 I think that many of us in this audience and at this conference today would not even prior to having heard Mr. Rectonwald's talk this morning necessarily object to the proposition that there are a lot of people operating, managing, controlling big technology companies who are not sympathetic or favorable towards our point of view in terms of politics and economics and maybe even social and cultural matters and that a lot of the people running and managing and even owning technology companies would not hesitate to use the platforms that they own and run in control to suppress libertarian voices, to shape particular political or ideological narratives and to obscure or demote information that they feel is contrary to their interests. I also would suspect that a lot of us in this room would understand that the left's response to this, build your own Facebook, is less than satisfactory in many ways. Obviously there are network effects behind the dominant social media companies and it's also interesting to note that the left is now enamored with the private property rights of companies and wants them to be able to do anything they want because they're not public. And of course we know that the reason the left says build your own Facebook is because the left feels like they're winning in the social media wars. So the question for us today is first and foremost whether there are any legal theories or causes of action that would comport with our Rothbardian and libertarian concepts of justice and law that could be brought against technology companies to bring them to heal, so to speak. And I think the answer is murky and that's why there's a question mark at the end of the title of the paper that I'm working on with Alan Mendenhall, some of you will know him as a dean of Faulkner Law School. Paper is still in its embryonic phases but I think the question of how we might proceed against technology companies is still very much in flux and it's also hampered in many ways by a libertarian and Rothbardian conception of tort law that is very much rooted in physicality in the analog world, not the digital world. These are some of the problems that Errol alluded to in his paper earlier. If we go back to 1996 just for some set the stage a little bit, the Communications Decency Act was passed. One of the authors of that bill was a member of Congress who is actually not the worst member of Congress ever named Campbell who later on became the head of the SEC. And so the idea behind the Communications Decency Act was that, hey, these fledgling companies at the time like CompuServe and AOL need to have the same sort of immunities from liability in particular defamation lawsuits that other newspapers have, for example. You don't want to choke the internet by having your AOL chat room sued or AOL sued because someone in that chat room post something slanderous or libelous. The idea was that, wow, we ought to treat these fledgling technology companies as common carers and exempt them. So this preempted a lot of state tort law in the process and now we have people in the Senate suggesting that the Communications Decency Act has to be changed as a result of this. Now, when we're trying to identify the issue, what's the issue here? Well, the issue is not just deplatforming, which I'm sure you've all read about. There's also the idea of no-platforming, not allowing someone to use a service. There's the idea of shadow banning. You subscribe to someone's social media feed, but they don't show up. There's promoting and demoting particular content, you know, having pro-Hillary Clinton stuff maybe rise to the fore in your feet and Trump stuff be suppressed. Demonetizing content, a lot of YouTube users of a particular bed have had their advertising revenue taken from them by YouTube, which is a subsidiary wholly owned of Google. And this is the kind of thing we worry about at the Mises Institute and it sites like gluerockwell.com. Now, we're still operating and we're still fine, but it wouldn't take very much for Google to just say, hey, let's take the results in our search engine. Anything from the Mises Institute, let's bury it till page 30. If you type in Rothbard or Mises or Austrian economics, what if no Mises Institute results appeared until page 30? We would effectively be invisible to Google users, so that would be a kind of de-platforming or shadow banning in itself. It hasn't happened, thankfully. And of course, there's a lot of famous or noteworthy cases, people like Milo Yiannopoulos and Alex Jones and closer to home a friend of mine, Daniel McAdams, who runs the Ron Paul Institute and who is a big anti-war voice on Twitter, anti-CIA, anti-Deep State voice, had his Twitter account removed by Twitter and ostensibly because he called Sean Hannity retarded in a tweet. You're not supposed to use that word anymore. I understand that. It's not a kind word, a nice word to use against people with mental disabilities. Mr. Hannity has his own infirmities, we won't get into those today. But nonetheless, Daniel was able to send the Twitter support people, literally thousands of examples where others had used the term retarded in their own tweets. So the question becomes whether these standards or terms of service exist, are they applied arbitrarily? An important question. And make no mistake about it, de-platforming works. If you read left-wing sites like Vox and Vice, they will celebrate. There's celebratory articles on those sites about the de-platforming of like Milo. And Milo now finds himself with virtually no ability to fundraise, no ability to get speaking gigs, millions of dollars in debt to lawyers from fighting this. And so his voice as some sort of crapster or malcontent or whatever he was is now pretty much effectively silenced. Now, there is sort of one kind of legal case percolating in this area of de-platforming. That's by PragerU. Prager University has had several of their videos removed or obscured from the YouTube platform because of the actual content. So this isn't about identities, it's about the actual content of the videos. And so Prager University has actually sued YouTube and federal court. That lawsuit has just been filed about a month ago, so we don't have any decisions on that or any case law. But what's interesting is that from a libertarian perspective, PragerU really went in a different direction. Their causes of action are based on like the First Amendment. They're based on some ideas, Freedom of Speech Association from the First Amendment. They bring a civil rights violation under the Unraw Act. They're alleging that there needs to be diversity of viewpoints. So this almost kind of harkens up the fairness doctrine, which is something that I think libertarians would not support. They brought an unfair competition action under the Lanham Act. Again, a positive law doctrine that is not libertarian. And they've also brought what's known in contracts generally as the breach of implied covenant of good faith and fair dealing. Again, something that's sort of made up by courts and presumably would not get much traction under libertarian legal theory. So this is sort of the short and quick and dirty scope of the problem. It's unclear actually how widespread this is. There's very little data available on this. There are a couple of journalists who have looked into it, in particular Declan McCullough. Some of you might remember him. He has a pretty big name when he wrote for Wired Magazine. And also Glenn Reynolds, who goes by Instapundit. He is a law professor at, I believe, University of Tennessee. And actually in protest to what's going on, eliminated his own Twitter account voluntarily. So he's written some articles dealing with the scope of the problem. But so far somewhat limited, but that doesn't mean it's not problematic. And also, I think from a libertarian perspective, you only need one case. You only need one harm. Only one malfeaser or tort-feaser to justify legal action or remedy. If in fact that action or remedy comports with our ideas. So what are some of the rules? If any of you went to law school, you remember Iraq, issue rule, analysis, conclusion. What are some of the rules that we might apply? What are some guideposts, seminal works, that give us a good framework for libertarian law or a libertarian approach to the provision of law in courts anyway? Randy Barnett, many of you know him as a professor at Georgetown, has a great book from the 90s called The Structure of Liberty, which you should check out. Bruce Benson, who is I think now retired perhaps, but it wrote a lot for Mises.org, wrote a great book called The Enterprise of Law, meaning just that law, Provision of Legal Services from a Business Perspective. David Friedman, son of Milton Friedman, wrote his book The Machinery of Freedom all the way back in the 70s now. That book is actually quite dated, but it's got some very good short little chapters on dealing with aggression and fraud and disputes in a private manner. So still an important book. Hapa has of course attacked democracy and argued for mechanisms in what he calls a private law society, but his best single source of it from my perspective is this article called Legislation and Law in a Free Society from 1995, when he was at the tail end of his time at UNLV. And of course this paper relies heavily on Rothbard in particular. The Ethics of Liberty, which has a couple of chapters, 13 and 19 in particular, 13 deals with punishment and proportionality. It raises some of those thorny questions about what you ought to be able to do to someone who aggresses against you if in a limited way, let's say, and chapter 19, which deals with property rights and the theory of contract and how those might exist outside of a positive law legal system like we find ourselves in. So Rothbard is really the guiding voice of this paper. Also, he has a very lengthy essay called Law, Property Rights and Air Pollution from 82, which really lays out a lot of his tort theory in a very readable fashion, much like Ethics of Liberty, Plain Spoken. And his article, The Myth of Efficiency from 1979, which talks about some of the ways that libertarian justice has to be very specific and not concerned about efficiency or social costs. And of course, I think we would be remiss if we didn't mention Morris and Linda Tannehill and their great book from 1970, which was really kind of a pamphlet at the time, Self-Published Pamphlet, The Market for Liberty, which again has some really wonderful chapters on private provision of prison services and other things where we might look at for great examples of libertarian law. So these are some of our sources for how we ought to be thinking about things. What you'll notice about almost all of these sources, however, is they're really written and rooted in the physical age of property, not in the digital age in which we find ourselves. Where so much of our activity of a sort happens in cyberspace, meaningful activity, activity that can affect our lives deeply. So how do we deal with that? Well, first and foremost, some general principles of what libertarian legal theory is like if we're going to go sue Facebook or Twitter, we need to have a coherent justification for that and maybe there isn't one. Maybe the answer is really just Facebook and Twitter. Our private companies, they get to do what they want to do and you have to live with it and don't use their services if you don't like it and go build your own Facebook. Maybe that's the answer. I'm not sure that this paper is going to decide that, but if we want to talk about what libertarian law looks like, first and foremost, it's obviously rooted in common law. It's rooted in the discovery process of natural law. Law is something you go find. It's not something that you create. It's not something for which we need legislatures or legislative bodies. And of course, the Rothbardian version of common law is rooted in property, which means that property rights are the basis of our various claims at law and that legitimate property claims are arrived at through homesteading, they're arrived at through contract, the transfer of title via contract and sale. They're arrived at sometimes through gift or inheritance and they can also be arrived at through tort damages. So there are various ways in a libertarian legal system that we think of changing title to property. We'd like to change title to some of Twitter's property to us, maybe, like their money. Of course, the idea of libertarian law is stateless, that there's no police, there's no prosecutor, there's no district attorney, there's no public defender. So there's nobody representing the people because libertarian law is specific. It goes to specific acts and specific parties. And it prefers, of course, tort law, what we're talking about today as the regulator. We don't, as libertarians, just go clamor to the Justice Department to bring huge antitrust actions against Facebook or Twitter. Now, conservatives are certainly doing that, but if you are Rothbardian in your approach, and obviously he has a chapter about this in man-economy and state, we don't believe in government antitrust monopoly approaches. And so we really rely in a Rothbardian legal system on tort as a regulator, that tort is the way we affect the conduct of private parties. And also, I think probably one of the most critical issues is to say that in a libertarian society, we're really focused on restitution. If someone's harmed, we want to pay them back, we want to make them whole. We're not interested in teaching the tort freezer, the person who commits the tort, a lesson. We're not necessarily interested in rehabilitating them or throwing them in jail or trying to change their outlook. We're not even necessarily looking to deter them from doing it again because that's a little outside the scope of a narrow legal system. We're looking to make the plaintiff whole again. So that's really the focus here. That's why in a libertarian legal system we might not throw people in jail for their crimes. We might ask them to actually go out and work and produce and pay their victims some amount of money to make them whole as opposed to actually taxing their victims to keep them in $50,000 a year prison settings. And interestingly, in Rothbard's conception, we have this idea that crime, criminal law, sort of collapses into tort law because, again, there's no state, so there's no criminal law apparatus to prosecute things on behalf of the people. So there's just tort. There are bad guys and victims. There are tort feasers and plaintiffs. There are defendants. So we don't concern ourselves as much with the idea of criminal law, but we take crimes and we graph them into a monetary system of lawsuits and tort law. So, again, if any of you went to law school, you might have suffered through the Prosser handbook on torts. Prosser is, I think, no longer with us but was a famous jurist who wrote a big horn book on torts. And so Prosser gives us this definition. Well, a tort is kind of a civil wrong, other than a breach of contract for which the law provides a remedy. So it's this kind of murky thing. It's not a breach of contract, but it's not a crime. It's somewhere in between of it. And Rothbard comes along and says, no, no, no, Prosser is not right. A harm for a tort is defined as a physical invasion of person and property. And so we compensate people for this physical invasion and when there's something like emotional distress as a result of that, well, that's only compensable if it arises from this sort of physical invasion or aggression. So it's a much narrower view of tort than we found has evolved under certainly Western positive law traditions. And of course, maybe most famously in Rothbardian tort law, there's no defamation. You don't get to sue somebody for slandering you or libeling you. Your reputation, for example, is other people's thoughts, attitudes, feelings, opinions about you. And you can't own other people's thoughts, attitudes, feelings. So Rothbard says you can't sue for that. And likewise, you can't sue for injury to your business. If someone comes along and puts an ad in the New York Times, it says Dr. So-and-so is a quack. Dr. So-and-so has to just prove through his medicine that he's not a quack and that hopefully people who make false claims about him being a quack will themselves soon be deemed as unreliable. But you're not allowed to sue people for doing injury to your business because you don't own your customers. You don't own their solicitation of your services. So this is not necessarily 100% agreed to, even amongst libertarians, but this is absolutely the Rothbardian conception. And as I mentioned, you know, harm is very narrowly defined. There's no defamation. And we're really limited to specific plaintiffs and defendants or their heirs or sign. We don't have this concept of vicarious liability in Rothbard's world where if I employ someone and they have a fleet of trucks and one of them's out delivering on my behalf, it's my agent, but however they're out delivering in a fleet of trucks one day and they've had a couple of cocktails and they crash into another car, cut some damages. In the Rothbardian conception, you sue the truck driver and the truck driver alone, perhaps the truck driver's insurance company, but you don't sue me as the employer of the truck driver because that would lead to a much broader conception of justice that would get us into ill-libertarian scenarios, perhaps. Really interesting about Rothbard is that he argues for a real strict liability standard, whether you were actually negligent or intended to do something, it doesn't matter in Rothbard's view, whereas in today, in current tort law, there's a whole category of intentional torts, which is a separate category from just negligence where you sort of maybe meandering daydreaming while you're driving and hurt someone. So Rothbard does away with this. He says this is about causation and harm. It's not about your mindset or whether you were negligent or intended to do so. And he also says that we ought to apply the same burden of proof as we do in criminal cases, which is beyond a reasonable doubt. Now in today's tort law, if you sue somebody for, let's say, a car wreck, you only have to prove more likely than not that they were negligent, let's say, a 51% versus 49%, and that's enough to get money damages from them. And Rothbard says, well, if we're going to use the force of law to extract money from people and damages, you ought to have just as much of standard of, just as high a burden of proof as you do in criminal law, which I think is interesting. And of course, if we think about it logically, the difference between going to jail and paying money damages is, might work in sort of inverse proportion, right? If someone says, you know, your penalty for crashing into someone is 48 hours in jail, admittedly an unpleasant proposition, or a million dollar fine, you might well suffer through the 48 hours in jail and lose your actual liberty, not just your money. You know, it might mean less to you than a million dollars depending on your circumstances. So, you know, Rothbard says we ought to apply the reasonable doubt standard and we ought to disabuse ourselves to any of this concept of deterrence or social costs or social efficiency or the public. You know, costs are subjective across individuals. We can't make interpersonal comparisons. We can't compare utility. And so, we don't worry about what effects a particular verdict might have, let's say, on the actions of others or on, you know, precedence or on tort law in general, that we ought to just consider the parties in front of us and be highly specific. So, when we think about, let's say, suing Twitter or Facebook, you know, why not breach of contract? Why not bring a breach of contract action against them? Well, you know, that springs to mind, perhaps more immediately than some tort theories, but it's also difficult. It's very, very murky. Murray Rothbard and the jurist, William Evers, came up with the idea of the title transfer theory of contracts, which is really quite specific. It says that contracts only exist when some sort of actual title to goods has passed or is going to pass, like in a mortgage, if you pay the money, ultimately you get the title to your home. And that other kinds of contracts or quasi-contract where there's just a promise or there's a representation or you rely on something, you know, unless there's actual titles transferring, we ought to narrow down contract theory to only dealing with those events. So, the title transfer theory of contract runs, I think, counter to bringing a breach of contract action in these social media settings. And, of course, I think libertarians would generally agree with the Four Corners Doctrine, which is a doctrine of interpreting contracts where you only look at the actual document. You don't get testimony about what the parties were thinking, let's say, when they signed it or what they thought the contract meant. You stick to the actual language of the contract itself, so there's no implied warranties or representations made. We're real specific to the terms. And similarly, we don't recognize in a libertarian world the idea that, well, there's an adhesion contract where the two parties are so unequal in terms. One party's got all the money and power, like Facebook, and you're just some poor slut using it. And so, you know, this is unconscionable because the relative bargaining power of the two parties is so out of whack. And so, as a result, we ought to eliminate, you know, the idea that this contract is binding or not hold the less powerful party to the terms of it because, you know, they signed the contract under duress. Okay, that's always a little sketchy, certainly not ironclad under libertarian perspective. Your individuals are supposed to be held to the terms of the documents they signed. I think that's something we can mostly agree on. And then, of course, in the social media context, you've got some interesting twists because the real client, the real customer of Twitter or Facebook, is the advertiser, the person who is paying them to have ads or paying them for data, which you, the actual user, have provided in a very convenient way for them. So in a sense, even though you check that little box about the terms of service, when you agree to it, when you sign up for Facebook, or I guess we do, you know, the question is, who are really the two parties to the contract? What's the consideration? Usually, the consideration is what you give or whatever what you get in a contract. I pay money over a period of years. What I get back is a house. You know, the house is the consideration that I receive. The money is the consideration that the mortgage company received. In the social media space, for example, it's a little different. What's the consideration? I'm giving them my data, and then they're selling that to a third party or targeting ads towards me, getting money from a third party that way. So, but I'm not really, getting back is the ability to use their platform and, you know, share family photos or whatever it might be on that platform. So we have kind of a three-way contract going here and the three parties aren't really talking to each other. So it's a little different than a straightforward two-party contract in that sense. And so I think that perhaps for all of these reasons, for the murkiness behind the contract and perhaps most of all for the actual language of what you sign up for, if you look at the terms of service in, for example, a typical Twitter account, you will find that they're very, very, very one-sided. They're written very clearly. Twitter basically says you're using this platform as is and that we can terminate your account at any time for any reason, including but not limited to violating, you know, these terms of service using our Twitter rules, our community guidelines, our standards, et cetera. The Twitter contract also says that you use this platform at your own risk and that you can't, we're not giving you any warranties, we're not making any representations, for example, that we'll use, apply the terms of service neutrally or that we'll let everyone use this platform in a neutral manner or that we won't consider content or politics in this. So they basically waive any representation or warranty to that effect. And perhaps most importantly, they basically restrict and limit liability for damages. Of course, the terms send you into arbitration, not into court, and then basically eliminate any liability on Twitter's behalf for defamation or loss of business or any other kind of use you might put Twitter to. So I think it's a very difficult road to hoe, a road to travel, to sue Twitter, for example, based on their terms of service under a breach of contact theory because basically you sign a contract that says you're okay with it. So unless you're willing to accept some sort of equitable theory, which we're going to get into, very difficult. So equitable, stop, what's that? Well, that's a fancy legal theory. But first and foremost, what's equity? Equity is a vague term. It goes to fairness, which conjures up ideas of society and ideas of social cost and social utility. So equity has traditionally been a remedy, an equitable remedy, is a remedy that a court fashions itself. So it's not applying legislative law or positive law. It's not even necessarily applying its own common law precedence, but instead looking at a situation saying, well, we need to fashion some sort of remedy for this situation. And so there are questions about whether under private or libertarian law judges would do this. Would judges ever sort of allow common law to evolve? Would they ever look at things and say, based on the specifics of this case or the specifics of these parties before us that justice demands this? Well, it's unclear. It's not completely clear, but I think that these kind of arguments are certainly better than a lot of tort arguments or a lot of contract arguments where you basically say, look, there was a representation made by, let's say, Twitter. The representation is that you're going to be neutral and you're not going to just shut people down for their political perspectives. And I relied on that. I used Twitter for months and months and years and years. And I used it to build up my name and ID. And a lot of people are sort of social media personalities and that's what they're mostly known for. And as a result of that, you know, I started to get offers or contracts for books or speaking engagements. I actually make money through this persona that I've developed on Twitter. And now all of a sudden you come along and take, de-platform me, take away my Twitter account. I can actually show some monetary damages as a result of all this. So it's not a contract theory per se. It's an equitable theory and it's existed at common law for many, many decades, actually centuries. And it's the kind of thing where if Murray Rothbard were standing here in front of us, it's hard to say. It's hard to say what he would think about a private law judge fashioning some sort of remedy like this. He might say, yeah, you know, go get him, get that boy. You know, you got to go get Facebook, a bunch of copies. You know, he might say that in his squeaky little voice or he might say, you know, Jeff, you're crazy. You're working at the Mises Institute and you're telling us that judges have to go meandering down lanes of equitable remedies when there was actually a plain contract that the person signed with, you know, fully knowing. It's hard to say. So Alan Mendenhawn, I get into some of these theories, a few others, but you know, there is actually an excellent example of a small business owner that Alan brought to my attention, which was a gentleman in Montgomery, Alabama who used Facebook like a lot of people do for their small businesses because it's better than the website you might make. It's laid out perfectly to show pictures like here's our daily special at a restaurant. You can put little codes for coupons for your dry cleaners and not have to pay web hosting services, not have to build your own website. Facebook's an excellent business tool for many small businesses. And, you know, a hair salon can put a coupon, for example. So anyway, this gentleman had a small business, a restaurant, and almost all of his Facebook content was revolving around his restaurant. You know, Tuesday evenings, happy hour, dollar Budweiser's, whatever it might be. And then one day, he put something, mercurial something about Trump. And it was, I don't know the exact, I should have screenshotted it, but I've seen it before. I don't recall exactly what it was, but it was so incendiary that Facebook pulled his Facebook page. And he had spent years putting what we might call sweat equity time and effort into building up a Facebook audience that was directing a lot of traffic to his business. You know, the business institute was very fortunate. We had an internet presence, a website, back in the 1990s. So we have a lot of organic traffic to Mises.org. Some people just type in Mises.org and go to the site. And some people type in a search and arrive at the site that way. But only about 20% of our web traffic comes via Twitter or Facebook click-throughs. But for new organizations, for younger organizations, 80, 90% of their traffic comes through social media click-throughs. So for a newer organization, losing Facebook or Twitter could be absolutely catastrophic. There are, in closing, some other torts or potential theories you could bring against tech companies. And we're not just talking about social media. We're also talking about, for instance, companies that do banking and payment systems like PayPal. There's been talk of electronic banking not being available to gun manufacturers, for example. There are web domain hosting sites like GoDaddy.com. And there's been talk of taking web domains away from someone. So at what point does like a web domain, even though it's digital, at what point does that become property without pulling in all the Concella arguments about IP? And I'm mostly, I think, in agreement with Concella on that. But what about a database, a bunch of bits and bytes that exist only in the digital world? But nonetheless, if you have sort of a de facto database of customers through your Facebook page, is that a form of property for which you ought to be able to go after Facebook for the idea? And the solution is basically the tort of treating another's goods as one's own. And if you have a website and GoDaddy.com takes that website away from you, that domain, have they taken something from you? There's actually a federal case called THIROF versus nationwide mutual insurance company, which is 10 years old now, more than 10 years old, where the courts are going to get into this business, whether libertarians want to or not. Courts are going to start talking about the realities of widespread computer use. And then in closing, I'll just say, whatever happened to good old-fashioned fraud? Libertarians used to care about, they used to care about force and fraud. And when you're reading Rothbard, he's really stuck on this idea of a physical aggression or physical invasion. But fraud is very simple. It's a willful misrepresentation intentionally done to induce you to do something that hurts you eventually. And I would argue that in many ways, almost every day, social media companies and other technology companies do just that, that they induce us to do something in a fraudulent matter. And if the terms of the contract, so-called, are so buried, and so seldom read by anyone, but merely click through at the beginning of signing up, I think that in a private law system, there could be an argument to say that the terms of these contract, the express terms of this contract are so visiated that there ought to be a remedy available. Thanks so much.