Free Speech

Twitter's Speech Isn't "Stifling Free Speech"

|The Volokh Conspiracy |

[1.] But such labeling by Twitter isn't stifling free speech—it's Twitter management exercising their own free speech: They are letting him speak, but responding to the speech with their own. That's their First Amendment right, just as it's his First Amendment right to criticize them.

Now if they did take down his post, then one could argue that would be stifling free speech. It wouldn't be a violation of the Free Speech Clause, because Twitter is a private company. But free speech is a broader idea than just the freedom from government suppression; one could sensibly say that a private entity is undermining free speech in various ways, especially when the entity promotes itself as a forum for public discourse.

If Twitter, for instance, started taking down pro-animal-rights statements or anti-war speech or anti-transgender-rights advocacy or criticism of the Chinese government, I think it would be reasonable to label that as stifling free speech. One can still say that it's defensible for various reasons (perhaps some speech should be stifled, at least by private entities, some might argue), but "stifling free speech" would at least be a plausible label.

Likewise if Google were to close the Gmail accounts of people who publicly expressed such views, or if Hollywood studios set up a blacklist of screenwriters and others who had supposedly expressed, say, Communist views or racist views or what have you. Twitter's decision to block certain posts might be seen as the exercise of its own First Amendment rights as editors (a plausible argument, though not a fully settled one, see Turner Broadcasting System v. FCC); still, it could still be properly labeled as stifling free speech.

But that label doesn't apply to simply responding to speech with speech of one's own. Rather, such labeling (and linking to a response) is the very sort of "counterspeech" that the Supreme Court has (rightly) said is the proper response for speech with which one disagrees.

[2.] The President, of course, has no power to stop Twitter from doing this, partly because he can't create new laws and partly because Twitter's speech is constitutionally protected.

Congress could, as some people have argued, limit 47 U.S.C. § 230, which gives Twitter immunity from liability for posts by its users. In particular, some have argued that platforms should only be immune if they allow all speech by their users (setting aside constitutionally unprotected speech, such as true threats of violence or child pornography), or perhaps only if any restrictions they impose are viewpoint-neutral. Once platforms start excluding certain material based on content or viewpoint, the theory goes, they should become potentially liable (perhaps on some notice-and-takedown basis). I on balance don't buy that argument, but it's worth debating, and it would indeed be in some ways a return to a traditional approach to liability, under which there were some platforms were indeed immune from speech by their users but only when they were legally prohibited from controlling such speech.

But this is beside the point here, since the President's objection here isn't that Twitter is excluding speech—it's that Twitter is including its own speech. And Twitter can't be penalized for such speech of its own.

[3.] Finally, there is a separate objection here: that Twitter is "interfering" in the election by throwing its massive weight behind one particular position. But the First Amendment protects our right to speak, at least under Citizens United v. FEC; nor is there anything improper or unethical in a business expressing its views on something that's being said using its services, and trying to prevent what it sees as a misleading use of its services.

In any event, though, even if one concludes that speech by rich and powerful institutions or individuals that may influence elections is "interference" that should be condemned, it is still not "stifling FREE SPEECH."

(By the way, tt's not clear where the Citizens United dissenters would have drawn the line between newspaper corporations, which they said do have a First Amendment right to speak about candidates, and other corporations, which they said don't have such a right. It's therefore not clear which side of the line Twitter would fall on—recall that Citizens United was a video production company, and the dissenters would have ruled against it. But their position didn't prevail.)

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  1. Don’s spam-machine of a mouth is beginning to work against him. When he’s this far off the rails, coming up with squid ink to confuse matters of black-letter law and common sense is tough on his fluffers, even the ones unburdened by any sort of safety rope to reality.

    1. Naw, he’s just saying directly what the Democrats (Citizens United) and other politicians (flag burning) have been saying indirectly for years. That’s his appeal — he says directly what other politicians only hint at.

      1. It should also be clearly stated that an incredible amount of outrageous “speech” is constantly being tweeted out on that site, including vicious assaults on the reputations of distinguished university presidents all over this nation, deceitfully presented as if they were “statements” issued by those honorable academicians themselves (a phenomenon of which Eugene is surely very well aware).

        It thus stands to reason that law enforcement authorities and legislators alike should indeed look into ways of limiting the claimed “freedoms” endlessly attributed to this horrid Twitter device by the “first amendment community” (ha-ha-ha). There is, of course, ample precedent for such restrictions, both in other countries such as Russia and China and in America as well. See, for example, the documentation of our great nation’s leading criminal “parody” case at:

        https://raphaelgolbtrial.wordpress.com/

    2. Trump’s playing 3 dimensional chess — he wants to be banned because it will de-legitimize Twitter.

      1. This is absolutely hilarious. Every bit of it.

        I’d say “you can’t make this stuff up” but you went and done it. Good job!

      2. Occam’s razor suggests he’s actually just a super whiny person who has spent his entire life getting his way while still whining and he will be deeply upset if he can’t broadcast his perpetual victimhood easily.

        1. Occam’s razor says that Trump isn’t just a super whiny person, because 99.999993% of people, give or take, never get elected President. So anyone who does get elected is actually pretty special, and if you think they’ve got nothing going for them you’re a moron.

          1. He was whiny before he was President. Also: Obama and Bush never complained in public quite like him. He is the epitome of dish but can’t take. He is essentially a middle school bully who became President. I imagine many of his supporters were also bullies or were enthralled with them and wish they had the simple-minded confidence of a middle school bully.

            What’s special is that he had a lot of money and a lot of enablers…which often comes with having a lot of money. He is no more special than any of the Kennedys, Paris Hilton, Charles II of Spain, the 12th Duke of Marlborough, or Ethan Couch.

            1. Obama, when not being endlessly fellated by the press, whined and bitched like a Karen.

              1. Any examples you come up with will pale in comparison to Trump. The list of tweets and clips will be far longer than any you produce for Obama. There is an inexhaustible supply of them. (Same applies if you want to demonstrate Trump’s lack of intelligence and lack of morals.)

                1. Trump bitches about his opponents on Twitter. Obama sicked the institutions of the executive branch (IRS, FBI, etc.) on his. Which is more damaging?

                  1. Option 3:

                    Your lies and willful ignorance.

                  2. ” Obama sicked the institutions of the executive branch (IRS, FBI, etc.) on his.”
                    Presumably, you’re imagining that Donnie doesn’t do this. You’re free to imagine things however you like, but if you proceed as if your imagination represents reality, all you do is discredit yourself.

              2. You know, since the whatabout-ists among us are determined to make everything about Obama (except for what they insist on making about Hillary), ok, let’s compare the two.

                Obama started lower middle class and, by his own hard work, managed to earn a good education before going on to accomplishments that would have been impressive even if they didn’t include being president. He’s spent his entire life trying to make life better for other people. If he ever stole a nickel from anyone, nobody ever heard about it. He’s a solid family man as to whom there’s never been a whiff of personal scandal, financial or sexual.

                Trump started off with millions of daddy’s money and managed to acquire one bankruptcy after another, one failed business after another, one string of financial scandals after another, and loads of lawsuits from people he’s ripped off over the years. I can’t think of a single accomplishment he’s had that isn’t either the product of being born to wealth, or that wasn’t accompanied by lots of people being ripped off. If some rich daddy is going to leave someone millions, it’s actually a shame it was wasted on Donald since there are plenty of poor and middle class kids out there who would have made far honorable choices about what to do with it.

                And that, I think, explains why Trump hates Obama with the fury of a million suns: He knows he’ll never be half the man Obama is.

                So, for those who insist on making what about comparisons between the two, let’s be honest about what the relevant comparison actually is.

                1. “He knows he’ll never be half the man Obama is.”

                  Not sure I agree with this. While he loves projection of his flaws onto others, it also seems pretty apparent he doesn’t have a lot of self-awareness. I don’t really view him as a tortured soul who knows he can’t measure up.

                  I think he’s not angry about not being as good as Obama (or anyone else) and is actually angry about not being seen by everyone as the greatest person ever.

                  1. Insecurity practically sweats out of Trump’s skin. Whether focused on Obama or not, it’s the driving need of his life. If someone doesn’t regularly oil his ego (most typically himself) you sense the gears will freeze-up and the whole mechanism grind to a stop.

                  2. “is actually angry about not being seen by everyone as the greatest person ever.”

                    Despite how often he tells people he is the greatest person ever. This probably comes because there exist people who will tell him the truth, when he’s done his best to surround himself with toadies who’ll do their best to flatter him about his awesomeness. (Think about the story of the Emperor’s New Clothes. He’s spent his whole life getting his way because daddy’s money could be leveraged to get it for him, and just doesn’t have any experience with reality.

                  3. ” I don’t really view him as a tortured soul who knows he can’t measure up. ”

                    He gets whims. He tells the nearest toady “I want a military parade in the capital, just like the dictators do” and the toady says “uh, sir, we can’t do that”* which then sets him off in a rage to complain that he can’t do whatever it is that he wants. He watches a lot of Fox News, so they channel him into blaming the Democrats for everything. For centuries, European monarchs have had ministers whose job it was to corral the monarch’s bad ideas and keep them from coming to the attention of the serfs. Trump sees no need to fill such positions. If he didn’t have an AG willing and ready to do whatever he demands, he’d probably leave that position open, as well.

                    * Whenever he wants to assign a statement to somebody else, they invariably call him “sir”.

          2. Brett : So anyone who does get elected is actually pretty special, and if you think they’ve got nothing going for them you’re a moron.

            I’m curious : What you think Trump has going for him? He’s a pathological liar, needy as an abused child, a petty bully and profoundly stupid. He seems totally void of human empathy and has the attention span of a toddler. He’s selfish, self-absorbed and commonly treats other people like dirt. If it wasn’t for Daddy’s hundreds of millions, Trump would be running a three-card monte on some street corner.

            So what about it? He’s a moderately skilled huckster conman, I’ll grant him that……

            1. What does POTUS Trump have going for him? He won. Nobody thought he would. But he did.

              1. He won in part because nobody thought he would win and he won’t have that advantage again this year.

                1. There were at least another hundred million people who didn’t get elected in 2016 at least in part because nobody thought they would win. And at least twenty such folk who actually went to the trouble of standing.

                  We need some further refinement of the explanation for Trump’s win beyond merely not being expected to win. There are far too many other people who could have ridden that wave into the White House, but didn’t.

                  My theory is much simpler – anyone who wants to be President should spend a lot of time on their knees begging the Good Lord to send them Hillary Clinton as their opponent.

                  Now that really is something Trump isn’t going to have going for him this time.

                  1. Lee, I never said that was the only reason he was elected, but it was one of them. I can’t tell you how many people I’ve talked to who didn’t like Hillary but, since they thought she was going to win, either stayed home or voted third party.

                    Of course there were other reasons too and if I were to pick just one I’d say the Comey letter probably sealed it. But honestly, if people had known that they really were faced with an actual Trump presidency I bet it would have changed enough votes to also change the outcome.

                  2. Two bits of irony re Trump’s win:

                    (1) There are people who actually voted for him because Ms Clinton is a “liar” and/or “corrupt”. Doesn’t that make you shake your head in sad disgust? You could match a lifetime of Clinton lies by just a week or two of Trump’s tally. And by the time he ran for office, DJT was already brined in corruption, with a long trail of scams and cons in his wake. Even with the most hysterical exaggeration, Clinton doesn’t come close.

                    (2) There are also people who voted for him because he was a “successful” businessman who’d bring a businessman’s sharp efficiency to the office. Who says image can’t trump fact? You have to assume four years watching this White House dumpster fire will at least disabuse them of that.

                    Of course I still believe a sizable number of loyal Trump voters just want WWE-style entertainment from their president. After all, they’ve been evolving that way for decades, from the actor-president Reagan, to the faux-cowboy W Bush, to Trump’s warm-up act, Sarah Palin. These Trumpists are happy with President Dumpster-Fire as long as they get to yuk at President Troll.

                    1. “Of course I still believe a sizable number of loyal Trump voters just want WWE-style entertainment from their president. After all, they’ve been evolving that way for decades, from the actor-president Reagan, to the faux-cowboy W Bush, to Trump’s warm-up act, Sarah Palin. These Trumpists are happy with President Dumpster-Fire as long as they get to yuk at President Troll.”

                      They just want to back somebody who can pwn the libs, and since they don’t got that, somebody who will keep telling them about how they’re TOTALLY pwning the libs, even if they can’t seem to accomplish anything. So you get Trump talking about how much he’d be pwning the libs if it weren’t for that darn US Supreme Court that was mostly appointed by Republicans. He can say with a straight face that if you don’t want the USSC to keep spitting at you, you’d better keep electing Republicans, because he has no need for facts. His fans aren’t interested in them. They’ll just supply their own if reality won’t cooperate with the partisan agenda.

              2. Yes, he won, but not because he has abilities others don’t. He won because he’s willing to do things anyone with a shred of decency wouldn’t. He mobilized a constituency whose controlling axiom is “the enemy of my enemy is my friend.” If the willingness to be an unprincipled, unrepentant asshole to the right people is what makes him extraordinary, that’s not something I’d brag about if I were Trump or his choir of Renfields. But brag they do, because make no mistake, they consider his assholery a feature, not a bug.

                1. Yes, he won, but not because he has abilities others don’t.

                  Sociopathy is kind of an ability. Not many people are completely lacking in any sort of conscience.

                  But of course, all of the “he won because” stuff ignores the fact that he lost by millions of votes. He nevertheless got the Electoral College victory because Hillary was really really really unpopular. On his own merits, he did worse than Romney, let alone the Republican nominees who actually did win.

                  1. Sociopathy is kind of an ability. Not many people are completely lacking in any sort of conscience.

                    I’d say it’s not so much an ability in the way we usually use that word as it is a superpower, like invisibility or amnesia farts. But semantic nitpicking aside, yes of course you’re right.

            2. All true (if a bit exaggerated in 2 or 3 cases), except that he’s not profoundly stupid. He has mildly above average _guile_ _wiliness_ _cunning_ intelligence. It’s just that he uses it *so* bizarrely.

              Donald J. Trump: Moral train wreck, consummate narcissist, epistemological godawful freaking nightmare, U.S. President.

            3. ” If it wasn’t for Daddy’s hundreds of millions, Trump would be running a three-card monte on some street corner.”

              Nah. If it wasn’t for Daddy’s money, he’d have been convicted of one of his many crimes, and he’d be telling everyone in the prison how he was unfairly convicted because everyone is out to get him because of how jealous they are of his capabilities. And anyone who believed a word he said would rightly be considered an idiot.

            4. “I’m curious : What you think Trump has going for him?”

              He happened to stumble into the ring at a time when a substantial part of the electorate didn’t want anyone competent to win the job.

          3. He may not *just* be a super whiny person, but he is a super whiny person. Anyone who gets to be president after losing the popular vote, and then still complains that the system is rigged against him, is, well, whiny.

          4. Yes Donald Trump is special he hold a position that very few men have held. That he hold the position does not preclude him from being super whiny.

            1. He’s going to be super-disappointed when he isn’t President any more and he’s discarded like the trash he is. When the cheering crowd now longer needs him to keep Hillary from becoming President. Have you seen how screechy his online campaign is about stopping the “radical Democrats”?

  2. That last paragraph is one I have never understood why the censorship folks claim to not understand the dilemma. Twitter is a good example. So is Fox News vs MSNBC vs the NYT. I imagine any Supreme Court having to wrestle with any such definitions in the proposed amendment would wish they could throw out the amendment itself as too damn vague and confusing.

    1. There’s plenty of folks on the left who think Citizens United was rightly decided. Our voices get drowned out, but we are out there.

      1. I’ve never really understood the left’s concern with Citizens United in particular. It was probably rightly decided, but even if not, it is not really that damaging to democracy. At least as far as national elections go, there is going to be enough money on both sides, and as Bloomberg demonstrated spectacularly (as JEB did before him) money doesn’t guarantee results. (Is this a bigger issue in state legislative and local races? I really can;t say.)

        Campaign finance and policy positions has always been a chicken-egg problem anyway. Is the NRA spending money on Candidate X because he is already pro-gun or because they want him to be that way? Does he want their money to help his already pro-gun agenda or is he changing his agenda to get their money? It will always be difficult to tell.

        The real issue to me is crafting detailed laws to try to get at those fuzzy instances where it looks like campaign contributions are actually driving official acts. Say, a $1 million dollar PAC donation followed by the suspension of an investigation.

        1. I’ve always said that I think Citizens United was a great decision and McChutcheon a terrible one. The issue isn’t independent expenditures, it’s collusion to circumvent campaign finance laws. Even your example of the NRA funding Candidate X has nothing to do with independent spending on speech, it has to do with campaign donations.

          1. I agree. “Coordination” is what should be illegal, and even fairly extensive restrictions on coordination should be constitutional. Coordination is what opens up the possibility of bribery.

        2. I think CU was sort of rightly decided. It was certainly correct with respect to CU and other membership organizations. I think lumping them together with Microsoft and Exxon because they are all corporations is sort of silly.

          That said, I think it is possible to draw some distinctions between corporate campaign contributions and what the media do.

          The thing about a NYT editorial is that it says, right at the top, that this is opinion of the NYT. Hard to miss it.

          So if Microsoft wants to put out a newspaper, or film or ad, supporting a candidate that’s fine, so long as they put their name on it prominently. But it seems OK to to say they can’t just write a big check to a PAC and claim that’s speech.

        3. To me, this has always been a transparency issue, LTG. You will never get money out of politics. But you can require absolute transparency and full disclosure. From my way of looking at things, I want to know who ‘bought’ my representative.

          I also want to know if the SOB stays bought. That tells me something too.

          1. “From my way of looking at things, I want to know who ‘bought’ my representative.”

            The Committee for Americans, in conjunction with Americans for Better Government. You get to name your own organization whatever you like, and you don’t have to use your own name when you file the paperwork.

        4. “At least as far as national elections go, there is going to be enough money on both sides”

          some people think there’s too much money flying about, regardless of which party/candidates it’s flowing to. It means that the people who have money to spend are calling the shots for both parties, and not all the “sides” are represented.

    2. Proposed Amendment to overrule Citizens United is easy:

      Notwithstanding anything to the contrary in the First Amendment, Congress and the States shall have the power to regulate spending in campaigns for elective office in a viewpoint neutral fashion.

      Boom.

      1. That wouldn’t overturn Citizens United. For the most part it would restate existing law and rebuke Justice Thomas.

        1. No, it would definitely overrule Citizens United by giving Congress/States the express power to regulate spending in political campaigns notwithstanding ANY first amendment concerns other than viewpoint neutrality (e.g., no law saying that you can spend on X issue but not Y issue). It would absolutely give Congress/States the power to say that there are limits on spending by individuals on their own campaigns (overruling Buckley I think), give Congress/States the right to stop the video-on-demand feature in Citizens United itself, etc., etc.

          1. That’s always been the weird thing about the criticism of Citizens United. The true thing they were angry about was really Buckley.

            1. Not true. Citizens United overruled parts of Buckley but, yes, the objection to billionaires spending their own money on their own campaigns is rooted in Buckley, not Citizens United.

              1. ” the objection to billionaires spending their own money on their own campaigns”

                People aren’t complaining about billionaires spending their own money on their own campaigns, they’re complaining about billionaires spending money on other campaigns, as part of a method to make more money.
                “Oh, Senator Firebrand is opposed to our company dumping waste into the river instead of having it rendered nontoxic first and properly disposing it? Say, who’s running against the Senator this year?”

            2. I don’t think Buckley is given enough criticism in its unquestioned acceptance that campaign donations are speech, but Buckley at least accepted that it was a form of speech that could be regulated. Recent cases have limited the ability of the government to regulate those donations using the first amendment.

              This is more a problem with McCutcheon that Buckley, though, imo.

              1. Spending is sometimes speech – Buckley was right about that. When you say that spending is not speech, you get crazy outcomes in all other types of cases. That’s why I think the best solution is to target spending on political campaigns for special treatment in the Constitution itself. If you think unlimited spending by corporations, unions, etc., is a good thing though, you live with the system we have.

                1. Spending is speech, but Buckley got it exactly right- contributions are mostly a sort of associational speech where you get to associate whether you give $50 or $2500, and the only issue is not setting the limits so low that campaigns can’t afford to operate.

                  Expenditures, on the other hand, are pure speech, but the danger is when third parties fund the expenditures, there can be a quid pro quo. Hence, bans on coordination.

                  None of this means that Citizens United shouldn’t have been able to make its movie, though.

                  1. I agree with everything here.

                  2. What is your take on Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. If you believe the case was correctly decided, should a constitutional amendment be passed to permit public matching of privately-financed election spending amounts?

          2. What do you think the word “spending” means? Does it include making a video about how bad Hillary Clinton supposedly is?

            1. Serious question – have you read Citizens United?

              The case holds that Congress’s limitations on “independent political spending” from corporations and other groups violates the First Amendment.

              1. Yes I have. The “independent political spending” you are talking about is some people formed an association to make a movie about how bad Hillary Clinton was, and put it out.

                Faced with your amendment, the courts would almost certainly construe “spending” to not include such obvious political expression. If you actually wanted to overturn Citizens United, you would need to word the amendment honestly and indicate that Congress shall have the power to suppress speech about the candidates within a certain time period of an election.

                I realize you don’t want to think of yourself as a censor, but that’s the amendment you would need to pass, and yes, it would make you a censor.

                1. Cool story bro

                  1. Sorry that you don’t actually care about the facts of the case.

                    Those of us who actually do this stuff for a living do tend to care about them, though.

                    1. Dude, what you do for a living may indeed be speech-related, but it sure ain’t on the right side of the equation.

            2. Perhaps Jon S should replace “spending” with “campaign contributions or independent election expenditures” which I believe are defined by either statue or regulation?

              1. I’m good with my amendment. Just need to convince 2/3 of Congress and 3/4 of the States to go with it.

              2. I’d also note that my proposal would make it much more possible for Congress to regulate what Twitter is doing right now, i.e., these “clarifications” appended to Trump’s tweets could easily be considered spending by Twitter on political campaigns. I don’t think that’d be a good idea but I’d rather give those questions to Congress and the States than the courts.

      2. No campaign spending except by incumbents.

        Boom.

        1. That would not be viewpoint neutral.

          1. As a proposed Amendment, it doesn’t have to be – and yes it is.

        2. Assuming that incumbents should win, which is a BIG assumption that a lot of people aren’t going to be down with.

      3. Now define “viewpoint neutral” in such a way that all candidates, incumbent or not, from any and every party, now and forever, don’t scream bloody murder and swamp the Supreme Court and invokes calls for further amendments.

        1. Perhaps the amendment should replace “viewpoint neutral” with “content neutral”?

          1. “Content neutral” does not work because the amendment targets a content based category of speech, i.e., political speech.

            1. I would think that “content-neutral limitations on private campaign contributions or independent election expenditures” would restrict the limitations to campaign content and not open the can of worms over viewpoint discrimination.

              1. That would likely be ok – not sure if we are not just trading one term (viewpoint neutral) for another (content neutral) that sometimes presents difficult interpretation questions.

        2. Viewpoint neutral is a well-established term-of-art in Supreme Court cases – like any other term of art, there is argument at the fringes as to its meaning but it is much more clear than, say, “the Freedom of Speech” or “cruel and unusual punishment.” To paraphrase Chief Justice Marshall, we must remember that it is a constitution we are expounding.

      4. “Proposed Amendment to overrule Citizens United is easy:”

        What they need to do is regulate how responsive elected officials are to money, not now people choose to spend their money. Pass a law allowing any citizen to bring suit against their elected officials claiming that said official was effectively bribed by campaign contributions. What you get from that is that lobbyists don’t just have to get the attention of the legislators, they have to make an objective argument for why their pet legislation is something the voters would want implemented. Kind of like the way makers of prescription medications have to advertise, because their products can’t be purchased without going through a licensed professional physician. they have to proceed on two fronts: First, convincing the public in general that they have a product that solves a problem they actually might have, and second, convincing the gatekeepers to sign off on it.

    3. Citizens United may well be one of those cases that is simultaneously correctly decided and wrongly decided. (The most notorious example, to my mind, being FCC v. Pacifica, where George Carlin’s extremely political monologue about censorship somehow got labelled as mere obscenity.)

      The obvious distinction to make is between donating money or something of value that isn’t itself speech on the one hand, and donating speech on the other hand. So donating an advertisement could be treated differently than donating a car or a cheque.

      1. “Citizens United may well be one of those cases that is simultaneously correctly decided and wrongly decided.”
        Leave Mr. Schrodinger and his feline companion out of it. Depending on which context you choose to look through, the thing either is about freedom to spend your money as you see fit, or it’s about keeping elections free from the corruption that comes from money. I don’t spend money on politics, so it bothers me when other people do, and get their money’s worth. I don’t like it when the chemical company next to the lake spends its money convincing people not the regulate chemical emissions into the lake. I get that the people who have jobs at the factory, and value their jobs over the cleanliness of the lake waters. The ability of an operating business to invest in getting politicians to sign off on shifting costs to people who aren’t profiting from the business, in general, is what bothers me.

  3. Not Twitter, but Youtube. From today’s news.

    YouTube automatically deleted comments that criticized China’s Communist Party

    https://news.google.com/articles/CAIiEHgabKfkbG4-uhHWTbvDWXAqGQgEKhAIACoHCAow2Nb3CjDivdcCMP3ungY?hl=en-US&gl=US&ceid=US%3Aen

    1. Sucks, but looks like free speech to me.

      1. YouTube said it was an accident. Ripping down content because a government threatens you is censorship, not free exercise of speech.

        1. Interesting how, in your view, random people have the authority to use Google/YouTube’s information-systems to store and distributed their speech. If that right doesn’t exist, it can’t be infringed.

  4. One event that moved me to the conservative side of Citizens United (CU) was Colin Powell essentially doing an infomercial for Obama on Meet the Press two weeks before the 2008 election. To give the media the power to essentially donate millions of dollars of airtime to one candidate while limiting everyone else’s right to donate to candidates did seem like a violation of the 1A. Btw, the actual movie involved in CU is the dumbest movie ever, it is essentially clips from a night of Fox News prime time made into a movie.

    1. It is a dumb movie (Hillary the Movie). It was created specifically as a response to Fahrenheit 9/11, which the FEC somehow thought was just fine. And it served its purpose there quite well.

      1. As I recall there were several right wing responses to Fahrenheit 9/11 (one was called Fahrenhype 9/11) and they were all bad.

        Proving that while you may not like Michael Moore, he has real talent and it isn’t easy to do what he does.

        1. I agree, Moore is talented and his movies are entertaining. That said if you look at every one of his movies in the short term the exact opposite reaction he is going for happens. So Bowling for Columbine resulted in less gun regulation and Fahrenheit 9/11 resulted in Bush winning. Even Sicko didn’t get the result he wanted because Obamacare was designed to perpetuate private health insurance while Moore was advocating for single payer universal health care. I am pretty sure Moore is a Republican operative pretending to be a progressive Democrat…how else do you explain his awful track record??

          1. Columbine was actually more balanced than his other films. Remember when he goes to Canada, they have tons of guns up there, and people leave their doors open? He leaves open the possibility that there are things wrong with our culture that make us more violent.

            I suspect one thing Moore accomplished, though, is that banks no longer give you a gun if you open an account. 🙂

            1. You can now wear a mask into a bank without raising eyebrows¹ so why not go back to giving away guns for opening accounts?
              ——————————————-
              [1] Or so I’ve heard — I’ve not set foot inside a physical bank in over ten years.

        2. You’re misreading what I meant by response.

          Fahrenheit 9/11 was created, in part, as a way to influence the 2004 election. Michael Moore directly said so. Moreover much of the marketing and release was in the period of time directly before the election.

          What that would represent is a multimillion dollar expenditure by a private organization to influence an election with on-air and private broadcasting, that effectively avoided any FEC limits. Citizens United was angered by this, and brought an FEC complaint. And the FEC did nothing. So Citizens United decided to do the same strategy. Make a movie, designed to influence an election, as a private organization, and release/market it just before the 2008 election. And then the FEC stopped it. So Citizens United sued.

          It was about evening the playing field.

          1. I do remember that time because I volunteered with the Kerry campaign. I consider myself lucky because Facebook and online campaign fundraising and texting completely changed political campaigns by 2008. So 2004 allowed me to get a historical perspective of how campaigns operated.

            So first we tried to volunteer for Kerry and probably 50 people met at a coffee shop and after some very awkward speeches by random people the leader got everyone to give her their emails. I am pretty sure she was a Bush operative because nobody ever heard from her again and we tried to have another meeting and maybe 5 people showed up. So with those 5 people we tried to raise money to send to the Kerry campaign and we had to collect literal checks and put them in an envelope and send them to DC…I honestly don’t think anyone ever opened the letter with maybe $100 of campaign donations. Fast forward to 2007 and Obama is raising money over the internet and in 2008 Facebook and texting on Blackberries allowed his volunteers to dominate caucuses.

            1. Yeah, I just sent Kerry a check in 2004. He cashed it pretty readily.

              1. Thanks to the Housing Bubble taking FL and NV out of contention essentially the only state in play in 2004 was Ohio. So looking back it makes sense Kerry only wanted money for advertisements in Ohio, but at the time I had more time than money so I wanted to be more involved…which also shows how the Electoral College leads to less participation in presidential elections.

                1. There were lots of states in play in 2004. Nevada, Ohio, Iowa, New Mexico, New Hampshire, Pennsylvania, Wisconsin, were all decided by less than 3% margin

                  1. You need 270 EC votes, but you are correct WI was closer than I remembered and informs Trump’s 2016 success in the Rust Belt. So apps Wisconsin was never a blue as Democrats believed. But in light of the red state/blue state dichotomy and the Housing Bubble taking several swing states out of contention Kerry was wise to focus his money on Ohio…especially in light of Ohio’s economy being weak during Bush’s first term. So flipping OH would put Kerry in the WH while flipping Iowa and NM and NV results in an EC tie and then a Kerry loss because Republicans controlled the House.

    2. To be clear, it was the “while limiting everyone else’s right” part of that fork that actually violated the 1st amendment.

      I don’t think they were really all that concerned with the CU movie, they just thought it provided a good opportunity to establish a legal precedent that they could engage in political censorship. And the Court declined to go there.

  5. “By the way, it’s not clear where the Citizens United dissenters would have drawn the line between newspaper corporations, which they said do have a First Amendment right to speak about candidates, and other corporations, which they said don’t have such a right. ”

    It’s actually pretty clear where they’d have drawn it: Wherever they thought was most advantageous to the Democratic party.

    1. Vintage Brett. His bad faith radar is always apingin’ the left!

      1. Vintage Sarc. “Nope!”

        1. Brett is doing an amazing feat of mass mind-reading. Doesn’t take much to debunk that.

      2. He’s wrong here. But you could argue that this is what is going on with the partisan gerrymandering cases. Read Stevens’ dissent in Shaw v. Reno. Liberals used to love gerrymandering, in part because it increased the number of racial minorities in Congress. It was only when political consultants decided that it was a big help to Republicans that suddenly it not only became unconstitutional, but anyone who defended it was a political hack.

        So it isn’t as though liberals never do this. Conservatives, of course, do it too. They were all behind Smith as long as it was pagan religions not getting exemptions, and flipped when Christians started asking for them.

        1. The trick part is that it’s a group. A group with constant new entrants and exits.

          When it turns on a dime, there are certainly some insincere folks. I know some on here who boast of how they don’t have principles. But collectively, I don’t think bad faith is a fair put even then.

          1. I think it’s closer to motivated reasoning. People like to claim they are effectuating neutral principles when in fact they aren’t.

            1. There no doubt a lot of that as well – We all contain multitudes.

              It’s the ones that claim they’re immune from motivated reasoning I’m suspicious of.

        2. Conservatives, of course, do it too. They were all behind Smith as long as it was pagan religions not getting exemptions

          They were? Seems to me that the RFRA was nearly bipartisanly unanimous.

          1. Nahh, plenty of movement conservatives and academics defended Scalia’s opinion. It’s true that politicians didn’t, though.

            1. By 2004, Smith was presented as the only workable solution by my very liberal Con Law prof.

      3. The administration actually went before the Court and argued that they would be legally entitled to engage in book banning. And STILL got 4 votes.

        1. This is the core of why I don’t support the Democrats for the presidency since Obama 1 — I don’t want the censorship to escape controls. I don’t think the Republicans will get around to Roe v. Wade, which is good, but god help us if the choice is between Democrats preserving that but allowing censorship, or vice versa.

    2. I don’t think you have a hope of understanding people who disagree with you, so long as you’re committed to a Manichean worldview in which everybody who disagrees with you does so from horrific motives.

      Words to take to heart, Brett.

  6. We’re crossing into an interesting line regarding corporations and their control over “free speech” and what it means.

    Because these corporations control the effective means of transmission for a great deal of public speech, they maintain control over the speech. If they decide to bias the means of transmission in such a way to favor one party or another, it creates a very large discriminatory environment, larger than Citizens United ever could have.

    1. This has been an issue as long as there has been mass media.

      1. No, it hasn’t. The reason it hasn’t been is that the media were never this united on one side of the political spectrum before.

        Yes, at one time the media were united in shutting out the fringes, but they didn’t unite on treating one whole end of the spectrum as “fringe”, mainstream politicians of either party could be fairly easily heard. Most cities had competing newspapers with different perspectives, for instance.

        These days, not only aren’t there any significant conservative social media platforms, if you try to start one the whole IT ecosystem unites in crushing you.

        1. Despite the right’s taking this as a matter of faith, IMO you’re going to have a hard time proving the partisan and united media in court.

          Twitter has boundless examples of it not being a purely liberal platform.

        2. There’s tons of conservative media, Brett. Twitter is just one platform (and itself has lots of conservatives).

          1. Until they somehow get “removed”….for odd causes, that always seem to swing in one direction.

            1. And then they turn out to be actual white supremacist accelerationists like Paul Nehlen.

              1. Or GOP candidates for Congress. Or political commentators. Or DJT himself.

                My favorite example was Candice Owens. She retweeted the same exact thing Sarah Jeong (noted liberal) tweeted, but swapped the words “white” and “black”.

                Owens was banned. Jeong never was

                1. GOP candidates for Congress like Paul Nehlen?

                  Candice Owens, who still has an account, but who routinely says false things about history and argued Hitler was just fine until he started invading other countries?

                  1. Plenty of people say false things. But somehow, it’s only the conservatives who tend to be banned or suspended.

                    Mitch McConnell can be suspended from Twitter for tweeting “threats…”

                    1. You see it happen to your friends/political jerkoffs, and somehow think that must be indicative of the hundreds of millions of twitter accounts that you aren’t aware of.

                      Wow.

        3. “the whole IT ecosystem unites in crushing you.”

          THAT’s the anti-trust issue.

          1. Ecosystems don’t fall under antitrust, I’m afraid.

            1. AT&T did.

              1. Ed, I leave it to you to find the distinction between AT&T and ‘The whole IT ecosystem’

                1. In 1978?!?

                  1. Brett was using present tense, Ed.

        4. “These days, not only aren’t there any significant conservative social media platforms, if you try to start one the whole IT ecosystem unites in crushing you.”

          Isn’t that just the marketplace of ideas in action? No one actually wants a platform that caters to conservatives that is then inevitably overrun by antisemites.

        5. “media were never this united on one side of the political spectrum before”

          Exactly. And we did not know so much about the real beliefs of the reporters and editors.

          Now, thanks to Twitter and other social media we do. Hostile to every republican and conservative except for the dead ones.

          1. Maybe it’s because they deserve hostility?

          2. “Now, thanks to Twitter and other social media we do. Hostile to every republican and conservative except for the dead ones.”

            Blatantly false. Thanks for playing.

        6. not only aren’t there any significant conservative social media platforms, if you try to start one the whole IT ecosystem unites in crushing you.

          I’m sure there’s some BS scare story about this, but that doesn’t make it true.

      2. It’s a different issue. You see, Twitter isn’t (or wasn’t) acting as a content provider. It was acting as a transmission medium

        Once upon a time, there were just newspapers and pamphlets. Anyone with paper and a printer could get the word out.

        But then things shifted to radio and TV. And now, the government decided to control the transmission medium (the radio and TV frequencies). And now, balance was required on the part of the government. If the government only gave transmission frequencies to a single party’s supporters, it would act as a bias for the media and free speech. The media acted as providers of content.

        Then things shifted to the internet. The individual people could be heard even better than before. Now, we had the companies providing the transmission medium (AT&T, Verizon, Comcast, etc.) and another set of companies acting as transmission facilitators (Facebook, Twitter, YouTube, Google). These companies by and large didn’t create their own content, but acted as a method for other people to get their content online, with minimal to no editing.

        However, now the transmission facilitators have started to put their finger on the scale and “favor” certain sorts of content, and “disfavor” other sorts. It’s acting as if the government was auctioning of TV frequencies, but only to Republicans…. In doing so, it becomes a notable burden to free speech. Remember the facilitators aren’t providing content for the most part, they’re only acting as a conduit.

        What does this mean? Can Verizon “cut off” Twitter if it doesn’t like it? Isn’t Verizon just exercising its own “free speech.” Can the government decide that certain sections of the 5G spectrum go to only those companies that decide that Twitter is a non-desired forum?

        These are the questions that should begun to be asked.

        1. I think if that started happening, you’d have a real free speech problem, and hot takes about how the First Amendment only applies to state action wouldn’t be much of a response.

          But as of now we have plenty of online speech from all points of view.

          1. Why would it be a free speech problem if Verizon decided it simply wouldn’t carry Twitter anymore? Verizon’s a company, it can make it’s own decisions about what it wants to carry. Right?

            Perhaps Verizon could “choose” that whenever Biden tried to speak online or on one of its broadcast channels, Verizon would suddenly cut it off. That’s completely legitimate. Right?

            1. “Perhaps Verizon could “choose” that whenever Biden tried to speak online or on one of its broadcast channels, Verizon would suddenly cut it off.”

              That’s what “Net Neutrality” was about and exactly what it sought to prevent.

              I think the bigger issue is liability for libel — now that Twatter is producing content — the fact checking — it has become a publisher and hence can be sued for libel. I don’t believe the ISP exemption would apply anymore. That’s a total nightmare because there will always be stuff getting by them that they don’t know about.

              Trump is not stupid, I think he wants to be banned so he has standing to sue Twitter for what OTHERS say about him.

              1. Trump is not stupid,

                Trump is deeply stupid.

                I think he wants to be banned so he has standing to sue Twitter for what OTHERS say about him.

                That’s not what “standing” means, being banned would not give him “standing,” not being banned would not prevent him from having standing, and being banned or not being banned would not allow him to sue Twitter for what others say about him.

        2. Verizon is a “Baby Bell” — it was “Bell Atlantic” which was a vombination of NYNEX and someone else.

          1: What was it that got the Bell System broken up?

          2: Notwithstanding that, why isn’t Twitter considered a “common carrier”?

          3: Your 5G issue is a good one — back in the 1990s when the CDA was written, almost all traffic went by wires, either copper or glass. It didn’t use the radio spectrum and hence the “in the public interest” requirement didn’t apply.

          But now that we have smartphones which are never wired to anything (except for charging), now that the Twitter traffic is traveling over the radio spectrum, then there is the requirement that it be used in the public interest.

          1. Airwave public interest is conditioned on the idea there is a limited amount of airways, such as with radio stations.

            But thanks to technological improvements, there is functionally unlimited bandwidth now, at the scale of text or speech anyway. Maybe everyone can’t stream 4k (yet) but the “limited data” argument for government control claiming “public interest” falls flat.

          2. Once again, this is painful to read. Ed should stick to making up anecdotes about what some unnamed college students did at some unspecified college at some time in the distant past.

    2. No, this is not a hard question, despite your guy yelling about it.

      First, Twitter didn’t bias anything, they just added their own speech.
      Second, what does twitter control, really? It’s a pretty idiosyncratic platform in the grand scheme of internet media.

      You’re basically crying that their outta be a law. And you’re wrong about that, legally, functionally, and practically.

      Personally, I’m skeptical appending a note when Trump lies will do anything; Facebook tried it and found sharing went UP on the stories they flagged as lies. Humans are weird.

      1. “What does twitter control, really”

        It’s one of the major modes of distribution of speech by people within the country.

        And it’s not just” notes”. It’s bans, removal of accounts, and more. But you knew that. So stop being disingenuous.

        1. one of the major modes of distribution of speech

          No, it’s not. It’s a popular web application. It could die tomorrow and people could still speak just as well.

          Twitter gets to ban anyone it wants. That’s it’s right of association.

          But you and I both know what’s ticked off the President is Twitter’s own speech appended to his tweet.

          1. I always need to repeat myself with you. Here, again

            “So stop being disingenuous.”

            1. I’m not lying, and quit saying I am. I’m talking about the issue in the OP.

              Stop being a dick.

              1. One more time.

                I always need to repeat myself with you. Here, again

                “So stop being disingenuous.”

                1. Wow.

                  Armchair lawyer is just Dr. Ed, with less plausible lies and more dickishness.

                  Good to know!

        2. ” It’s bans, removal of accounts, and more.”

          It also shadowbans — sets the settings so that only the user can see the posting, no one else can. I fail to understand why that’s not a “fraudulent and deceptive business practice.”

          1. Dr. Ed fails to understand the law, part 7,000.

            Added to the list. Thanks.

        3. “It’s one of the major modes of distribution of speech by people within the country.”

          Twitter is hardly a major mode. That was one of the Bernie Bros. problem, everyone they knew on Twitter was voting for Bernie, so how could he lose. Contrary to what everyone thinks most of us don’t read Twitter.

          1. Ten years ago people thought Facebook was the dominant forum for distribution of speech. Now…not so much, even though they still have billions of members.

          2. Twitter has 330 million active users. That makes it pretty major in my book. 145 million are active daily.

  7. I wonder where Trump got the ridiculous idea that saying his tweet is fake was stifling his free speech? He couldn’t have possibly have gotten the idea from the claims, emanating from certain quarters, that calling the media “fake news” stifles freedom of the press, could he? Naw…

    Both sides. Always both sides.

    1. Noice whattaboutism.

      Now call in your guy; he’s spouting anti-Constitutional stuff on twitter again.

      1. “Now call in your guy; he’s spouting anti-Constitutional stuff on twitter again.”

        ?? Who’s “my guy”? I said Trump’s claim was ridiculous.

        But I haven’t seen you calling in your guys for spouting the same anti-Constitutional stuff.

        Are you ready to admit that the guys who claim that Trump’s “attacks” on the media threaten the free press are spouting the same anti-constitutional BS?

        1. Hard to argue you don’t own Trump, pivoting so fast away from the President of the United States to whingeing about the left again.

          Your deflection defends him. But I suspect you know that, and don’t care. Because for all your protestation, he’s your guy.

          1. “Hard to argue you don’t own Trump, pivoting so fast away from the President of the United States to whingeing about the left again.”

            Well, we agree about Trump. All I’m saying is that it’s just as bad when your guys do it. So maybe none of them are my guys.

            No defense for your guys, eh?

            Yup, both sides.

            1. Thing is, we DON’T all agree about Trump.

              I’ve called out my side all the time, particularly in the school speech cases. Also when they call for gun confiscation.

              I don’t think noting Trumps abuse of the bully pulpit has chilling effects is anti-Constitutional.

              1. “I’ve called out my side all the time,”

                And I called out Trump, right in the right in the comment you responded to, before calling out your guys for doing the same thing.

                1. Noting it, then pivoting directly to attacking the left?

                  That’s not actually calling out Trump. It’s just as Susan Collins being ‘deeply concerned.’

                  Lip service, at best.

                  1. “Noting it, then pivoting directly to attacking the left?

                    That’s not actually calling out Trump.”

                    It’s calling out Trump and the left. I can do both. You should, too. Instead you defend the left for doing the same thing. That diminishes your attack on Trump, and makes you vulnerable to “Orange man bad” criticism.

    2. Remember when some leftist judge ruled that Trump’s Twitter Account was PUBLIC and that he couldn’t ban people?

      What are the tangential implications of that decision?

      Trump is not stupid — he has a strategy here and it’s at least three levels below the surface.

      1. Trump is stupid, and he can’t play 1 dimensional checkers (or checker, I suppose), let alone 11th-dimensional chess.

        1. It would be really funny if someone asked him to explain the rules of Chess.

        2. It’s not 11th dimensional chess. Making a scene to get all the eyes on you isn’t exactly rocket science. Doing so over mail-in voter fraud the same day that the Patterson, NJ case got so bad that the NAACP called for the election to be repeated is a very simple and obvious strategy.

          He’s dragging his opponents into the light and forcing them to stand behind a position (that voter fraud doesn’t exist) that is completely untenable based on current events. This both makes his opponents look stupid (“If mail in vote fraud is a myth, what’s going on here”) and it also makes him look more trustworthy to his base. Some people on the fence, looking at current events, might even think that the blowhard has a point about fake news and be more questioning of fact checks on situations that aren’t so clear.

          A good strategy doesn’t have to be a complex one. In fact, simple strategies are usually the most reliable.

  8. An entity that effectively has monopoly power over a traditional government function (what it does is a successor to the post roads mentioned in the constitution) may be legally a private party, but it isn’t really one de facto.

    If a provate party has complete control and government has none, then limits on government power have no meaning.

    If all post roads and postal services were private, then sure, the entity that opened everyone’s mail and only delivered letters they agreed with could be said to be “exercising its first amendment rights” by doing so. But when we have a situation where a monopolists’ freedom of speech combined with control over others’ speech means it gets freedom to impose its will on everyone else no-one else has any freedom without its say-so, then pragmatically, de facto, “freedom of speech” becomes a nullity.

    Historically, government handled this by regulating communications networks with monopolist tendencies as utilities and imposing rules on them.

    1. Or breaking them up.
      One of the issues in the AT&T breakup was that while it hadn’t restricted speech in the past, it might in the future.

  9. I think it is fair to say that social media is becoming akin to a public utility. And also is getting pretty darn close to being analogous with Marsh v. Alabama (precedent which may not be “good” under current doctrine, but still it has not been overruled).

    That said, Twitter is not a state actor, but still we are dealing with new constitutional ground here. When does such a forum become effectively public space? I don’t know where the line is to that but we are getting pretty close to it these days.

    Also, don’t pretend for a moment liberals that if Big Tech were censoring left wing speech you would not be raising a big stink about evil corporations and freedom of speech. All we would hear is “Tax Twitter” and “End Big Tech”. Keep in mind that tables do turn and when these forums are no longer favorable to your agenda of the day you can expect the same kind of treatment you are currently passing out.

    1. I would note that both examples of liberals in your counterfactual have them advocating for constitutional things.

      Not like your proposal for the government appropriation of twitter.

      1. No it is just liberals advocating for power. They will use whatever vehicle is necessary to get power and smack a label on it (so if “constitutional” works great, if not “regulation”, or “policy”, or whatever). All of it just translates out to power.

        Also you really do love putting words into people’s mouths. I said nothing about government appropriation of Twitter. All I said was that for all intents and purposes it is getting close to being a public forum.

        1. You advocated both for treating Twitter like a public utility and for applying the Constitution to it as a public actor.

          Both are government appropriations of a private entity because you don’t think their speech kowtows to Trump’s desires like it should.

          I still like that when you could have written liberals doing anything in your counterfactual scenario, you wrote about them calling to end some corporations and tax them. That’s…amusingly tame.

          But now you argue that your fictional liberals sticking to the Constitution is just a ruse…dunno how to unpack that.

          1. Liberals only believe in the Constitution when it suits their power needs. That is why when you argue abortion it is about the constitution. That is the power that was used to enact that policy agenda. And why when you talk about guns they never mention the constitution. Because that would put limits on their power agenda. Liberalism has no moral basis. It is entirely about power.

            And again I never said that the government should do anything to Twitter. I just social media is becoming akin to a public utility and is quickly becoming analogous to Marsh v. Alabama. What do we do with it if it is a public forum? That is a question I left open. Stop trying to put words in my mouth.

            1. Yep. Conservatives never ever play power games and ignore the Constitution. In American political history, there has never been an instance of conservatives brushing aside constitutional concerns to advance an agenda.

              It simply isn’t possible that they would advocate for warrantless wiretapping a program, advocate for indefinite detention of U.S. Citizens without charges, ignore the case and controversy clause to get a law struck down that they don’t like, ignore the Tenth Amendment to shut down sanctuary cities, stay silent while Trump threatens to withhold funding from states that don’t pledge fealty to him, equivocate on whether Brown v. Board was correctly decided, think that Gideon was wrongly decided, or believe that the First Amendment only applies to Christians. I could never ever find an example of a conservative advocating any of these things.

            2. First off, if you actually think liberalism has no moral basis, you should probably brush up on your Rawls, who laid out Justice as Fairness pretty thoroughly, and has thought about morality way more than you ever could.

              Second of all, if conservationism today is based on moral principles, why is their current leader so obscenely immoral it defies explanation? Do you actually think it’s moral to cause a widower pain just to score cheap political points against a tv show host you don’t like?

              1. You make the assumption that because I said liberalism lacks moralism, that I think the opposite is true (conservatives are moral). I did not state that and don’t believe it is necessarily true. I think conservatism is probably more based in a moral system then liberalism, but all sides finds morals to be somewhat flexible when it conflicts with their power agenda.

                Conservatism is giving up its moral positions largely because the left has given up theirs. You can’t have a fair fight if one side has its hands tied behind its back and the other party takes full advantage of that handicap. Hence why the right is all into Trump. He threw the gloves off and people like the results of that – which is winning. (And to be fair the Left hates the fact that conservatives are winning more by adopting their take on unfettered power.)

                1. If you like the results of Trump, you’re probably a sadist. Most of the things that people like about him are his attempts to hurt others. Sadism is immoral in any good moral system. Ask yourself:

                  Do you enjoy the pain he causes others? Do you want him to cause more pain?

                  If you answer yes, you’re just a sadist. If you answer no, you still have to justify it. At best it’s crude utilitarianism for the “greater good.” At worst, You’re just trying to justify it by saying the other side does it too. But ultimately, that’s just nihilism.

                  There are few moral and ethical systems in which someone can support such a man. The ones in which it is okay, are ones that no one would actually pick for society if they were choosing from the original position behind the veil of ignorance.

                  1. Trump hurts others because they are hurt when they don’t get what they want. Sort of like claiming a child is hurt because his parents withhold dessert. Liberals were hurt Clinton was not elected President. Liberals were hurt when they couldn’t impose their will via taking over the federal judiciary. Liberals were hurt their idea of turning the US of A into the USSR was derailed when the people selected Trump.

                    In a moral and ethical system where winning is numero uno and really the only thing that counts, Trump does well.

                    1. Trump is hurt by any criticism or bad news. That’s how children act, normal functioning adults.

                    2. “In a moral and ethical system where winning is numero uno and really the only thing that counts, Trump does well.“

                      That’s basically egoism, and that’s a bad moral system.

                2. Shorter Jimmy: “Okay, if we are bad people, well, they started it.”

                  1. To some extent that is correct. If one side escalates a war so it is “All Against All” you can’t blame the other side from responding with appropriate force. it is either that or lose.

                    1. So if you’re a bad person because other people are bad…what do you actually gain? Winning? Win what? If it’s just the fact that you beat someone and they’re unhappy we’re back to sadism. If it’s just the fact that you get what you want no matter the cost to others we’re back to egoism.

        2. “No it is just liberals advocating for power.”

          Trump – ” I have this thing nobody talks about called Article II, where I can do whatever I want. You wouldn’t even believe what’s in there.”

          Paraphrased without altering an iota of context. You are a partisan liar.

    2. Pruneyard Shopping Center v. Robins

    3. I think it is fair to say that social media is becoming akin to a public utility. And also is getting pretty darn close to being analogous with Marsh v. Alabama (precedent which may not be “good” under current doctrine, but still it has not been overruled).

      That said, Twitter is not a state actor, but still we are dealing with new constitutional ground here. When does such a forum become effectively public space? I don’t know where the line is to that but we are getting pretty close to it these days.

      The Supreme Court pretty much expressly said the opposite last year. It said that Marsh was limited to its facts: actual government functions traditionally reserved exclusively to the state. Social media is not remotely in that category.

  10. “But free speech is a broader idea than just the freedom from government suppression; one could sensibly say that a private entity is undermining free speech in various ways, especially when the entity promotes itself as a forum for public discourse.”

    Interesting point. Artie Ray Lee Wayne Jim-Bob Kirkland is unavailable for comment on and at this point — he has been unable to comment here since Wednesday, October 6, 2010, at 6:02 p.m., censored by decree of the Volokh Conspiracy’s Board of Censors. (His offense was making fun of conservatives.)

    1. Wait, you’re whining about this happening 10 years ago? And yet, you’re still here and able to post?

      1. Wait, you’re whining about this happening 10 years ago?

        It’s as though he’s “clinging” to it.

  11. So funny that leftists are now proudly standing tall on the right of massive corporations to engage in political speech under Citizens United. This was very predictable.

    Anyway.

    “If Twitter, for instance, started taking down pro-animal-rights statements or anti-war speech or anti-transgender-rights advocacy or criticism of the Chinese government, I think it would be reasonable to label that as stifling free speech. ”

    We don’t need hypotheticals. Twitter and other social media companies have waged massive campaigns against conservative viewpoints. They ban conservatives outright, they “shadow ban” their content to make it invisible to others without the user knowing, they demonetize, blacklist, and so on.

    They are certainly stifling free speech, and their actions are very obviously political and biased (and even political speech in its own right as EV notes). It’s not done pursuant to any coherent “policy” or terms and conditions, it is just a bunch of extremely political busybodies doing censorship to help further their political agenda.

    1. Twitter and other social media companies have waged massive campaigns against conservative viewpoints. They ban conservatives outright, they “shadow ban” their content to make it invisible to others without the user knowing, they demonetize, blacklist, and so on.

      Banning accounts for racist and violent content is not the same as “massive campaigns against conservative viewpoints”.

      They are certainly stifling free speech, and their actions are very obviously political and biased (and even political speech in its own right as EV notes). It’s not done pursuant to any coherent “policy” or terms and conditions, it is just a bunch of extremely political busybodies doing censorship to help further their political agenda.

      They are a private company. Don’t like the service? Don’t use it.

      1. “Banning accounts for racist and violent content is not the same as “massive campaigns against conservative viewpoints”.”

        That is correct.

        “They are a private company. Don’t like the service? Don’t use it.”

        Don’t like the stifling of free speech? Criticize it.

      2. They are a private company. Don’t like the service? Don’t use it.

        Bake me a tweet!

      3. We have laws against fraudulent & deceptive business practices.

      4. Banning accounts for racist and violent content is not the same as “massive campaigns against conservative viewpoints”.

        I’m not so sure about that anymore.

        1. Because the banners have lost track of their mission or because certain conservative viewpoints have blended into racism and violence? Or a bit of both?

          1. Mostly the latter. I mean, when Alex Jones or Paul Nehlen or some other alt-right figure is banned, one can certainly criticize that. (I am ambivalent about such bans as a policy matter, while believing that these social media platforms have a 100% right to do that.) But for some reason, many conservatives have decided to attack these bans as bias against conservatives, rather than simply as bad for free speech.

            1. Yes. Laura Ingrahm used Paul Nehlen as an example of this around this time last year. Which was well after it was known he was a guy praising Robert Bowers.

    2. The Twitter “fact checker” is just a partisan agent. Even Twitter has stopped pretending that it doesn’t have a political agenda and its own speech code.

      1. And then: https://www.redstate.com/nick-arama/2020/05/27/kathy-griffin-advocates-killing-trump-with-syringe-full-of-air-trump-jr-lets-her-and-twitter-have-it/

        Advocating the murder of the President is a violation of at least two different laws that I can think of.

        1. I can think of at least two Supreme Court decisions that your post demonstrated ignorance of, so we’re even.

  12. election by throwing its massive weight behind one particular position

    I think people over emphasis the “weight” of twitter. Only 22% of US adults use twitter (and how many of those are bots?). Less than half those use the platform on a daily basis. Twitter doesn’t reflect “real” life. The only reason it has any sort of “weight” is because of media obsession with the service.

    Now compare that to Facebook with 68% of Americans who use it. Facebook has more of an impact on day to day lives of Americans than Twitter does.

    1. Only 22% of US adults use twitter

      What does it mean to “use” Twitter? That stat certainly doesn’t include people like me who just read others’ tweets and don’t even have accounts. It also can’t possibly account for tweets that are republished/linked in other media sources. But both of those categories, and likely others, factor into the footprint of influence for a given platform.

      1. So you don’t know how they define that term, but you’re sure that you know it doesn’t include people like you.

        Sounds like a wild-ass guess to me.

  13. “The Twitter official responsible for the platform’s fact-checking policy has tweeted that members of the Trump administration are “Nazis,” among other false and inflammatory statements on the platform.

    Yoel Roth, whose official job title is “Head of Site Integrity,” explained the platform’s new policy in a May 11 blog post on “misleading information” on coronavirus.

    “In serving the public conversation, our goal is to make it easy to find credible information on Twitter and to limit the spread of potentially harmful and misleading content,” he said.

    Twitter appears to have applied that policy to a broader category of assertions, moving beyond COVID-19 to President Donald Trump’s claim on Tuesday that vote-by-mail would lead to more voter fraud — a prediction with which even some Democrats have agreed.”

    1. “The Twitter official responsible for the platform’s fact-checking policy has tweeted that members of the Trump administration are “Nazis,” among other false and inflammatory statements on the platform.

      Its not a false statement.

      1. Falsely accusing others of being Nazis, as you are doing, is fomenting racism and violence.

        1. I doubt the accusation is that they are literally members of the Nazi party, but rather endorse Nazi ideology. That claim is a protected political opinion.

          1. The claim you describe is false, foments racism and violence, and, I assume, is also a protected political opinion.

            But also:

            Yoel Roth
            @yoyoel
            Yes, that person in the pink hat is clearly a bigger threat to your brand of feminism than ACTUAL NAZIS IN THE WHITE HOUSE.
            6:33 PM · Jan 22, 2017

            1. How can something be simultaneously false and an opinion?

              I would expect the courts to construe “actual Nazis” as advocating Nazi ideology rather than party membership.

              1. opinion, noun. a view or judgment formed about something, not necessarily based on fact or knowledge.

                Do you have a definition which says that opinions are nonfalsifiable? If so, I disagree that the claim that someone endorses Nazi ideology is an opinion.

                Of course, even false statements of fact can be constitutionally protected speech.

                1. You are such an awful lawyer.

                  1. Do you disagree with something I said?

                2. People have a lot of opinion on what constitutes Nazi ideology. So saying someone has a Nazi ideology will always be a matter of opinion. Some of these opinions are completely unsupported by historical evidence. Other opinions are squishy; Nazi ideology isn’t always coherent. Of course, some opinions on Nazi ideology are obviously well grounded in historical fact. But whether someone is truly living up to the fact is also a matter of opinion. Indeed, you could probably debate whether a self-identifying Nazi/Neo-Nazi/skinhead etc., is actually totally in line with Nazi ideology.

                  Then of course there is the problem that historically, not every Nazi agreed with every aspect of Nazi ideology, and a whole lot of Non-Nazis supported the Nazi Party being in power in some way. And then there are people who might not have been pro-Nazi but had affinity for some of their views, which again, could be a lot of things. There is so much opinion here that it is impossible to treat it as a statement of fact. And inevitably, it is often couched as an opinion based on disclosed facts. “So and so is like the Nazis because of facts x, y, and z.” Whether those facts actually match up to Nazism is a matter of opinion.

                  1. “Some of these opinions are completely unsupported by historical evidence.”

                    In other words, you might say that they are false.

                    1. Can it objectively be proven to be false?

                    2. The opinion that Nazism is purely a left wing phenomenon is completely unsupported by historical evidence. Yet I would not be surprised in the least if you disputed this.

                    3. Josh

                      “Can it objectively be proven to be false?”

                      Can anything?

                    4. Can anything?

                      Yes. I am wearing a shirt right now can be proven objectively true or false.

                    5. Josh

                      Maybe your brain is in a vat being told that you have a body and are wearing a shirt.

                      My point is, your claim that no objectively true or false statements can be made about what constitutes Nazi ideology seems absurd. You do realize that makes the very word and concept meaningless. It’s some 1984 shit.

                      It’s ironic that in this thread you have folks like David Neiporent claiming that people on the right are pushing some kind of post-truth world where “There are no facts.” Seems to be the other way around.

        2. Falsely accusing others of being Nazis, as you are doing, is fomenting racism and violence.

          Uh, no.

          1. Do you think Claus von Stauffenberg and others were right to plot the assassination of Hitler?

            1. Sure. There was no peaceful way to remove him from power.

      2. “The Twitter official responsible for the platform’s fact-checking policy has tweeted that members of the Trump administration are “Nazis,” among other false and inflammatory statements on the platform.

        Its not a false statement.

        Whether it is or not, I’m not sure what the OP’s point was in mentioning it. Trumpkins have tried to create this odd new principle that only loyal Trump supporters can judge Trump and his supporters in any context. If you’re a registered Democrat, or you supported Hillary, or if you just don’t like Trump, they act as if this disqualifies you from investigating anyone associated with Trump, prosecuting anyone associated with Trump, serving on a jury for anyone associated with Trump, serving as a judge for anyone associated with Trump, proctoring social media of anyone associated with Trump, etc.

        (And of course that extends further; you can’t even be a researcher who makes findings unfavorable to Trump.)

        1. The point is that this guy is severely deranged in his far-left political views. This is true regardless of whether he’s lying, engaging in hyperbole, or actually that untethered from reality. On top of that, he goes around making false statements on Twitter while “fact checking” the President, erroneously.

          Twitter’s fact check is also wrong anyway, because Democrats, Republicans, and mainstream outlets like the NYT have long acknowledged that mail ballots are more susceptible to fraud and abuse, especially with ballot harvesting. Such statements are evidence in and of themselves.

    2. “Yoel Roth@yoyoel
      · Nov 8, 2016
      I’m just saying, we fly over those states that voted for a racist tangerine for a reason.”

      We can trust twitter.

  14. Even if Twitter kicked him off the service they wouldn’t be stifling his speech. First, there’s no right to a twitter account. Second, he’s the president of the United States who, even without essentially having his own news network, has the tallest bully pulpit in the world.

  15. Just a few recent examples.

    https://www.breitbart.com/politics/2020/05/27/8-lies-by-joe-biden-and-the-left-that-twitter-didnt-fact-check/

    1. Media falsely claim that Trump went golfing on Memorial Day — not fact checked by Twitter.

    2. Biden, Democrats falsely claim they called for lockdowns one week before Trump — not fact checked by Twitter.

    3. China pushes conspiracy theory that the U.S. military created the coronavirus — not fact checked by Twitter.

    4. Biden claims Trump has “no comprehensive plan” for the virus or the economy — not fact checked by Twitter.

    5. Biden claims he wants “any records” of Tara Reade’s sexual assault allegation against him to be released, even though he’s blocking the release of his Senate records — not fact checked by Twitter.

    6. Media falsely claims Trump was warned about the outbreak as early as November — not fact checked by Twitter.

    7. Kamala Harris falsely claims that 100,000 coronavirus deaths “didn’t have to happen” — not fact checked by Twitter.

    8. W.H.O. claims “no evidence of human-to-human transmission of the coronavirus” — not fact checked by Twitter.

    1. 5. He’s not blocking them, the Secretary of the Senate.

      7. Is an opinion.

      1. *it’s

      2. 5. I don’t think so. It seems they are referring to records at the University of Delaware which Biden is refusing to release.

      3. 1. Memorial Day weekend being called Memorial Day is not some huge lie.
        2. Very much depends on how you define lockdown.
        3. Is just true.
        4. is opinion.

        Breitbart lies. ML never bothers to check them. When I post Mother Jones or Vox you’d better believe I Google around to make sure I’m not posting nonsense.

        1. The US military created COVID-19? Do tell Sarcastro.

          I can see 4 being opinion, pretty nonsensical though. 1-3 are false (in the sense of no evidence).

          1. To clarify – On #3 I sense you misinterpreted this as being news reports about what China was claiming. A reasonable mistake without reading the article.

            But no. This is referring to literal CCP propagandists posting on Twitter.

  16. Probably the most hilarious thing about the social media censorship “fact checking” is how, to back up their “facts,” they point to none other than the master progenitors of lies and fake news themselves, CNN, MSNBC and the like.

    1. The general hostility to fact checkers on the right is quite a thing. Not a particular one, just fact checkers in general. All of them, super biased.

      Telling as all hell.

      Reminds me of Colbert’s note about how reality has a well-known liberal bias.

      1. “Not a particular one, just fact checkers in general. All of them, super biased.”

        Lol. And least the left confined itself to complaining about the weekly standard.

      2. I love fact checking, as such. I do it myself and appreciate others doing it.

        But “fact checking” in the speak of CNN, Politifact and the like has proved itself to be a laughable farce when it comes to any really controversial hot button issue where it counts.

        1. You just posted a Brietbart post riddled with inaccuracies.

          Maybe don’t quit your day job.

            1. Given the inaccuracies and…pedantic understanding of the issues you’ve put forth, I suspect that many people hold the same opinion of your ‘fact-checking’ as I do:

              I wouldn’t employ you to fact-check anything, even if you paid ME.

              1. Jason,

                What inaccuracies? Are you referring to the discussion above, where people are claiming that calling someone a Nazi can never be false?

  17. It’s pretty interesting and bizarre that for Twitter’s very first act of “fact checking” Donald Trump, they chose the topic of mail voting and they chose to be so spectacularly wrong.

    There is a long and well established record of Democrats, Republicans, and MSM outlets like the NYT acknowledging that mail ballots are far more susceptible to fraud and abuse.

  18. “Fact checking” is pretty useless. Is the checker wrong, or the checkee wrong? It’s better to make it easier to find information that enable people to decide for themselves.

    1. Fact checking generally contains citations.

      Like wikipedia, it’s not the end of the journey but it’s a pretty robust foundation to build on.

      1. Citing left wing think tanks as an authoritative source is part of the “fact checker” problem…

        1. “Fact checking” groups are usually left leaning media that cites left leaning media stories for “proof” of it facts.

          Its a giant circle jerk.

          1. Just ad hominem everywhere.

            Telling how much you all are just generally against fact checkers.

            1. The whole thing about Trumpkins is just to delegitimize every institution.

              Complaints about the liberal media used to be about “working the refs” — criticizing perceived bias in an attempt to get them to bend over backwards to be fair to you, or maybe even in your favor. Now, though, it’s just about saying, “There are no facts. Nobody should believe anything we dislike, because anyone who says such things is by definition biased. There are no objective sources, so you might as well just believe us.”

              1. I mean, it clearly works.

                1. “I can’t believe people are calling out breathtakingly dishonest media propaganda.”

                  1. ML, you regularly post Breitbart. And its regularly shown to be BS.
                    And you keep doing it.

                    Maybe not so much talk about honesty.

                    1. Where has it been shown to be BS? Breitbart is more honest because they are up front about being fully partisan.

            2. No it isn’t anything about checking facts, it is that “fact checking” is just code for “Ministry of Truth”.

              “Facts” are just more political spin framed a different way to bolster political spin. Creates a feedback loop. Political statement is supported by politically engineered fact which then provides “legitimacy” to the political statement. The Left does this all the time with climate change.

              “The ice caps are going to melt”, then cites a left leaning think tank that has produced a document that looks like “science” to support the statement. Nice little loop that creates. The problem is it is just a political statement bolstered by more political work. It doesn’t cite a fact in the true dictionary definition, but instead just guides the reader to think the statement has some kind of real objective support when it doesn’t.

            3. “Just ad hominem everywhere.”

              If you’re going to use it, use it right.


              1. Citing left wing think tanks as an authoritative source is part of the “fact checker” problem…

                “Fact checking” groups are usually left leaning media that cites left leaning media stories for “proof” of it facts.

                1. It’s a neat circular trick. Sort of like how you can leak bogus info to the press and then use the press reports to get a FISA warrant to spy on the Trump campaign.

                  1. And then get one of his appointees, Rosenstein, to sign the FISA application and another, McGhan, to advise firing Flynn….wait what??

                  2. Saying you won’t believe them because they’re biased is ad hominem.

                    I read your Breitbart links.

                    1. Fair enough. And I read left-leaning sources all the time.

      2. “Fact-checking” is often just a fancy term for “counterargument”.

        1. No, it is not. Fact checking sites are not postured like that.

          It’s like you’ve never been to one.

  19. The media’s desperate, flailing dishonesty is very amusing sometimes.

    ANCHOR: “Are the people there just not worried about it? Are they not worried about their personal safety?”

    REPORTER: “I haven’t met anybody who is… you can see here, nobody’s wearing them [masks].”

    GUY ON STREET: “Including the Cameraman.”

    REPORTER: . . .

    GUY ON STREET: “Half your crew is not wearing masks.”

    https://twitter.com/EddieZipperer/status/1265374806662397953

    1. People wonder why the media is so desperate to shame Trump into wearing a mask. It is obvious to anyone who say Biden wearing one, they want him to look like wear one because they make you look like an idiot and the media wants the picture to make memes and embarrass Trump. Hence why he won’t play into the ploy.

      1. Or because he’s the leader of the country and they want him to set a good example.

        1. Can’t blame the guy who has been the victim of a concerted smear campaign for the last four years to think the media now has only good intentions….

          1. Funny how most of the smear campaign is based on the things he says and does that we can all see and hear. No one needed the media to figure out he sucks. You could figure it out by reading his tweets prior to his announcement for President. You could also figure it out by listening to the things he says. I could only watch Fox and Friends or Hannity for the last few years…and I would still figure out that he is a terrible person.

          2. How about we blame him for being a dipshit and a terrible leader who is influencing other dipshits to do precisely the most unhelpful thing possible during a pandemic which – due to his aforementioned terrible leadership – has killed over 100k Americans already?

            Or is that beyond the responsibilities of a President, provided that the child in question thinks the world has been unfair to them?

      2. ” the media wants the picture to make memes and embarrass Trump.”

        assuming that it IS possible to embarrass Trump. The guy asked a doctor if they were looking into injecting disinfectant to treat a disease. The guy embarrasses himself on a regular basis. Or at least, he should have been embarrassed by various statements and actions, and would have been if he had a normal mental capability.

  20. “If Twitter, for instance, started taking down . . . criticism of the Chinese government . . .”

    Kinda funny that EV thought of this example on the very day YouTube is reported to be doing just that.

  21. ” Twitter’s decision to block certain posts might be seen as the exercise of its own First Amendment rights as editors (a plausible argument, though not a fully settled one,”

    Naw. It’s ordinary property rights. If they decide not to use their equipment to spread a message. In much the same way that Mr. Trump may choose to block me from spray-painting “Trump sucks” on the side of his building in NYC.

    1. Indeed – the 1A is meant to protect Twitter from Trump.

      Some on here want to protect Trump from Twitter.

      I won’t go further on what that kind of thinking is.

  22. Oddly, no discussion of Knight First Amendment v. Trump.

    If Trump’s Twitter feed is a government controlled public forum, isn’t Trump well within his rights to moderate its content, provided that moderation is content-neutral?

    It would seem that Trump has every right to get rid of fact checks being embedded within the body of his own tweets.

    1. I don’t know what you mean by “right.” Unless he hacks into Twitter’s servers, which he of course has no right to do, he can’t get rid of those fact checks.

      1. He can sue.

        1. He can sue under what theory of relief? Please be specific.

          1. The Second Circuit has ruled that Trump’s Twitter feed is a government controlled public forum. As such, Trump has as much control over the direction and structure of his Twitter feed as he does over the White House Press Briefing Room, provided he does so in a content neutral manner.

            If Trump’s Twitter feed is government controlled property, Twitter is in the wrong.

            1. So, presumably he can sign an executive order, and then sue Twitter to enforce the order.

            2. As such, Trump has as much control over the direction and structure of his Twitter feed as he does over the White House Press Briefing Room,

              Incorrect. You confuse the issue of what he can’t do with the issue of what he can.

              If Trump’s Twitter feed is government controlled property, Twitter is in the wrong.

              Trump is bound by the 1A. Twitter is not.

              1. “Trump is bound by the 1A. ”

                No, he isn’t. Congress is bound by the 1A.

  23. I agree that the correct legal result under current law is that the social media companies win. But Professor Volokh here is not arguing a legal result. He is advocating a policy result. I don’t think current policy is best for free speech. Social media platforms are communications networks, like the railroads and telephone networks of old. The big ones are effective monopolies. And I think the best social policy for communications networks, especially monopolist ones, is to regulate them as utilities, including a non-discrimination requirement traditionally applicable to utilities.

    Facebook, twitter, etc. are much more like telephone companies than newspapers. They should be regulated as such.

    1. If only there were some kind of legal framework that allowed for government regulation of actual monopolies. If we only had that, then people who want to feel oppressed would only have to prove that the entity that wronged them actually had a monopoly, and then they could take action.

      If you don’t likehow a social media company works, then don’t use that company’s products. Build your own and run it the way you think is best. It worked for Roger Ailes.

  24. TWITTER CENSORED MY ACCOUNT. I went ahead and deactivated it.
    I found this article while using Google to find a Twitter alternative.
    So, FUCK TWITTER!
    Having said that, the IDIOTS writing above will conveniently set aside and dismiss the fact that these Social Media Services have in their mission the “Free Sharing of Ideas”
    Here’s Twitter:
    “The mission we serve as Twitter, Inc. is to give everyone the power to create and share ideas and information instantly without barriers. Our business and revenue will always follow that mission in ways that improve – and do not detract from – a free and global conversation.”
    FREE….DID YOU READ THAT? FREE and WITHOUT BARRIERS
    So the moment my ideas do not agree with FREE then I am CENSORED? WHAT THE FUCK?
    Twitter is NOT A PUBLIC FORUM. Even though they claims they are. They are just another Activist Platform for a certain Broad Flavor of Politics.

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