Please enjoy this transcript of my recent current-events conversation with Noah Feldman (@NoahRFeldman). Noah is a Harvard professor, ethical philosopher and advisor, public intellectual, religious scholar and historian, and author of 10 books, including his latest, The Broken Constitution: Lincoln, Slavery, and the Refounding of America. You can find my interview with him at tim.blog/noah.
Noah is the founder of Ethical Compass, which helps clients like Facebook and eBay improve ethical decision-making by creating and implementing new governance solutions. Noah conceived and designed the Facebook Oversight Board and continues to advise Facebook on ethics and governance issues.
He is host of the Deep Background podcast, a policy and public affairs columnist for Bloomberg Opinion, and a former contributing writer for The New York Times. Other books include Divided by God: America’s Church-State Problem—and What We Should Do About It; What We Owe Iraq: War and the Ethics of Nation Building; Cool War: The United States, China, and the Future of Global Competition; Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices; and The Three Lives of James Madison: Genius, Partisan, President.
Transcripts may contain a few typos. With many episodes lasting 2+ hours, it can be difficult to catch minor errors. Enjoy!
NOTE: This episode was recorded on June 22nd.
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Tim Ferriss: I am thrilled to welcome back Noah Feldman. You can find him on Twitter @NoahRFeldman, F-E-L-D-M-A-N. You can find him online at noah-feldman.com. Our first interview can be found at tim.blog/noah, and this is an experimental format. We are going to try to explore some current events let’s just say, also tie in historical context. I very rarely do anything other than evergreen content questions and so on on this podcast, but I thought it’d be fun to dip our toes in the water and attempt to do something unique. And I’m thrilled that Noah was willing to play this game and be part of the experiment so thank you for being here, Noah.
Noah Feldman: I was born to be a lab rat. I’m very excited.
Tim Ferriss: And we have specced out a few different subjects, a few different topics that will attempt to navigate. And I use the royal we here because it’s going to be mostly you I think.
Noah Feldman: I’m sure that won’t be true.
Tim Ferriss: But I will play the part of audience stand-in and I’ll ask questions. Let’s begin with Ukraine, and you can kick this off in any way that makes sense in the micro, the macro or otherwise. How would you like to begin?
Noah Feldman: I think a good place to start is with the question that never really gets asked in all of the coverage of this long war and that is, why do people go to war in the first place? And that might sound like a stupid question because people like stuff and other people have the stuff and if I have an army and I can take your stuff, why not go to war? And that does seem to be sort of at some very basic level what’s going on here, right? I mean, Putin just calculated that he had an army and he wanted at least part of Ukraine and maybe more and he could do it. But the real question that’s underlying that is a question about whether people who run countries are a little bit rational. You don’t have to believe that they’re completely rational. You just have to think that when they decide to go to war, they know people are going to die. They know it’s going to cost them something. They also know there’s something to be gained.
And so the assumption that they’re rational is just an assumption that they’ve thought about the pros and cons of doing it. And I think in the case with someone like Putin who may have made a tremendous miscalculation with this war but has been pretty successful in a lot of his other foreign policy undertakings, you can be sure he thought it over. And so the question that raises is if Tim has a very, very large army and I have a very small army and Tim wants my country and Tim comes to my border and he masses his troops and says, “Hey, I want your two favorite provinces,” and I say “No,” then Tim says, “Well, then I’m going to invade you and a lot of people are going to die, some on my side but a lot on your side and at the end, I’m going to have the provinces.”
And I say, “Holy crap. I mean, maybe Tim is correct. And if Tim is correct, I should just give up because I’m going to lose the provinces anyway and fewer people will be dead and I won’t have destroyed my army, which I might need another day.” And meanwhile, you should only make that threat if you’re very confident that you’re going to win. So logically speaking, it’s a puzzle, right? Why does anyone actually fight the war? And I’m fascinated by that question and I think Ukraine really, really raises it.
Tim Ferriss: Well, how would you make an attempt to answer that question? Do you think it was a miscalculation? I have heard stories, and I’m sure I’m going to get the historical details completely wrong, but maybe it was Belgium with the procession of Germans pre or during World War II, but the underdog standing up and having only a snowball’s chance in Hell but nonetheless having a snowball’s chance in Hell and defeating the odds, defying the odds. Why do you think we have ended up where we are? Or do you think there was a rational calculation or perhaps even in what some people would consider an irrational calculation?
I was thinking about this yesterday. For instance, I think a lot of lower income folks get made fun of by people who are sanctimonious in the higher echelons of society for buying lottery tickets. And they say, “Well, that’s just a tax on the poor,” right? It’s stupid. But then I was thinking, is it really stupid? Maybe it’s buying hope for a dollar a day in which case, if having a sliver of hope is only costing you a dollar a day, that’s actually the bargain of a lifetime. So how would you begin to tease apart what you just described has played out in Ukraine versus Russia?
Noah Feldman: First of all, let me say, I love that example of the lottery tickets. It’s one of my favorite examples of how elitists, and I’m perfectly capable of being elitist sometimes so this is not an argument that all elitists are bad or that everyone’s an elitist, but why elitists get it wrong. Because they think, “I wouldn’t get any joy or pleasure out of spending a buck which I’m probably going to lose, so whoever does it must be delusional,” using a rational economic calculus and they fail to realize there’s what you might call entertainment value, but even entertainment is understating it. Hope is really a feeling that matters. Now that doesn’t mean you should spend hundreds of dollars that you don’t have on lottery tickets, but it is an argument.
So there’s a direct analogy to that in the case of war. You could also think of this in the context of 9/11. One of the fire chiefs, a guy called Ray Downey, was the chief who had started Rescue One, which was the part of the New York Fire Department that goes to save firemen who are in trouble. And he went back into the buildings when I think it must have been extremely clear to him that he wasn’t going to come out of those buildings. And that’s a product of spending your life saving firemen and there were firemen in harm’s way and he must have, in my imagination at least, made the judgment in that moment which I deem a heroic judgment that he didn’t want to walk away from those buildings that day. That would have been a violation of everything he stood for. So for sure, there is an element of that. And sometimes if you’re standing up and fighting for your country, even against the odds, it should be explained in that way, that you know you’re going to lose but your dignity and your pride matter enough to sacrifice your life.
And so that can be an explanation sometimes for why a side that thinks it’s going to lose a war, even if it’s sure it’s going to lose the war, doesn’t stand up. So you do need to take that into account. But that probably doesn’t cover the decision of all statesmen and stateswomen, the people at the top whose job it is to take into account not just pride, but the interests of their whole nation. And so there’s a very interesting theory about why people even in that situation go to war, which I’ve always been fascinated by. And I don’t think I buy it 100 percent but I think it’s really valuable to think about it and it was introduced by a guy called James Fearon, like fear with an on at the end of it. He’s a political scientist and his argument was the following. Even if everyone’s rational, you can still have people go to war when there’s genuine uncertainty about who’s going to win because the two sides don’t have the same information about who’s going to win, they have differential ideas.
So in his theory, take the Putin example. Putin’s thinking, “I’m going to win this war,” which is what most external observers thought, including a lot of military observers whom I respect a lot. A lot of people thought he would win the war. Putin would win the war and he’d win the war fast. Much bigger army, lots of military experience. But it was also possible that even if not very probable, that Ukraine would do a lot better in its own self defense than anyone thought it would, including Putin, and it may be that the Ukrainian leadership thought that, right? As it turns out, there’s a big advantage to defending as opposed to invading, that always gives you a big advantage. And then the Ukrainian soldiers had many of them been trained by NATO forces, so they had excellent training, and it may just be that the Ukrainian leadership apart from their pride and their dignity, which I’m sure were also factors, just had a different opinion about what would happen in the war.
And according to Fearon, if the two sides have different opinions about what’s going to happen, then you go to war because you don’t have perfect information about the outcome. So that’s a theory according to which you can be rational and still fight the war and I think that probably explains at least in part what happened here. Putin was really confident that he would win and that the Ukrainians would fold and they said, “I’m not so sure. I think we can actually make a better stand against you.” And in this instance at least at first, with respect to the all out attack on Ukraine, they were right. I mean, that’s the most astonishing fact about the war to date, namely that in the opening weeks, Russia didn’t just successfully take down the capital of Ukraine and conquer the whole country and put in a puppet government, which they said they wanted to do more or less at the beginning.
And when that didn’t go that well, you moved on to the next phase of the war, which is its own fascinating topic in which they’ve decided to aim for these two provinces that have lots of Russian speakers in them, and it may have been what they wanted in the first place. And so the phase of the war that’s been continuing is a phase of the war where they’ve got much more limited objectives. The Russians have much more limited objectives, but they’re still fighting and the Ukrainians are still fighting back. So that just deepens the puzzle. What are they each fighting for now?
Tim Ferriss: So I’d love to jump in with a few questions and maybe bookmarks just for discussion. So the first is, and you and I have spoken about this, but perhaps those limited objectives are not revisions, but were the objectives from the outset. But they can be viewed then as a concession or secondary now, even though it’s been part of the plan all along. And I’d love to explore two things with you that I think could apply. Well, one could apply certainly to multiple conflicts and that is what the stakes are in this particular conflict in your mind, and then one topic that may be unique or somewhat unique to this conflict which is, what has made this different? And there are a number of factors I’ll just throw out there as plausible element factors, right?
One would be the ability to cheaply and broadly broadcast from Ukraine using social media and so on. Borderless and permissionless, in some cases, transfer of cryptocurrency from around the world to support Ukraine. And then, also, the interplay of private or semi-private players. So for instance, and I haven’t tracked this most recently so I don’t know what has been confirmed or denied or both, but the drone manufacturer, DJI, disabling certain capabilities of its firmware selectively for the Ukraine forces. And then on the opposite side, Starlink, which has been a godsend for Ukrainian forces. So the two buckets then are stakes and then separately what makes this unique or interesting at least in this time and space? And I’d love you to tackle whichever you think you would like to first.
Noah Feldman: Those are fascinating questions and they really make us wonder, what’s unique and special about this war? What makes it different? And of course from the Ukrainian perspective, at least at the beginning, the war was existential, they couldn’t stop. And from a European perspective, what makes this war really special? And the reason that Europe has organized itself so much in support of Ukraine is that the rest of Europe recognizes that if Putin can walk into Ukraine and take over large chunks of it or the whole thing, that he’s a serious threat to the other countries in the region and that the basic idea that Europe is a safe and secure place where you can go from place to place without worrying about it where war has been rendered obsolete is just false, and so that helps explain why it’s so important to them.
It also explains why it’s important to the US, and all of that gives you some reason to understand why it’s constantly still in the news even though I think a lot of people, some days I admit to my shame, myself included, just don’t follow it anymore. The glib analogy would be we’re used to the playoffs happening and at the end of the playoffs, there’s the finals, it doesn’t matter which sport you’re following, and then you get a break. And this war, it’s like they’re still having the World Series in October and then November and then December, it’s just going on. But the reason the world is continuing to care about it and pay attention to it is at least in part those kinds of global consequences. And the basic question there is, can Europe be a stable place or is Europe going back to the olden days where a government that had a serious army could just take over countries that it didn’t like?
So that’s to me where I start, and then come the questions that you’re raising. How does technology differ here? How does crypto differ here? How is the war’s social media side expressing itself and how are those things distinct from the past? So let me say a couple of things about that. There have been some really creative efforts, especially on the Ukrainian side, to try to use crypto and Web 3.0 in order to link themselves to the zeitgeist, to the moment, and gain some advantages from it. So a really interesting example of that is the Ukraine DAO, which Ukraine came up with that basically was attempting to enable crypto to be transferred into the country and then that would enable them to fight their war better basically by donors. It’s basically a clever way to get people to make direct donations to Ukraine without going through banks.
And measured statistically, that’s probably not turning the tide in the war. As a percentage of all the aid that Ukraine is getting from countries and governments, especially in military aid, it’s probably still a drop in the bucket. But the fact that they could do it is what’s significant. The fact that they could say “We’re going to try to draw on contemporary technology” opens the thought that maybe this is a way for aid to be sent from ordinary citizens to a country more over time. And we’ve seen other less exciting hacks like that at the beginning of the war. Lots of people who wanted to send money to individuals in Ukraine were using Airbnb. They were booking Airbnbs in Ukraine that they had no intention of going to and paying for them. And since Airbnb had a payment mechanism in place, that was a way to make a donation. Now it may not be the way to make the most effective donation — it’s a subsidy to those Ukrainians who already had Airbnb setups — but it was a symbolic and meaningful way of getting involved, but probably not transformational on its own.
It does raise the possibility though of how these kinds of tools are going to operate in future wars. I will say one thing about it though. It’s entirely possible that in the long run, crypto would be to the advantage of an aggressor like Russia rather than being to the advantage of a state like Ukraine that’s defending itself and that has the world more or less behind it because the main sanctions that the world is putting on Russia now are economic sanctions. I mean, that’s the other fascinating thing about this war. It’s still really being fought. Sure, arms are being sent to Ukraine, but the West is basically fighting this war economically. It’s trying to cripple Russia. And those sanctions mean, for example, making it hard for Russian banks to operate, making it hard to transfer money into Russia through the international banking system, and those are pretty effective tools and sanctions.
In principle, if the Russian economy could operate via crypto and crypto were not very heavily regulated the way it is not yet, then Russia would have the capacity to evade a lot of those international sanctions using crypto. And I think from the standpoint of crypto advocates, one of the really important things to do has been to make sure that the narrative of the war doesn’t become, look how Russia is using crypto to evade economic sanctions. That would be a very bad look and it would echo the worries that some government regulators have about crypto, which is that it’s not responsible to state control. And of course, that’s just the flip side of one of the things a lot of crypto advocates love about crypto, which is that it’s not subject to state control, or at least at present is not fully subject to state control. So to shift the narrative to, look how cleverly Ukraine is using crypto. It’s not exactly PR, but it’s a clever spin move both for the Ukrainians and also probably for crypto advocates.
Tim Ferriss: To what extent has the, as I understand it, let’s just call it focus on locking down certain types of private banking tax havens for extremely wealthy Russians, let’s just say in quotation marks “oligarchs,” not all of them would be certainly maybe considered oligarchs but to some extent to try to affect the inner circle, those most powerful private citizens, or perhaps not even solely private, within Russia as a means of affecting Putin. Do you think that is pie in the sky or do you think that could have some bearing on decision making or internal coups or power dynamics within Russia?
Noah Feldman: The people who’ve been advocating for that and have been carrying it out in Western capitals are realistic, I think, for the most part behind closed doors about recognizing that Putin really doesn’t care what happens to his rich buddies and that his power over those oligarchs is so great that if he wants to take away their money, at least the money they have in Russia, he does it anyway and he’s not afraid of the oligarchs using that as a tool to bring him down. I mean, he’s done it before, right? He has just arrested oligarchs and locked them up, including people who were multi, multi, multi billionaires and he had zero worry, it seemed, that would weaken his power or strength. So I am myself very skeptical and my sense is that a lot of experts who know much more about the way Russia operates internally than I do are also really skeptical of this really affecting Putin.
On the other hand, it comes into the category of it might help and what’s the downside? And the downside for a lot of rich people who are not Russian oligarchs is that they look at this and they say, “Whoa, wait a minute. Have we entered a moment where a country can freeze all of my assets because they don’t like something that the government of the country that I’m from is doing?” You can imagine how high net worth individuals would not like that very much because they’re thinking, what if some country gets really mad at the United States, which happens. Are they going to engage in these kinds of sanctions that are targeted and directed against us? We club of poor, starving, oppressed billionaires. And to put it a little more seriously, it’s not, in my view, a great precedent to be setting worldwide that we are freezing your assets because we don’t like your government because you might have an impact on what that government does.
So there are some downsides to it. But I think from the standpoint of sending a message that we’re doing everything we can and also that we’re not targeting individual Russians who are poor or ordinary people, you can see the policy appeal of it. And last but not least, who after all has a lot of sympathy for a Russian billionaire? It’s not high on the list of people whom our heart’s going to go out to. We’re not going to all jump on board to make donations to them. So they’re almost by definition, they’re the James Bond bad guys and they don’t have a powerful advocacy organization drawing sympathy to them. So I myself have no sympathy for them but I’m not sure that this kind of targeting honestly really works all that well. I think to a significant degree, it seems that it doesn’t so far, but it’s relatively easy and it makes headlines.
Tim Ferriss: So a couple of points. Maybe not points, just observations for folks. So just to paint a picture, and please feel free to fact check this, Noah, if I’m getting things wrong, but if we just take for the sake of discussion Putin as the world’s first official trillionaire and then compare that to billionaires, it would be like a millionaire putting someone in jail who has a few thousand dollars, right? So just to draw a power contrast, if we use money as a proxy for power, certainly Putin has a lot more behind that as well. And a question I’d like to ask is, could one make a compelling argument that Putin did not miscalculate? And let me explain. In that his decision to invade was rational in so much as similar to in the US if we look at the history of reelection let’s just say in the case of the US, that war time presidents are frequently reelected?
If domestic support for Putin were waning and he wanted to bolster that, could an argument be made that protracting a battle in Ukraine would actually be to his benefit in some form or fashion? Because I have read a decent amount about Putin. He is not stupid. He’s very systematic, he’s very aggressive and as easy as it might be on some level for folks to try to paint him as this lunatic who’s looking for the red button to smash with his fist because he’s lost his marbles or has early onset dementia or fill in the blank, I don’t find that immediately compelling. What would you say to any of that?
Noah Feldman: Two great issues there, the first about Putin being more powerful than the oligarchs and the second about whether there’s a rational calculus for continuing the war, and let me take them one at a time because they’re both too good to pass up. So on the first one, you’re right that Putin is richer than his oligarchs, but I think that matters zero for his power over them in the following way. In the United States where we have a pretty well-functioning property regime where basically, notwithstanding what a libertarian might say, the government doesn’t take all your money for no reason. It does tax you, but it doesn’t take all your money for no reason. We do use money as a powerful proxy for overall capacity to do stuff, to have power in our country. It’s obviously true. It also is connected to the way our politics works, right?
If you have a lot of money, you can fund a lot of political movements. So you can affect politicians, you can buy and sell. In the United States, if you want to be powerful, the best thing you could be would be to be super rich, I totally buy that. But it’s not exactly like that in a place like Russia where the president can, with no need to answer to anybody else, just imprison the richest people. If you can lock somebody up, it doesn’t matter how rich they are, and it doesn’t matter how rich you are, honestly. I mean, Putin could not have — he could’ve not chosen to rob and steal from his countrymen and his country to amass a vast fortune, and he still would be powerful as long as he could lock people up. So, in that sense, for him, the power stems from the barrel of a gun, and I think the takeaway of that point is one that we sometimes forget, especially when you’re thinking about crypto.
We think to ourselves, “Well, if I have a lot of money and it’s in crypto, then nobody can take it away from me,” and that’s true unless they put you in prison and tell you that they won’t let you out of prison unless you give them the key to your wallet, and then if you don’t want to be in prison, which most people don’t really want to be, you would give it up, or they could threaten to kill you, in which case you would definitely give it up. So the capacity to govern me as a person by putting me in prison is so powerful that whoever has that power can take whatever I have. So that’s my first on what makes Putin so powerful.
It’s not that he’s rich. He’s rich because he’s powerful. He’s not powerful because he’s rich, and as I said, there’s a takeaway for that for anyone who thinks, “Oh, the inevitable reality is that money governs all.” It’s not inevitable. Money only governs all if the government allows it to. Then there’s your question about is there some rational way to explain Putin keeping the war going, and here I would say yes and no. I think that he did probably calculate when he went to war that he thought he’d win the war fast, but if he didn’t, he wasn’t going to immediately be overthrown in a coup because he could regroup and reorient the war to a more achievable objective, and that’s exactly what he did.
I think his first preference was to take down Ukraine right away and put in a puppet government, and have it be an enormous, grand victory, and that’s why he started the war by going after all of Ukraine. I mean, that’s why he made a run for the capitol, and that explains the military strategy that was adopted at first, and that just didn’t work, or it didn’t work the way he wanted it to work. But he didn’t then say, “I’m done,” because then he would’ve had to admit that he lost the war, and he didn’t want to do that because that would reflect weakness. So he defaulted to what a lot of people expected him to do in the first place, which is just go over these two provinces in one region and focus on getting those, and then if he wins that, he can say, “That’s all I ever wanted, and that was a victory.”
I think he can reason that at least if he can win that war in some reasonable period of time, the Russian public will either put up with it, or ultimately be happy about it. It makes sense for him to keep on fighting with that more limited objective in mind. He almost might have in the back of his mind, last of all, that if he does win that province, then he can consolidate, take a deep breath, and then decide if he wants to go back and do the whole thing again, going for all of Ukraine. If Ukraine is worried about that, which they should be, Ukraine would then have reason to say, “Okay, just take these two provinces and be done with it, and we’re willing to resolve the war.”
That leads me to my final comment on this, which is a genuine worry, which is, what’s going to happen if that happens? What’s going to happen if Putin says, “Okay, I want to keep these two provinces,” and Ukraine says, Zelenskyy says, “Okay. We’re done. We lost a lot of people. We know we can’t win these provinces back from you, and we’re a little scared that you might come after us, and we don’t want to take that risk, so the war’s over.” What’s the rest of the world going to do? Isn’t the United States then going to be able to just say, “Okay. Well, it’s up to Ukraine. It’s your country.” Is Europe going to be able to do that? Because the message that that’s sending to the world is still, “Hey, if Putin wants some provinces of your country, he can come and get them.”
So the rest of the world, the US, Europe, we’re in pretty deep on this, arguing that Russia should lose the war. So if you could imagine a scenario, it’s actually a possible scenario, where the Ukrainians say, “We’re ready to be done with the war,” but the West is saying, “No, we don’t want you to give up because we’re so concerned about the message that this sends.” So it’s not too soon to start worrying about that endgame, and I for one am actually really worried about it because I don’t want this to be some war that goes on forever, not because I want Putin to win. I want him to lose, but I guess if he can win in a limited way, I don’t want the whole world to be caught in this war and the Ukrainian people to be caught up in this war longer than the Ukrainians want it to go on. That seems like a mistake.
Tim Ferriss: A number of follow-on questions that I would love to get your take on. So first, we talked about freezing assets, or rather, you mentioned, and I asked about freezing assets earlier. Do you think any of the decisions by the US could, in terms of negatively affecting the USD reserves, the US dollar reserves in other countries, end up in some way devaluing or the United States dollar as the reserve currently of the world? In other words, do you think any of the decisions that the US government has made or could make could lead central banks and other such groups to change how they think about the composition of their reserve currencies?
Noah Feldman: There’s one decision the US has made that is super high risk in this realm, in my view, and it’s the decision to freeze assets that Russia owns in the United States that are dollar assets, and not let Russia use them to pay off its own sovereign debt, thereby forcing Russia to default on the money that it owes to its creditors. Now why is that risky? It’s risky because Russia’s not the only country that owes money to people in the form of sovereign debt that keeps its money in the United States to pay back some of that debt.
That’s in fact one of the reasons that the dollar is a reserve currency, because people are confident that if they hold their money in a US bank in dollars, it’ll hold onto its value, and they’ll be able to use it to pay back their creditors. So, if countries realize that under some circumstances their dollar assets in the US can be frozen for political and moral reasons, and that they won’t be allowed to pay off their own creditors with that money, that should make them think hard about whether they want to keep their money in dollars in a US bank for purposes of paying other people back.
Now, the reason that the people in the Treasury Department who think most deeply and hard about this haven’t concluded that the US shouldn’t do this, that the US shouldn’t freeze these assets in a way that makes Russia default is that they’re calculating, and they’re smart people, they’re calculating that the dollar is so still so stable and strong relative to other possible currencies that people can hold that countries will still maintain their large reserves in dollars. They’ll just say, “Okay. Well, let’s not invade any other countries,” and they’ll say, “Oh, that’s only happening to Russia because it did this extreme behavior.”
But the reason I think that’s actually a pretty substantial gambit or risk is that once we’ve done this once and gotten away with it, the temptation is going to be there. The temptation is going to be there to do this again to other countries we don’t like. Justice Robert Jackson on the Supreme Court said in the famous Korematsu case, which was the case about the internment of Japanese Americans, that if the court upholds that internment, which he didn’t want it to do, then the principle that you can do something like this lies around like a loaded weapon. You don’t want a loaded weapon lying around because someone might use it under other circumstances.
I think that’s the worry here, that this kind of freezing assets and not letting countries use them to pay off their own debts, is going to be a very tempting for US policymakers to use as leverage in the future, and if we were to get into that habit, over time, under different circumstances, that I think probably would have the effect of undermining confidence in people holding their dollars in the United States.
Tim Ferriss: What do you think the base case scenario is, let’s just call it likely outcome, is for Ukraine-Russia conflict, and what do you think some of the worst-case scenarios are that aren’t one in a million likelihood, but higher probability? I’m leaving out the best case deliberately because I think the secret to happiness is low expectations, and that we also —
Noah Feldman: How’s that working out for you, Tim?
Tim Ferriss: It actually works out pretty well. As just a side note, the reason that I say that is I think it’s necessary, but not sufficient, insomuch as I read some National Geographic poll, who knows how reliable that is, but an article that described the happiest countries in the world, and they were Denmark, Costa Rica, and Singapore, for different reasons. I asked a Danish friend of mine why he thought that was the case, and he said, “Low expectations.” So I just have latched on to that.
Noah Feldman: So you went with it. By the way, we should someday —
Tim Ferriss: I just went with it.
Noah Feldman: — have a long conversation about that. I think that the question of whether this — it’s like, resolved that the secret to happiness is low expectations, is a completely fascinating topic to talk about sometime. But anyway, going back to Ukraine and worst-case scenarios, to me, the worst-case scenario is —
Tim Ferriss: And base case, and base case. If you were a betting man —
Noah Feldman: Oh, and base case. Okay, good. All right.
Tim Ferriss: — what would you bet on?
Noah Feldman: All right, good. I’ll start with the base case then. Yeah. My base case is that over time, Russia will successfully conquer these two provinces, the Donbas region, which is made up of these two provinces, which have a lot of Russian speakers in them, and that Ukraine will realize that it can’t really defend those provinces, and then there’ll be a pause. It might be a brief pause, it might be a longer pause, where everyone tries to figure out what happens next. In that scenario, there will be suggestions of peace talks in which Russia ends up holding onto those provinces, by the way, in the same way that it still has Crimea, which it took over with a lot less trouble years ago, and which Ukraine conceded to, and the rest of the world didn’t support Ukraine in fighting back, and the world has already established a principle that Russia can grab substantial parts of Ukraine, so this would just be a little more of Ukraine.
So some people will be saying, “We’re not sending a new president because we already had the president in place, and so the war should just be ended on these terms.” I think the base case is that Ukraine’s leadership at that point would say, “Yeah, we want this war to be over. We survived existentially. There’s still a country called Ukraine, and we want to give up those provinces, but we also want to join NATO, and we want to have the guarantee from NATO that at least the rest of our country will never be taken down,” and then negotiations proceed on that basis.
Now, what makes that hard, that base case hard, in reality, in practice, is that the Russians are going to say, “You can’t be in NATO,” and the Ukrainians are going to say, “We need to be in NATO,” and then the Ukrainians are also going to say, “We want to be in the EU,” which until now, to be blunt, the Europeans wouldn’t have wanted them in EU, but now, because the Europeans are so worried about sending a message to Russia, they’re suddenly saying, “Okay. Well, now we’re willing to talk to you about maybe being in the EU,” and Russia’s not going to want that either.
So Russia’s going to say, “You can’t have these two things that you want, and we want to hold onto this territory.” Ukraine’s going to say, “Well, if you want us to let you keep that territory, you have to agree to these other things.” So it may be that those negotiations, in which you could imagine a rational person saying, “Okay, that’s what’s going to happen, Ukraine in NATO, Ukraine in the EU, but Ukraine no longer has this whole region anymore, and Russia now effectively owns that.” You can imagine that being a rational outcome, but actually negotiating to that conclusion is really hard to pull off on both sides, and for that reason the, to my mind, next most likely scenario is that the state of war would continue, even if the active hostilities weren’t ongoing, and that could really last a long time.
So that’s the not at all implausible variant on the base case that is to my mind the scariest, because it’s expensive to run a war. The energy consequences of that have already begun to be felt in Europe and in the rest of the world. At a moment when the global economy is looking pretty precarious, keeping energy prices artificially high as a consequence of this ongoing war and of the sanctions associated with it is not good for the global economy at all. So you could imagine a scenario where this, as it were, just gets beyond us, where neither side is capable of reaching the compromise that would be the quote-unquote rational compromise, and that as a consequence, this just goes on for a long time.
If you say, “Oh, well, that couldn’t happen,” lots of wars go on for a really, really long time, sometimes at a low level, sometimes at a less low level, because they don’t have a clear model for resolving them, and they can go on for years. So that’s the thing that scares me the most. That’s my totally plausible variant on the base case, and I will say that some of my friends who are full-time international affairs analysts think that that’s the base case. They think that the base case is that it just keeps on going until somebody blinks, and some think that ultimately, Putin would blink, but a lot of them think no, neither side’s going to blink, and it could just really go on indefinitely. So the fact that there are some really thoughtful, smart people who think that’s the base case really, really, really scares me.
Tim Ferriss: You mentioned international affairs analysts, and I would like to know from your perspective, do any books come to mind, or people, that you find particularly interesting or informative with respect to geopolitical strategy, brinkmanship on this geopolitical, three-dimensional chessboard, or warfare in any capacity, for people who would like to get a better understanding of how these games are played, maybe historical precedence, how different conflicts have turned out, depending on different stratagems used by opposing parties, for instance? Any books or people you find interesting?
Noah Feldman: Yeah. So one is something that a lot of listeners will have heard of, maybe all listeners will have heard of, and some will have read, especially people who are veterans, and definitely, people who have been in the service academies will have read, and it’s not that long, and it’s unbelievably good. It’s this book called On War by von Clausewitz, a German general. It’s the single most influential book on war written since Sun Tzu’s Art of War, and as I said, it’s required reading in military academies in every country in the world. It’s shockingly well written. It’s unbelievably clear, and it has a very specific philosophical view about what war is like and what war is for, and it’s famous for the line that war is the continuation of politics by other means.
That’s a profound statement because it suggests that war serves the interests of political actors, and is prosecuted to achieve those interests. But the other thing about it that’s really fascinating is he wrote it from the point of view that says that the only smart way to fight a war is to fight it absolutely, without holding back. Put all your cards on the table. Sorry. Put all your chips on the table, and try to win the war, and that maximizes the odds that you will, and it’ll be over faster, and if it’s over faster, that’s also good for everybody, he says, because then it won’t kill more people and eat up more resources, and yet, despite the fact that the first idea from von Clausewitz, the idea that war’s politics by other means is accepted by everybody in the domain of war and politics.
There are lots of wars that aren’t fought in the extreme, all-out, von Clausewitz way, tons of them, including a bunch of US wars, which have not been fought that way, wars which notably, we haven’t won, wars like Vietnam and Iraq, and arguably, even Afghanistan. So I would strongly recommend that book. I can’t actually recommend it strongly enough. It really makes you think, and it’s easy to buy. You can buy it in any bookshop, and I’m sure you can buy it on Amazon in 20 seconds.
In terms of contemporary people writing about the geopolitics, I really like to mix and match. I like to read work by people who are thought of as realists, who think that national self-interest is all that matters, and I like to read work by people who are called idealists, who think that moral principles matter as well, and I really like historical perspective. So, on anything to do with Ukraine, I love the work of a historian called Tim Snyder, who teaches at Yale. He’s, first of all, a fantastic historian who’s genuinely a Ukraine expert. I mean, his first few books before he got famous were highly technical historical studies of Ukrainian history, and then each book he writes gets a little broader in terms of its audience, and now he writes very broad and general books.
He’s a terrific historian, and he’s really the person to read on Ukraine and its history, and he also takes you beyond just Ukraine and discusses the relationship between Germany and Russia, and really, the whole 20th century’s concept of war, which interestingly, he thinks of Ukraine as having been at the middle of, not because Ukraine was so important, but the countries, Germany and Russia, that were fighting these wars were fighting in part over the territory that includes Ukraine. So I would strongly recommend any of his books. His grand book is called Bloodlands. It’s long and intense, but it’s very, very, very beautifully and clearly written, and if you can stomach a book about the wars of the 20th century, you’ll learn a ton about geopolitics and the region in the process.
Tim Ferriss: Thank you for those recommendations. Sounds like I have some von Clausewitz to read, first and foremost.
Noah Feldman: You’re going to love von Clausewitz.
Tim Ferriss: I also I wanted to mention one that I have not —
Noah Feldman: You’re going to love him.
Tim Ferriss: I just like saying the name.
Noah Feldman: He would totally be on your podcast if he were still alive.
Tim Ferriss: I wanted to mention one, which is going to be a bit of a risk for me to mention, simply because I haven’t read it, although I have some familiarity with the author and have watched a number of presentations by the author, and the reason I would mention such a book without having read it is that it has come up again and again in conversation with friends of mine who are in intelligence or formerly from intelligence, or let’s just call it high-level military, and not just in the US. So this book has been widely translated, and I know it is also read very widely in China, just as an example, but military, and this is a book called Coup d’État: A Practical Handbook, by Edward N. Luttwak. I’m imagining that’s how you pronounce it, L-U-T-T-W-A-K.
It was originally published in 1968, but here’s the description on Amazon. It has 127 ratings. This is not a mainstream, I wouldn’t say, book, but it is very well reviewed. I have not read it, again, so I can’t vouch for it, but the opening description is:
“Coup d’État astonished readers when it first appeared in 1968 because it showed, step by step, how governments could be overthrown. Translated into 16 languages, it has inspired anti-coup precautions by regimes around the world.”
So that would be maybe a partial explanation for why the Chinese officials and military would be interested in this, and it goes on and on. So that, also, I can’t personally recommend, but it has been recommended to me by many, many folks. It’s 300 pages, 304 pages long.
Noah Feldman: So about 10 years ago, I wrote a book about US and China, which was called Cool War, which I thought was the best title of any book title I’ve ever come up with, and I was convinced that I had come up with a perfect name for the US-China relationship because my whole argument in the book was at the time, the US and China were getting along really well, but their geopolitical interests were diverging, even though their economic interests were still overlapping. So my whole argument was this is going to change because our geopolitical disagreements are going to get deeper and deeper and deeper, but I said, “We’re not going to start shooting at each other, because that would literally be insane. So what we need is a word for a situation where there are two global superpowers that are the two poles, but they cooperate economically,” and there were all kinds of names going on at the time. People were saying, “Oh, it’s not cooperation. It’s coopetition.”
Tim Ferriss: Frenemies with benefits.
Noah Feldman: People had all kinds of names. Yeah, exactly, frenemies with benefits. A very senior strategist at Harvard wrote a book called [Destined For War: Can America and China Escape Thucydides’s Trap?] raising the question of whether China and the US would inevitably go to war, and I was like, “No, they’re not going to inevitably go to war, but it’s going to be like the Cold War, but not as cold.” So I came up with this idea of Cool War, and it was a very hawkish book at the time, extremely hawkish. It was liked by the hawks on both sides, and that led me to an exchange with —
Tim Ferriss: Now just for people wondering, could you explain just in this sense, what do you mean by hawkish?
Noah Feldman: Sure. In general in these kind of foreign affairs situations, if you’re saying that two countries should get along and will get along, you’re a dove. You may not be a pure peacenik, but you’re a dove in the sense that you’re kind of soft and sweet. But if you’re saying that two countries are likely to be increasingly opposed to each other and need to treat each other as though they might come to blows and need to build up their militaries to keep an eye on each other, then you’re a hawk. That is to say your talons are out and you’re prepared for a conflict.
For me, it was sort of a surprise to find out, at the end of writing this book, that I had written a pretty hawkish book. Not saying the US and China would go to war, but they had to act towards each other as though their interests were going to increasingly diverge. I even suggested maybe the economic getting along wasn’t going to continue indefinitely either. I even said in there that imagine a populist leader on either the US side or the China side or both, I obviously didn’t think of Donald Trump in that role, that would really lead to a fundamental divergence.
So I ended up writing this book that sort of was very hard-nosed with respect to geostrategy. So I got into conversation with Luttwak, because he is a strategist’s strategist and he had written a lot of really interesting and I thought smart things about US-China relations in exactly this vein. So we had a whole exchange and it was very positive and I actually thought we were going to end up meeting and talking, but then something went wrong. I can’t remember exactly what it was, but I think he just lost interest in the whole thing.
So that’s what I was thinking about, but I’ve read a lot of his work and he is a sharp writer and he is sort of the ultimate rationalist Machiavellian writer. When he’s writing about power, he’s writing about power and he doesn’t think that moral considerations should come into the conversation when you’re doing that power talk.
Tim Ferriss: Well, perhaps I’ll have to have him on the podcast; he has been nicknamed the Machiavelli of Maryland, to explain more of his position. But you’re right, he is very cut and dry, pure power strategy on some levels. I haven’t read his book, so I shouldn’t say that definitively, but in the talks that I’ve seen, I find it interesting and unusual, because I haven’t been exposed much to that to hear it so plainly said, if that makes sense. TBD, to be continued.
Noah Feldman: Yeah, totally.
Tim Ferriss: So let’s shift to, if you’re open to it, our next topic. I’ll give you the choice. Actually, you know what? I’m not going to give you a choice. I take it back, let me redo that. I suggest we segue to free speech on social media. So this is something you track very closely.
There are a number of notes I have in front of me. Texas and Florida have passed laws banning various platforms from moderating content. Elon is against Twitter content moderation. Supposedly, Spotify has taken down some back list from Joe Rogan. There are a lot of open questions related to this, and I think a lot of perhaps undefined terms and other issues that we can explore. So where would you like to begin with free speech on social media?
Noah Feldman: Well, let me begin personally just with a disclosure, which is that having helped what was then Facebook make its oversight board, I still advise Meta on free speech issues and I also sometimes advise other social media companies like TikTok, and so I’m not going to claim to be wholly objective about this. That said, I try very hard, and I think this is why I’m of use when I do advise to not tell anybody what they want to hear. So what I’m going to say is just me talking and it’s what I actually believe.
So I guess what I think is most fascinating is that we’re at a really interesting inflection point about free speech and social media associated with Elon Musk’s proposed Twitter takeover. You and I have been both very fascinated to watch and see whether that would actually happen in the end. Maybe you want to share your grand theory about it, Tim. But in any case, what’s fascinating about it is that in saying he’s going to take over Twitter and take it private, Musk has not said “I’m doing this because I think this is a great business and I’m really good at business, and I can make a company run well, and I think there’s a lot of money to be made in it.”
Nor has he said, “I think it’d be really cool to do X,” which is one of the things he does say usually. I mean, that’s sort of the SpaceX theory. “It would be really cool to do X and I can make money at it.” Instead, he expressed for I think the first time, at least in his public business career, a kind of free speech-related values-based view. He basically said, “I don’t think it’s good that Twitter limits people’s free speech through content moderation and I want to change that.”
So that’s a pretty substantial reason to spend $40 billion, even if you had at the time maybe three or four times that. I’m not sure he still does, but even if he had at the time three or four times that, that’s a pretty fascinating motivation. It’s a really different kind of motivation. It’s not only unusual for him, it’s unusual for anybody. We might expect Jeff Bezos to buy The Washington Post, but that did not cost $40 billion for him to buy or to sustain. That’s a relatively small purchase from the standpoint of someone with a ton of money.
So the moment that we’re in is a moment where the idea that content moderation is a problem for free speech is getting a lot of air time. Where simultaneously on the other side, you’ve got the idea that the de-platforming of Donald Trump from effectively all of the major social media outlets at the time was something that remains supported by many, many liberals in the political spectrum.
Notwithstanding that it’s hard to imagine a greater violation of the principle of free speech than a guy who is President of the United States then and remains the most popular politician on the Republican side, can’t speak through these platforms. Especially given that the guy, Donald Trump, made his reputation to some significant degree using Twitter. So we’ve got sort of the two extreme positions arrayed here, and what we don’t have is a lot of clarity about the terms on which this fight should be played out.
I can say more about that, by the way, if you want. I was just pausing so I don’t go on for too long.
Tim Ferriss: Yeah, yeah. Yeah. Yeah, please say more, and I would also just love to know if we’re dealing with a wide spectrum of definitions for free speech, or if it’s free speech in quotation marks with other motives at play. You don’t have to speak to that now, but I would like to explore that, because I think that —
Great. Let’s go there, because I think I like many people are like, “Well, wait a second. What this person is calling free speech is not, I think, what one would find the perhaps legal or constitutional definition to be. Then what this person is calling free speech is really driven by this motivated reasoning around what they want or some financial outcome or who knows what.” So I’d love you to expand on that.
Noah Feldman: Your insight, Tim, is actually, I think, the single most important starting point for figuring out what’s going on in this debate right now, and it’s that we can’t define what free speech is unless we dig down a little bit underneath the slogan.
So free speech has two different meanings basically. One meaning is the ordinary meaning of the term, which means something like “I get to say what I want to whom I want when I want to say it.” That would include my saying it on social media. If I’m de-platformed from social media or if my post is taken away because it violates the terms of service or community standards of a particular social media platform, then under that ordinary meaning of free speech, my free speech has been limited. I can’t talk in the place and way that I want to talk.
Then there’s what you might call the lawyer’s definition of free speech or the constitutional definition of free speech, and that’s really narrow. What that says is that “under the First Amendment to the US Constitution, the government can’t stop me from speaking, but only the government. A private party can stop me from speaking.” So the example I always use with my con law students, though they may be irritated at me for doing this, is I point out that if you teach Constitution law as your day job like I do, your kids at a very early age tell you, when you tell them to be quiet, that they have free speech rights.
So my son, I don’t know how old he was when he said that, but very, very young, maybe five or something. I explained to him then and for a couple of years afterwards that he actually didn’t have free speech rights vis-à-vis me, he only had free speech rights relative to the government. But I could tell him to shut up and I could give him consequences if he didn’t close his mouth or not say or do a particular thing. He didn’t like that very much, but I think for my students, it’s a good way to remember the constitutional definition. It’s the reason you can tell someone to shut up without violating the Constitution.
Similarly under that constitutional definition, so far at least, and I’m going to go there in a moment, but so far at least, if a social media platform, which is a private company, which has its own constitutional rights, tells one of its users, you can’t say that or we’re kicking you off the platform. It, the social media platform, has a constitutional free speech right to say we don’t want to carry your speech. You, the user, have zero constitutional rights vis-à-vis the social media platform.
So notice right away that that’s a completely different definition of free speech, and it’s one that’s just focused on the government. What’s fascinating, what’s really fascinating is that that second constitutional norm is under some pressure, because there are now some Supreme Court justices, at least two, probably three, who have been telegraphing in short opinions, not in full Supreme Court opinions, but in short opinions that they think that the idea of constitutional free speech should be reinterpreted, so that the social media companies can’t regulate all of the speech on their platforms and claim the protection of the First Amendment when they do so.
Those justices, the conservative justices, have a really interesting set of arguments. Arguments that four or five years ago liberals kind of liked, but then liberals give up on them, but now conservatives like them. Those arguments basically say something like this. A ton of our conversation is happening on social media, maybe we should analogize social media companies to a common carrier, like a telephone company, telephone wire company, which can’t pick and choose who’s allowed to get a telephone and who isn’t allowed to get a telephone based on what they’re going to say over their telephone, or maybe they should be thought of as public accommodations. Sort of like a chain of hotels, which can’t say “We’re not letting you stay in our hotel because we don’t like you.” That would be discrimination and it would be unlawful.
So those justices are saying we should re-conceptualize the social media platforms as more like one of those two things, either like a common carrier or like a public accommodation, and we should allow the government to pass laws that say they can’t discriminate on the basis of viewpoint. The state of Texas, because they like to be out ahead. That was a joke. The state of Texas passed such a law. They have in fact passed such a law. Maybe it wasn’t a very funny joke.
They passed a law saying that social media companies with more than a certain number of users, I think it was 50 million users or something like that, so the big social media companies, cannot take down any content based on the viewpoint expressed by the social media company. Of course, the social media platforms and others immediately went to court to get that law blocked. The first court said, “Okay, we’re going to block the law,” then the Court of Appeals said, “We’re reinstating the law,” and then the Supreme Court by a very close vote, by a five to four vote, said, “The law is not going to go into operation while the lower courts figure out if it’s constitutional or not.”
So that legal court case is ongoing and it’s going to be really, really, really important, because it goes to this core question of whether those two different definitions of free speech pulls apart two different definitions or whether they should come together and become a single definition of what counts as free speech.
Tim Ferriss: Two questions. The first is why did liberals, broadly speaking, like the arguments that you described a handful of years ago? How did they differ perhaps from what you just described and why did they give up on them?
Noah Feldman: Yeah, this is a fascinating, and for liberals, embarrassing story, I would say for free speech liberals, of whom I am one, by the way. So when I say it’s embarrassing for free speech liberals, I’m including myself in this. So take yourself back in time five or six years to when social media was getting extremely powerful as a way of people expressing themselves, but Donald Trump had not yet emerged as a major political phenomenon in the United States. So maybe you have to go back seven years.
At that time, free speech liberals were really worried about the following thing. They in theory like free speech, and yet they saw that a lot of the speech that was happening on political subjects and other subjects in the United States was happening on a handful of platforms that were controlled by a handful of very rich people.
They were worried that that meant that Facebook, as it was then for example, or Twitter, would come close to having a kind of monopoly on public discussion and public discourse. Liberals are worried about monopolies, they don’t like monopolies and they were worried about what would happen if say the people who ran Facebook or the people who ran Twitter put a thumb on the scale of public debate and had the effect of pushing public opinion in their favorite direction, whatever that favorite direction would be. So that looked to liberals like a kind of corporate control and it scared them.
Furthermore, liberals hated a Supreme Court case called the Citizens United case in which the Supreme Court had said that corporations have free speech rights. Now for a long time, Citizens United was the most hated case by liberals, because liberals were saying, “Wait a minute, if corporations have free speech rights and they can money on election campaigns and affect the outcomes, then that’s terrible, because it gives corporations a disproportionate amount of power, because corporations exist to amass capital and to make money.”
So, since liberals hated the Citizens United decision and the Citizens United decision was the one that said that corporations have free speech rights, liberals laughed at the idea that corporations like Facebook or Twitter should have free speech rights. So there were multiple reasons for liberals to be super, super, super skeptical of what was going on.
Then here’s what happened. Some progressive groups started lobbying the social media companies successfully to start doing much more aggressive content moderation and limiting or eliminating hate speech of various kinds and harassment of various kinds. Those groups, again, were coming from a progressive point of view. So they were saying, “We don’t just want you, Twitter or Facebook, to stop allowing meanness,” they were saying, “We don’t want meanness on the basis of sex, meanness on the basis of race, meanness on the basis of sexual orientation.”
So those kinds of concerns were desirable from the standpoint of liberals and it started to work and the social media companies upped their degree of content moderation in a way that liberals started to like, because discourse on those platforms then became in certain ways more civil, less discriminatory, and less nasty than general public discourse say on internet 1.0 would’ve been.
At the same time with the rise of Trump, some extreme conservatives started advocating violence and other things like that, and those were things that the platforms also were taking down, and so liberals were also eager to see those things taken down. So liberals reconsidered their prior position that these companies should be subject to regulation and restriction and maybe even controlled by the First Amendment. Because if they were controlled by the First Amendment, they wouldn’t be able to take down racist speech or sexist speech, and they wouldn’t be able to de-platform people because they were abstractly advocating for violence.
So the liberals flipped, and then wouldn’t you know it, the conservatives flipped too. The conservatives who had been saying, “Whatever. These are corporations, they have rights. Corporations have rights, they can do whatever they want. It’s their business, let them do whatever they want with it. Let the market decide. If you want a different content moderation strategy, let a rich person buy the business.” Like Elon Musk may be buying Twitter, right?
So that was the conservative position. But the conservatives flipped and they started saying, “Oh, no, these social media platforms are skewing liberal in terms of their content moderation policies, and we don’t want that. So we would like to impose the First Amendment on them or impose regulation on them so that they will have to allow the speech that we are promoting,” which happens to include speech that they consider to be racist or sexist or advocating violence.
So we got this, in my opinion, extremely embarrassing 180 degree flip on both sides about the regulation of social media, which happens sometimes in constitutional affairs, it happens in free speech, and I think everybody should be very embarrassed by people on both sides.
Tim Ferriss: So I’d like to bring up maybe the same question that we explored on Ukraine and that is the stakes. What is at stake here? If you flash forward, and I understand that there’s no crystal ball here, so it’s just guesstimation based on the facts at hand, three years from now or five, you can pick the timeframe, what’s at stake and what would you say are the base case and could be best case, you can include best case if you like, I’ll reverse my Scandinavian orientation on that one, and then possibly worst case?
I’ll throw one more element, which you can choose to address or we can leave aside for now, and that is the is there a possibility that the definition of hate speech metastasizes and broadens in such a way to serve very particular silencing objectives, right? Where there’s a certain suppressive effect on desired groups by categorizing as hate speech, even commentary, op-eds, et cetera, that ask questions related to topics that are deemed sensitive or offensive, fill in the blank, to a particular group. So what are the stakes and then what do you think things might look like three to five years from now?
Noah Feldman: The stakes are really huge, because they go to the question of where we’re going to talk to each other, what we’re going to say to each other and how politics is going to interface with the online universe. The online universe is not going away. It’s going to continue to be, in expanded ways, the central way that we communicate about tons and tons of subjects, so the stakes couldn’t be higher and they’re really high on both sides.
They’re high for people, broadly speaking, on the left who are worried that January 6th style extremism could go from being peripheral in the United States to mainstream with dire consequences for democracy. They’re consequential to people on the right who are worried, as you were sort of hinting, that principles of limiting speech to avoid what counts as “hate speech” or political correctness could actually impede public debate and discourse in a way that’s really destructive, because it means that certain points of view can’t be heard. If they can’t be heard, then they’re de-legitimated and then potentially harmed. So the stakes are huge and they’re huge on both sides.
Can the definition of hate speech be expanded in a way to suppress certain political points of view? Not only is the answer yes, but that’s really why the concept of hate speech was invented in the first place. In especially Germany, but elsewhere in Europe after World War II in the aftermath of the rise of Nazism, lots of moderate centrist people thought, “Wait, what went wrong in our society?” I mean, Germany had a liberal constitution in the 1920s and it had all kinds of economic problems and it all kinds of struggle between different political parties, but it had a nominally ordinary liberal constitution.
In that environment, communists were able to express their views, Nazis were able to express their views, and ultimately that liberal democracy failed and was replaced by the Nazi state. So centrist moderates said, “We really need to rethink the idea that free speech lets you express all kinds of views, including Nazi views, because people might believe those views.”
So the idea of prohibiting certain kinds of speech, certain kinds of hate speech was based on the worry that in Europe it could happen here, because it had just happened there, that that kind of talking had led to action and had led to the collapse of constitutional government. So the whole point of outlawing certain kinds of hate speech was to prohibit certain kinds of political views from gaining the kind of foothold that would lead them to take power.
It was different in the US. In the US, the free speech movement in the ’20s tended to take the view in the ’30s, tended to take the view that Oliver Wendell Holmes Jr., one of the most famous Supreme Court justices took, where he said, “Listen, you can’t shout fire in a crowded theater.” So there are some limits. “If you’re about to overthrow the government in the next few moments, yes, we can shut you up.” But he said, “If, through calm, reasonable conversation, the ultimate effect of speech is to bring about,” he said the dictatorship for the proletariat, a victory of Soviet-style communism. He said, “I think my job is to let that happen.”
That’s his most extreme formulation in favor of free speech, but it’s damn extreme and he said it in a Supreme Court opinion. So that was the kind of absolutist view that said as long as you’re not about to imminently cause violence, you can say whatever you want, and if that undermines our political norms, that’s fine.
So from that point of view, from that Holmesian point of view, in the US, we really shouldn’t want it to be the case that prohibitions on hate speech ends up really limiting what you can say in public. That’s the kind of strong pro-free speech view. The worry is are we in a place where Germany was in the ’20s? Is January 6th the kind of historical event that shows you that there is a genuine risk that people could try to overthrow the government of the United States? And as more details come out not just about January 6th, but about Donald Trump’s various efforts to try to reverse the outcome of the election, there is a point of view that says that’s not so crazy. Our democracy maybe is in greater danger than it’s been in the past, and maybe for that reason, speech should be limited.
So I think what’s hardest about this problem is a lot of what you think depends on how you assess our real world situation. Do you actually believe that we’re in danger of enough people getting on board with dangerous, bad, crazy ideas and breaking our democracy, that you need to do things like deplatform Donald Trump? Or do you think, “Look. We’re fine. Sure, January 6th was terrible, but that was only a relatively small number of people. And Donald Trump didn’t succeed in overthrowing the outcome of the election. And we shouldn’t mess with our basic free speech norms which have served us so well until now.”
So that leaves the question of the base case. To me, the most probable outcome is that we continue to have a pretty robust system of private actors, including newspapers and social media platforms and others limiting speech pretty extensively. But we also have some other social media actors, whether it turns out to be Twitter or some startup social media entity that have totally different rules and that are much closer to ordinary free speech rules, that are much closer to the idea that you can say whatever you want. And then we would get a more expanded ecosystem in which if you really want to say something to a lot of people, you’re going to find some venue in which you can say it.
And my guess is again more probable than not that if the market does that, the courts will then back away from speculating about maybe whether they should step in to intervene and allow a limitation of what these social media companies do. And that’s because I just don’t think it’s sustainable in the long run that half or even 35 percent of the public is supporting someone for president and that person has no major social media outlet. I just don’t think that’s practically probable or realistic. Either the social media outlets or some social media outlets will shift to allow that kind of speech or new social media outlets will come into existence or someone will buy one of the existing ones and flip it. So in those scenarios, there will be some mechanism for all kinds of speech to get out there. And then the US will probably ultimately preserve at least the core of our free speech tradition, probably. But that’s just the base case.
You can imagine it going the other way in that you could imagine the government intervening and saying we’re going to have much more aggressive requirements passed by state legislatures or others that say that the social media companies can’t silence hate speech. And then what would happen is we would go back to internet 1.0 where you really could say anything you wanted somewhere on the internet, and you could be as nasty as you wanted, and you could be as dangerous as you wanted. No one could really do anything about it. So that is also a possible scenario that could potentially emerge. It may be that the social media platforms with their central dominance over so much of our speech will turn out to have been an artifact of a certain moment in the history of the Web 2.0 moment, and in a Web 3.0 moment, maybe they just won’t matter as much even if they continue to use the kinds of content moderation standards that they presently have.
Tim Ferriss: So I have a number of maybe mundane logistics/plumbing questions for you. You’ll see where this is going. And the two questions are just asking as a purely naive, politically illiterate person, if state legislature is passed, let’s just say Texas says social media companies past X number of users need to behave in the following way. How does that actually play out and work functionally? Is there just geofencing where suddenly Twitter is turned off in Texas like the great firewall of China? That’s question number one. And then number two is — and I understand that Web 3.0 and decentralization is a huge topic we could explore separately, and that may be the answer, but how realistic is it to have the free market argument that there will be players who constrain free speech, there will be players who do not constrain free speech, and the fittest will survive, if many of those which will begin as startups are dependent on infrastructure that is centralized and rented from a company like Amazon with AWS, for instance, to which a lot of pressure can be applied as a choke point. So those are the two questions.
Noah Feldman: On the first one, the technical point, if you ask people for the big social media platforms, could you just turn off service in Texas tomorrow? They say no. They say, “That’s too hard for us to do right now.” And it’s not just me saying that they say that. They said that in court papers. My sense is that it is a technically hard problem. It’s also my sense that sometimes technically hard problems can find a solution if they’re absolutely obligatory. And you do wonder how Texans would feel if tomorrow, they couldn’t get Twitter or they couldn’t get Facebook or Instagram or TikTok in the state of Texas. Now, maybe they would discover that that was a new utopia. In fact, I have a fantasy that if that happened, I think I might move to Texas. I think it would be kind of great if I couldn’t use any of those things, I had enforced protection.
This is relevant to this. I just saw a study in a scholarly journal suggesting that just having your phone with you in the room, even if it is off, makes you dumber on a whole bunch of testable criteria. Just having it in the room, not having it on, not using it, but just having it in the room. The only way to get that away apparently is to keep it in another room. So maybe other people share my fantasy of a world where suddenly we didn’t have to do any of those things.
But in any case, if Texans didn’t feel that way, they might really be unhappy with that law. I mean, I think the reason Texas is passing that law is the state legislature is assuming that it won’t be possible to turn off those services in their state, and therefore, that they could bind the social media platforms. Right now, if you’re Turkey and you say, “Listen. We demand that Twitter shut up somebody who’s a critic of our government,” Twitter reserves the right to say, “Okay. We’re just going to turn off our service in your country.” The question is so if that could be done in Turkey, maybe it can be done in Texas by some means and mechanism. So that might be one way that that plays out. But at present, the social media platforms say it’s too hard. So that’s the first question.
Tim Ferriss: The second question was how realistic is it to expect that you could have survival of the fittest with some startups or established incumbent social media companies?
Noah Feldman: Got it. Yeah. With respect to that question, a lot of it turns on how much in Web 3.0 things change versus staying the same. So one thing that we saw in the aftermath of the Trump deplatforming is that sites like 4chan and 8chan and other kinds of social media platforms that were under criticism for allowing various kinds of speech that was considered to be repulsive in the aftermath or January 6th had a problem on their hands, which is that they did have to be hosted by centralized infrastructure, and huge pressure was brought on the centralized infrastructure to cut them off. And so that actually led to the taking down of a bunch of significant services. And so if we were to see a continuation of that structure, then I think the idea of decentralization won’t work. The idea that, “Don’t worry. There’s something that can be said somewhere on the web,” won’t work because it still will be possible to go to whoever controls the infrastructure at different layers. I mean, it could be Amazon at the AWS service.
Tim Ferriss: Apple and Google at the app store level.
Noah Feldman: Exactly. So as long as that centralized infrastructure remains in place, I think you’re 100 percent correct that it isn’t a solution to enabling their speech if that’s what you want to do to say, “Well, they can say their views somewhere.” However, here’s where a Web 3.0 scenario of truer decentralization might make a substantial difference. If those kinds of services, hosting services and other services were to follow a path that some Web 3.0 analysts and advocates either expect or hope that it will, of radical, radical decentralization so that there’s no one in the middle controlling large parts of the infrastructure of the web, then it would be a solution because then Amazon could say, “Look. We can’t just take down the sites we want on AWS. We can’t just refuse hosting to those companies. We would bring down the whole internet if we did that.”
The whole internet is dependent upon this decentralized infrastructure. And of course, it’s even possible that maybe Amazon Web Services wouldn’t be behind the whole infrastructure of the web. Maybe other actors would be because of different forms of decentralization. So through those mechanisms, it is possible to imagine a kind of return to Web 1.0, which was after all radically decentralized. And what’s fascinating about that question — and I can’t say that I have a strong intuition about what the right answer to it is, I mean, predictively — is that it’s really striking that Web 1.0 was constantly being touted — we can remember this, wasn’t that long ago — as unique and original because it was decentralized, because you could do whatever you wanted, because anyone could be anyone they wanted on the internet, because there were no rules.
And then came Web 2.0 and the centralization of the platforms. And a lot of people made a lot more money in that phase than they had done previously because decentralized platforms were able to provide services that it turned out a lot of people wanted. The internet alone wasn’t as desirable to most people as interacting via these platforms. And so the grand question on which this turns is will enough people want to go back to the older system or will it be possible through decentralization to give people the kinds of things that they liked about Web 2.0?
And so one of the places this will play out is the metaverse. It’s a grand and fascinating question. Will the metaverse be this radically decentralized thing, a lot like Web 1.0 was, or will the metaverse come to be dominated by a handful of central platform actors who make money on it the same way that Web 2.0 operated? And there’s a lot of talk, some of it utopian and idealistic, about how we’re going to go back to a world of radical decentralization. And maybe that’s true. And maybe in certain respects, that would be better. Probably in certain respects, it would be. But it’s just an empirical question of whether that decentralization can give the kind of user experiences that enough people actually want. And I guess that remains to be seen. And I actually don’t feel qualified to have a view about whether that’s going to happen or not going to happen.
Tim Ferriss: Well, I love asking questions that force people to speculate in areas where they may or may not be qualified. So let’s take a stab at that if you’re open to it.
Noah Feldman: Go for it.
Tim Ferriss: Just given your, let’s just call it legal fluency, constitutional fluency, given your awareness of various technologies and trendlines, three years from now, if you had to place a bet — doesn’t have to be a large bet, but if you just had to take a position in what things might look like with respect to free speech, what picture would you paint? In as much or in as little detail as you would like.
Noah Feldman: I think that in three years, the largest players in whatever platforms emerge, metaverse or other platforms, are going to be under a lot of pressure to do the kind of content moderation and regulation of speech and conduct that happened in Web 2.0. And it’s not just going to be speech. It’s going to be stuff you do because if the metaverse turns out to work really well, you’re not just going to talk to people there. In theory, everything you’re doing on Twitter is talking. You’re writing. So you’re speaking. But if you were in a fully immersive experience, you can also do stuff. You can play games. You can punch people virtually. You can kiss them virtually. Every other human activity, presumably you can engage in virtually. That’s conduct. That’s not just talking. And so it’s not even clear that free speech would be the normal model to apply to it.
I mean, you can imagine someone saying, “Well, that’s all speech because it’s virtual.” And maybe someone would think that. That might turn out to be right. But it actually will, I think, feel a lot more like conduct. I think already, some of the virtual platforms that people use on the metaverse feel a lot more like doing stuff than they do like saying stuff. But I think there’ll be huge pressure for the companies in the first instance to regulate the stuff that people can do and say. And if the companies don’t do it, I think there’s going to be a lot of pressure on the government to do it. And so I think that especially if the metaverse in three years is good enough, that people are spending a reasonable amount of time doing stuff there, it’ll have to be subject to pretty substantial internal private regulation.
And given that, I think that the kind of free speech from the government that people want may continue to exist, but I don’t think people are going to be able to do whatever they want in every sub-part of the metaverse. I think there will be parts where it’s do whatever you want. First-person shooter, you against the world, do whatever you want to anybody. There’ll be places to go and do that. But I think if you want the vast majority of people to spend a lot of time in a space, it has to be pretty orderly. And it would be lovely if human beings could order themselves spontaneously, but we don’t have a lot of evidence that they’ve ever managed to do that in the past. And the idea that they’re going to do that in the next three years in the metaverse seems pretty implausible to me.
Tim Ferriss: Yeah. We have a very strong Lord of the Flies history behind us. I’m not sure that human nature will turn on a dime and will turn into the angels of our better nature immediately. One can hope. One can hope.
Noah Feldman: It’d be nice. It’d be nice.
Tim Ferriss: Any other — I don’t want to call them predictions — speculations for what we may also see three years from now? I mean, it seems to me, if I had to bet, I think there’s going to be a strong, centralized nature to what many would hope would be decentralized metaverses or a metaverse. I simply think the discovery process, the interoperability issues and so on, may be so thorny. Also, frankly, the policing or moderating of conduct will become such a priority for so many players that for those and other reasons, many will choose centralized companies or organizations rather than decentralized options. That seems inevitable to me.
Even within Web 3.0, if you think about a lot of what dictates behavior, you find centralized taste makers. Why? Because for each individual to have the responsibility to sort through the noise, to read the code, to look at the smart contracts, to audit, to do all of these things themselves, is simply not feasible unless you have infinite time on your hands and the capabilities. So I do think I’m fascinated by decentralization and have invested very heavily in Web 3.0 and related technologies. But nonetheless, I do think people crave centralized authority and standards on some level. At least enough people do that we’ll have strong centralized players. But that’s just my speculation. Anything else you see just over the next say three years that you would expect to see?
Noah Feldman: Yeah. There is one other thing that I think will be really fascinating and important, and it’s this. When we think about what the next phase of Web 3.0 will look like, we probably still don’t fully understand what the AR/VR interplay is going to be. There’s still people who say, “It’s all going to be VR. It’s mostly going to be VR.” And other people say, “No, it’s going to be mostly be AR.” That’s a really fascinating and hard debate. My guess is it’s going to be something we haven’t exactly figured out what it’s going to look like yet.
But let’s assume for a moment that a substantial part of this is augmented reality, so that it’s not just that we live all of our lives in this to me dystopian world, where we spend eight or 10 hours a day with a headset over our eyes in a darkened room. We’re still going to have a lot of this technology, but it’s probably going to go with us in some mechanism when we go out into the world.
So now what that does is it makes it really hard to work out what it means to be regulated and what it means to be free when you’re interacting in real life with other people and simultaneously interacting with those same people or with other people in some kind of virtual reality or augmented reality. So the idea is you and I are having this conversation right now, and we’re connected by the internet and we’re connected by video, and we’re connected by audio, and we’re creating something. In some sense, we’re already doing an augmented reality form of interaction. But if you add in a whole bunch of other layers and imagine that we’re walking down the street having a conversation on multiple levels simultaneously, which is not so impossible to imagine since after all, you see people all the time walking down the street, talking to each other, both of them on their phones, which is just a crude version of what presumably we’ll be doing in some in some future moment.
So in that environment, the really big challenge that I see coming — and I’m really only just starting to get a sense of this now, and I haven’t said this anywhere before, is that the idea that you have one set of rights and obligations to the person you’re talking to in real life and another set of rules and obligations to the person you’re engaged with in augmented reality at the same moment is going to be — it’s not going to work. It’s not going to work to have two different regulatory regimes involving the two of us at the same time. And if the government regulates what we can do to each other in real life, and a private company regulates what we can do to each other in this AR-VR space simultaneously, it’s going to get really messy and really confusing.
What if you insult me or I insult you in some way that we would not be allowed to do on the virtual engagement, but that we are perfectly permitted to do interpersonally? Or flip it the other way. What if you punch me in augmented reality or virtual reality, which you wouldn’t be legally allowed to do on the street because the cops would arrest you, but I feel just as punched? Or maybe not just as punched, but very punched in some dimension.
So my takeaway here is this. If we really get some complex mixed AR-VR mix, it’s not sustainable to have two totally disparate regulatory regimes, one coming from the government and one coming from the private companies. And so this is a little bit in tension with what I said before. What I was saying before was that my base case is that we are going to have mostly private regulation in these virtual spaces and continue to have mostly government regulation in real life. What I’m saying now is if we get this really complexly mixed AR-VR thing, that equilibrium will not be sustainable. We’ll have to move towards some much more unified, integrated, regulatory regime. And that’s going to be fascinating, and it’s going to be really extremely, extremely complicated.
Tim Ferriss: My, oh, my. The adventures ahead. Makes me think of the apocryphal Chinese curse. I’ve actually never heard this in Chinese, so I do doubt that it exists, but it makes for a good story nonetheless, which is: “May you live in exciting times” [or] “May you live in interesting times.” One of the two. And we will certainly have exciting and interesting ahead. Noah Feldman @noahrfeldman on Twitter, noah-feldman.com. How fun. I really enjoyed this conversation. Thank you for taking the time. Is there anything else that you would like to add or ask of the audience, point people to before we wrap up this first experiment in this format?
Noah Feldman: I love the conversation and I just want to say to people out there who do have real knowledge of or strong intuitions about the AR-VR question and how we are going to interface with each other and with the rest of the world in the future, send me messages. You can send me an email on the website. I would love to talk about this because the deeper that we understand what’s going to happen, the more we can start thinking through how to make it somewhat humane when we finally get there. I’m really grateful to you, Tim. It’s a fascinating conversation.
Tim Ferriss: So fun. And for people listening, I want to just mention that this is pretty close to the type of conversation that you and I would have offline. It’s been really fun for me. I’ve taken a ton of notes and I hope other people have as well. Certainly will link to the names, the resources, books, everything that we’ve mentioned in the show notes at tim.blog/podcast as per usual. And anything else that you would like to add, Noah, or do you feel complete?
Noah Feldman: Just that I love talking to you because it makes me think of so many fascinating and new things, and your ideas are so powerful. Really, it’s super fun. Thank you.
Tim Ferriss: Thanks, Noah. I really look forward to hopefully doing more of these. And I would ask that anybody listening, please let us know what you think of this format. And you can certainly shoot me a note @tferriss, T-F-E-R-R-I-S-S, on Twitter. If you want bonus points, it’d be very helpful to also tag @teamtimferriss, I think it is. It might be @teamferriss, but I think it’s @teamtimferriss, but the easy way @tferriss, and you could just use #noah and that will help us sort amongst the thousands or tens of thousands of message to find the signal in the noise. And until next time, folks, be a little kinder than necessary. Read up on history. It will help you with the future. And thanks for tuning in.
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