In a fascinating post, Ken White offers a list of ten small-“l” libertarian questions to ask about laws, given our insatiable demand that government prevent outcomes we dislike while enforcing, at the end of a gun, outcomes we favor. His first question is whether it’s constitutional, acknowledging a critical first step in the consideration of any law.

The norm is to invoke the Constitution only when you don’t like a proposed law, and to scorn constitutional inquiry when it’s an impediment.

For better or worse, it’s the paradigm under which we function. When it’s an impediment, arguments range from reinterpreting the Constitution to amending it to achieve (or prevent) an end.  These may prove to be archaic concerns.

The rest of the world doesn’t labor under our constraints, as much as we may think they should. Our jingoistic is that we’re right and exceptional. They’re not us. We win. Yet, they don’t seem to get it, so they keep doing things as if they matter. What are they thinking?

As it turns out, they’re thinking that they get to make their own choices about how the world should be, and want to impose them on some businesses working on their turf. And as it happens, their choices are going to come back to bite us in the butt.  And to add one additional factor into the mix, there are some here who will applaud the outcome because it matches their desired ends. And there is nothing our Constitution can do to stop it.

In the rest of the world, the Americanness of the Frightful Five is often seen as a reason for fear, not comfort. In part that is because of a worry about American hegemony.

The Frightful Five?  That’s what the New York Times’ Farhad Manjoo calls them. He’s obviously not good with coining names.

Over the last decade, we have witnessed the rise of what I like to call the Frightful Five. These companies — Apple, Amazon, Facebook, Microsoft and Alphabet, Google’s parent — have created a set of inescapable tech platforms that govern much of the business world.

In reaction, the EU is trying to rein in these companies before corporate imperialism takes over their sovereignty. And unsurprisingly, the EU doesn’t give a damn about the nuances of our Constitution.

According to the Guardian, Facebook, Twitter, and YouTube have agreed to comply with the European Union’s new “code of conduct” for the Internet.  You can see the code of conduct here, and the EU’s announcement of it, issued today, here.

There have been insignificant local efforts to control the internet before, but this one may prove different.

While the motivation behind the code seems well-intentioned, the way that it’s defined seems deeply problematic. Here’s what the creator of the code, Vĕra Jourová, the EU commissioner for justice, consumers and gender equality, said about it, referring to the terrorism in Paris and Brussels:

“The recent terror attacks have reminded us of the urgent need to address illegal online hate speech,” she said. “Social media is unfortunately one of the tools that terrorist groups use to radicalise young people and racist use to spread violence and hatred.

This agreement is an important step forward to ensure that the internet remains a place of free and democratic expression, where European values and laws are respected.”

It’s not as if there hasn’t been a big push here to conflate free speech and hate speech, and that otherwise well-educated and well-intended people haven’t put in great efforts to indulge their jargon of gibberish to rationalize it, but the best they can do now is applaud the French, because what can’t be lawfully accomplished here can, apparently, be achieved in a culture lacking the American view of free speech as protected by the First Amendment.

But these are all private companies? You bet. They are also shadow governments, having taken over certain functions that historically belonged to government merely because they do a better job of it. Mike Masnick gets into the nuts and bolts of it.

In other words, it sounds a lot like these companies have agreed to a DMCA-like notice-and-takedown regime for handling “hate speech.” Let’s be clear here: this will be abused and it will be abused widely. That’s what happens when you give individuals the ability to remove content from platforms. Obviously, these companies are private companies and can set whatever policies they want on keeping up or removing content, but when they come to an agreement with the EU Commission about what they’ll remove and how quickly, reasonable concerns should be raised about how this will work in practice, what definitions will be used to determine “hate speech,” what kinds of appeals processes there will be and more. And none of that is particularly clear.

But then, there will be no shortage of well-intended folks here who will emote passionately about why this is a good thing, why it’s only right that these private enterprises, which have become our town squares, our shopping malls, our neighborhoods, should compel our flattish world to be nicer.  As Mike notes:

And, of course, very few people will raise these issues upfront because no one wants to be seen as being in favor of hate speech. And that’s the real problem. It’s easy to create rules for censorship by saying it’s just about “hate speech,” since almost no one will stand up and complain about that.

Which brings us back to a question Ken asked.

What would your worst enemy do with this power?

Aye, there’s the rub. Think of the politician you hate and mistrust most. Do you want that politician administering enforcement of the law you propose, particularly in a time when other branches of government are aligned or weak?

We may immediately think of our current crop of presidential candidates, thought this may fade into memory after November.  Yet, we don’t give much thought to who is running the EU. Or even more importantly, who is running the Frightful Five.  Our transitory obsession with which candidate is closest to evil ignores the broader question of whether we can fend off an attack on the rules imposed on government by the Constitution from all sources.

It’s not that it doesn’t matter who is elected president of the United States, and whether you vote for bad or worse, but that there are others who will impose their vision of morality upon us for whom we get no vote. And they’re wrapping themselves in the best of intentions, so many people are disinclined to challenge them because they agree with their goals. Ken quotes C.S. Lewis:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive…They may be more likely to go to heaven yet at the same time likely to make a Hell of earth.

One would hope that smart people realize the risk we’re taking, but there is good reason to believe that they are so enamored with their emotions and the certainty that Utopia is one twit away, that they will support and advocate for the sincere tyrant.