discussed, among other things: Clarence Thomas, the administrative state, liberalism, and progressivism.
You can find the episode on iTunes, everywhere else podcasts are found or download the episode directly here.
Here is the full transcript, edited for clarity.
Ben Weingarten: Professor Epstein, the year was 1991, and then Senator Joe Biden was overseeing testimony of the appointed Supreme Court Justice at that time, Justice Clarence Thomas, and he held up — probably I assume to your surprise — your book Takings: Private Property and the Power of Eminent Domain. And he hectored Justice Thomas about that book and essentially said, something to the effect of, “Are you now or have you ever been a libertarian?” during this back and forth.
And I think this is an interesting episode when you look at the history of these confirmation hearings, you had obviously the — in my view, and I assume your view as well — shameful Robert Bork hearing. Justice Thomas followed, and that’s led to today, where this [confirmation hearings] is largely political theater. Looking back and reflecting on this, especially given that Joe Biden himself may be a presidential candidate in 2020, what do you make of what occurred there? And what was so dangerous in that book that he held up?
Richard Epstein: Well, first of all, I think one has to go back a little bit to the Bork hearing because I got involved in that as well, and Bork was quite different from Clarence Thomas insofar as at every different point of his life, he always took somewhat of a different position. And there was a time when he was an anti-trust efficiency expert. There was a time when he had pronounced libertarian sentiments. And there was a time when he became a religious and social conservative. And so when he gets up to the Supreme Court is a real identity crisis, and he has really heavy baggage on a couple of fronts. One was firing Archibald Cox in 1974 with respect to Watergate, where he was left holding the bag quite literally. And then there was his 1963 article in August in The New Republic in which he attacked the public accommodation laws, describing them as unsurpassed ugliness. And I mean, those were very hard things for him to live down.
And to some extent, I supported Bork, not wholeheartedly, but clearly against I might add an absolute torrent of objections… Because I thought that he was a very smart guy and could be counted on to think his way through difficult problems. But he got slaughtered in the hearings, to put it mildly, and I can still recall one time in Los Angeles when I tried to speak a word about rent control of all subjects, and somebody in the audience looks up to me and says, “Professor Epstein you sound a bit like Robert Bork. Will you tell this group where you stand on Robert Bork?” This was a consummate irony because Bork was a pacifist on judicial intervention, and I was an activist. But when you’re talking about liberals to conservative it doesn’t matter which particular side of the conservative distribution, you’re on, you are not “us,” and so therefore, you are “them” and “them” is a blob and is an enemy. And so I tried to differentiate myself and gamely defend Bork, all to no avail. As you understand, he was trounced.
Thomas comes up a different kind of case because he doesn’t have much of a track record, one way or another. I think he had just been appointed to the D.C. Circuit, if I’m not mistaken, and virtually done no work there. He had taken some government positions, and the initial situation was with respect to the debate over natural law. You might recall that Laurence Tribe, no great constitutional scholar on these issues, sort of announced that Thomas was a natural law thinker, and that was a perfect disqualification. I might add that if you’re going back to the history of natural law, which is something I teach, it starts with Roman law, works its way through medieval war, essentially is the dominant mode of thought on virtually every issue through the time of the Founding and only yields to some form of utilitarianism starting with David Hume in the mid part of the 18th century. So it’s not as though it’s a shabby criteria, but since he had no idea of what it meant, it was to him just a code word for some insidious situation.
And then the conversation got more concrete with Senator Biden. And what he did is he pointed to my Takings book — unfortunately, I might add, the publisher did not have extra copies handy to sell after all of this happened, although it did boost things a little bit, and it was a kind of a “Have you or did you ever believe of anything in this book?” And what Thomas answers on this question was, “Well sir, you know that private property is actually enshrined in the Constitution, in the Fifth Amendment. This may have been news to Senator Biden.
Ben Weingarten: May still be news to him.
Richard Epstein: Well, it’s also a kind of a difficult question. And so what he tried to do is to convert a natural law question into a statutory or constitutional construction question, leaving open the very hard question, exactly how do you construe the protection of private property? And the Takings book was a systematic effort to try to figure out not only what the words mean, but how it is that the entire clause essentially summarizes a very large portion not of a libertarian position, but of a classical liberal position. Now, why was Biden afraid of this? Because essentially, to the extent that you could formalize any legal system that imposes a coherent set of constraints on the way in which government operates, it’s a danger to the progressive agenda, which he championed, which says essentially that any time we decide to change the legal rule, all we’re doing is flipping entitlements back and forth one way or another, and that’s exactly what governments are supposed to do.
So to put it in its most stark term, if you’re somebody like Biden, and you have a piece of legislation that takes from A and gives to B, he says, “Congratulations. We now discharge our political function.” If you take the classical liberal point of view, which is not a librarian point of view, and you take from A to B and you don’t give compensation, “Congratulations, you’ve had a per se violation of the Constitution, either you pony up or we can enjoin you from the performance of the obligations.” You can’t find two positions that are more starkly opposed, one to another.
So then, the hard question that Senator Biden would have to answer but he’s not capable of answering, “Which of these two provisions do you prefer and want?” And the position essentially that I took, is that the stabilization of property rights is the only way in which you control factional politics in a general democratic regime. And essentially what you’re trying to do is to recognize that certain kinds of market imperfections do require government intervention. That’s why in some cases you can take property with either just compensation or, though not written in the text, clearly implied because of a police power situation. But essentially at every time you make a move, instead of it being a freebie for the government, what they have to do is to strictly justify what they’re doing either by showing there’s cash compensation, implicit in-kind compensation that is a benefit under the statute that inures to those who are hurt, or there’s some police power justification narrowly, but sensibly construed, to cover nuisances, frauds and other kinds of libertarian wrongs.
And if you square this up against the New Deal, it just flunks cold because what are the central treatises of the New Deal? There’s two of them: One is massive redistribution through a system of taxation of one kind or another, and that is sort of out if in fact you’re saying that’s a taking from A to B… And the other situation was this unnatural predilection in favor of monopoly over competition, as represented by the National Labor Relations Act, the Agricultural Adjustment Act the Motor Vehicle Acts and so forth. And essentially, in a world of takings, the only thing you’re allowed to do is to expand the pie through government coercion because if you contract it then you can’t pay just compensation to the losers. So all of these monopolistic schemes turn out to fall.
Well, I think Biden vaguely understood the way that this thing worked, and he was determined to try to nip it at the bud. And you know, in Thomas, you have a kind of an odd fellow because he has in fact both been sort of conscientious on the Takings Clause in a sense, and on the Commerce Clause, but he’s written some of the very worst opinions ever on the question of judicial deference to administrative action. And so, he and Justice Scalia and virtually all of the conservatives are not single-minded on this particular issue. They shimmy, they wobble and so forth, and it’s because they don’t have a consistent theory.
Now, there’s a back story that I should tell you about this. There’s about two days or three days after this stuff breaks on the Takings Clause. I get a call from one of his assistants, I think his name was Greg P[ ] who had been one of my students. And I was speaking in Kansas at that particular time on behalf of I think it was the Koch Foundation. And sure enough Greg says, “Well, Senator Biden would love to have you come and speak… About your views on property rights. And I immediately turned him down, and this is what I said. I said “If I’m gonna go up there, you’re gonna control the microphones. You’ll speak when you want to speak. You’ll shut me up when you don’t. You’ll require a written statement. You won’t let me get it on the record. I said, “I’m not interested in publicity, enough that I’m gonna put myself to that kind of ridicule and abuse. Tell the senator if you’d like to debate the issue in front of a neutral forum, I’m quite happy to do it. And I’m also perfectly confident that he has nothing to win by that situation, so that I’ll never hear from you again.” And I didn’t.
And then, of course, everything turned on Anita Hill, which is a completely different type of an issue, and it turns out natural lust beats natural Law every time when you’re talking about a political subject. So my 15 minutes of fame passed.
The book did develop a rare distinction. It’s one of the few books that ever had a U-shaped sales curve of an academic variety because there are certain books are perennial bestsellers like John Rawls‘ A Theory of Justice. But the Takingsbook is a much more inaccessible book to most people, so you get an initial burst of enthusiasm, and then it declines and it kind of dribbles on in perpetuity. But this case for some reason around 1991, you could guess what that reason is, the sales of the book actually started to move up a little bit. And so, I can say that I think the book has had a fair bit of influence. The way I like to put it is, this book has probably been refuted several dozens times. And that’s a huge compliment to me as its author because if somebody had actually done it right the first time, nobody would have gone to come after it.
But the difficulty that the Left had on this issue is, I was not engaged in a crude form of individualism that is equal to egoism where I could do whatever I want ’cause the only person I care about is me. This was a book which tried to figure out how you put together a social welfare function, and so it’s got a collective element to it, but the key…In this situation is that both every voluntary transaction and every coercive transaction has to yield a positive sum game. That means you have to create more in society. You then have to worry how it’s gonna be distributed.
I wrote another book. The book was called Bargaining with the State, which talks about the distribution of surplus. You put the two books together and try to summarize them in two sentences, the Takings book is designed to say that no move which is coerced by government results in a negative-sum game, and the Bargaining with the State book says whenever there’s a positive sum game and it’s done by coercion, we have to use the system of proration, in order to prevent the dissipation of the surplus among competitors.
If that sounds like raw, naked individualism, that’s wrong. In fact, this is quite different from standard libertarianism, which is all too eager to have its truth as self-evident. I regard them as derived. They’re certainly correct to say that the prohibitions on force and fraud presumptively surely are correct, but it’s wrong to assume that that’s the only thing that a legal system has to worry about because if you take that literally, you can’t even have a Takings Clause because that requires you to surrender property in exchange for something of greater value even though you’ve done nothing wrong.
Ben Weingarten: You spoke about the heritage of the classical liberal tradition in the Western canon, and also as it applied in government versus the New Deal where you have the dominance — and I would say, and I think you would probably agree, the predominant sort of ethos that animates government and public debate even today where we’re arguing on very narrow terms but in a progressive sort of framework in many instances. And it sort of comes down to, “Do you have the freedom, and the government is restrained, or does government have, all the freedom to act as it wishes, and you have to ask for breadcrumbs, essentially… My question is, with progressivism dominating today in many respects, and you have candidates on the Left, Democrats, who are highly progressive, what is the most effective argument that you’ve found against them and for classical liberalism in your studies and in your classes.
Richard Epstein: Well, let’s just stop back and figure out what the initial position is. I think the correct way to state it is not in terms of who gets first, who gets second. The assumption of classical liberalism is essentially, the presumption against government error. That is, if you don’t know what to do, government has to justify itself.
Now, then you have to put forward the reasons of why is that that kind of justification is needed, and in ordinary discussion what I do is I say, “Look, you have to think of at least two things: One is, it’s always very expensive to put this government system into place, kind of complicated, and you got a lot of elected officials, and they’re gonna point to a lot of administrative officials. Every time you would point to bureaucracy to enforce a statute, you’re undertaking something much bigger than you actually know.”
So, take something very simple: What is a definition of an hour under the Fair Labor Standards Act? 1,300 pages later, you have some idea of what it is that the administrator wants, and he still doesn’t manage to get everything right because you have to worry about downtime, rest time, meal time, commute time, injury time. There are just so many complicated variations on this that you have to ask yourself, “Given those costs, the presumption sure has to be on government to show that they’re gonna get some kind of a gain.”
Now, how do you deal with that? Well, with ordinary people, it’s kind of difficult to do this, but you start with a very abstract proposition and then you try to make it more concrete, which is to say, “By and large, most of you like to have choices. And the choices that you are going to have are not going to be expanded by government action. They’re gonna be contracted.” What you need essentially in virtually all cases, is to have a multiplicity of people on the other side of the market, whether you’re talking about a tenant who’s looking for premises, and employees who are looking for some kind of job, an individual who is looking for a bank in which to deposit their money. You name it, that’s what it is that turns out to benefit you.”
What government always does, is it restricts the set of choices. Sometimes it drives people out by putting high taxes on it. Sometimes it drives them out by giving its imprimatur to some vendors and not the other vendors. So what you have to understand is you’re paying a lot of money to lose a lot of freedom. So you’re losing both ways.
Now, what is it that you then want to do to figure out what would reverse this thing? Well, it doesn’t take a genius to understand that, You give one person a supply when a competitive market is there, you’re gonna shrink the total size of the pot. It’s also gonna be very expensive to enforce that arrangement. And so the last thing you ever wanna do is send public funds to entrench people with privilege.
Now, does this affect politics you would say? Well, of course it does, all of you guys know something about special interest ruling. Now, how do we know that? Well, one of the things you might have to ask in your local neighborhood, as to whether or not somebody can operate an internet business out of their home, or an interview with a learned guest out of their home. And if you got a zoning board sitting there, they could come along, then they can say, “No, no, no, you can’t do that.” And what’s the explanation that they’re gonna give for that?
Well, it’s certainly not being that the fact that when you have a guest to give a talk on a radio, you somehow have it vastly noisier than when you have four people over to play bridge. And so the correct rule in all of these cases is to figure out whether or not what you do in your property creates physical annoyance, disturbance and interference with everybody else, which is generally, a nuisance. And if that’s all that the law were doing, you could shut down a blast foundry which would be located in a boutique area with all sorts of fancy shops.
But what happens is virtually every single liberal judge who announces his comprehensive land use regulation always wants to say “The nuisance law is part of the picture, but we can go much further than that.” And you ask, Doing what and for what reason?” And this is what happens. They don’t have an explanation. They don’t have a theory. So the theory is, now we have to trust the good judgment of the political actors to do it.” And if anybody spends time going to a zoning board hearing or rent control hearing, and so forth, you realize that what you do is you get a kind of a modified form of mob rule, in which all the people who want the zoning to remain in place come and yell at the examiner saying “We’re gonna be heard.” All the people who wanted it to be relaxed say it on the other thing. The same is certainly true, with respect to rent control and so on, and what you’re doing essentially is you’re necessarily inviting the political process to decide which of two people are gonna be able to control an asset which is part of the “I took it from A and gave it to B syndrome.” And that’s what you’re buying yourself into.
And it turns out that these positions are never sustainable because you manage to get the lock on something, for a short time. The losers just don’t go away. They become resentful. They try to find ways to evade the restriction. So now you have to re-double your enforcement efforts. And as you do so, government becomes more interfering with respect to sort of primary activities, so now basic notions of individual privacy and autonomy are not allowed. And you just watch the way in which these systems expand and you realize it’s because the people were on the progressive side of the limits.
Now of all the things that you must punish, none of them are in favor of having murder. None of them are in favor of having systematic fraud, or manse nuisance. But they have no idea of what the reciprocal of that is. So when there is no force and there is no nuisance and there is no monopoly, what’s the justification for intervention? And the answer almost always turns out because “I like this guy, better than that guy. And it turns out that I want to be the guy making that decision.”
And you then get the kind of a decline in productivity. You want an obvious measure then I just take a simple thing: States with right-to-work laws, and states which have strong unions. And you just watch the migration of labor, and it always goes in the direction where there’s greater freedom because they don’t have jurisdictional competition. What’s the response of the strong states with with strong right-to-work laws? Well, it’s not that they wanna get rid of their rules to make themselves competitive. They want to hobble the other guys, by forcing them to take the same kind of senseless restrictions under which they live. And so what happens is, progressivism becomes a race to the bottom, and classical liberalism becomes a race to the top.
Ben Weingarten: Should we abolish the administrative state? And if so, how?
Richard Epstein: Well, the answer is you gotta be extremely careful before you say that. You cannot abolish the administrative state. What you have to do is to think of all the things that have been done sensibly through an administrative state, and then ask, why under New Deal constitutionalism everything seems to go wrong with the administrative state.
So, you need tax rolls. You have to collect taxes…Well, somebody has to know who owns what property at any given point in time, so you have to have a system which records deeds and titles and so forth. This allows people to figure out to whom to lend to, and how to borrow and when to buy, and it also figures out the kind of taxation that you’re gonna put it [under].
People are going on motor vehicle. You want people to be able to enter the public highways without a license? You want them if they have a license to keep that license when they start mowing down innocent people? Do you wanna make sure that they have no insurance when they get on the public road, so as to leave their victims homeless? Nobody I think is really in favor of that. And so what you do is you start thinking about all the things that a minimal state has to do, and ask how many of them can it do through regulation, and how many can it do simply by general statutory enactment. And the moment you have to particularize the application of a general scheme, that’s gonna force you into some kind of an administrative state.
But what’s that state gonna look like? Here’s a kind of an instructive way to look at this: The bête noire, the worst of the modern and the most important of the modern administrative state cases is a case called Chevron…And Justice Stevens just botches it beyond all belief by announcing “Gee, when I don’t understand what’s going on, I’m gonna give deference to the administrator to decide what’s happening.”
Well, already he’s got it on because these administrators often have vested interests. And so you’re saying, “I’m going to defer to these characters because I believe that foxes ought to guard hen houses,” which is generally a mistake. If you look at the statute, it turns out it was drafted exactly in the opposite direction. Section 706 makes it very clear that all questions of law to be decided de novo by a court. So no administrative agency has the power to alter regulation by interpretation. It’s interesting that Justice Stevens never once cites that provision in the opinion that he writes; never once bothers to say “Well should this be a notice and comment hearing or something else?” It’s just all free-form deference.
And it was completely unnecessary because in order to create deference he had to misread the statute, which has commonly happened. And this was a perfectly sensible half statute which said for the purposes of emissions control, if you have a bunch of smokestacks which are tightly packed, you treat them as though they are one because the separations are trivial — which means that if you keep the total amount of emissions from underneath these smokestacks down to an acceptable level, you can switch some of it from one stack to another stack and not get another permit because you’re not creating an increased externality. It’s the same as it was before. That’s the right answer. He finds some unrelated statute, introduces a fabricated ambiguity, gets the right result for wrong reasons.
One of the things he does in this opinion is to cite some 19th century cases which announced that we have discretion. But he doesn’t talk about them. And if he did, he would realize how radically disjointed they are from everything that he did talk about.
So I’ll just give you one example. One of the big issues that you always have to worry about for administrative state is pensions — pensions for public workers, pensions for military people and so forth. And in general, what happens is… You have a pension board of people. What they do is they sit down with a hundred applications a week or whatever it is, and they start to develop rules of thumb as to who counts as a yeoman first class getting this benefit, who counts as a lieutenant second class getting that benefit and so forth. And essentially, the dominant task that you want is a combination of expedition — get it done quickly — and consistency — so that like cases are treated alike, and different cases are treated differently, so the case with the greatest salary gets the greater benefit pension and so forth. And what the court said when they were faced with a challenge to one of these schemes is, “This is a well-running administrative system. We’re not gonna sit down and try to second-guess a bunch of people who have been doing this thing day after day, week after week.”
You come to Chevron, there’s no constant repetitive plays of small decisions yielding customary practices. There’s one lollapalooza decision about whether or not in this particular case, we’re gonna require every smokestack to stand on its own bottom, or whether we’re going to allow these combinations. The stakes are in a case that’s completely non-repetitive…huge. And to think that you can defer to somebody, when there’s no custom an informed practice, which allows you to organize a field is just a mistake. And that’s exactly what he did.
And so you then take its modern champion Justice Breyer, who writes one G-d-awful opinion after another on this particular subject. And after awhile, what you discover is, there is no issue on which we actually have an opinion. And if judges start to ask the question of whether or not this thing under a deferential standard is permissible, it’s roughly like a mathematician saying, “Well, two plus two week equals five… We think there’s some reason to believe that it’s not correct, but it’s close enough for government work.” The tragedy is, the moment you lower the level of scrutiny from that which you give to ordinary language interpretation to this deferential stuff, and you make yourself into an intellectual illiterate, what you do is you start doing excuses for people who don’t need them instead of trying to figure out the way in which the particular language works.
And this is a disease which can hit both parties. So to take an illustration to my bipartisan nature — famous case called Auer by Justice Scalia, in which the question is whether or not when a federal administrative agency under the Fair Labor Standards Act to which I referred has to decide who is not a professional, they can take anything that they want and they can decide that a professional or a supervisory manager includes not only the captain, but also the commander-in-chief, but it doesn’t control the patrolman, the…essentially the sergeants and the lieutenants over them. So you ask yourself, are these administrative positions with supervisory responsibility? And he says, “I don’t wanna know anything. I see no evil, I hear no evil. I do no evil.” Then what you do is you just type in “administrative positions,” “police department,” and read the descriptions of the various job offices. And it turns out that all the people that were classified by the government as being essential ordinary employees where managers, supervisors, administrators and so forth. It’s a no-brainer. And so, the question you have to ask is, are you allowed to misread a statute when an exhaustive examination taking 60 seconds or less can tell you the right answer, and that this stuff turns out to be wrong.
Now, why is this so critical? Because it’s not the minimum wage stuff that’s involved in these cases, it’s the overtime provision. Now what you do is, the thing runs on for a long period of time, and then somebody brings this action, and all of a sudden there’s just a crude period of time when people thought that they weren’t covered by overtime restrictions, and now you have to make huge cash treatments out from underneath. That is just not an acceptable way in which to do law.
What you want to demand of judges is as follows: You read statutes all the time where there’s no administrative agency that is interposed between you and the ultimate decision. And what you try to do is use your own best [judgment]… That’s exactly what you should do when the administrative agency is there. If these judges, well these administrators, actually know what they’re talking about — and sometimes they do, but often they do not — they can explain it to you. And the other guy can argue.
So you’ll let them give this as evidence, but you don’t defer to that judgement because you know in many cases, for example, in this labor stuff, if you are dealing with a Democratic administration by G-d everything is gonna turn out to be pro-worker and pro-union. If it turns out you’re on the Republican side, it’s gonna go in the opposite direction. In general, I think the Republicans have read the statutes more correctly, but I certainly wouldn’t defer to their reading. I would just think that it’s more persuasive. So, I regard modern Chevrondeference as a complete stain on the Republic, as a deep affront to the rule of law. And the tragedy about it is that it has, at least to the present time, some bipartisan support.
What is interesting in the last year or two — things have started to change. Justice Scalia is reported to have said when somebody confronted him with Auer — the case that dealt with “Who is a supervisory employer?” and so forth — said, Who wrote that dumb decision?” To which the answer was, “You did sir.” And Justice Thomas may be coming around because he wrote Beach Communications, which is another terrible decision… The liberals like Justice Breyer are essentially hopeless on this question. They always yield to administrative judgement. And it’s ironic, Judge Breyer, Justice Breyer, was actually one of the key authors on an administrative law case, well, you thought he might have known better on this. But this is set into stone. I would hope that [Supreme Court appointee Brett] Cavanaugh would be confirmed on this issue in particular, that Gorsuch would keep to his word, and then slowly you can assemble a majority of people to realize that the rule of law requires that the Section 706(A) on the question of administrative deference on questions of legal interpretation be interpreted exactly the way it is, which is you get a de novo, that is from a fresh, no, deference to anybody down below on that question.
Very different on matters of fact. And in fact, the Supreme Court does the wrong thing there, starting back with Justice Douglas on a whole variety of cases in the early ’70s. The basic position was, “We don’t like the way you’re dealing with the fact cases, so we can overturn that.” So, you get judges who don’t know anything about facts making decisions, and judges who should know about a lot of law deferring. This is completely upside down and crazy and indefensible, and it’s indefensible no matter what your view is of the administrative state, even if you want to say that many of these statutes were constitutional, although I regard them as not, if they’re constitutional you still interpret them correctly. You don’t give judgments because the moment you give deference what you do is you compound two errors, far too much power given under the statute, which is only magnified by far too much power given to the administrative agency.
Ben Weingarten: There’s a theory that has started to dominate on college campuses, which is that speech is violence, and therefore, it justifies a violent response. And that’s in this whole sort of milieu of trigger warnings, and microaggressions and trying to protect people from ideas that conflict with their supposed deeply held beliefs. Do you think that free speech in America is in a perilous position, and how do we defend it.
Richard Epstein: Well, I think the argument ought to be used in the opposite direction. Many of these people who believe that speech is violence never say that about their own speech. But in fact oftentimes they’re quite inflammatory, quite insulting to people on the other side of the political spectrum. And so therefore, if their speech counts as violence, somebody’s allowed to knife them as well.
The whole point about principles of neutrality with respect to speech is you never want to put yourself into the position where you have to arbitrate whose speech is inflammatory and whose is not. And so, content restrictions on the classical theory of the First Amendment are essentially the most highly suspect. And what these fellas want to do is say “We are so sure that we are right on all of these issues having to do with racial discrimination, sexual harassment, income redistribution minimum wages and so forth, than anybody who speaks against us is essentially a terrorist. And we could wipe them out.” It’s not sustainable to do things under these circumstances, given the risk that exists to other people.
And so I think the answer is what one has to realize is that terms like “violence” when it’s used in connection with a libertarian type theory… They’re saying that this is a form of violence — is that you cannot simply expand the definition of a wrong to fit whatever caprice that you have. The definition of violence is the threat of the use of force, by which I mean you’re gonna beat somebody up, kick ’em over the head, create traps into which they’re going to fall, such that this action would be tortious if done in ordinary interference between two people. And a difference of opinion, no matter how intense, simply does not do that.
When Justice Brennan on a very good day started to talk about this, the position was that no matter how offensive you find speech, if the only thing about that speech is offensive, what you have to do is to learn to lick your wounds and to be quiet. The last thing we want in a free society is for people to say your speech is offended — I’m now really offended, I’m desperately offended, I’m overly offended, so therefore I can beat you up.
It’s very different when you start talking about defamation because at that particular time, you are lying about somebody and the tangible harm is that third persons will no longer do business with somebody if they think that person is a cheat, an adulterer, a murderer…So, defamation has been a tort from Roman times, and should remain one, but the offense stuff clearly is not.
So, this is absolutely a classic illustration of intellectual stupidity on the one hand and political opportunism on the other, and I think everybody on every side of the political spectra has to come together and to say we cannot have a marketplace of ideas if it turns out that one guy who goes into that marketplace says something which the other side believes justifies them killing him and silencing him in one form or another. This is a real dangerous kind of totalitarian form of behavior, and anybody who believes in progressive ideals should have enough courage in their conviction that they can stand up an argument with somebody who disagrees with them. But it’s precisely because they have this intellectual insecurity that they’re not prepared to do that, and they want to simply do by diktat, win every argument that takes place in the public space.
Ben Weingarten: Relatedly, you have conservatives and even some self-proclaimed libertarians who will say that given this environment, hostile towards conflicting views, that social media companies should be regulated in some form to protect speech. Now, my initial reaction, and I assume yours as well, is look, to the extent to which there is a free market in the tech world, I can come up with a better widget that protects speech that isn’t protected by other private employers. What do you make of the argument about the need to regulate these as utilities — social media companies?
Richard Epstein: Well, it’s actually a very hard and complicated question, but by and large, I think the presumption should be strongly against that form of regulation. Let’s start with the simplest reason: All of these companies, they may be very powerful, but they’re naked. So if you look at the position of a company like Facebook, the amount of negative publicity that it manages to get week in and week out as it desperately tries to figure out which sites to shut down and which sites it decides to leave open will in fact to help them — I think they have enough incentive to try to get the right policy.
I think what it shows is something else, and this is true I think of all of these characters… Zuckerberg is a genius technician. Bil Gates was a genius technician. Steve Jobs was a genius technician. None of these characters have any particular advanced knowledge in dealing with these sort of fluid issues of political entitlements, speech defamation and so forth. So you’re taking somebody who’s A-plus on the technical side, and they’re kind of C-plus on the other side, and you’re giving them an inordinate amount of influence. And you can see what they do is they speak, they apologize, they change their position, and they go back. What they really have to recognize is, you need a fundamental restructuring in these companies because in the current environment, the tech is subordinate to the political, meaning in effect the technical innovation is something that you could secure in orderly steps one after another, it doesn’t get you into hot water. The area in which you could be make break your company turns out to be all these political dissertations of one sort of another.
So to have the head of the company be strong on things which are relatively stable, and weak on things which are highly volatile, is a real kind of management mistake. I mean, I have no doubt that people like Zuckerberg and Gates go into class all the time to be told, but there’s absolutely no reason to think that because these guys have got an IQ of 200 on the technical side, that they have an IQ of 150 or better on the other side. And they don’t. They’re just not that good at this stuff.
So think back to Bill Gates when he tried to figure out how to deal with the anti-trust cases. He had no idea about the way in which network industries work; no idea that, in fact, you don’t get competitive solutions in network industries. So what he said is if you want to basically regulate the way in which we distribute our access, and we are a common carrier, it’s like telling Coke that they have to carry Pepsi containers — exactly the wrong analogy. And then he starts to talk… Musing about how he has to destroy the competition. And so he was a little bit like an early version of Donald Trump. His public musings essentially complicates anti-trust stuff, and to be perfectly blunt about it, once these decrees start to come down around 1998, Microsoft was not for the next 15 years the same company that it had been.
And we see the same risk can happen to Facebook, perhaps to Google and so forth. Just think of how badly they mangled the gender issues in both of these companies — hard to see anybody being more incompetent about this stuff than the two of them. They manage to please nobody. And of course, they had one serious problem… They were never actually prepared to explain why it is that if you actually look at the numbers, men on average are gonna be better programmers than women. It’s not that every man is better than any woman, but if in fact you’re running a merit system, it will be more heavily male than female. There’s just no way you’re gonna get around that and… Well, they don’t wanna talk about that, so what they do is they start saying things that they don’t believe.
So, I don’t think you want to regulate them because then you have the next question, okay, these are very hard questions. We know that Facebook has an institutional incentive to try to get it right. What about the incentives in the federal government, or the state government or both of these? Do they know which of these sites to shut down, why to shut them down, how to limit them and so forth? Essentially, if you’re thinking about how you’re running a company, somebody like Facebook probably has several million sites on it, at least, of which may be a hundred thousand, 200,000 or more are actually sensitive sites. There’s no way any regulator from the outside can do formal notice and hearing and deal with this stuff. By the time you figure out what’s wrong and try to correct it, that site has gone down and six others have come up…
So I think it’s perfectly okay for people to say “Yes, you know, you really have to worry about this,” but… It’s not like trying to figure out how to regulate a common carrier, where you say, “You know what, you have to take all customers, you have to charge non-discriminatory rates.” But it’s not real complicated to figure out that somehow other when you get people on a train, they can sit next to one another and you don’t wanna have a judicial hearing to decide which passenger is gonna sit next to which passenger. It’s just a much simpler apparatus, and even if you didn’t have the common carrier rules, the business side would push you in exactly the same direction. So there’s very little gap between what a regulator would demand and what a firm would do. In this area, Everything is up for grabs. So I’m pretty much opposed to all of that.
And in general, I think there’s another risk not so much in America, but you saw it happen to Google and Android, Ms. Vestager or whatever her name is. What she knows about anti-trust is essentially nothing as far as I can tell. They have no idea of why any of these devices may in fact actually advance consumer choice, What they do is they have this sort of this 19th century European statist model that any large company is rigid, and indispensable and irreplaceable. And so what we can do is we can break them up and tell them how to write contracts and so on. It goes back to the point I made at the beginning, which is, this is gonna be an administrative burden of the highest imaginable, and how much social improvement do you think you’re gonna get to justify the billions of dollars in expenditures, and the potential fines and the loss of research and innovation… [that’s] gonna come out of these things?
So no, I don’t think that one should do this in America, today. If you’re trying to figure out whether or not you want to move the needle to more regulation or less regulation, you don’t have to be a great genius to realize that we’re over-regulated in most areas. And of course the great achievements of the Trump administration have all been in local deregulation; the great catastrophes of the Trump administration have been in his efforts to try and impose trade war type situations, tariffs and so forth on other wations, which will turn out to be of course the calamity if these things are allowed to run their course.
So I’m gonna end on this note ’cause I do have to run, but I just wanna make it very clear: Classical liberalism is not a system of absolutes. It’s a system of strong presumption, and the initial presumption is that when you’re dealing with ordinary human activities, it goes unregulated unless you can show a very strong reason why that regulation ought to take place. That list is not open-ended and endless. It starts with force. It goes on to deal with cases of fraud. It deals with cases of monopoly, all of which are resource-destroying. It certainly gets involved in things which aren’t very important in the grand political scheme, but guardianship for children, insane people and so forth. If you start to look narrowly at all the heads in which regulation is permissible under the classical liberal system, you then have to say, if you are a progressive, what do you want to ask, and how is it gonna make an improvement? You’ve got flat taxes, you got all this other stuff. The classical liberal has a more complicated system than the hard line libertarian — force and fraud, only force and fraud. They don’t deal with taxes. They don’t deal with monopoly. They don’t deal with eminent domain. Those guys are vulnerable, and the great danger of being a libertarian is once you knock that system open you say, “Well, there’s no alternative except to be a socialist.” Then we’re right right back in the progressive chute.
If you got classical liberalism in the middle, virtually every case that the Left uses to repudiate libertarianism is a case that’s covered by classical liberalism. They say, “Do you really wanna charge the streets and control access when the grid is much more efficiently run when paid for by taxes?” You can’t make that charge against the classical liberal. The classical liberal won’t say the same thing about turnpikes because the environments are completely different.
So I think, in fact, what I try to do is to persuade people that, even though this philosophy is not fashionable, anybody who is serious about trying to understand the malaises of today will recognize that the control of these particular problems from this particular framework that I have mentioned dominates that of any provision — on the Right where you don’t do anything at all, on the Left where you think that everything is open game — and if you understand this then your views on legislative power, your views on administrative discretion are contracted, and it’s done.
So in a principled way, remember this, classical liberalism is not a theory of individualism. It’s a theory of social welfare that tries to figure out whether you’re dealing with government structure or with individual rights, what are the ways that you put institutions and practices together in order to increase the overall level of human flourishing.