Cancel Culture and Freedom

There are a lot of valid critiques of "cancel culture". But the most important thing to remember is that it mostly consists of people legitimately exercising their own freedom.

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In the wake of Simon and Schuster's decision not to publish Sen. Josh Hawley's book, The Tyranny of Tech, Hawley has tweeted:

This could not be more Orwellian. Simon & Schuster is canceling my contract because I was representing my constituents, leading a debate on the Senate floor on voter integrity, which they have now decided to redefine as sedition. Let me be clear, this is not just a contract dispute. It's a direct assault on the First Amendment. Only approved speech can now be published. This is the Left looking to cancel everyone they don't approve of. I will fight this cancel culture with everything I have. We'll see you in court.

Now I don't know anything about the details of his contract. If this is breach of contract, I hope he wins. But let me put that aside, and note a few things.

1. A private publisher's refusing to publish a book is not Orwellian.

First, this does not implicate the First Amendment in any way. The First Amendment, like all but two constitutional provisions, applies only against governmental entities; this so-called "state action doctrine" is one of the most important doctrines of U.S. constitutional law, and plays a vital role in preserving freedom.

But that's a detail of constitutional law (though it's presumably a detail that Hawley, a well-trained lawyer, knows about). The more important point is a moral point, independent of constitutional law: If Congress or some legislature sought to impose a legal duty on Simon & Schuster to publish authors without regard to politics, it would be wrong to do so: it would be a violation of Simon & Schuster's freedom. It would be a violation of its property rights, because it would force Simon & Schuster to use its resources to serve someone it doesn't want to serve. And it would be a violation of its freedom of association, which is one of our most important moral rights.

That Simon & Schuster is a corporation is immaterial: talking about its rights is just a shorthand way of talking about the rights of its individual owners, who happen to do business using the corporate form. If I'm a stockholder of ViacomCBS (Simon & Schuster's parent company), a requirement that Simon & Schuster act evenhandedly with respect to politics violates my property rights and freedom of association (which I've chosen to exercise together with others using a particular decisionmaking structure). It violates my freedom of association just as much as if you insisted on me personally delivering your repugnant message; perhaps my decision to do business impersonally, with a huge number of others and using agents who I'm not personally involved with, might dilute some personal privacy rights, but my associational rights are unimpaired.

Nor are there any conflicting rights at issue here. Hawley has no right to publish a book with Simon & Schuster, using Simon & Schuster's resources, without Simon & Schuster's consent. As I've said above, if Simon & Schuster consented through their contract with Hawley, they're properly held liable for reneging now. But in the absence of such an affirmative commitment, Simon & Schuster's decision to not publish Hawley's book violates no rights of Hawley's at all, and so a requirement that it serve Hawley would violate Simon & Schuster's rights without protecting anyone's rights in return.

In light of this, there is nothing Orwellian about any part of this episode. We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don't want to associate with us. Governments may have to treat everyone evenhandedly, but private individuals lack such a moral duty. In fact, I'd say that the ability to choose what to do with your own resources without having to justify the reasonableness of your choice to any higher authority—in short, the ability to act arbitrarily with your stuff—is the essence of private ownership of the means of production, and the essence of freedom. Freedom can be appropriately limited to protect the rights of others, but the interest in doing business with an unwilling partner is not one of those rights.

(I don't necessarily mean here to question the legitimacy of all positive enactments limiting property rights and freedom of association. There are many such enactments, and each might have its own merits; perhaps freedom might be appropriately limited in some contexts, though I think the right for private people to discriminate based on politics is an important right that shouldn't be infringed. I'm just making the point that these enactments do limit freedom, and that in any event, the default, in the absence of such enactments, has to be freedom of association.)

2. Tech companies are generally just exercising their own freedoms.

I don't mean to be piling onto Sen. Hawley here (though he certainly deserves it!), but what about the substance of his book? All I know about The Tyranny of Big Tech is what I've read in a news article, so here's my impression:

Hawley has frequently criticized Facebook, Twitter and other social media giants for everything from alleged anti-conservative bias to monopolistic control of the online market.

"At a time when these platforms are determining elections, banning inconvenient political views, lining politicians' pockets with hundreds of millions of dollars, and addicting our kids to screens, I want to draw attention to the robber barons of the modern era," Hawley said in a statement. "This is the fight to recover America's populist democracy. That is why I am writing this book."

Earlier this week, Hawley attacked Facebook and Twitter for limiting the spread of an unverified political story about Hunter Biden, son of Democratic presidential candidate Joe Biden, that was published by the conservative New York Post. Soon after he was elected Missouri's attorney general, in 2016, he launched investigations into Facebook and Google for alleged antitrust and consumer protection violations.

There are lots of critiques of tech companies, and I don't mean to address all of them here. I'm open to the idea that some tech companies are acting improperly in some of their dealings (e.g., involving privacy violations). But Hawley's critique is more wholesale than that.

I'm willing to believe that the largest tech companies have an anti-conservative bias. If you're conservative, you might find it less congenial to work at Google (and you might be fired from there if you're not careful), and you might be more likely to be banned from Facebook or Twitter than someone on the left posting equivalently fake news. There are interesting things to be said about whether that's a good idea or a good business practice, whether that encourages ideological echo chambers, whether people should quit those platforms and join more neutral platforms, and whether that creates the opposite risk of reinforcing echo chambers among conservatives.

But you know what? Facebook, Google, Amazon, Apple, etc., have their own property rights and associational rights. You can call it "censorship" if you want, but I'd advise against it, because it runs the risk of suggesting that such behavior is objectionable in the same way as censorship by governments. Government censorship, whether outright bans, taxes, or other sorts of differential treatment, will often violate free-speech rights. By contrast, private refusal to treat different views evenhandedly is an exercise of those platforms' rights and does not violate any rights of yours, because you have no right to post anything on an unwilling platform (unless the platform has committed itself otherwise, e.g. through its terms of service, though those are often either vague or deliberately grant the platform broad rights).

So while it's interesting to discuss what Facebook or Twitter's policy should be as to different varieties of political speech, it's important to remember that Facebook or Twitter (setting aside violations of their own terms of service) are incapable of violating your rights by choosing what to brand as fake news or what accounts to ban, because you do not have any such rights.

I'm sure this only scratches the surface of what Hawley writes in his book, but this analysis can be easily extended. "Determining elections"? If Facebook affects the outcome of elections by banning pro-Trump accounts or marking pro-Trump posts with disclaimers or bogus "fact-checks", while it tweaks its algorithm to aggressively promote pro-Biden posts, that's its right. It's the same right we all have: to choose how to use our own resources to promote views we like. Facebook has not acquired extra responsibilities by being large: it has the same associational freedom that Mark Zuckerberg had in his dorm room in 2003 when his Facemash allowed you to rank the hotness of Harvard undergrads. (Maybe it has even more associational freedom now, because for all I know, Zuckerberg was constrained by Harvard's Internet usage policies back then?)

Monopolistic control? That's what tends to happen when you have a popular platform with network externalities. Nobody's forcing anyone to use Facebook. And mergers are just an exercise of contractual and property rights: anyone should be able to buy anyone else's property. Nobody has the moral right to deal with more social networks instead of fewer, because nobody is entitled to have access to a social network at all without that network's consent. They have rights to use their resources, you don't have the rights to their resources.

3. Private universities have no duty to be even-handed.

While we're on the subject of private university policies—which gets us beyond Hawley and his book—there are plenty of universities that aren't evenhanded. Conservatives have a tough time on many university campuses. And not just conservatives: if you talk to pro-Palestinians and pro-Israelis, each will tell you that they're the target of discriminatory treatment. Maybe they're both right. Harvard had a policy against single-sex organizations, which it (thankfully) abandoned in the wake of Bostock.

But let me sound like a broken record now: Government-run universities may have duties to be evenhanded, but private universities are just exercising their property rights and associational freedoms when they decide to discriminate against political views or organizations they don't like (provided they haven't limited their options, for instance by contract). And you—the student, employee, or faculty member—have no right to a private university's property, money, or other resources without its consent. A private university (like my university, Emory) has as much associational freedom as if it were your private tutor giving you lessons in his or her own apartment.

Now of course there are lots of interesting arguments one can make about what universities should do. My university has voluntarily chosen to commit itself to quasi-First Amendment norms as a matter of university policy, and I'm actually the chair of a committee whose mission is to help implement the policy. I feel strongly about that policy, but it's not because I think I (as a professor) or the students have moral rights to politically evenhanded treatment (as we would at a public university). We lack such rights, except to the extent the university has granted them to us. Of course, with respect to governments, it goes the opposite way: we have moral rights, which the government must respect. But we lack the right to exercise those rights on private property, or using private resources, without the property owner's consent. So my views on free speech on private university campuses are not a matter of rights, just a matter of my views about what's a good way to run a university. Above all, I recognize that the university has the moral right to shut down any speech it likes (consistent with its contractual commitments) if it wants to.

4. A side note: Removing monuments from the public square, or books from school curricula, is not banning books or erasing history.

Let me digress a bit, into an area that isn't about private ownership and private associational rights, but still gets at various aspects of so-called "cancel culture". This is a point that applies equally well at public schools and in the public square.

Today, it's (rightly) fashionable to remove statues of Confederates, and (sometimes questionably) fashionable to remove statues of people who might have done good and important things for their times but fall short of modern progressive standards. Whenever this happens, the claim is that the statue-removers are "erasing history". Similarly, sometimes books are removed from curricula because they don't conform to currently fashionable standards, and sometimes this decision is questionable, as when books critical of racism are removed because of their depiction of racism, or when a book important to the Western literary tradition is removed because it makes people feel bad. There, too, you hear claims like "book-banning".

Let's start with the statues, though this analysis also applies to building, street, and city names, postage stamps, and the like. The public square is not a history textbook; it's a way for the government that controls the space to show who it honors. The public square has limited space—and I don't mean primarily physical space; people's brain-space and interest level are limited, so the owner of a public space has limited ability to make an impact on its intended audience. You could easily multiply the number of statues by 10 in many places without significant physical crowding, but if you want to show who you honor, it's probably more effective, given people's limited attention, to honor fewer people and in a more prominent way.

Now there are many good arguments you can make about who should be honored, and when something should be renamed. These arguments could involve whether the person was really so bad and whether their good accomplishments overshadow their bad ones; they could involve whether the transition costs of renaming would be too high (especially when we're renaming streets or cities); they could involve the merits of removing vs. contextualizing (especially with extremely large monuments like Stone Mountain); and so on. This will inevitably involve culture-war considerations, because choosing who to honor with statutes or building names has virtually no concrete effects and is overwhelmingly about symbolism. By the way, all this might be an excellent idea for removing the government from the business of honoring people—but I'm sticking to the world as it is now.

Needless to say, replacing statues with other statues, renaming buildings, etc., rarely violates anyone's rights (outside of the unusual case where there was a contractual commitment to keep a donor's name on a building, or the like). But is this "erasing history"? Not at all. No books are banned; no speech is restricted; this is the government choosing who to honor. The fallacy is in thinking that the public square is like a history textbook. In fact—assuming that governments should be in the statue business—we should probably be changing our statues more frequently, as some previously notable people are forgotten and popular values change.

How about school curricula? Just like the public square, the curriculum for a given grade has limited space. Someone has to choose what to put there, and there's no obvious reason that The Odyssey or Huck Finn has to occupy any particular place. There's a huge number of books appropriate for any grade level, and many of those might be equally good for pedagogical purposes.

As before, one can make many interesting arguments about what should and shouldn't be on the curriculum. One can argue that the curriculum should be primarily about cultural literacy, which means the Great Works should be taught because we need kids to know the history of literature, even if it has offensive components. (I generally agree with this perspective, especially for the higher grades and for college courses, though that's not the only consideration.) One can argue that the curriculum should be about books that are engaging and make kids want to read. One can argue that, when a book contains elements that are offensive to modern sensibilities, discussion of that element will dominate class time and improperly overshadow the literary values of the work, so why not choose a book that's relatively inoffensive but is still good for teaching writing skills and reading comprehension?

This is a fascinating discussion, which involves listening to teachers' experiences with actually teaching particular books and subjects to kids of the relevant age and grade level, as well as ideological issues like who to honor, whether to stress women and minorities, whether to seek out or avoid particular topics, what view of U.S. and world history to convey, etc. But here's the thing: none of this is remotely like banning books or erasing history. It's a managerial issue of how to allocate limited curricular space.

* * *

This has already been long enough, but I hope the theme is clear. "Cancel culture" is a broad term that embraces lots of different acts and lots of different consequences—boycotts, firing, piling on to someone on social media, refusal to be friends, rescinding a college acceptance or speech invitation, pulling down a statute, taking a book off the curriculum, etc. In some cases, some of those acts might violate someone's rights. This is especially true when someone has made a contractual commitment to do the opposite, or when a government is acting. Governments have certain duties to be evenhanded, but people lack those duties. Instead, people have freedom, both freedom to choose how to use their property and other resources, and more generally a right to choose who they'll associate with. Those are core freedoms. We should feel free to argue about how people ought to exercise their freedoms, but always recognize that the freedoms are theirs to exercise.

NEXT: Wisc. Sup. Ct. Upholds Lifelong Ban on Gun Possession for Felony Failure to Pay Child Support

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  1. Not associating with Josh Hawley is not cancel culture.

    It’s a moral imperative.

    1. And in a free society, you have the right to be a bigot.
      And I have the right to call you one.

      1. I proudly declare myself to be bigoted against treasonweasels.

        1. Bull Connor proudly declared himself to be bigoted against a different group of people. And I hold you both in equal contempt.

          1. Lol. I like how’re your rushing to condemn Bull Connor as if wouldn’t have been on a Citizens Council sixty years ago. Everything about your personality says you would be.

            1. * how you’re. I need more coffee apparently.

              1. Not all you need.

                I assure you that I would not have accepted his tactics or prejudices.
                Actually, he was essentially fired.

                1. HA. You would have made excuses for why Medgar Evers deserved to be shot and ranted about how Civil Rights marchers were all Marxists and that any show of support for them by the federal government was a betrayal of the values of your beloved and imaginary “Joe SixPack” who voted for Goldwater in a landslide.

                  1. Well, some of them *were* Marxists — and CP members. A lot of people were before the tanks went into Prague in the Spring of 1968….

                    1. And away we go!

          2. So you’re a big fan of pedophiles on the grounds that it would be wrong to be bigoted against a group of people?

            1. Convicted pedophiles?

              You do understand the meaning of the word “convicted” don’t you?

              1. You only hang out with the ones that haven’t been caught yet.

                1. That is uncalled for and says way more about you than me.

                  I’m an unapologetic conservative and I try to make a distinction between “arrested” and “convicted”, even though I know that the cops aren’t going to be arresting people who are innocent. And if I can make that distinction, can’t you?

                  1. Nope.

                    If I suspect that someone, like you, might be a big fan of pedophiles, then I won’t let you spend time alone with my kids.

                    I don’t need to wait for you to be arrested. Let alone convicted.

                    I have this weird and uncanny ability to make choices and decisions about people without needing the imprimatur of the state. You should try it sometime!

                  2. Well, I’ll grant that you’re unapologetic. Let’s agree to disagree on the “conservative”. I would suggest the word you’re looking for is “reactionary”.

                    1. The word is “idiot”. Though likely not convicted.

              2. “Convicted pedophiles?
                You do understand the meaning of the word “convicted” don’t you?”
                I understand the word “convicted” better than you do, apparently, because I know there’s no such thing as being convicted of pedophilia.

          3. Dr. Ed proudly declares himself to be bigoted against rational thinking.

      2. And in a free society, you have the right to be a bigot.
        And I have the right to call you one.

        Am I doing it right?

  2. I would add, having watched the entire procedure the night of (before falling asleep a little after midnight) that my favorite moment was watching Mitt Romney watch Josh Hawley speak.

    That was everything you need to know about the difference between honor and a hollow shell of a person who has squandered his talents and the great bounty that god and country has provided to him.

    1. Mitt Romney is the “hollow shell” — he has trimmed his conscience for political gain so many times that I’m not sure he even knows what believes in, other than what is good for Mitt.

      He destroyed the Mass GOP, dragging it to the left here and then trying to claim to be an “extreme conservative” when he ran for President, and then claiming God-knows-what when he ran for Senate. In a way, I feel sorry for him.

      1. Even if you were accurately describing his actions, it’s hard to see how dragging the Massachusetts GOP to the left could constitute “destroying” it. (You at least pretend to be familiar with Massachusetts, don’t you?)

        Indeed, since he was governor the Massachusetts GOP has captured a senate seat once, for the first time in three decades, and the governor’s seat again.

        1. It’s too bad there’s that other David about. I speed read through comments and I always do a double take when a David says something sane.

          1. I may disagree with DMN from time to time, but at the very least, he is capable of spelling “David” correctly.

        2. Warren and Markey are the Senators from Massachusetts.
          Romney is from Utah, I believe. A seat the GOP already held.

          1. Yes, and after Romney’s governorship, Scott Brown was elected to the Massachusetts senate. An odd outcome if Romney “destroyed” the party.

            1. That was in spite of Romney — Brown wanted to run for something else and Romney wouldn’t let him so he went for this instead.

              Like Georgia now, this was a national election in hopes of killing Obamacare.

              1. You are a comprehensive dumbass and a character-free loser.

                And the backbone of the Volokh Conspiracy’s carefully cultivated class of commenters.

      2. You mean a “severe” conservative, not “extreme.”

        1. No, it’s totally to the extreme. like Vanilla Ice.

      3. Weird how Mitt Romney went from woman-hating, dog-killing rich 1%er oppressive patriarchal white man during his campaign for president in 2016 to an esteemed Senator who is above reproach.

        Reminds me of GWBush, former chimp NAZI warmonger who is now on Barack Obama’s inner-circle party list.

        We live in a world of perpetual metamorphosis.

        1. Well, yes and no. Past Republican presidents and presidential candidates keep looking better in hindsight, because the Republicans keep nomination more and more awful people for president. Romney is pretty much still where he was in 2012, minus a bit of pandering. The rest of the Republican party, on the other hand…

          1. ” Past Republican presidents and presidential candidates keep looking better in hindsight, because the Republicans keep nomination more and more awful people for president.”

            wonder what W would have been like, absent Cheney’s influence?

    2. It was only eight short years ago that Mitt Romney was “the Biggest Liar in American Political History,” and that the mere fact of his nomination caused Ellen DeGeneris to say that she had never been more terrified of being a woman. Funny how things can change in eight short years.

      1. In 6 months when he opposes some lib bill or another he will once again be a very bad man.

  3. If I had agreed to publish a book, expecting heavy sales, but then the author does something that turns his reputation to dog poop, meaning sales will be minimal and I’d lose $$ . . . I’d try to get out of the agreement if possible. Simply a commercial decision.

    1. I see it the same way. To me, this is a contract thing, not 1A.

      1. It’s not even vaguely 1A. If it’s an anything, it’d have to be contract. Though book publishing contracts are only slightly less one-sided than record deals, or cruise-ship bookings.

    2. “expecting heavy sales”

      LOL S&S is not that stupid.

      Few of these vanity book projects by politicians sell well. Ex-presidents and even first ladies, sure. Sui generis ones like Sarah Palin, sure. Hawley, even after this month, is an unknown.

      1. They get their campaigns to buy boxes until they are on the best seller list, then give those books away to donors. It’s a very old scheme.

        1. Some of that but its not “heavy sales”, at best modest.

          1. If you want to really sell books you need a boy wizard or a giant death tournament of children or sparkly vampires.

      2. It’s clearly political. The idea that they are worried about . . . what? People boycotting their books? It doesn’t even pass the laugh test.

        It’s just a political gut punch. Not that that makes it illegal of course.

        “Few of these vanity book projects by politicians sell well. Ex-presidents and even first ladies, sure.”

        They do better with selling than they do with actually getting read. Buying pallets of books is a great way to pay people money under the radar.

        1. “It’s clearly political. The idea that they are worried about . . . what? People boycotting their books? It doesn’t even pass the laugh test.”

          One of the things they’d have to worry about is having the people who write the books that sell really, really well, might choose to have their extremely-profit-generating books published by someone else.
          That’s the problem with having your profits depend on the work of somebody else.

      3. Surely nobody would suggest that conservatives buy books from their “leadership” just for show.

    3. I’d do a marketing study first — there were several hundred thousand people who went to DC on a Wednesday, I don’t exactly call that dog poop.

      No, Simon and Schuster is terrified of the SJW and that is the true domestic terrorism in this country. The problem is that we don’t harass them for publishing lefties.

      The bigger problem is that a lack of competition permits Simon and Schuster to do this — they don’t have to make commercial decisions because they are one of the few publishers left.

      1. I’m sure you are an expert in the publishing business as well as all the other things you purport to know.

      2. The problem is that we don’t harass them

        Noted

        1. Harassing isn’t enough.

      3. I’d do a marketing study first — there were several hundred thousand people who went to DC on a Wednesday,

        Yes, but can any of them read?

        1. English, unix, or HTML?

          I suspect that many can read all three…

          1. Sure, they can recognize the letters, but I wouldn’t bet on them being able to read BASH or HTML. Those require use of logic.

      4. “I’d do a marketing study first — there were several hundred thousand people who went to DC on a Wednesday, I don’t exactly call that dog poop.”

        Your counting skills are dog poop. But you’re right, they DO show a likelihood of buying stuff they don’t need because some jackass told them to buy it.

  4. Summary: a lukewarm, rambling quasi-endorsement of totalitarian control as long as the ones policing everything, everywhere are not on the government payroll. Blacklisting gets a thumbs up.

    1. Yes! Property rights!

      1. Thanks for being clear, blacklisting supporter Sasha Volokh.

        Be sure never to make a mistake in your life or mess up one of the many loyalty oaths you will be asked (Haha) to recite.

        And, of course, never, ever defend anyone else who makes a mistake. That would be a mistake.

        1. Being a right-wing bigot is not “a mistake.”

      2. Sasha, there was a time in this country when any book you sought to publish wouldn’t have been because of the way you spell your name. That was legal (then, not now) but it was wrong.

        I think the mistake we made was that in carving out some exceptions to property rights (the nondiscrimination laws) we got away from the concept of things being morally wrong and instead fell into the trap of that which the law prohibits and that which it does not.

        Yes, property rights should be respected. But we also should expect those rights to be exercised in a moral and ethical manner — to not discriminate against people. And that is what this is.

        1. If Hawley had come out as, say, a holocaust denier would it have been okay to drop his book then? If he had beaten a man bloody with a cane on the senate floor? What is the limit for which S&S must tolerate the actions of an author before dropping them?

          1. I’m reminded of female authors who had to write under male names.

            Personally, I view books as works of art, independent of the artist.

            1. Outside of publishing scientific papers, you’re confusing “chose to” with “had to”.

        2. So why don’t you publish his book? If he asks you to, it’s immoral not to? And after that you can publish President Obama’s next book. Bernie Sanders next. Then AOC.

      3. “Yes! Property rights!”

        Visa and MasterCard have already tried to not let legal companies selling legal products like guns use their credit card systems. I guess you endorse that.

        Banks have cancelled loan arrangements for legal companies selling legal products like guns. I guess you endorse that.

        Will you endorse it when individuals are denied loans or credit cards because of their political views? I guess you will, they can always use cash for everything. Oh, no, they have also gotten fired from their job. Um, what now.

        Maybe your knee jerk “Yes! Property rights!” is short sighted.

        1. Wait until the banks get together and ban Sasha’s brother from using the banking system — because he quoted the n-word in an article about a court case.

          Private property!

          1. And further, quoting the n-word in an article about a court case arguing against horrors of Racism.

          2. BTW: Good luck mounting a legal defense against the banks without access to the banking system, or any help from anyone with access to the banking system.

            Property rights though.

        2. ” I guess you endorse that.”

          If you don’t. are you endorsing having the government tell private ownership what they can do with their property?

        3. “Visa and MasterCard have already tried to not let legal companies selling legal products like guns use their credit card systems. I guess you endorse that.”

          That’s capitalism at work. Have you gone over to the dark side and decided to condemn capitalism because it doesn’t comport with your Conservative values?

      4. Are you as fervent in your support for property rights when a religious baker doesn’t want to bake a “wedding” cake for a “couple” whose idea of marriage consummation is buggering the other man in the tuchis?

        1. Yeah. “But the most important thing to remember is that it mostly consists of people legitimately exercising their own freedom.”

          That freedom died when they started enacting public accommodation laws.

          1. I think there was a very limited time period in which public accommodation laws may have been justified, during the period where people couldn’t find ANY store that would serve them. But certainly not in perpetuity, and certainly not on the federal level.
            In any event, that time has long since expired.

            1. So…since there’s other ways to publish a book (including self-publishing), what’s the beef here?

              1. I didn’t say I supported forcing S&S to publish anything.

                “There may have been a good reason why classical tolerance of expression was summed up in the epigram: “I disagree with what you say, but will defend to the death your right to say it!”

                That has a different feel than: “I disagree with what you say, I think you are evil for having said it, I think no one should associate with you and you ought to lose your livelihood, and anyone who doesn’t agree with me about all that is skating on pretty thin ice as well, but hey, I don’t think you should be arrested for it.””

                1. Sure. I have a lot of problems with cancel culture too. It’s tricky in these high-visibility situations because I totally understand how a publisher might not want to be associated with Hawley for the same reasons CNN might not want to be associated with Kathy Griffin, but I think it gets taken way too far including situations where the consequences for dumb speech seem wildly out of proportion with the speech itself.

                  1. So one more iteration of conservative people being all bothered by “cancel culture” as if they didn’t invent it and use it for decades, then?

          2. God you are an awful person.

            1. You looking in the mirror again?

              1. Are you standing behind it you murderous freak without morals? How many people did you imagine killing today? Did you smile at the thought of killing Biden in front of his grandkids? Did you coinsider killing them to or was that too much? Was I one of them? Did you imagine killing me?

                1. Actually, I imagined all of you on a partitioned side of America, left to your own devices to practice your sick little games and letting the rest of us live and let live.

                  All liberals being dead is the next best thing.

                  1. Sounds like you should get together with Craig Cobb and try to buy a town in North Dakota where you can partition yourself off from the rest of us. Then we would be able to practice our sick little games without upsetting you pismires. You all could sit around and tell stories about how superior you are to the rest of us. Until they figure out that you’re a Jew, that is. Good luck convincing them you’re white.

                  2. there used to be a place for people like you in northern Idaho, but I think the good and decent people finally started pushing y’all out.

          3. “That freedom died when they started enacting public accommodation laws.”

            So this is what the world looks like through an autistic, bigoted, chemical, disaffected (I’ll stop going through the alphabet here, but everyone gets the picture) . . . haze.

            You’re just a lousy person, Brett. You might have been happier a hundred years ago, before these liberals effected all of this damned progress.

            1. “So this is what the world looks like through an autistic, bigoted, chemical,”

              I would have thought my betters wouldn’t be such shitty people.

              1. Look who suddenly becomes a huge fan of political correctness when the truth hurts!

              2. “I would have thought my betters wouldn’t be such shitty people.”

                A straight-up admission that shitty people are better than 12inch’s people.

          4. A few centuries ago.

        2. Been a few weeks since you admitted your fascination with gay sex.

          When are you going to introduce us to your boyfriend and drop the self-loathing?

          1. Why do you assume there’s only one, when the obvious inference is that he’s passed around like a damp paper towel?

      5. From today:

        Sasha Volokh-quasi-endorsed cancel culture gets a man fired for appearing in a video.

        https://twitchy.com/sarahd-313035/2021/01/08/tariq-nasheed-just-got-a-violent-suspected-white-supremacist-fired-from-toyota-for-pulling-a-black-woman-out-of-harms-way-at-la-protest/

        What did he do? Rescued a black woman who was under assault.

        “I call him my hero” she is quoted as saying.

        1. Property rights though

    2. We are all allowed to be totalitarians with our own stuff. That’s what life, liberty and property _means_.

      1. This may be the most cogent summary of rights as I’ve seen. It seems so obvious once you hear it… very glad to have read it today. Thanks!

      2. What is allowed and what you should do are two different things.

        If I see someone being murdered outside my window, I am not required to call the police — but I think we can agree that I should.

        1. And in this analogy, the publisher is as bad as someone ignoring a murder? What if reporting that murder would bear real financial consequences for me, and there are other people watching the murder who could just as well report it if they wanted to?

          I’m aware we are stretching the analogy here, but it was thin to begin with.

          1. Depending on the community and culture, reporting the murder might bear more than mere financial consequences for you.

            1. This type of situation is why there are “sanctuary city” policies, Ed. To get witnesses to crimes to come forward and report what they saw (and then testify to it later) without fearing being deported.

        2. The problem with hyping the second portion (the ethical) without always reinforcing the first portion (your individual rights) we create a mindset that the ethical trumps the individual’s rights. To have a free society that functions, BOTH elements need to be secured against each other… but never one over the other. That’s the problem we have is people tend to favor one or the other and hardly ever both.

          1. Freedom and responsibility are the two sides of the same thing.

      3. Another bet that they’ll never come for you or anyone you care about.

        You can watch from the sidelines and enjoy the dramatic misery of the poor souls that the mob decides to destroy.

        1. Interesting context in which to be discussing destructive mobs.

          1. It’s been an interesting last 12 months of context

        2. You’re still around somehow, so I doubt the rest of us have anything to worry about.

          1. They will get you long before they get me. I am careful what I say. You are not.

            1. I don’t *need* to be careful with what I say.

      4. We aren’t allowed to of course, not even close. But yes that is a nice idea.

  5. Of course they don’t have to publish his book. Nobody has to give you a platform to speak. It’s the larger implication that if you have something to say that will make the publisher uncomfortable. They are afraid of being cancelled themselves – deplatformed on the web, on Amazon, employees creating twitter mobs, etc. This is ironic as it’s exactly what Hawley and others have been talking about. It may not be strictly illegal in any 1st amendment sense but it’s chilling. At some point reason’s own service provider and host may decide this place is not acceptable. Think on it.

    1. And that is my point about anti-trust.

      1. You’re as knowledgable about anti-trust as you are about everything else, which is as close to nil as to be safely ignored as inconsequential.

    2. ” At some point reason’s own service provider and host may decide this place is not acceptable. Think on it.”

      People usually don’t think a bad thing will happen to them

      1. Bad people do bad things because they believe they will avoid consequences. When they’re wrong it is just.

        Or, WELL WELL WELL IF IT ISNT THE CONSEQUENCES OF MY OWN ACTIONS…

        1. The party of personal responsibility is, of course, diametrically opposed to this outlook.

  6. When I think of the word “censorship” I think of abuse of monopoly power. Even with recent consolidation there must be plenty of book publishers to choose from and the main difference is how much marketing you have behind your book. If you don’t need marketing you can self-publish anything you like. When there are only a handful of big social networking companies serving America and they all have the same bias, then I see a problem. There are network effects in social media creating a barrier to entry that the publishing industry doesn’t have. I don’t need to be “on” Simon and Schuster to read one of their books.

    1. Bear in mind that S&S is part of Viacom/CBS.

      1. …which negates none of the previous points about their being plenty of other channels to get a book published.

      2. “We don’t want to publish this” is in no way similar to “this cannot be published.”

        Put another way, this is an opportunity for someone else to step in, publish Hawley’s book, and pocket the profits (assuming they made any). Step right up.

    2. ” When there are only a handful of big social networking companies serving America and they all have the same bias, then I see a problem.”

      Don’t see it as a problem, see it as an opportunity. Launch your own big social networking company to serve your own bias as you see fit.

  7. Cancel culture is going into crack fueled overtime.

    People who rushed the Capitol being held accountable does not bug me as much. Would be nice if BLM domestic terrorists were held to the same standards, but we all know that is never going to happen…

    But now “internet detectives” are going through social media to try to cancel anyone who is a Trump supporter or even posted anything positive about the events on Wednesday. This includes people who pointed out obvious media bias such as the newfound use of “riot” and “rioter” among other glaringly obvious bias in coverage.

    This is not going to end well…

    1. If you’ll recall the Capitol had a small army before any BLM passed through, in anticipation. This week, kid gloves, and selfies with actual domestic terrorists attempting a doomed coup. At least BLM has something real to protest, that the police are too heavy handed with them. And we saw the proof this week.

      1. Yeah this is just the apologist crowd trying to cover for the fact that BLM has been allowed to run unchecked domestic terrorism campaigns in democrat strongholds since May. Nice try though.

        1. This is what happens when people are allowed, even encouraged, to inhabit their own reality.

      2. “This week, kid gloves, and selfies with actual domestic terrorists attempting a doomed coup.”

        You raise a good point — but take it one step further. I’m increasingly thinking this whole thing was a setup — that this was done with hopes that what happened would happen.

        Look at who was in charge of this mess. The DC Mayor is a Black woman who hates Trump. Think she might want to make him look bad? She hasn’t been helpful in the past with the BLM riots, and you might want to think about this a bit.

        1. The DC Mayor has no control over federal property in DC, and no control over the Capitol police, and no control over the DC National Guard. You know who does? Ya boy McConnel (Republican Senator – Kentucky) and Ya boy Trump (Republican President, United States of America)

          1. Wrong: see: https://www.cnn.com/2021/01/04/politics/muriel-bowser-dc-national-guard-protests/index.html

            Now who has the authority to request Guard for the Capitol itself is a good question because Trump does *not* — you’d think that would have been sorted out after 9/11 but apparently not.

            1. Trump is the Commander-in-Chief of the DC National Guard. Thus he absolutely has authority to deploy them.

              As usual, you are wrong. You’ve been proven wrong twice on this in the last two days and you persist in lying about it.

              Unfortunately for you, the rest of us are more intelligent and resourceful than you are. Your lies are easier by the day to debunk, particularly when you repeat yourself.

              Bless your heart for being such a persistent little idiot.

              1. “Unfortunately for you, the rest of us are more intelligent and resourceful than you are. Your lies are easier by the day to debunk, particularly when you repeat yourself.”

                Trump has this problem, too, but fortunately for him he keeps finding people with a poor grasp of reality willing (eager, even) to swallow his bullshit.

        2. ” I’m increasingly thinking [it’s a false flag op]”

          Your words are lies. The next time you think will be your first.

      3. actual domestic terrorists

        FYI, tossing around terms you clearly don’t understand doesn’t make you look any less stupid.

        1. FYI….not calling things what they actually are makes you look stupid.

          1. For both of you, actually being stupid makes you look stupid.

      4. This week, kid gloves

        Yes, nothing says kid gloves like tear gas and a woman being shot to death.

        1. Remember the Lafayette Square thing, they lied about tear gas, they lied about protesters being peaceful when there was mass violence, they lied about the reason why security perimeter was expanded, etc.

          Now, there was tear gas, an unarmed woman was shot and killed with lead not rubber bullets, and they lie in the other direction.

          They lie about law enforcement responses when mayors and prosecutors have fully supported their violence, Democrat politicians bail them out, police ordered to stand down, etc.

          1. She was unarmed!

            She was trespassing, participating in a riot, participating in an insurrection, and crossing a line of defense guarded by officers with drawn guns protecting the elected officials beyond them.

            She got precisely what she deserved.

            1. Insurrection?!?

              That’s like saying that the Code Pink people who disrupt things are involved in an insurrection. Or the people who disrupted the Kavanaugh hearings.

              “Insurrection” is a little bit more than disrespect and disruption.

              1. As usual, you are still wrong.

                If you could find a way to monetize your stupidity, you’d be a billionaire within a week.

                1. Someone else would be a billionaire, because as traditional wisdom says, a Dr. Ed and his money are soon parted.

    2. “Would be nice if BLM domestic terrorists were held to the same standards”

      The standard of police not using violence against people unless and until it is absolutely necessary? Pretty sure that’s what they’ve been asking for this entire time.

    3. “This is not going to end well…”

      It’s going to end with better Americans continuing to pound Republicans’ and conservatives’ preferences into cultural and political irrelevance.

      You get to whine about it as much as you wish.

  8. What has been said here bears repeating and simplification.

    If speech is without consequence, then it isn’t meaningful, is it? The First Amendment protects you from state action; but it can not and should not protect you from the private consequences of your speech. The approbation of your neighbors. The shunning from your professional acquaintances. The friends you don’t speak to you.

    Without consequences, there can be no real marketplace of ideas. After all, there are ideas that are odious. Holocaust denial, for example, is rightfully considered an odious idea that most people do not want to associate with. Blatant racism and misogyny are similar. Or, for that matter, inciting people to overthrow US election. None of these are, or should be, popular ideas.

    If you happen to think that they should be good idea- make your case. Get people to believe you. Suffer the slings and arrows. It will be tough! For decades in this country, for example, speech that was in favor of gay rights was suppressed in the public sphere. People had to be brave, and suffer the consequence of their speech. They had to have the courage of their convictions. Same with things like curse words!

    So have at it. Stop being quislings. Stop demanding that you get to speak and people have to associate with your banal and hateful comments. If you’re so happy and proud of your speech, if your speech is that great, own it, argue it, and accept what happens.

    1. ” Or, for that matter, inciting people to overthrow US election. None of these are, or should be, popular ideas.
      If you happen to think that they should be good idea- make your case.”

      But if you go carrying pictures of Chairman Mao, you ain’t gonna make it with anyone anyhow

  9. “It would be a violation of its property rights, because it would force Simon & Schuster to use its resources to serve someone it doesn’t want to serve.”

    Explain the laws enacted due to the civil rights movement.
    How does “socialists only” differ from “whites only”?

    1. Political identity is not a protected class.

      1. If we are talking about Jim Crow, it’s worth mentioning that it had a pretty strict cancel culture for whites who stepped out of line by advocating for, or even quietly practicing, equality. For example, if you were white and had a black employee or customer who was advocating for equality, it might be suggested to you that you terminate his employment, or refuse his business, on pain of being boycotted yourself. That’s one of the ways Jim Crow persisted for so long – opponents couldn’t effectively advocate and change minds.

        Contrast that with, say women’s suffrage or prohibition where a small minority of advocates, over time, convinced the initially skeptical majority to change their minds. You can’t do that when the minority gets cancelled without having the debate.

        Similarly, early in the Nazi era, the promotions, jobs – public and private, university admissions, preferentially went to the ardent Nazis. That didn’t turn out well.

        The McCarthy era is another example. Sure, you can say ‘hey, studios are private companies, and shouldn’t have to hire pinkos’. And there are advantages to that worldview – but there are also disadvantages.

        An interesting and somewhat related essay.

      2. “But I FEEL oppressed. So isn’t it just like I’m a gay black man in 1950’s Birmingham? In fact, I am a gay black man in 1950’s Birmingham. Just look at my profile picture!”

      3. What is a ‘protected class’ is arbitrarily defined by laws. If you pass a law banning discrimination based on political identity, then political identity would be a protected class. But that would be a violation of property rights under the definition at issue here.

        1. Correct. His argument is tantamount to “The law is right because it’s the law.”

          1. If you mean “right” in a moral sense, then no, I would never argue that because everyone gets to decide what’s right and wrong using whatever moral codes they want to.

            If you mean “right” in a legal sense, i.e. well then, yeah, you should follow the law.

            And right now, Political Identity is not a protected class.

            Apparently Longtobefree didn’t know that.

            1. Sure, but this entire article is a normative discussion, where people are arguing about what the law should be. Not what it is. So merely stating what it is isn’t particularly useful.

        2. I look forward to the day that political identity is a protected class and I can sue Hobby Lobby for not hiring me because I’m a pro-choice liberal.

        3. “protected classes” are somewhat arbitrary, but they aren’t random and are backed by reason(s) for why this arbitrary class needs protection.

      4. Political identity is not a protected class.

        Neither were races, genders, physical disabilities, et al…until Congress declared them to be so.

        1. incorrect. races get protections directly from the US Constitution. These were expanded by Congress and Courts over time.

      5. “Political identity is not a protected class”

        Yet.

      6. “Political identity is not a protected class”

        Tell that to (anti-)social media

      7. The existing “protected classes” are an arbitrary legal fiction. There is no inherent reason to treat racial discrimination differently from political discrimination.
        (FWIW, I’d let non-governmental actors engage in both.)

        1. “There is no inherent reason to treat racial discrimination differently from political discrimination.”

          This is a stupid assertion. The protected classes (race, religion, national origin, and sex), with one exception, are based on what class a person IS, not on what a person DOES. There’s an argument that the one exception, which is religion, fits the rule, too. So, yeah, there is a reason to treat racial discrimination differently from political discrimination, and it’s a pretty good one.

    2. There are a number of differences, but the most obvious and significant one is that you can choose to be a socialist, but not to be white.

  10. What’s missing here is a recognition of the monopolistic or near-monopolistic status of today’s publishers, media companies and tech companies. Try NOT using Google, for example. Good luck. They’ve got a way to track and direct your use of the Internet even if you don’t have an explicit account.

    It may not be a 1st Amendment issue, but it IS an issue.

    1. “Try NOT using Google, for example. Good luck.”

      Sure. I use DuckDuckGo.

      It’s also really easy to switch it as the default on your phone.

      People can have privacy; most choose not to, unfortunately.

      1. I looked int DuckDuckGo. It seemed to have other objectionable characteristics, but I’ll look again.
        In any case one should opt not to have Google collect and share information (of course based on their word of “honor.”

      2. FWIW, I said the same one here, and it was pointed out (correctly, after I dug some) that DDG isn’t really a standalone competitor to google – it actually uses google (with, I presume, google’s forbearance) for a lot of searches.

        1. DuckDuckGo uses Bing, and doesn’t use Google at all.

          From their website

          To do that, DuckDuckGo gets its results from over four hundred sources. These include hundreds of vertical sources delivering niche Instant Answers, DuckDuckBot (our crawler) and crowd-sourced sites (like Wikipedia, stored in our answer indexes). We also of course have more traditional links in the search results, which we also source from multiple partners, though most commonly from Bing (and none from Google).

          1. Interesting, thanks! Either the no google policy is somewhat recent, or I’m getting senile.

            The point, though, was that DDG isn’t a perfect example of ‘search isn’t a monopoly, anyone can just stand one up’. And using bing somewhat negates that.

            1. I think you may be unclear on the term monopoly.

            2. “The point, though, was that DDG isn’t a perfect example of ‘search isn’t a monopoly, anyone can just stand one up’. And using bing somewhat negates that.”

              The fact that there is such a thing as a bing for DDG to use proves that Google doesn’t have a monopoly on search.

      3. Aside from that, “Google is a monopoly so therefore a random company that isn’t Google is also a monopoly” is a pretty weird take.

      4. I use DDG also. It is privacy respecting.

        1. I use Duck Duck Go, and want to use it, but it appears to be an inferior service. I am considering switching to Google (perhaps starting with work-related searches).

    2. That’s true. And same for all the 4th amendment work-arounds that go with it.

    3. In addition to DuckDuckGo, Bing is still a thing. It works totally fine, and powers several other search companies as well. Changing search engines is a trivially easy thing to do if you want. At least with social networks there would be some switching cost or network effects in terms of needing to getting your friends to move as well.

    4. “Try NOT using Google, for example. ”

      Thanks to the Digital Divide, there are a whole subset of people who don’t use Internet services of any kind.

      The problem goes back to the Telecommunications Act. The technology of the time meant that you dialed-up to your ISP’s local service node, and then they connected you to the Internet at dial-up speed. If you didn’t like your provider, you could pick any alternate provider who had a local service node that wasn’t a long-distance call away, or even if it was, if you were willing to pay long-distance rates. Because of technological limitations, the best bidirectional connection speed was 33.6K/sec. over a normal phone line. If you wanted a faster connection, your choice was to pay one of the two companies that had wires going to your house, your phone company or your cable TV company, to use their cabling to carry a faster Internet signal. The city of Portland, OR, sued the local cable company to force them to allow alternate Internet providers to use the cable TV cables to provide Internet service.

      Now, you still have your choice of the phone company or the cable TV company, but they no longer have to allow you to choose your Internet Service Provider, so you get one or the other, depending on which (if any) provides service to your neighborhood, and in a small number of other neighborhoods, you can get service from Google. Because of the general duopoly, prices are high and service is poor. There’s no a lot of choices to pick from if you don’t like your current provider. You may not have any alternative.

  11. I stumbled at this part:

    “Now I don’t know anything about the details of his contract. If this is breach of contract, I hope he wins. But let me put that aside”

    No, let’s look at the contract – if there are legal proceedings we’ll presumably see if which clauses in the contract – if any – allow the publisher to stop the book. If there are no such clauses, but the publisher is simply choosing to welsh on their deal, then of course it’s a censorship issue.

    In other words, *if* we later see the contract and it gives Hawley a right to get his book published, then failing to honor that contract would violate free expression – on contractual not 1A grounds.

    If, on the other hand, the publisher inserted a clause allowing them to back out of the deal if the author becomes unpopular, then there’s no free expression issue because the publisher would be simply honoring the contract.

    We’d have to see the contract to be able to evaluate the Senator’s claims.

    1. “No, let’s look at the contract – if there are legal proceedings we’ll presumably see if which clauses in the contract – if any – allow the publisher to stop the book. If there are no such clauses, but the publisher is simply choosing to welsh on their deal, then of course it’s a censorship issue.”

      No, it would still be a contractual issue even if there is no clause. They would pay damages.

      It would be an “efficient breach.” S&S would have determined that any payout for a contractual breach < the damage for continuing to associate with Hawley. Then again, there are usually "out" clauses for publishers.

      1. I’ve certainly heard of this doctrine – as I understand it, when discussing damages, the publisher would shift from moral outrage at the book to minimizing the economic harm of the breach by pointing out all the alternate ways Hawley could make money from his book.

        The more alternate ways there are, then I suppose the smaller the damages – am I missing something?

        1. Reginey will publish it.

          1. You’re probably trying to say Regnery, although since you’re an expert on the industry, you couldn’t possibly have just made something up.

            1. If it were censorship, then S&S would insist that they get to sit on the book and then offer an initial print run of 0 copies. If the contract has a “we want out” provision, then S&S returns the manuscript to the author via return post and Hawley gets to try to find another publisher.
              Publishing contracts are generally extremely favorable to the publisher. Historically, the complaint has been that they’re so favorable to publisher that they allow them to play games with the accounting, Not as bad as Hollywood accounting, but in no way wonderful unless you are a top author with a good agent who can get you a 7 or 8 figure advance. For most people, including you, (or Hawley) you have to actually write the book and then get a publisher to look at it. If they think they can sell it, they’ll sign a publishing contract for it. Stephen King can sell a book he hasn’t written yet, based on an idea he had once in the middle of the night after waking up from a nightmare. This is true because he is Stephen King and you are not.

        2. Efficient breach isn’t a doctrine, and this isn’t an instance of efficient breach. Efficient breach is a concept in law and economics theory.

          This is an instance of a corporation making an overt political statement, and using whatever financial and legal muscle they have to advance their twisted political agenda. That may be repugnant, but it’s not generally speaking illegal nor is it a First Amendment violation.

          It does concern the broader, non-legal concept of the First Amendment values of free speech, however. A corporation may act in ways antithetical to free speech values, even as it relies on its First Amendment legal rights in doing so. For example, you can use your First Amendment free speech rights to advocate abolishing First Amendment free speech rights.

          1. “Efficient breach isn’t a doctrine, and this isn’t an instance of efficient breach. Efficient breach is a concept in law and economics theory.”

            Don’t listen to stupid people on the internet.

            This is what I wrote:
            It would be an “efficient breach.” S&S would have determined that any payout for a contractual breach < the damage for continuing to associate with Hawley.

            This is Black's Law:
            Efficient Breach. An intentional breach of contract and payment of damages by a party who would incur greater economic loss by performing under the contract.

            See also Restatement (Second) of Contracts, or any 1L studying for contracts.

            1. Did you actually think that I didn’t know this already?

              There’s no economic loss by performance at issue here, it’s just a corporation being political. File it under “corporate social responsibility” if you prefer.

              The value they put on making a political statement and furthering their political agenda is greater than (a) profits that would have been made by performance, plus (b) whatever liability they may have for breach of contract (if any – and it may be none if Hawley did not use a competent attorney and agent to negotiate and shop the deal).

              1. “Did you actually think that I didn’t know this already?”

                Based upon your reply here, and your others I have seen you make …

                Yes, I absolutely think you don’t know this. I think you wanted to disagree with something you saw that you hadn’t heard of before, quickly googled it, misunderstood what you read on wikipedia, and just continue to dig your hole.

                But to reiterate- as I wrote, most publishers have “out” clauses of various kinds. Often, the publisher will just be out the advance. There are even publishers who will take authors under contract specifically to kill books that might compete with other authors that they have. I know!

                Anyway, assuming that Hawley got the bestest contract ever, and S&S is on the book for ONE BAJILLION DOLLARS (ha ha ha ha!), I am assuming that they consider this an efficient breach; in other words, that the damages that they would take from publishing it, including having people resign, etc., outweighs whatever pathetic lawsuit Hawley will conjure up. Because that’s why they are doing it.

                Of course, we all know that Hawley isn’t going to file a lawsuit. He’s going to bluster so people like you get all hot and bothered, and then move it to Regnery or some other publishing house for People That Kant Read, and have it released there.

                Because there is no monopoly, especially on books that traffic on the reader’s stupidity, gullibility, and willingness to shovel money at spineless traitors that hide their own background in order to approximate a “one of us” approach.

                1. “Yes, I absolutely think you don’t know this. I think you wanted to disagree with something you saw that you hadn’t heard of before”

                  You’re dumber than I thought then. I didn’t read your reply past this quote. Efficient breach was one of the more memorable things from law school, there was some Posner case about trains or something.

                  1. Yes, that sounds really memorable.

              2. “Did you actually think that I didn’t know this already?”

                Based on your comment history, you seem to have a nearly Dr. Ed -level overestimation of your own knowledge, and as such it’s certainly wise to define any terms that you might be overestimating your comprehension of in any attempt to engage you in conversation. Alas, activating your defense mechanism likely means that you still won’t learn. Well, that’s YOUR problem. Anybody else who might be reading might learn something useful, if if you consistently refuse to do so.

            2. I also found this in Black’s Law Dictionary (8th edition) –

              “efficient-breach theory. Contracts. The view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract. This relatively modern theory stems from the law-and-economics movement.”

              1. Exactly. It’s the idea that mature, contracting parties are able to factor in the costs and benefits of breaching the contract.

                It’s not an issue of moral opprobrium, it’s just dollar and cents.

                1. It’s also a “relatively modern theory stem[ming] from the law-and-economics movement.”

                  The law-and-economics guys are great if you want to use the insights of economics to make things more efficient. But they have no unique moral insights as to which things should become more efficient.

                  I’m going to guess that the more old-fashioned view held breach of contract to be wrong in the sense that punching your neighbor in the face is wrong, and that efficient breach would be as foolish a concept as efficient face-punching.

                  1. “I’m going to guess that the more old-fashioned view held breach of contract to be wrong in the sense that punching your neighbor in the face is wrong, and that efficient breach would be as foolish a concept as efficient face-punching.”

                    Depends. Do you view bankruptcy as a moral failing? Same idea.

                    But while people talk about the “modern” theory of efficient breach, with modern at this point being, oh, 1970 (fifty years ago), that’s not quite right.

                    Most L&E is pnly explaining, in economics terms, what we already have been seeing. Efficient breach is a quick way of explaining the traditional contracts rule- that the non-breaching party is only entitled to their expectation interest (bargained for contractual damages), not punitive damages, not pain & suffering, not anything else. And it doesn’t matter if the breach is willful or not.

                    This has gone back hundreds and hundreds of years.

                    “Efficient breach” is just a good term for saying, “You can only get what you bargained for, and it doesn’t matter if the breach was willful or not, and that is why parties choose to sometimes breach contracts.”

                    1. “Do you view bankruptcy as a moral failing? Same idea.”

                      It would be if someone deliberately *chose* not to have enough money for his creditors. That would be the closest analogy for someone deliberately breaching a contract.

                    2. Is it, though? So let’s go back and think about this again.

                      The law (contract law) traditionally did not provide for damages outside of expectancy damages (no punitive damages, etc.) regardless of whether the breach is willful or not, right?

                      Now, imagine you are A. A is in a contract that will provide him with $5, and B with $10.

                      Later A learns about C. If A can, instead, contract with C, then A will get $15 and C will get $30.

                      If A does not breach, then A makes $5 and B makes $5.

                      If A does breach, then A makes $15, B makes $10 (expectancy value) and C makes $15.

                      In other words, by willfully breaching the contract, EVERYONE is better off.

                      Now, this is a hypothetical example, and doesn’t include transaction costs, etc. But it illustrates the point, and why contract law evolved in that direction for hundreds of years. Because when people breach contracts willingly, there’s usually a good reason for it. L&E just slapped a label on what the law already was doing.

                      So, what happens if there’s something super-duper important, and you don’t want the other party to breach? Well, that’s really simple. Moral opprobrium doesn’t cut it, but ACTUALLY WRITING THE TERMS IN THE CONTRACT tends to work. This is why we discuss things like “liquidated damages” or put in other contractual terms if there is a real need for performance. Instead of hoping that the other party will just do it.

                      Contracts 101.

                    3. EDIT: I should have used a better example. Technically, A will make the same amount by breaching than by continuing with the original contract, as they will have to pay B. A will make $5, since they will pay B the expectancy damages.

                    4. Now let’s look at the publishers’ own statement:

                      https://twitter.com/Olivianuzzi/status/1347317674381074440/photo/1

                      The key phrase seems to be “we take seriously our larger public responsibility as citizens, and cannot support Senator Hawley after his role in what became a dangerous threat to our democracy and freedom.”

                      They’re preening themselves on their responsibility as corporate citizens, without mentioning the bottom line, so what does this have to do with “[t]he view that a party should be allowed to breach a contract and pay damages, if doing so would be more economically efficient than performing under the contract”?

                    5. Because, Cal, you’re not understanding what “costs” the company could incur.

                      For example, people protesting. People boycotting this book. People protesting and boycotting the parent company. Employees departing because of this relationship.

                      …other authors that actually SELL books leaving?

                      So what do you think will matter more to their bottom line? Losing the advance paid to him, or the damage that can be done to S&S by the continued association?

                      It’s a pretty simple proposition. Hawley is toxic. He’s toxic to increasingly large swathes of the GOP (both his political mentor and his largest financial backer have disowned him, and he is persona non grata in Senate), and certainly to the public at large.

                      It’s not in their financial interest to publish it.

                    6. “It’s not in their financial interest to publish it.”

                      Maybe it’s not, but that isn’t what they said. They claimed to take the high ground as Responsible Corporate Citizens. I’m not ruling out the possibility that they were concealing their true motives, and that’s what I’d have to believe to accept your explanation of their reasons.

                      I wonder what the effect would be of an announcement that “we’re going to break our contract with Hawley because otherwise we’ll lose money.”

                      Doesn’t sound nearly as noble and righteous, does it?

                      Again, I’m open to the possibility that you’re right and this corporation is making up stories about its motives. But (let them take note) I’m not saying you’re right, either. How should I know if a large corporation is telling the truth?

                    7. “How should I know if a large corporation is telling the truth?”

                      When they aren’t saying anything?

                      Seriously, of course they are going to announce this in the best possible light. But if Josh Hawley was … oh … J K Rowling (ahem) then this would have been a MUCH TOUGHER DECISION.

                    8. “Maybe it’s not, but that isn’t what they said”

                      It’s quite likely that both are true. They don’t want to associate with Hawley because of his insidious participation in an attempt to overthrow the US government, AND they want to cut him loose as soon as possible to avoid taking losses from being associated with him.

                      Consider the possible choices available to the publisher:
                      They can cancel the contract, return the manuscript and let him try to place the book with another publisher (or distribute it via an alternative method not involving dead trees).
                      Or, they can leave the contract in place, pay out the contracted advance, and then print 0 copies, and then pay the agreed royalty rate on 0 copies sold.
                      Using either approach, S&S prints no copies of the book, but only one approach actually keeps the book from being published. Either way, the publisher can make a big deal of deciding not to publish.

                      (A good agent will negotiate a guaranteed first print run of X copies to prevent the second option from happening, and also to take care of cases where the publisher sublicenses the book in other formats (Hardcover, softcover, e-book) to other companies under the publisher’s control. The way this would be abused would be having the publisher promise a royalty rate of $X for books sold it printed itself, and $Y for books sold under sublicense, then the publisher prints the softcover books first and then sells hardcover copies to those people who didn’t want softcover, which they’re not going to do if they’ve guaranteed an initial press run of 500,000 hardcovers in the first edition.

                  2. “I’m going to guess that the more old-fashioned view held breach of contract to be wrong in the sense that punching your neighbor in the face is wrong…”

                    Sure. In the old days if you breached your contract to sell slaves, the non breaching party might demand you duel them to restore honor. And when one of the people got killed, a blood feud would erupt. Don’t forget the slaves either. The modern view is that’s a bunch of silly shit, and that you’re a dumbass for trying to sell it.

                    1. What incisive legal analysis of the old days before 1970, when the efficient-breach idea started making inroads.

                      Don’t forget how, before 1970, there were always quarrels among dinosaur-hunters about who had the right to the dinosaur.

                      The past is, like, old and stuff.

          2. This is the case of an author poisoning the potential pool of buyers of his book and the publisher deciding not to lose money dealing with the fallout.
            this is not repugnant, nor is it an efficient breach, because they absolutely have a “we changed out minds” clause in their standard publishing contract. What it almost certainly says is that the rights revert to the author, and at least some portion of the advance (including any that hasn’t been paid out yet) reverts to the publisher.
            They won’t be forced into specific compliance, and the book will not soil S&S’s print facilities. Any fighting will be over whether Hawley has to repay S&S for part of the advance he already got, or whether S&S has to pay Hawley for part of the advance he didn’t get yet.

    2. Historically book contracts have been all over the place in terms of what rights the author has if the publisher (for example) lets the book go out of print. Woody Allen got the rights to his memoir back after he was cancelled, and another publisher quickly bought the rights.

      1. The rights an author has depends largely on the track record of the author and the knowledge and foresight of the author’s agent.

  12. Free speech is more than the 1A, it is something society either values or not. If we don’t, then the 1A becomes a meaningless piece of paper.

    Do we care or not care if a mob can silence anyone disagreeing with the left, whether thru government or thru a private corporation? Free minds need to be free of the mob, too.

    1. That’s the real point here.

    2. You are on to something here. The “right” to free speech exists independent of the ink on paper of the Constitution. That the Framer’s wrote that “Congress shall make no law” means that the governmental structure is such that, well… Congress can’t make such a law. But that is not the boundary of free speech… it exists well past Congress’ actions or laws. It exists sans government and sans governmental recognition. It just… IS. And it is from this primal… shall we say inalienable… feeling of it as a right that issues like this cause people to bristle. As a LEGAL matter, not one of philosophy, morality, or ethics… but purely LEGAL it isn’t a “legal” violation of the 1A as S&S is not Congress.

      And all of the property rights arguments in the article ARE correct. But to ONLY consider the free speech issue from the legalistic perspective fails to consider it in its totality. That doesn’t mean Hawley should be able to force publishers. But it DOES mean that he is being censored. And I think our inability to say that is part of the problem… we can defend the 1A by saying “You CAN say hurtful stuff… you just shouldn’t.” But we don’t often say, “You CAN censor… you just shouldn’t.” Instead we say “Nope… that’s not REAL censorship!” and act like nothing bad has happened.

      1. “The ‘right’ to free speech exists independent of the ink on paper of the Constitution. ”

        ALL rights exist precisely to the extent that other people are prepared to extend them to you, and no further. When the mugger sticks his gun in your face and demands your wallet, you can carefully explain property rights to him, but he probably isn’t going to honor your right to keep your property.

        ” that is not the boundary of free speech”

        No but it IS the boundary of the first amendment. If you claim that your first amendment rights have been violated because a publisher doesn’t want to publish your book, your claim is flatly wrong.
        Don’t worry, lots of people don’t really understand first amendment law. A bit disappointing that it’s a US Senator who doesn’t know how the Constitution works, but then again, he was caught trying to interfere with the lawful working of the government, so the Senate should refuse to seat him.

        ” it DOES mean that he is being censored.”

        It’s not very effective censorship. Hawley’s free to seek alternate publication, just like I am when S&S doesn’t want to publish MY book.

    3. Hawley just aided a seditious conspiracy. Please stop acting like anyone owes him a book publishing deal. Are the president’s cabinet members who are resigning over this also “cancel culture”? This is asinine.

      1. “Are the president’s cabinet members who are resigning over this also “cancel culture”? ”

        No, its virtue signaling.

        Resigning [checks calendar], less than two weeks before you are leaving anyways takes real courage.

        1. Maybe they just couldn’t stomach being associated any longer with a political movement that beat a guy to death inside the Capitol to advance a platform of bigotry and backwardness.

          I encourage conservatives to find a reasonable position to defend and stick to that, lest they be overrun completely in American politics.

        2. Well, rats don’t desert a sinking ship while there’s still morsels to be stolen and things to ratfuck.

          1. My favorite rat is Mulvaney who, apparently, is starting a hedge fund. Anybody who would invest with Mulvaney, world famous grifter that he is, deserves the likely result.

        3. But Bob, the official party line is still that Trump totally won the election, by a lot. There will be a smooth transition to a second Trump term, as I heard someone say.

    4. Free minds include the ones who don’t want to associate with S&S.

    5. “Do we care or not care if a mob can silence anyone disagreeing with the left”

      Hawley isn’t getting cancelled for disagreeing with the left. He’s getting canelled for taking part in an attempt to overthrow the government.

  13. “A private publisher’s refusing to publish a book is not Orwellian.”

    BULLSHYTE!

    Just because it is legal doesn’t mean that it is morally right, nor that it isn’t Orwellian. It absolutely is!

    It was morally wrong in the 1950s when Hollywood writers were “blacklisted” and it is equally wrong now. And I’m not so sure it actually *is* legal, but for a very different reason — I vaguely remember something about an individual right of action under the Sherman Act. To what extent does Simon and Schuster have what could be defined as a “monopoly” in the publishing business and hence this constitutes “restraint of trade”?

    The “cancel culture” is only effective because we don’t have true competition in most marketplaces — if we did, employers wouldn’t fire valuable employees when the SJW dox them because their competitors would grab them.

    Same thing here. Simon and Schuster decided that this book was commercially valuable — that they’d make money printing it. If there was true competition in the publishing industry (which there isn’t anymore), they’d never refuse to publish it because any one of the other 15 publishers down the street would instead and they’d lose the profits to one of their competitors.

    But this IS Orwellian…

    1. “To what extent does Simon and Schuster have what could be defined as a “monopoly” in the publishing business and hence this constitutes “restraint of trade”?”

      Probably to no extent whatsoever, seeing as Simon and Schuster’s market share in 2020 was about 9%, and I would bet my bonus that any one of several dozen conservative publishing houses will scoop up Hawley’s book and heavily promote it on the express claim that it was censored by totalitarian libruls.

      1. And then it will be remaindered and sit unsold in warehouses throughout the South.

    2. You should run for congress as a Republican. With your intellect, you’d fit right in with Gaetz, Gohmert Nunes, et al.

    3. I think a lot of liberals would agree that markets are often distorted and can’t be relied upon to live up to the ideals of textbook economic theory. It’s pretty weird that the only thing that makes conservatives notice this fact is when they can’t say whatever nasty thing they want without consequence, though, and not, say, the incredible inefficiency of the US health care system or the fact that the owners of capital and the management class has managed to siphon away basically all productivity gains from the economy for the past several decades.

      It’s weirder still that the best examples that conservatives can come up with of market distortions are places like publishing or technology where there are almost always totally effective alternatives to whatever particular problem they are complaining about.

      1. “I think a lot of liberals would agree that markets are often distorted and can’t be relied upon to live up to the ideals of textbook economic theory.”

        Anyone who made to the second week of high-school economics should agree that ideal markets are models, and not real.

    4. I’ll give this the time and effort your idiocy deserves:

      You are wrong.

      (Again).

      (Still).

    5. “But this IS Orwellian…”

      To someone who doesn’t understand Orwell, perhaps. Shall we just add this to the list of things you don’t understand nearly as well as you imagine you do, and move on to talking to someone who does know what they’re talking about?

  14. I don’t know anything about Senator Hawley and his book. But it seems to me that there is a very legitimate argument that tech companies and social media platforms have too much power in this country, and that power should be curtailed by antitrust activity (like the old railroads), regulation (like the old AT&T telecom network), or some combination of both.

    I hope he is able to find a publisher to publish his case.

    1. Thankfully he doesn’t need a traditional publisher. Because of tech companies and social media platforms, Hawley, like every other human, can self publish anything he likes to billions of people on the internet, for virtually nothing.

      1. Not as much as you think. No search engine surfaces your content. No social site allows people to spread the word. No bank will accept your online psyments. No advertiser will pay you.

        You are SOL.

        1. You wanna see withering on the vine, launch a liberal-oriented talk radio show and try to syndicate it to AM radio stations.

  15. I would be curious to find the overlap between the people who think that Simon and Schuster’s decision not to publish is a moral outrage and the people who think insurance companies shouldn’t be forced to cover anyone, that doctors shouldn’t be forced to treat anyone, EMTALA should be repealed, and there should be zero government spending on healthcare. I assume that Venn diagram is close to a circle.

    1. There’s a rather strong financial difference between the two issues. S&S had a pre-existing contract with Hawley.

      Most people would say if an insurance company has a pre-existing contract with you, they should have to keep up the contract, so long as you’ve kept up your end.

      1. You know this debate isn’t about contracts. It’s about the outrage people feel about Hawley being “blacklisted” or “silenced by woke mobs.” The issue is that the complainers here place greater moral weight on the ability of right-wing elitists to get their message out than on the health and life of people generally.

        1. “right-wing elitists ”

          I don’t care about Hawley. He is a senator, he can take care of himself.

          Its regular people in the future because it won’t stop at “right-wing elitists”.

          1. Regular people are having their Simon and Shuster contracts cancelled?

            1. The real issue is that regular people are being “cancelled” for having political views well outside the regular workplace.

              For example, take an employer. They find a Facebook post of their worker, off hours, off shift, attending a peaceful Trump campaign. The employer decides they don’t like this, and decides to fire the worker for their political views.

              Is that right? Sasha above believes that is perfectly right and that’s the company expressing its views and freedom. But how do you feel about it?

              1. Bad. But only because in this country, which does not have a real social safety net because people like you don’t want one, losing a job can have extremely serious health and welfare consequences not just for the employee but their family as well.

                If I knew that a firing wouldn’t result in the loss of health insurance, a home, or food insecurity, especially among third parties, I probably would not care that much if their employer fired them.

                1. Since that makes you feel “bad,” would you agree that such tactics are detrimental to society as a whole?

                  1. They’re only detrimental right now because people like you want to live in an uncaring society where people suffer disproportionate consequences for their actions. They wouldn’t be if we lived in a caring society where people felt moral responsibility for the health and well-being of other people as our first priority.

                    1. OK, let’s take it a step further.

                      You work at a medium-sized company. It’s owned by a gay guy. But he doesn’t like gay pride parades. Had a bad experience with them.

                      You’re a model employee. Do everything right. But on your off weekend, you go to a pride parade. He sees it on a facebook feed, and decides to fire you. This ruins your career.

                      Is that OK? Even if you have a safety net?

                    2. Would I personally be okay with it? I guess not. But I also wouldn’t have to immediately wonder whether I could feed myself, afford rent, or get medications, so I could come up with another plan to lead a fulfilling life. The consequences of my actions would not be as disproportionate.

                    3. So, you’re not OK with it.

                      Let’s say you KNEW your boss didn’t like gay pride parades. Would you deliberately not go to them, in order to keep your job?

              2. Of course it’s right. Don’t you support at will employment? Don’t you agree that a Christian shouldn’t be required to bake a cake for a gay wedding?

            2. “Regular people are having their Simon and Shuster contracts cancelled?”

              Its possible for a “regular person” to write a book and get a contract you know.

              But of course I mean it won’t stop with book contracts.

        2. They’re very different issues, the way you framed them, with very different incentives, costs, and structures. Let’s look at one thing you said.

          1. “that doctors shouldn’t be forced to treat anyone”

          That’s a pretty large impingement on the freedom of the doctor.

          What if instead of doctor, we replaced it with “lawyer”? How would you feel if you required to take a case, no matter the case, no matter how much you were paid, and you couldn’t bow out for any reason. You had absolutely no choice in the matter. And then you had to do it again, for zero pay. Then again….

          What would you say, regarding that?

          1. Comparing “cases” to human lives is pretty stupid. Like astoundingly so. A doctor standing around watching a person bleed out without consequence is pretty different than not wanting to engage in litigation. Also, courts won’t let people withdraw as counsel at a certain point in litigation whether or not they get paid. And courts won’t let a criminal defendant risking his life or liberty go through a case without a lawyer if he wants one. So, lawyers are actually forced to represent people in litigation anyway.

            Once again a commenter on here shows their moral bankruptcy and contempt for human life. Selfishness is the highest virtue. No sense of social or moral responsibility. A movement of sociopaths.

            1. Comparing “cases” to human lives is pretty stupid.

              1. Not really. Consider it a criminal case, where the person would be going to jail for life. Or the death penalty. Or conversely, a medical procedure that isn’t life threatening. Just important.

              2. Also, courts won’t let people withdraw as counsel
              -Ah, but they’ve already AGREED to be counsel in the first place. Which is critical. You wouldn’t even give the lawyer a choice to agree or not

              3. ” So, lawyers are actually forced to represent people in litigation anyway.”
              -Generally no. A lawyer CHOOSES to defend people as a court provided attorney. You wouldn’t give them that choice at all.

              4. “Once again…
              Here’s the deal. I’m going to force you to be a criminal defense lawyer for 4 years, without a single cent of pay, and you need to take every single case. How does that make you feel?

              1. How would it make you feel if a doctor stood and watched you bleed out on the floor of the ER and didn’t want to treat you because of his freedom? Or watched that happen to a child?

                1. Now you’re putting addendums and clauses in (And there are already laws regarding the exact situation you propose, which you well know, and are broadly supported across the spectrum).

                  But your original statement just said “doctors should be forced to treat you.” No caveats, extreme circumstances, etc. Whenever, for whatever reason.

                  1. Now you’re putting addendums and clauses in (And there are already laws regarding the exact situation you propose, which you well know, and are broadly supported across the spectrum).

                    You didn’t read my original post did you? I literally mentioned EMTALA. You’re moving goalposts because you can’t bring yourself to admit you had an extreme and sociopathic position and now you have to back off. I assume you have to back off because I pointed out it could be YOU bleeding out on the floor while the doctor enjoyed his freedom. Selfishness strikes again.

                    1. You’ve taken an extreme position, forcing doctors to work, no matter how much, no matter the case.

                      I’ve provided a moderate position, that in extenuating circumstances, some care should be provided, but not in all circumstances

                      Do you understand the difference between our positions?

                    2. “You’ve taken an extreme position, forcing doctors to work, no matter how much, no matter the case.”

                      Never took that position. Do you understand the difference between the words everyone and anyone? I never said doctors should be forced to treat everyone and everything. What I said that some people don’t think doctors shouldn’t be forced to treat “anyone.” That means they couldn’t be forced to treat the child gunshot victim, the cancer patient, or the person on their ninth elective nose job.

                    3. So, what exactly is your position then?

                      If a patient shows up at a hospital and wants an abortion, and the hospital says “we don’t do those here”…what should be the result.

                      If a patient shows up, and wants treatment for a non-emergency case, and can’t/won’t pay, should the hospital or doctor be able to say “no”?

                      Outside of the ER hospital situation life threatening situation, should doctors be able to say “No”? Or not?

              2. “1. Not really. Consider it a criminal case, where the person would be going to jail for life. Or the death penalty.”

                Forcing me to be the person’s lawyer is going to create a winning appeal, in the sense that I am not licensed to practice law and did not even take CrimLaw in law school. I’m not even My Cousin Vinny. When he gets a competent appeals lawyer, the ineffective assistance petition almost writes itself.

                “Here’s the deal. I’m going to force you to be a criminal defense lawyer for 4 years, without a single cent of pay, and you need to take every single case. How does that make you feel?”

                Like you never heard of the 13th amendment.

        3. LTG…I never ‘reach’ the question (Hey, I sound like a judge, heh heh. VC is rubbing off on me) of cancel culture, freedom of speech. To me, this is a contractual case, and nothing more. That would make the case a rather dry analysis of the contract termination terms, no?

      2. ” S&S had a pre-existing contract with Hawley.”

        The terms of which you have no idea, so you’ll just imagine them in the way that most justifies your previously-held position. You’re imagining that the contract has been breached rather than having the publisher exercise an “out” clause, for example. Admittedly, I haven’t seen Hawley’s publishing contract, either, but I have seen boilerplate publishing deals.

  16. Don’t care about Hawley but public companies should have public responsibilities.

    Left thinks that, the right needs to start. Big companies are not are friends, they put their thumb on the scale of every left wing cause now.

    Zombie libertarianism like this post is worthless.

    1. “Public companies should have public responsibilities.”

      Sounds like something Elizabeth Warren would say.

      1. Duh, yes.

        “Left thinks that, the right needs to start.”

        1. So become the left? hahahahaha

          I recall some quote about staring into the darkness, and becoming a monster or some such.

          1. Shrug. Like in warfare, sometimes you have to adopt new tactics from your enemies.

            1. Well, not having a party platform at all should make the transition to marxist principles nice easy, at least.

    2. Agreed. We shouldn’t have private profits and socialized losses.

  17. Sorry,

    Free speech is about more than just government control. It’s about an ideal, a social concept that everyone should be able to say what they want freely.

    Now, you’ve made a point that “They’re just corporations, and they can do what they want”. Which is true…to a point. The issue is, Twitter and Facebook, and the other social media corporations aren’t really “saying” anything. They’re simply acting as a medium for the transmission of other people’s speech.

    But now, they are using their corporate (some would say monopolistic) power to shut down other people’s speech that they don’t like. Let’s take this a degree further then….

    Do Comcast and Verizon have the right to turn off internet service to Google and Facebook and Twitter servers if they don’t like what these companies are doing in a political sense? Why or why not? Again, Comcast and Verizon are just acting as mediums for the transmission of information. And if Comcast doesn’t like what Twitter is doing, it can just “pull the switch” and shut off Twitter from a vast swath of the internet. Right?

    Let’s go a degree further. PG&E is providing the electricity for Twitter’s servers. Can they just say “No” and shut off the flow of electricity? Why or why not? Again, PG&E doesn’t HAVE to allow its services to be used for speech it disagrees with. Right?

    Now, a common rebuttal here is going to be that “Comcast and PG&E are monopolies, so they need legal regulations to provide services even to groups they disagree with.” To which I respond “Is Twitter or Facebook any more or less a monopoly than Comcast or Verizon?” This is something to consider.

    If Comcast and Verizon decide “They don’t like your speech”, can they just cancel your service, and decide you don’t need internet? Can they do that to other people you work with? Why or why not?

    1. They all think they will be immune from being blacklisted.

    2. Why or why not?

      Because the other corporations you mention are not publishers. The 1A does not privilege their operations. They are legitimately compelled to provide service alike to everyone, because unlike Google and Facebook, those others are not 1A protected publishers.

      Your point that the internet giants are tending toward monopoly is better made. Encouraging monopoly power among private publishers is terrible public policy. But that is exactly what congress did—heedlessly, without insight—when it passed Section 230. Section 230, with its license for internet publishing without editing, for the first time enabled business models based on unlimited expansion of ad sales. By getting rid of the editing requirement, no proportionate increases in editorial costs remained in place to hamper unlimited expansion.

      That was the key which unlocked the door to publishing monopolism. With the door open, networking effects did the rest.

      Folks who dislike monopoly publishing power as national policy will have to recognize that Section 230 is inherently utopian, and not a practical way to broaden or protect 1A freedoms. In fact, Section 230 have proved to be a threat to both those objectives.

      1. But Twitter and Facebook are not really “publishers” either. They don’t engage in the activities typical publishers do. They don’t provide comprehensive editing and review to everything that goes out. Twitter and Facebook and Google are considered “platforms”

        But in regards to section 230, I’d agree change is needed.

        1. Twitter and Facebook aren’t just publishers, but they are publishers in regards to at least some of the content, the content THEY originate or contract to have created.

          “Fact-checks”, for instance.

          1. Just because you don’t like to know what facts are actually true is no reason to put “fact-checks” in scare quotes, Brett.

        2. But Twitter and Facebook are not really “publishers” either. They don’t engage in the activities typical publishers do.

          Armchair, I hear that all the time, but it isn’t a cogent argument. Publishers do come in various shapes, and do practice a variety of business models. I doubt anyone could come up with any set of characteristics that all publishers share in common.

          But there is one set of 3 publishing characteristics so broadly shared, and so integral to operating a publishing business, that you can reasonably say that any business which checks all 3 must indeed be a publisher:

          1. A publisher assembles an audience;

          2. A publisher attracts contributors;

          3. A publisher monetizes that combination by selling advertising to businesses which want to communicate with the audience.

          Twitter, Facebook, and Google do all those things. No matter what other term anyone may want to apply, they practice publishing as their principal business activity. To say otherwise—even in the text of a law intended to find an excuse to exempt them from defamation liability—is nonsense.

          1. “Twitter, Facebook, and Google do all those things. No matter what other term anyone may want to apply, they practice publishing as their principal business activity.”

            Google’s primary business is placing advertising.

    3. “Now, a common rebuttal here is going to be that “Comcast and PG&E are monopolies, so they need legal regulations to provide services even to groups they disagree with.” To which I respond “Is Twitter or Facebook any more or less a monopoly than Comcast or Verizon?” This is something to consider.”

      Agreed that this is something to consider, but I think there’s two important distinctions.

      1) The thing about Comcast and PG&E is not just that they’re monopolies but that they’re natural monopolies–the up-front investment required to compete with them is likely to exceed any possible return. As we’ve been able to shift TV to a streaming model and mobile Internet gets better and, Comcast’s monopoly starts to break down, so it’s possible within a few years it won’t be reasonable to think about cable companies as natural monopolies anymore, but in most cases they’re either a monopoly or part of a very small oligarchy today. With PG&E, there’s no similar disruption likely in the electricity market, but it’s vital to the workings of modern society, so it’s a reasonable place to expect society/government to regulate how they run their business.

      In general, there’s no reason to think that Internet platforms are natural monopolies. Indeed, in most cases we’ve seen the “winner” in a particular niche displaced, often repeatedly. The big platforms also compete substantially with each other, both very explicitly (e.g., a lot of the usage of Twitter is theoretically replaceable by Facebook, or YouTube trying to get people to watch their videos instead of binging Netflix) and more generally competing for engagement from roughly the same set of users.

      2) Even if we agreed that one of the big tech companies was a monopoly (or has market power) in a specific realm, their ability to act as gatekeepers isn’t nearly as strong as with the utilities because there’s lots of substitutes for what the tech platforms do. If PG&E turns of Twitter’s power, not only can Twitter not buy electricity from anyone else, but there’s not really any other viable way for them to run their data centers because we don’t have the technology for something like a hydraulic computer that could do roughly the same thing without electricity. Similarly, if Comcast’s customers really have no alternative ISP, when Comcast blocks Facebook there’s no other way for those people to get to the site. On the other hand, if you can’t share memes with your friends on Facebook, you could e-mail them or start a group chat or maybe even start using LinkedIn even though it’s notionally oriented to a different type of usage. In all of these cases, you’d get roughly the same effect even if the product and target market weren’t quite the same. Just as importantly, the switching costs in tech tend to be REALLY low–you can stop using one service and start using another in seconds or minutes, and generally without having to pay anything.

      This is not to say that we should totally ignore the risk of monopolies in tech, but that there’s pretty important distinctions in how you’d approach the tech platforms versus utilities beyond just deciding whether you think they’re monopolies or not.

    4. ” It’s about an ideal, a social concept that everyone should be able to say what they want freely.”

      We don’t have this now, and have never had it in the history of ever.
      Try telling you boss to take his criticism of your work and stuff it sideways, and then explain how you’re exercising your right to speak freely. It’ll be followed by your boss explaining that he accepts your resignation.

  18. “ We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don’t want to associate with us.”

    Sure. This exists in fantasyland. In the real world, Woke forces us to ‘bake the cake’. If we refuse then our business is destroyed, we’re fined $135,000 and sent off to Sensitivity Training class to help get our minds corrected.

    1. Bigotry does — and should — have consequences, clinger.

      Whining about how better people don’t like bigots seems unlikely to improve your situation.

      1. You seem plenty bigoted. Fortunately for you, the existing laws do not provide any consequences for your bigotry. Seems wrong somehow…
        (FWIW, I’d let both you and Svn be as bigoted you you want.)

        1. Calling a bigot a bigot is not bigotry.

          Calling a clinger a disaffected culture war casualty is a public service.

      2. So your are saying that Sasha Volokh’s premise “ We all have a right to refuse to associate with those who are repugnant to us, and none of us have a right to associate with those who don’t want to associate with us.” is a false statement?

    2. I dunno if you were paying attention, but the Supreme Court actually decided Masterpiece Cake in just the way that Professor Volokh suggests.

      1. I was referring to another business Sweet Cakes by Melissa. They’ve been waiting since 2013 to have Supreme Court overturn $135,000 fine.

        1. Uhh, from: https://firstliberty.org/cases/kleins/

          “In June 2019, the Supreme Court threw out the state court’s decision”

    3. ” In the real world, Woke forces us to ‘bake the cake’.”

      Nobody is forced to bake any cakes in the real world. The only people making any cakes are the ones who’ve offered to make cakes in exchange for money, and then they get paid their asking price. The horror!

  19. There’s certainly no first amendment issue here, but as a culture we should be worries that being to ready to make and and enforce taboos, include those on speech, will make a society less able to attaint truths.

    1. Unless the taboo is against deliberately misleading people. Some call it lying. Dishonesty. Fake news. Whatever.

  20. “ViacomCBS (Simon & Schuster’s parent company)”

    That explains a lot.

    More and more of America’s “private” enterprise is under common ownership and control of oligopolists and their interlocking corporate directorships.

    Big Brother won’t be “the government” it will have the government as its henchman.

  21. Sasha Volokh is of course correct about the 1A issues. My own preference would differ from the status quo, in that I would not extend 1A speech protection to per-share voting corporations, and would require that publishing activity be institutionalized in some other way. But those views are beside the point of this thread.

    Returning to the point, the aggrieved right-wing complainers need to stop whining about the tech giants censoring them. That is not censorship, it is private editing. Press freedom depends on complete liberty for private editing, tempered only by long-recognized legitimate constraints on unprotected speech, such as defamation.

    That does not mean the aggrieved right-wing complainers do not have a point, however. Consolidating the nation’s publishing capacity in just a few privately-owned corporations is terrible public policy. That needs to be fixed. But not fixed by government censorship—as is so often advocated, not only by aggrieved right-wing complainers, but also by leftists and others all along the political spectrum.

    The answer is to repeal Section 230—the legislative blunder which licensed publishing without editing. That ushered in the age of internet publishing giantism—now trending toward monopolism—and thus furnished superficial justification for calls for government censorship. Judged by its consequences, passage of Section 230 has proved to be an egregious legislative error.

    The only safe harbor for press freedom is in private hands. Thus, the only wise policy for government is to encourage diversity and profusion in private publishing.

    By that means alone can the nation be assured that press freedom will continue unmolested by government censorship. And only diversity and profusion among private publishers can adequately redress complaints of too much power over published opinion, held in too few private hands.

    Repeal Section 230.

    1. “My own preference would differ from the status quo, in that I would not extend 1A speech protection to per-share voting corporations, ”

      My problem with that is that people aren’t forming these corporations for fun. They’re doing it because the government’s own tort system makes doing anything at scale infeasibly perilous if you don’t incorporate. You grow a giant bullseye on your back, and the lawyers start taking chunks out of you.

      When the Constitution originated, a newspaper wouldn’t have been a corporation. Corporations were rare entities reserved for cases where you were getting special governmental privileges, similar to port authorities today.

      Today, EVERY newspaper is a corporation. They’re forced to be corporations, in self defense, and they’re defending against attacks conducted in the government’s own courts.

      You can’t herd people into the corporate form, and then say they’ve sacrificed their rights because of it.

      1. I think by “per-share voting corporations” he means publicly traded corporations.

        Such corporations are not in any real sense “owned” by their shareholders but by management. [except if they have Class A structures where its not the public shares but the family shares that control, like the NY Times] Big institutional shareholders exert what limited authority the shareholders retain in fact, if not in law.

        Public corporations should not have 1A rights, they are not “associating” as people.

        1. I don’t think the fact that the management of such corporations routinely violate the fiduciary interests of the owners, and treat it as their own property, means they really own it.

          1. They control it so “shareholder ownership” is just fiction.

  22. “The First Amendment, like all but two constitutional provisions, applies only against governmental entities . . . .” I know that Section 1 of the Thirteenth Amendment reaches private conduct. What’s the other one?

    1. Hint: look in some of the later amendments.

  23. “First they came…”

  24. Here we go. Thanks Reason. Thanks Volokh. Fuck off.

    Analysis: TV providers should not escape scrutiny for distributing disinformation
    Analysis by Oliver Darcy, CNN Business
    https://www.msn.com/en-us/money/companies/analysis-tv-providers-should-not-escape-scrutiny-for-distributing-disinformation/ar-BB1czyy1

    “Fox and Newsmax, both delivered to my home by your company, are complicit,” NJ state Assemblyman Paul Moriarty texted a Comcast executive on Thursday. “What are you going to do???”

    “You feed this garbage, lies and all,” Moriarty added to the executive, according to a screen grab of the texts he provided me. Moriarty was referring to the fact that Comcast’s cable brand, Xfinity, provides a platform to right-wing cable networks that have for weeks been disseminating disinformation about the November election results to audiences of millions.

    Moriarty has a point. We regularly discuss what the Big Tech companies have done to poison the public conversation by providing large platforms to bad-faith actors who lie, mislead, and promote conspiracy theories. But what about TV companies that provide platforms to networks such as Newsmax, One America News — and, yes, Fox News?

    Somehow, these companies have escaped scrutiny and entirely dodged this conversation. That should not be the case anymore.

  25. So, Sasha, you show up in town, and you’re hungry. The lunch counter won’t serve you. The deli won’t serve you. The grocery store won’t sell anything to you. It’s getting late, the hotel has rooms, but none for you.

    Well, if that happened in one town, no problemo, you walk to the next. If it happens there, too?

    Do you live on bugs and leaves, and sleep under bridges, and it’s just peachy because you’re subjected to this because of your politics, and that’s not a “protected class”?

    If enough people conspire to cut a class of people off from commerce, it becomes as big a practical problem as if the government does. As libertarians we’re concerned about government because it’s a threat to liberty.

    It’s not the only threat to liberty.

    1. These people are dangerous because they believe conspiracy theories. Let’s conspire against them.

      These people are dangerous because they are violent. Let’s eliminate any non-violent way they have to get any say in their lives.

      There is nobody more dangerous than someone with nothing to lose. Let’s take everything away from 74 million people.

      Let’s continue to count on them taking it to keep a society that hates them functioning.

      Real smart, progs.

      1. They lost the ability to see beyond their hatred a long time ago. Haters always end up being very stupid.

    2. Dude. Aren’t you on record as believing that the Civil Rights Act violates the 13th Amendment?

      1. Yes, I am. I’m also on record that I’ve gotten so tired of double standards that, at this point, I’ll settle for a bad standard, if it’s the same standard for everybody.

        1. Classic selfish Brett. The government forcing businesses to serve black people is slavery. But if we’re going to have slavery it should be to promote odious views I agree with.

          Have you ever considered adopting principles or morals that don’t suck?

          1. Have you ever considered swallowing a huge load and choking on it?

            1. No. I was too busy trying to not be a bad person to ponder the question. Now that I have had that chance to consider it, I think I will decline the invitation.

              1. Beautiful response. 😀

            2. This is the Volokh Conspiracy, hosted at Reason.com. You’re looking for Grindr.

              1. I think he might be looking for Mr Ed.

          2. So if we are going to selectively apply a principle who gets to decide what “sucks” and what doesn’t?

            And no way no how would our government betters corruptly use such a selection process.

            Are you serious?

      2. Any sort of plain reading of 13A would protect people from being forced into service. The courts decided to go with fuck what these words clearly and unambiguously say, we’re choosing what we prefer instead.

    3. Yes. It’s as though the entire nation becomes a company town, Marsh v. Alabama style.

    4. I agree generally, although it’s hard to see this specific episode as rising to this level.

      Visa and Mastercard may decide to cut you off from engaging in any online transactions, ISPs could kick you off the Internet completely, because your speech is too objectionable to their political agendas. Monopolistic enterprises may cut you off from flying on commercial flights, prevent you from entering concert venues and retail stores, for failure to be injected with the latest government vaccine. What would Sasha Volokh’s reaction be?

      There is no one size fits all solution to these problems. It’s just a matter of people enacting their preferences through self-government. But that is wholly and completely precluded by our system of government with a strong centralized government dictating policy over an empire consisting of many different locales with different cultures and needs and preferences. Self-government is only possible on a much smaller scale. Incidentally, this system of government that we have also greatly facilitates the monopolization of industry and the destruction of small business and competition.

      1. A good start on a solution would be taking the fiduciary responsibility of corporate management seriously. Generally the problem here isn’t mom and pop shops, it isn’t usually even major stockholders demanding these policies. (Though enough stock is traded through funds that it’s becoming an issue.)

        It’s management deciding that leaving money on the table satisfies their personal prejudices, and so they reject paying customers, costing the stockholders money to satisfy themselves.

        For corporations, refusing the business of a lawful customer should presumptively be a violation of fiduciary responsibilities by management.

        1. Agree or offer to buyout those who didn’t sign on for the wokeness.

          If you buy in expecting that they will I don’t know not alienate half the potential customer base because of politics if they do they have either breached fiduciary responsibility or they need to offer a buyout based on change of charter.

    5. You’d kind of have a point if Hawley (or maybe conservatives in general) consistently found it impossible to get their books published. There’s no evidence of that, and we wouldn’t have needed the Civil Rights Act if the only thing we were worried about was the occasional already-rich person of color not being able to get their vanity book project published.

  26. ” I’m willing to believe that the largest tech companies have an anti-conservative bias. ”

    Smart, educated, accomplished, decent people are not fond of multi-faceted bigotry, prudish and hypocritical superstition, and general backwardness?

    Ditch the bigotry, superstition, and backwardness, conservatives, or you can line up alphabetically and kiss my ass, hoping that gesture might incline your betters to be magnanimous as they continue to defeat you decisively in the culture war.

    Otherwise, you will deserve everything that is coming to you . . . and you will not like it. But you will comply.

    1. Yeah, conservatives will comply. With 5.56 rounds toward the oppressors.

      1. Hey. The murderous freak is at it again with his murderous threats.

        1. “The murderous freak is at it again with his murderous threats.”

          How is he any different than Kirkland with “reckoning” and “made to comply”?

          1. His entire posting history where he explicitly says he wants to bomb institutions and kill people?

            1. Its just internet tough guy. Again, no different than Kirkland except Kirkland wants to send us to camps, not kill us at first.

              1. No camps. Just . . .

                . . . the better ideas winning

                . . .political correctness pitched aside, and bigots known as bigots (rather than enabled to hide behind euphemisms such as “traditional values” or “conservative values”)

                . . . conservatives losing all political power, but entitled to whine as much as they like about it’

                . . . even more comprehensive victory in the American culture war for our educated, diverse, modern, reasoning liberal-libertarian mainstream.

      2. All-talk, impotent bigots are perhaps my favorite culture war casualties . . . and the core of the Volokh Conspiracy’s following.

        1. Is it all talk? The Christmas Day bombing and the protest at the Capitol may just be a preview. You keep sticking your finger into the bird cage, eventually the bird will bite you.

          1. Part of what I fund with my tax payments is trash removal. If you wish to become part of that trash, I will watch your betters remove you . . . savoring a nice wheat beer while observing it.

            1. We all know you don’t pay taxes. Getting EITC refunds because of the six illegitimate children you claim live with you doesn’t qualify.

              1. I paid a six-figure tax bill this week. I suspect my best car cost more than your house.

                Other than that, great comment!

                1. I assume you are counting the digits to the right of the decimal point?

      3. Could you be a little more specific as to your plans to kill people? I’d like to only make one referral to the FBI, thanks.

        1. I don’t have any such plans. I’ll leave that to you violent liberals who burn down stores as a temper tantrum when one of your fellow Democrats is killed by police for being a criminal.

          1. As written, not a single word in your response was accurate.

            Maybe you’d be happier as a top instead of a bottom. Would that cure your vile self-loathing and violent aspirations?

              1. Nothing you said was accurate, which means none of it was true.

                Your reading comprehension is as bad as the rest of your intellectual prowess.

    2. Many of these big tech kidz are screwball Randians of the highest order.

  27. ” Conservatives have a tough time on many university campuses. ”

    No mention of conservative-controlled, censorship–shackled campuses, which impose old–timey speech and conduct codes; enforce childish dogma; suppress science and reason to flatter silly superstition; engage in viewpoint-controlled hiring (from faculty to janitors, accountants to basketball coaches), firing, admissions, and research; and teach nonsense?

    This is why the Volokh Conspiracy can’t win. These guys just picked the wrong side of just about everything in modern America, and are reduced to nipping at the ankles of better America and whining about why the mainstream won’t take them seriously.

    1. Will you ever get off your hobby horse regarding small Christian colleges. It serves no purpose and is irrelevant for modern university systems.

      1. Your stupidity does not influence my arguments.

        How small is Liberty, you bigoted hayseed?

    2. Here, let me rephrase your quote for you:

      “No mention of censorship–shackled campuses, which impose woke speech and conduct codes; enforce childish dogma; suppress science and reason to flatter silly progressive ideologies; engage in viewpoint-controlled hiring (from faculty to janitors, accountants to basketball coaches), firing, admissions, and research; and teach nonsense?”

      See, I thought you were talking about the 99% of colleges in the US that are dominated by the idiotic politics of the left.

  28. “…or books from school curricula, is not banning books or erasing history.”

    Compulsory pubic education is necessarily in tension with freedom of speech. And if public officials’ decisions to remove books from the curriculum is based on a desire to prevent students from being exposed to those ideas, then yes, that’s censorship.

    But there is some evidence that the recent movement to modify curricula is spurred by a desire to replace works that are public domain with works that are not.

    1. ” Compulsory pubic education is necessarily in tension with freedom of speech. ”

      Not in the minds of educated, decent, modern, reasoning American citizens whose opinions deserve respect.

      1. Yeah, there was a typo.

        “Not in the minds of educated, decent, modern, reasoning American citizens whose opinions deserve respect.”

        Anyone who doesn’t see the tension is incapable or reason, Arthur, so I’m not surprised that you disagree.

        What to do about the tension is a different matter.

  29. Josh Hawley is not a bigoted, superstitious yahoo — he is a prep schooler and establishment climber . . . and a bigot, and a superstitious jerk.

    He masquerades as a hayseed because it helps him lather the rubes for perceived partisan political profit.

    If Ted Cruz declines to seek the next Republican nomination for president (perhaps for good reason, such as trying to help his children, who are confused with respect to how daddies should act when mommies are attacked), I expect Prof. Volokh to endorse Hawley. They could lather the rubes in tandem.

  30. I support cancel culture. All neo-Marxists get purged from all positions and institutions.

    1. Yes. We need to bring back the House Committee on unAmerican activities, but this time, instead of blacklisting, the punishment should be helicopter rides, Operation Condor style.

      1. Knock knock. Sorry to interrupt the circle jerk.

        You guys do know that the extreme right wing societies you are fantasizing about are not really good or fun for anybody, right?

        You know how the government that inspired the helicopter ride meme ended, right?

        You do know that all of these far right governments fall fairly quickly, and the former beneficiaries of those governments tend to suffer the same fate they briefly enjoyed imposing on their enemies, right?

        Just want to make sure you are thinking this whole thing through. Seems like there are a few glaring holes in your utopia.

        1. Look for the start of that in 2022, as the consequences of the Election emerge.

          1. 2022? You need to get written permission from your parents?

  31. I greatly enjoyed reading this post. It was a breath of fresh air.

  32. The post is a classic example of missing the forest for the trees. When state-protected organs combine to suppress freedom, that is Orwellian.

  33. Wow, so much lack of self awareness these days in regards to hypocrisy. So lets see if Sasha passes.

    1. It is Orwellian but its heir choice. Now what’s your thought on “bake the cake” and “take the pictures” or else.

    2. Sure thing but their immunity protection is now gone. You can’t claim to be an unbiased platform with special protection but then censor speech you don’t like.

    3. So respecting 1A is not a problem for universities that accept public funding? OK so a U can ban Muslims and still expect to receive public funding.

    4. Not sure? Are you saying random mobs coming in and tearing down statues is OK? Or its only OK through lawful means like city council congress etc.?

    1. You wouldn’t understand a single response to any of your questions.

      1. FO see if you understand that.

    2. Remember, erupting in another man’s rear end is the highest attribute of man. So anything celebrating that must be photographed by the person of the “loving couple’s” choice.

  34. My guess is there’s some sort of standard “moral turpitude” type clause or some such that lets S&S out of it. Or they did the math and figured the money lost was worth no longer being associated with him.

    1. Our you’re just a dumbass and you guess a lot.

  35. I don’t give a damn about Hawley and Simon & Schuster — there are lots of publishers and Hawley is an ass. But when you’re talking about tech oligopolies that control all but a sliver of the market, that’s something else again. What if ‘only’ three credit card processors (Visa, Mastercard, and Amex) refused to handle payments to your business? What if the electric or natural gas or local broadband companies refused to hook up to your house or business because of your political views (they’re private, for-profit companies after all)? What if these companies refusing service are doing so for fear of legislative action or regulation by elected officials (e.g. the government is censoring but indirectly through threats) — still OK? Would something like ‘Operation Choke Point’ to induce internet companies to refuse service based on ‘hate speech’ or ‘disinformation’ be OK?

    1. You’re publishing this comment in a forum not controlled in any way by the big tech platforms. Beyond that, it’s trivially easy to self-publish on the Internet. While each of the big Internet platforms does indeed have a large share at doing particular things, none of the in any way impede the basic ability to “speak”.

      1. It’s been trivially easy to self-publish for hundreds of years — ‘vanity books’ have been a thing forever. By the same token, if all credit card processors refuse to work with you, there’s always cash. Your line of argument would suggest that it’s no biggie if you can’t actually get internet access as long as you can buy a laser printer, paper and stamps. Would it be OK if the domain-name system were pressured to keep politically disfavored organizations out of the database because you can always provide links to your site by raw IP address or by getting people to configure their devices to use an alternate DNS?

        From your point of view, is there any point where politically-based restrictions on speech are a problem even though the restrictions aren’t absolute since some low-power, low-visibility, ineffective alternatives remain available?

        1. See my post elsewhere in these comments about the difference between utilities and tech companies, even if they are monopolies. Most of what I write there is relevant.

          I do think the DNS is a good example of a tech service that, like a utility, where I’d be concerned about viewpoint discrimination and needs to be regulated to prevent the sorts of abuses you’re worried about. Fortunately, that’s already how it works–the DNS was initially regulated by the US Government and now has a complex but mostly functional mutistakeholder governance model. Similarly, I agree that the credit card companies form an oligopoly that can effectively limit access to a service that there aren’t great substitutes for.

          But the tech platforms aren’t remotely like this. Anyone on the Internet can navigate to your comments here; if anything, Facebook’s walled garden is more limited than our posts here because you generally have to have an account to get access to them. But there’s never been a version of free speech where other people are required not only to help you publish your message but to amplify it for you, and that’s the only function that social media serves.

        2. Go back to a time where there is no tv, no radio, and no internet.
          There is just one paper mill in the country who is also the sole distributor of paper, and who secretly or not so secretly declines to sell to anyone it has identified as conservative or who it believes will advocate for conservative polices, positions, candidates.

          One could open a competing business, but the current manufacturer has a process which is dirt cheap and has a fantastic distribution system in place, therefore, there will be no competing manufacturer of paper in the near future. Nor is the, then current, liberal administration willing to take actions to force the manufacturer to sell to anyone irrespective of political ideology.

          There are, of course, other mediums to publish the written word. One could write or etch on stones and distribute those writings by throwing rocks about. Or, one could go about hollering a message from street corners. And if you felt your rocks and hollering were not being read or considered, you could do this in Washington D.C. or maybe at the Capitol.

          This is no longer historical fiction.

          Free speech is precious. But where a voice cannot be heard it is not spoken.

          Via legislation or judicial interpretation of common law, view point discrimination should be forbidden.

      2. Do you know this? Many sites are hosted on Microsoft or Amazon.

        1. Can you point to any examples of Microsoft or Amazon exercising editorial control over content hosted on their Cloud services? If not, who cares?

          1. Now? No. But what’s to stop them from joining the mob, unless they’re treated as common carriers and prohibited from doing so.

            1. Nothing is stopping them, but nothing is stopping any of hundreds of other Internet infrastructure companies from providing the same services if they do.

  36. Maybe you guys should whip up a mob to storm the offices of S & S and straighten this out. Take back the publishing industry for real Americans!

  37. I don’t know what “Orwellian” means in this context, so I can’t say whether a mob preventing people they disagree with from getting books published is Orwellian or not.

    But that doesn’t answer the question of whether it’s *wrong.* When I was a kid, I thought it was pretty widely accepted that even the private aspects of the Blacklist were wrong – that it wasn’t OK for private companies to agree, often under pressure from citizens, that they wouldn’t hire communists.

    Even Ann Coulter argues that the communists were actually dangerous, as opposed to “Well ACTUALLY, the Hollywood studios were private companies, so if people wanted to pressure them to fire screenwriters because of their political beliefs, that was totally OK.”

    1. J Mann — I’m guessing you weren’t a kid in the 1950s. A big part of the reason the blacklist was wrong was that so many folks thought it was right.

  38. Oddly publishers didn’t drop books like Kendi’s and DiAngelo’s which promoted an ideology that led to death and destruction over the summer.

  39. I will accept the argument that a private company has the moral right not to associate with someone because of his political beliefs from anyone who also agrees that a private company has the moral right not to associate with someone because of his religious beliefs.

  40. In what way is this argument not applicable to lunch counters?

    I think we have decided this issue. Lunch counters cannot refuse black patrons. Property rights are not unlimited, especially for businesses. This is particularly true of monopolies or near monopolies. The power company cannot cut you off if you oppose their rezoning request, the hospital cannot refuse you if you are Muslim.

    1. It is applicable to lunch counters. You don’t have to sell Josh Hawley a sandwich, either.

  41. So, farmer are private. Can they not allow their products to be sold in blue states? Phone companies/internet providers are private – can they refuse to service households based upon voter registration? How about truckers – can they refuse to transport goods to states/cities based upon political affiliation. Can a grocery chain (which is a sole source of goods in a region) refuse to sell to persons based upon politics?

    How about bakers? Photographers?

  42. Consider the historical precedent. A ways back, when OJ was going to make a few bucks selling a book that included his hypothetical confession to killing Nicole and her friend.
    There was a substantial danger to the publisher of being associated with OJ and they chickened out. The book did eventually get published, but not until the rights to it were transferred to the Goldman family, which made it palatable to the public that anyone was making money off the project.

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