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Free Speech

Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?

And, if so, what does this mean for 47 U.S.C. § 230?

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Say that a state creates a law that protects speech more than the First Amendment does; for instance, say that the state law protects speakers against retaliation or exclusion by

  • private employers,
  • private educational institutions,
  • private shopping mall owners, or
  • private social media platforms.

And say that Congress preempts that state law, for instance allowing the private entities to restrict speech on their property (or by their employees or students).

Could that federal law potentially violate the First Amendment, even though it doesn't actually forbid speech, but simply empowers private entities to do so?

Vivek Ramaswamy's and Jed Rubenfeld's Jan. 11 Wall Street Journal op-ed suggests the answer is yes; and on reflection, I think there is a good argument for a version of that position, though I'm not sure whether I'm persuaded by it myself. I'd therefore like to lay out in this post what I think is the best argument inspired by their claims, though not one that necessarily agrees with them in all details.

[1.] Let us begin with a precedent. (Remember, "law is the only discipline in which 'that's an original idea' is a pejorative.") In 1943, Nebraska enacted a state constitutional provision that provided that employers and unions can't require employees to join unions. In the Railway Labor Act of 1951, Congress preempted such state statutes, allowing (but not requiring) railroad employers and railroad unions to demand union membership as a condition of employment. Employees sued a railroad and a union under the Nebraska state provision for imposing such a "closed shop" contract. The defendants raised the federal Act as a defense, arguing that it preempted the state provision.

The U.S. Supreme Court (Railway Employes v. Hanson (1956)) concluded that the Railway Labor Act's preemption of state law needed to be evaluated under the First Amendment:

The union shop provision of the Railway Labor Act is only permissive. Congress has not compelled nor required carriers and employees to enter into union shop agreements. [But we agree with] the view that justiciable questions under the First and Fifth Amendments were presented since Congress, by the union shop provision of the Railway Labor Act, sought to strike down inconsistent laws in 17 States. [We agree that] "Such action on the part of Congress is a necessary part of every union shop contract entered into on the railroads as far as these 17 States are concerned for without it such contracts could not be enforced therein." …

If private rights [presumably rights secured by the Nebraska no-closed-shop provision] are being invaded, it is by force of an agreement made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed. The enactment of the federal statute authorizing union shop agreements is the governmental action on which the Constitution operates, though it takes a private agreement to invoke the federal sanction.

The Court concluded that the Act was substantively consistent with the First Amendment, because mere "compulsory membership" in a union does not necessarily "impair freedom of expression," in part because "Congress endeavored to safeguard against that possibility by making explicit that no conditions to membership may be imposed except as respects [the payment of union dues] …. If other conditions are in fact imposed, or if the exaction of dues … is used as a cover for forcing ideological conformity or other action in contravention of the First Amendment, this judgment will not prejudice the decision in that case." And in Machinists v. Street (1961), the Court did suggest that the First Amendment would bar spending compulsory union dues collected under the Act "for political causes which [the coerced employee] opposes," though the Court avoided that constitutional problem by reading the statute to prohibit such exactions of dues for political purposes.

Now Will Baude and I (and others) have argued that in fact the First Amendment inquiry here was substantively misplaced, and coercive contributions that are used for political causes are generally not unconstitutional. But this specific detail (on which the Court has disagreed with us) isn't important here. Rather, I think this case sets forth a more general principle:

Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action, because the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

This does not necessarily mean that the private actor (employer and the union) somehow becomes a "state actor" (or, more precisely, a "government actor") fully bound by the First Amendment. The government action is Congress's preemption of the state law protection. That government action must be judged under the First Amendment. And if the First Amendment blocks that preemption, that simply means that state law springs back into force and continues to restrain the private actors.

The splintered decision in Denver Area Ed. Telecomm. Consortum, Inc. v. FCC (1996) seems to reinforce this principle: A majority of the Justices concluded there that a federal statute that allowed (but didn't require) cable operators to block indecent material, and preempted contrary common-carrier-like rules or local control rules, was subject to First Amendment scrutiny and was indeed partly invalid. (See Part IV of the opinion and Part II of Justice Stevens's concurrence for more details.)

[2.] OK, now let's see how this principle might play out in three hypothetical contexts, before we turn to § 230. My own state of California has three state law rules that protect speech against private entities (one of them is based on the state constitution and the other two on state statutes, but that distinction doesn't matter for First Amendment purposes):

  1. The California Supreme Court has read the state constitution as requiring large private shopping malls to allow signature gatherers and other speakers on their property. (About a half dozen states have such rules.)
  2. A California statute bars private employers from firing employees for their "political activity." (About half the states have some version of these laws.)
  3. Another California statute bars nonreligious private colleges and high schools from disciplining students for speech that would be protected from governmental restriction. (California is the only state with such a law.)

Let's say that Congress enacted a Private Shopping Mall Discretion Act, a Private Employer Discretion Act, and a Private Educational Institution Discretion Act, which allowed (but didn't require) all privately owned shopping centers, employers, and educational institutions to exclude whatever speech they liked.

I think that, under Hanson and Denver Area, those statutes could be challenged under the First Amendment. Again, the statutes wouldn't make the mall owners, employers, and educational institutions into state actors bound by the First Amendment. But the Hanson/Denver Area principle would allow visitors, employees, and students to sue under the state laws, and then try to use the First Amendment to invalidate any federal statutory defense that the defendants interpose.

This seems especially apt if the hypothetical Private Discretion Acts were viewpoint-based, e.g., "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, if the speech constitutes 'hate speech'"—or, if you prefer, "a private college shall have the power to discipline a student for the student's speech, notwithstanding any contrary state law, unless the speech expresses support for federal government policies." Such selective continued protection for some speech, or selective enabling of private suppression of other speech, should at least be subject to substantive First Amendment scrutiny (whether or not you think it might sometimes pass such scrutiny).

But under Hanson and under the logic of Denver Area, I think even a content-neutral statute preempting such speech protections would be subject to First Amendment scrutiny—to be sure, the more forgiving intermediate scrutiny applicable to content-neutral speech restrictions.

[3.] Now, if you're with me so far, let's see how this would play out as to § 230, and in particular § 230(c)(2)(A),

No provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Imagine that a state enacts a Social Media Common Carrier Act, which provides something like this:

Just as phone companies are common carriers, which may not deny service based on their users' viewpoints or other attributes, so social media networks may not terminate a user account or delete content supplied by a user based on the ideological viewpoint or factual assertions expressed by that user.

(Assume that the law is somehow largely limited to speech posted and viewed by users within the state, and therefore avoids Commerce Clause problems. Assume also that such an Act wouldn't itself violate the social media network's First Amendment rights, perhaps because a court would conclude that such a mandate is consistent with Pruneyard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR, all of which upheld some requirements that private entities open up their property to outside speakers. Both are complex questions, but questions for another day. Finally, note that the hypothetical rule isn't quite a traditional common-carrier rule, but there are many different ways to craft such nondiscrimination mandates.)

Users sue Twitter under this state law for banning them based on viewpoints that they have expressed. Twitter says the federal § 230(c)(2)(A) preempts the state law. But the users respond that § 230(c)(2)(A) is itself a speech restriction that must be evaluated under the First Amendment; adapting Hanson, they argue:

Section 230(c)(2)(A) is only permissive. Congress has not compelled nor required social media networks to restrict user speech.

Nevertheless, justiciable questions under the First Amendment are presented since Congress, by § 230(c)(2)(A), sought to strike down inconsistent laws protecting user speech against the social media companies. Such action on the part of Congress is a necessary part of Twitter's editing decisions as far as this state is concerned for without it such banning could not be done within this state.

If private rights secured by the state law are being invaded, it is by force of a Twitter policy made pursuant to federal law which expressly declares that state law is superseded. In other words, the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.

The enactment of the federal statute authorizing social media networks to impose such speech restrictions is the governmental action on which the Constitution operates, though it takes a private decision to invoke the federal sanction.

I think this is at least a credible argument, which a court could use to evaluate § 230(c)(2)(A) as a speech restriction that triggers the First Amendment. Perhaps § 230(c)(2)(A) passes First Amendment scrutiny, but given Hanson and Denver Area, there's a serious basis for a court to apply such scrutiny.

[4.] Finally, let's turn to perhaps the most ambitious theory, focused on § 230(c)(1). Recall that § 230(c)(2)(A), which I quoted above, actually has little practical effect right now: It preempts state laws that would limit service provider editing discretion, but so far there are in practice virtually no such laws, and no general common carrier statutes / viewpoint discrimination bans of the sort I hypothesized (though some such bans are being contemplated by some state legislatures).

The important provision of § 230 is § 230(c)(1), which protects social media networks from libel liability (and other state-law liability) for those user posts that they don't edit out. Section 230(c)(1) is used all the time to block such lawsuits.

But wait: Sections 230(c)(1) and (c)(2) were deliberately designed to preempt a specific rule that emerged out of two trial court cases applying New York state law, Cubby v. Compuserve, Inc. (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Services Co. (N.Y. trial ct. 1995). That rule, to oversimplify, was:

  1. When a platform doesn't exercise editorial control over user-provided material, and instead provides "freedom of communication in Cyberspace" to its users, it is largely immune from libel liability.
  2. But when a platform chooses to "gain the benefits of editorial control," that choice "open[s] it up to a greater liability than … other computer networks that make no such choice."

This rule (to be sure, one that was in its infancy at the time § 230(c)(1) preempted it) isn't a categorical protection like the hypothetical Social Media Common Carrier Act. But it is still a form of speech protection against private restriction: It encourages private platforms not to restrict speech, by offering them immunity if they provide unrestricted posting rights, but threatening them with some degree of liability if they restrict user speech. And it's clear that § 230 (including (c)(1)) was indeed intended to encourage service providers to feel free to restrict speech; the title of § 230, after all, is "Protection for private blocking and screening of offensive material."

If this analysis is right, then the constantly invoked § 230(c)(1), and not just the rarely applicable § 230(c)(2)(A), itself constitutes Congressional preemption of state law that protects speech against private action. And as a result, the § 230(c)(1)/(2)(A) combo, and not just § 230(c)(2)(A), would need to be evaluated under the First Amendment. (Recall the principle we gleaned from Hanson and Denver Area: "Questions under the First Amendment are presented when Congress preempts state law that protects speech against private action.")

Again, § 230 might be seen as constitutionally permissible, perhaps on the theory that its preemption of this state law protection for private speakers passes muster under the intermediate scrutiny applicable to content-neutral laws. But at least courts would consider the question whether § 230, by enabling and indeed promoting private restriction of speech, notwithstanding contrary state law rules aimed at protecting speech, themselves violate the First Amendment.

[5.] As I mentioned at the outset, I'm not sure that this analysis is right. Perhaps Hanson and Denver Area (discussed in item 1) are themselves mistaken in applying First Amendment scrutiny here. Or perhaps other precedents that I've missed pull sufficiently in the opposite direction. Or perhaps somewhere in the path from item 1 to 2 to 3 to 4 the analogies go off the rails. And I stress again that this analysis is not identical to the Ramaswamy & Rubenfeld position, though it is inspired by that position.

But I thought I'd set forth what I thought was the strongest argument in support of that view, and see what others have to say about it. I'd love to hear people's reactions, and to adapt my own thinking in light of them.

NEXT: New Hampshire's Supreme Court Lawsuit Seeking to Prevent Massachusetts from Taxing NH Residents Working Remotely for Massachusetts Firms

Free Speech Section 230

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78 responses to “Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?

  1. The larger issue which occurs to me is this.

    1. Under what Constitutional Authority does Congress have the right to pass such a law such as your
    1. “Private Shopping Mall Discretion Act”
    2. “a Private Employer Discretion Act”
    3. “a Private Educational Institution Discretion Act”

    The commerce clause is a tough sell here (That clause actually works rather better in regards to Twitter and other interstate communications law). But under the aformentioned proposed laws, what Constitutional Authority is Congress relying on to pass such laws?

    And on those grounds, I could see the proposed laws being struck down. Not based on the 1st amendment, but based on the 10th amendment.

    1. Armchair Lawyer: It’s an interesting argument, but my guess is that under modern Commerce Clause caselaw (whether you think it’s right or wrong), Congress would have broad authority to regulate the activities of commercial enterprises, likely including private schools and colleges (which, while nonprofits, sell services).

      Certainly that’s true for the employers, especially if it applied it to large enough employers. Recall that Title VII of the Civil Rights Act of 1964, which bans race etc. discrimination in employment, was upheld under the Commerce Clause; if employment decisions can be regulated that way, they can be regulated (though in the direction of greater permissiveness) by the Private Employer Discretion Act.

      Likewise, Title II of the Civil RIghts, which bans such discrimination in certain places of public accommodation, was similarly upheld under the Commerce Clause. Allowing places of public accommodation to exclude people would likewise be seen, I think, as a permissible regulation of commerce.

      But if you do think that the laws would require some extra commerce hook, let’s say that the statutes are limited to institutions that substantially affect interstate commerce, or have some other limitation. For that matter, say that the employment statute is limited to railroads, which gives it the same Commerce Clause hook as the Railway Labor Act. What then under the First Amendment, which is the area of the law I’m using these hypotheticals to probe?

      1. I think it’s a bridge too far for the Commerce Clause. The court case of interest here is United States v. Morrison, especially in regards to the “Private Educational Institution Discretion Act” as proposed.

        I find it difficult to differentiate such a law here, which would regulate free speech, from the Violence Against Women Act and the decision within the aformentioned case. The economic effects of such a “Private Education” law could only be considered indirect, not direct. And it certainly wouldn’t directly use the instrumentalities or channels of interstate commerce.

        Again, there would be a substantial difference between directly affecting employment (within civil rights decision), and a secondary measure which may indirectly affect employment via disciplining students.

        But then again, a SCOTUS with a…broader…view of federal power may choose differently. With the current SCOTUS judges, I doubt that however. The precedent from United States v. Morrison would provide adequate reasoning.

        1. I don’t think that’s right, but, again, it doesn’t matter — forget about the Private Educational Institution Discretion Act, and focus on the shopping malls, which are clearly commercial (limit it to malls that engage in interstate commerce, if you’d like), or on clearly interstate employers, such as railroads (or employers with more than, say, 15 employees, much as Title VII does).

          I appreciate arguments for narrow readings of the Commerce Clause, even given existing precedents. But there’s certainly a version of at least those two statutes (and likely all three) that is consistent with the Commerce Clause — I’d like to know what the First Amendment analysis would be.

        2. Armchair, are you edging into the 10th Amendment?

          Education has *always* been considered a state issue, under state authority, all the way back to 1780 when John Adams literally wrote Harvard into the Massachusetts Constitution. Some have argued that ED itself is unconstitutional — although I like to ask them what the “E” in “HEW” used to stand for…

          Regulating employment is one thing — but regulating students is something else entirely! *States* have control over curriculum (California is an outlier in this regard), states have control over K-12 teacher certification, states authorize the issuance of college degrees.

        3. There really isn’t any such thing as “a bridge too far” for modern commerce clause jurisprudence. It’s already been transformed into a general grant of regulatory authority over basically all things, subject only, maybe, to a magic words test: Congress has to assert the possibility of some effect on interstate commerce. (They forgot to in the gun free school zone act, leading to a loss in Lopez, but that was decades ago, who knows if the Court is even requiring magic words these days?)

          Actual legal professionals are in a tough place where grossly bad constitutional ‘interpretations’ are established precedent, and unlikely to be overturned. They’re trying to teach what will work in a courtroom, after all, not merely what’s correct but would cause you to lose.

          Taking note that the existing precedents contradict what the text actually says can only get them into trouble, they might forget one day and teach their students the truth instead of what works in court.

          1. “Taking note that the existing precedents contradict what the text actually says can only get them into trouble, they might forget one day and teach their students the truth instead of what works in court.”

            That’s an even bigger issue — legislatures pass laws that say specific things and not only do bureaucrats ignore them, but courts refuse to enforce them. So the legislature passes new laws, which are equally ignored. Conversely, they sometimes enforce laws that don’t even exist because “everyone” thinks they do.

            So when someone like me tries to evaluate curriculum, all I can do is look at what the laws and regs *say* and hope to somehow come somewhere near to what they are actually interpreted as meaning.

            Conversely, educational reformers pass new laws which essentially restate existing laws — which are also ignored.

      2. ” Congress would have broad authority to regulate the activities of commercial enterprises, likely including private schools and colleges (which, while nonprofits, sell services).”

        Repectfully, Professor Volokh, you need to look at what Congress actually DID and then ask why.

        Almost all of the Federal regulations on private schools and colleges are tied to the institution’s receipt of Federal funding and not this “broad authority” that Congress may or may not have. To some extent this may have been political but then law is political, and a lot of this Federal authority was established in the 1960’s when “states rights” were perhaps more important than now.

        That’s why there is an ED-OCR — https://www2.ed.gov/about/offices/list/ocr/index.html — and why it’s rulings are more relevant to both K-12 and higher education than court rulings.

        If Congress wished to preempt the Cali law on student free speech at private IHEs, what it would do is to tie it to the IHE receipt of federal funds. Hillsdale & Grove City Colleges (which aren’t in CA) would be free to ignore it, but all the other IHEs wouldn’t be able to.

        This has — and is — and likely will continue — to be an issue with campus kangaroo korts and rape allegations. Betsy DeVos reversed Obama’s presumed guilty standard and Biden will likely reverse DeVos — while states have passed laws to explicitly oppose either. Massachusetts to oppose the DeVos standards and other states earlier to oppose the Obama ones.

        The interesting question is Federal supremacy when it is only as a requirement to receive Federal funding and I don’t think that has been answered, at least not in this context.

  2. First of all, kudos to Prof. Volokh for his statement about the uncertainty associated with his position or thinking. Too often we have commentators all along the ideological spectrum claiming certainty where it does not exist. Indeed one can say that intelligence itself is inversely related to the degree of certainty of one’s position. (This does not apply to me with respect to the comments below; I am certain I am right)

    The complexity of the technology is a contributing factor here. And freedom of the press is specifically addressed in the Constitution. Thus the WSJ can refuse me the right to publish a reply to their editorials (and always have) without legal issues or consequences.

    But electronic media is in effect, infinite. There is no physical limit, other than computer storage space which is almost infinite, that limits postings. So this Forum can allow unlimited posting, no problem. But does it have to?

    The general principle should be no. As a private operator it is well founded in law that the 1st A does not apply with respect to speech. There is also the principle that no private actor should be required to support position with which they disagree. All of this aligns with the position that operators of social media should be free to police and control their sites as they see fit.

    The problem arises due to the near monopoly status of some social media operations. But this is different from common carriers who in the past were natural monopolies. Facebook and Twitter are not natural monopolies, and indeed the competition arena is open to everyone who can find a server and pay the frieght, which is just about everyone.

    So the market should prevail. The pre-emption of state laws by federal legislation should over-rule any state attempt to regulate content or access by type of content because no one’s 1st A rights are being injured by a social media company refusing certain content or certain users. No one has a Constitutional right to post on Twitter or Facebook. No one has a right to have their book published by Simon and Shustger. Don’t like that, start your own social media company, no laws or anything else is stopping you.

    As for the affiliation issue, private actors such as universities or companies should have the right not to have their name associated with the speech of their employees or others. So if some speaking (in the broadest sense, like posting) purports to use their affiliation to imply status or that the affiliate supports their position, the private actor should have the right to control that, and if necessary end the relationship. But if a person speaks without directly or indirectly citing their affiliation, and affiliate should not have the right to restrict speech. See, not so hard to solve that problem.

    1. The near monopoly/total monopoly status is the real problem. And due to network effects, Twitter and Facebook can be considered monopolies, as can Amazon Web Services and Google/Apple.
      This can be seen by the apparent ease with which the 5 companies basically shut down a billion dollar potential competitor. Much of this was argued before in the Comcast – BitTorrent fight. (Worth looking up).

      The question is, how best to address that near monopoly status. I believe the best way is the common carrier law. Many other corporations operate under its strictures without any real problem. Everyone from Fed Ex to Disneyland to AT&T to Delta. Applying Common Carrier law to Google, Apple, Twitter, Facebook, and Amazon Web Services is relatively straight forward and painless, and should avoid many of the problems that occur with near monopoly companies and the abusive business practices that can result from them.

      1. Armchair, you mention as common carriers a selection of companies which are not publishers, and suggest that a style of regulation appropriate to those will likewise apply to publishers. That takes care of all the press freedom problems by ignoring them.

        1. Disney is not a publisher? Come on now, it’s one of the largest content producers in the country, and notwithstanding that, all of those characters in the park are zealously protected by copyright (etc.)

          Most (all) the ISPs are — they would love to sell you content that they either publish themselves or license from someone else to publish (e.g. movies).

        2. In this context, the companies mentioned (Apple & Google in the context of their stores, Amazon Web Services in its guise as a provider of cloud hosting) can’t be considered publishers at all.

          They are considered storefronts or a provider of services. Just like Fed Ex can’t turn away a package delivered by a political undesirable, these companies shouldn’t be able to do the same, considering their monopoly status.

          Twitter and Facebook come closer, but they generally do not provide any editing services. People post, and the posts go up unmoderated, unread, unedited, without further work. They work more akin to a mail service, which simply mails out whatever it gets. Or a phone company or ISP, which simply transmits on the data. Thus, common carrier rules should apply.

          1. “Just like Fed Ex can’t turn away a package delivered by a political undesirable,”

            Has that been tested, though? Sure, they don’t refuse the business, but there was a time when you could say the same of Visa, or even Paypal.

            I think it’s only a matter of time before Fedex comes under pressure to refuse legal shipments on political grounds.

    2. “But electronic media is in effect, infinite. There is no physical limit, other than computer storage space which is almost infinite, that limits postings.”

      The issue is if it is an island or not.

      Go back to the days of steam engines and telephone wires strung along the track. Notwithstanding the regulation of the telephone network itself (Bell System), railroads (and anyone else) was free to set up their own *internal* telephone systems and routinely did. “SPRINT” stood for “Southern Pacific Railroad Internal Networking Telephony” and the railroad’s eventually successful attempt to sell excess bandwidth on the wires running alongside their tracks for long distance telephone calls.

      While these railroad telegraph lines (subsequently used for telephones) were interstate, they were islands not connected to anything else, so on one cared. You could build your own and many people did — it was called an “intercom” and likewise was islanded.

      Likewise, you could (and still can) license a radio frequency to use for your company. While people think of police & fire, a lot of colleges, cab companies, construction companies, etc. do this. (The railroads do as well, and it was their shift to radio in the ’70s that freed up all the wires.) But these systems are also “islands” — outsiders can’t speak on them.

      The problem is when these systems are no longer islands — when they connect to others. You want your SPRINT (now T-Mobile) phone to be able to connect to an ATT phone, or connect to Verizon’s 911 dispatch center. That’s the nexis for regulation.

      Now using EV’s labor union analogy, imagine if Verizon was owned by a rabid right-to-work zealot and terminated any call to a union on the basis of certain words (e.g. “strike” or even “grievance”) and then canceled the union member’s phone service. Even outside the issue of a monopoly, I doubt that the union would nonchalantly accept this, nor would Congress.

      The NSA has been intercepting phone calls on the basis of certain key words for decades. “Alexia” and other computer services do likewise, and as almost all telephone communication is digital now, it would be entirely possible for any phone company to act on certain key spoken words.

      Farcebook and Twatter are essentially telephone companies, Farcebook advertises itself the way that Ma Bell used to, it “connects” people and “brings people together.”

      1. No, Mrs. McGillicuddy, this is a house phone. You can’t get Jersey on it.

    3. Because of network effects, there’s a good argument that social media platforms ARE natural monopolies. A single network that reaches everyone is worth more than ten times the value of 10 networks each reaching 1/10 the population.

      This would appear to be as true of social media platforms as it is of telephone companies and others previously accepted as natural monopolies.

      1. The concept of the natural monopoly is that because of economies of scale and high capital costs and social benefits, a single supplier is the most efficient and effective supplier of a good or service in the market. Competition is just no applicable in these cases. Public utilities were the most prominent types of natural monopoly until technology rendered them most extinct. They still apply in terms of pipelines, railroads, electric transmision lines and so forth.

        But there is no reason social media should be considered a natural monopoly, and no, Amazon does not control or monopolize cloud services.

        Free speech is the right of an individual to speak out without government control or censorship. It is not the right to be heard.

        1. You’re not addressing the network effects argument at all.

          Network effects – where the value of a service is largely a function of the number of people using it – have long been recognized as creating natural monopolies.

          Social media platforms create networks and would seem to be classic examples of a business subject to network effects.

          https://en.m.wikipedia.org/wiki/Network_effect

          1. As a former public utility economist I am indeed familiar with network effects and the impact on a network when subscribers increase to a level of near universal penetration.

            But what that does is increase the value of the network, and it does not address the issue of a natural monopoly. The natural monopoly occurs when it is not feasible to have competing networks. So for a long time the Bell system and other telephone companies were natural monoplies as it did not make economic sense to have two, three, four or more telephone companies serving the same customer base. (technology destroyed the natural monopoly aspect of telephonr systems).

            But with respect to social networks, just like newspapers there is no problem with competing networks, so no need to have a regulated monopoly. So they do not qualify in the common carrier sense and may control their own speech and there is no need for government regulation, just a there is no need for government regulation of this Forum.

            1. But with respect to social networks, just like newspapers there is no problem with competing networks

              You might want to catch up on the past couple weeks’ news. Come on.

      2. Remember that a lot of the telephone companies in rural areas were *not* part of the Bell System — they were small local private companies designed to serve isolated communities of only a few hundred people. What made long distance telephony possible was their ability to interconnect with the Bell System.

        As late as the 1960’s, it was the local operator contacting the next operator and literally patching the call through, calling the caller back when the other party was on the line. You’ll see this on old movies. Direct Dial (pulse dialing on a rotary phone) was gradually introduced, but as late as 1988, I used a “dial-less payphone” — the operator answered when you lifted the receiver and you had to tell her what number you wanted to call. Bryant Pond, ME had the old-fashioned “hand crank” a few years before that, see: http://content.time.com/time/subscriber/article/0,33009,921246-1,00.html

        And one (of the many) difficulties that Ma Bell had installing it’s TelStar ground station in Andover, ME was that there town only had 14 phone lines (which were shared back then).

        MY POINT: While the telephone company was a natural monopoly, the only reason we got universal service was the requirement that it (and all the little tiny companies) interconnect with each other and carry each other’s calls.

        IMHO, that is the solution for Twatter and Farcebook — they can establish their design specs like the Bell System did, but I should be able to set up EdSpeak and my customers should be able to connect to theirs, and their customers connect to mine.

        The other thing this would do is set up a real price war for advertising revenue because EdSpeak would undercut their rates and then things would get interesting….

  3. In regards to the full section 230 argument, please correct if I get any of this wrong.

    1. A federal law that supersedes a state law which regulates speech may violate the first amendment.

    1a. A State law can either further protect free speech and/or private rights (As in the Nebraska case) or

    1b. A State law can further restrict free speech and/or private rights. This is an important distinction.

    2. The first amendment questions are only applied when Congress preempts state law questions that PROTECT free speech against private actions. Not when Congress preempts state laws that restrict private rights. (Worth discussing further)

    3. The “Social Media Common Carrier Act” would protect free speech and private rights.

    3a. However, there would be major practical Commerce Clause problems here that may be insurmountable, in regards to the social media organizations. And as noted, there are virtually no state laws regarding this.

    4. However, in regards to “Stratton Oakmont, Inc. v. Prodigy Services Co.” the general state laws under investigation are libel and slander laws.

    4a. These state laws generally can be considered not to protect, but to to restrict free speech.

    4b. Because Section 230, in this context, would be superseding a state law (libel/slander) that restricts free speech, it actually doesn’t interfere with the First Amendment, because it actually provides further protection for free speech. So the First Amendment argument would fail.

    1. You have a good point here.

      “A State law can further restrict free speech and/or private rights.”

      As to discrimination laws, where this often come up, and as I understand it, a state may be *more* protective of rights but not less. And wasn’t the 14th Amendment written to explicitly preclude a state from restricting private rights?

    2. These [libel and slander] state laws generally can be considered not to protect, but to to restrict free speech.

      Indeed libel and slander laws restrict speech. But, the state statute Eugene had in mind that 230 preempts is one that reduces exposure to libel and slander laws for social media platforms that do not censor their users’ speech. Unless I am missing something, such a statute protects speech.

      1. On the other hand, I guess your point was Section 230 reduces Twitter’s exposure to libel and slander laws even more, and thus Section 230 is more protective of speech. And from Twitter’s perspective, that sounds correct. However, from the perspective of Twitter’s users, their speech is more restricted by Section 230.

        Couldn’t the same thing be said of how Section 230 interacts with the Social Media Common Carrier Act? Isn’t Section 230 also more protective of Twitter’s rights not to be compelled to host speech while at the same time more restrictive of users’ rights to speak?

        1. Thank you for the correction. Indeed, section 230 reduces Twitter’s exposure to libel and slander laws even more, and thus Section 230 is more protective of speech, at least as according to the Stratton Oakmont, Inc. v. Prodigy Services Co. lawsuit.

          As for the ” Social Media Common Carrier Act”, the issue within, is that such a state law does not yet exist. Because it doesn’t exist, Section 230 can’t interfere with it.

    3. The problem with your point 2 is that there is more than one party whose speech is being restricted. The Private Mall Discretion Act does not only enable speech by visitors to malls; it also takes away a First Amendment right (to refrain from hosting speech) of mall owners. So point 2 is a distinction without a difference; Congress is merely favoring one category of speakers over another.

      1. “to refrain from hosting speech” is different from restricting speech. In many ways “to refrain from hosting speech” is essentially a negative.

        1. The First Amendment applies to both speech restrictions and speech compulsions by state actors.

  4. Armchair Lawyer above posits that state defamation laws restrict free speech. That sorts poorly with the customary notion that libel/slander are not protected speech at all. Which is why states legitimately can have laws criminalizing libel, for instance, or empowering private civil actions against it.

    That raises a question. When states use legal measures to empower civil actions against libel, are those laws properly numbered among the protections of press freedom, or numbered instead among restrictions of press freedom? To take the latter position seems de facto to disparage the notion of a distinction between press freedom, which the law protects, and libel, which the law does not protect. To say otherwise treats the distinction as abolished, mixing protected press freedom into an undifferentiated mass with unprotected libel. The notion of legitimately protecting something like that is self-evidently paradoxical. So state laws penalizing libel are accurately seen as protections of press freedom, not as restrictions of press freedom.

    On that basis, I suggest Professor Volokh’s consideration of Section 230 requires a broader focus. Section 230 went far toward wiping out state libel laws’ power to protect press freedom from damage inflicted by proliferation of libel. Passage of Section 230 demonstrably unleashed a torrent of consequence-free libel unlike anything seen for at least a century prior. To do that, Section 230 explicitly preempted state libel laws, to put in their place a comparatively lax federal regime, less protective of press freedom than the one the states had administered.

    In the context of EV’s ruminations, doesn’t that suggest that Section 230’s federal usurpation of 50 states’ more-press-protective libel laws was unconstitutional under the 1A?

    For those who might be inclined to comment, please be careful not to make the mistake of constraining the notion of press freedom to considerations about authors only, with press freedom for publishers and editors left aside. I anticipate that my argument will be hard to sell to internet fans accustomed to thinking of press freedom as equivalent to authors’ freedom from editing, and nothing else. That is a mistaken view, and always has been.

    1. These companies are not common carriers, not listening to and not responsible for stopping a conversation planning a bank robbery. They are publishers who censor content, usually with great political bias. They should be regulated as utilities because of their monopolies, and stopped from discriminating. Their monopolies are government tolerated if not sponsored, and make them quasi-governmental organizations, requiring due process before adverse actions.

      Defamation should be expanded to professional malpractice in violation of the Code of Ethics of Journalism. It requires giving both sides of a story. Clear label of an article as subjective opinion can prevent such an action.

      In addition, they are criminal enterprises, 1) billions of federal crimes are committed on their platforms; 2) they themselves overstate viewerships, thus defrauding advertisers. Half their accounts are not real; 3) they convert the value of personal information and sell it without compensating the owners; 4) their terms of use are unconscionable in procedure and in substance, and void, violating consumer protection laws.

      1. Keep in mind their censoring of harrassment was put into overdrive by politicians screetching about changing section 230, or breakup as “too large”, either of which would cost uncounted billions of dollars in stock loss, unless they play the game and censor harrassment.

        And, purely coincedently, they assure you, that includes harrassing tweets of their political opponents.

        I am so sick of these arguments facetiously ignoring this, and assume the companies are doing this censoring of their own free will.

        This is direct First Amendment violation, right here in the US.

        1. A question for you Krayt. If what you say is accurate, about illegitimate pressure from government on private publishers, why is regulating the publishers the solution, instead of constraining the government? To put a sharper point on it, why doesn’t 1A press freedom include freedom for publishers to protect themselves from government pressure by whatever means they judge best, including even giving in to the pressure?

          By the way, I don’t think your notion of what is happening is accurate. And if it is accurate, I would prefer publishers which would resist government pressure.

    2. So state laws penalizing libel are accurately seen as protections of press freedom, not as restrictions of press freedom.

      George Orwell would be impressed by your “Censorship is freedom” argument.

      1. So, Nieporent, leaving aside your bizarre reiteration that private editing is censorship, you extend your argument to say that libel is press freedom?

        1. You’ve somehow twisted things around to argue that libel and slander laws don’t restrict freedom of speech.

          Don’t get me wrong, they’re important laws to have. But to argue that libel and slander laws don’t restrict freedom of speech is just wrong.

          1. Armchair, do you think giving license to libel would enhance press freedom? Or is it possible that you are momentarily forgetting that libel is not protected speech? Do you suppose an ability to publish damaging unprotected speech is an indispensable aspect of press freedom?

            Here is a conundrum, by way of illustration. Imagine a private editor who is keen to enhance the readership, reputation, and financial well-being of his publication. He is presented with a demand to publish an abominable libel, one which an angry society will legitimately repudiate as broadly damaging, unjust, and intolerable. Does the editor damage press freedom when he rejects that libel, and thus prevents direct damage to society, and consequent damage to his publication? How could that be?

            Here is a truism for you: conflate press freedom with speech freedom and the terms cannot be understood separately. One thing that means is that folks are mistaken if they interpret press freedom as the freedom of authors, and only authors, to say as they please.

            With these comments I am trying to suggest some of the complications which must be considered to get the two terms properly separated, and thus respectively understood. I think you are trying to understand, and I thank you for that. If you would like to open a dialogue, and challenge me with specific questions, I would welcome it.

            1. You’re going too far into second and third order effects.

              Libel and slander laws restrict freedom of speech. This is simply true.

              There’s a reason why these laws exist, and if they didn’t exist, perhaps different, more stringent laws would be enacted. But in the first order, it’s simply not controversial. Libel and Slander laws restrict freedom of speech.

              1. Armchair, I understand. It is an axiom that you are correct. And among rationalists, axioms are not to be questioned by evidence or argument. Axioms are the truths you must accept, so that you can have a point of beginning to reason your way along to discover facts.

                1. That’s Lathrop’s admission that he doesn’t know what he’s talking about. Once again: telling me I can’t say something without punishment (whether the punishment is denominated as a “fine” or “damages”) restricts speech. Without that injunction, I can say it without legal percussions. With it, I can’t. My speech is restricted.

                  Change speech to the press, and the argument changes not one whit. Telling me me I can’t publish something without punishment (whether the punishment is denominated as a “fine” or “damages”) restricts the press. Without that injunction, I can publish it without legal percussions. With it, I can’t. The press is restricted.

                  It doesn’t matter whether we’re talking about defamation, or harassment, or threats, or obscenity; saying that these things can’t be published without legal repercussions is a restriction. That’s what a restriction is.

                  That rules against these things might not offend the first amendment is a separate question.

        2. So, Nieporent, leaving aside your bizarre reiteration that private editing is censorship, you extend your argument to say that libel is press freedom?

          You really can’t grasp basic concepts.

          Scenario 1: I can publish X without being fined.
          Scenario 2: I can’t publish X without being fined.

          In which scenario do I have more freedom?

          1. That was the easy question (though I suspect you’ll manage to get it wrong). But then add in this fact: “X” is not a category with hard borders. To be safe to avoid getting fined for publishing X, I have to also avoid publishing W and Y, because W and Y are close to X and someone might decide that they’re too close and fine me for publishing those also.

          2. You keep confusing the question of whether banning libel infringes on the first amendment¹ with the question of whether banning libel reduces my allowed speech.


            ¹Sometimes no, but sometimes yes, which is the holding of NYT v. Sullivan that I’ve explained to you scores of times and which you run and hide from the thread after I do.

            1. Nieporent, I am not talking about speech, whether yours or anyone’s. I am talking about freedom of the press. Like most other commenters, you don’t get that speech freedom and press freedom are different rights. By interpreting everything in terms of freedom to speak, you announce belief that maximizing speech is a proper gauge for both speech freedom and press freedom. That is a mistake.

              1. Like most other commenters, I “don’t get that” Stephen Lathrop’s idiosyncratic views of the First Amendment do not have anything to do with the actual First Amendment. Nothing I said turned on the nonexistent distinction between these two rights.

                You are talking about speech.

          3. Nieporent, you grasp this issue so poorly that you build even simple scenarios wrong. Yours do not represent the issues in question.

            First, absent criminal libel—which I am not talking about—no real-world instance—neither Scenario 1, nor Scenario 2—results in a fine. A fine is money you pay to government. What you risk is payment of damages, actual or punitive, to a party whom you have harmed. And your 2 scenarios—by reference to a fine, instead of reference to harm—leave that harm out of your sum—from which that harm ought to be reckoned a subtraction.

            To better organize your thinking, ask instead, is the increase in freedom a libeler enjoys typically greater, or typically smaller, than the subtraction of freedom his victim suffers? Whatever you may think, society has long since answered that question to its own satisfaction. In general, the victim’s harm is worse than the libeler’s gain. And society does not think that is a close question.

            Second, scenario 2 is wrong another way—a way distorted by a typical libertarian warp. The real-world instance you confront is not, as you put it, “I can’t publish X without being fined (sic).” The actual real world instance is, “Nobody can publish X without being fined (sic).”

            Your way of viewing it purports to harm you uniquely, an estimate without any real-world basis. That is not the way the system works. The latter accurate framing adjusts your gains, and your harms, alike with those of everyone else. Accept that, and you can then move on toward insight. Ask the question this way: is there more press freedom for everyone, or less press freedom for everyone, when no one can publish damaging libels with impunity?

            I can’t venture to say how you might choose to answer, except to say I know from experience that you will choose to answer for just yourself, making your own benefit the test of everything. As I have said before, your take on this issue has been bizarre. But the general answer, based on collective reckoning, is that there is more press freedom for everyone when no one can publish damaging libels with impunity.

            1. First, absent criminal libel—which I am not talking about—no real-world instance—neither Scenario 1, nor Scenario 2—results in a fine.

              So no real-world instance — other than the real-world instance you just mentioned — results in a fine. But unless you are arguing that there are different standards for criminal and civil defamation, this distinction is irrelevant.

              To better organize your thinking, ask instead, is the increase in freedom a libeler enjoys typically greater, or typically smaller, than the subtraction of freedom his victim suffers?

              His victim hasn’t suffered any subtraction of freedom. His victim has suffered hurt feelings, or maybe even financial harm, but not a loss of freedom.

              Whatever you may think, society has long since answered that question to its own satisfaction. In general, the victim’s harm is worse than the libeler’s gain. And society does not think that is a close question.

              Who exactly appointed you to speak for society? Anyway, in some countries, they’ve decided that hearing criticism of religious beliefs is so damaging that they have laws against blasphemy. Do those laws also have no impact on freedom of speech in your mind because the increase in freedom that a blasphemer enjoys is less than the subtraction in freedom that the victims suffer from hearing blasphemy?

              Second, scenario 2 is wrong another way—a way distorted by a typical libertarian warp. The real-world instance you confront is not, as you put it, “I can’t publish X without being fined (sic).” The actual real world instance is, “Nobody can publish X without being fined (sic).”

              Are you actually claiming that infringing on a lot of people’s liberty makes it less of an infringement than infringing on one person’s?

              is there more press freedom for everyone, or less press freedom for everyone, when no one can publish damaging libels with impunity?

              There’s less freedom when no one can publish. To use a technical term: “duh.”

    3. “Armchair Lawyer above posits that state defamation laws restrict free speech. That sorts poorly with the customary notion that libel/slander are not protected speech at all.”

      Couldn’t Congress, in its infinite wisdom, protect speech that otherwise wouldn’t be? Couldn’t Congress say that “libel/slander are now ‘protected speech’ because we say so”?

      Other than commerce clause, under what grounds could you challenge such a statute?

      1. And then there’s _Cohen v. California_ and SCOTUS saying that “Fuck the Draft” is protected speech because they said so.

  5. Larger than a big size, for example, 3 or fewer statewide providers makes a private company a utility and a quasi-governmental organization. You would not allow viewpoint discrimination by the electric company. All Biden voters get their electricity cut off. You should not allow Facebook to do that. Certainly state actors, like licensing boards, should be severely punished for violations of Free Speech rights.

  6. “… because mere “compulsory membership” in a union does not necessarily “impair freedom of expression,”

    Wasn’t that reversed by _Janus v AFCSME_ ?

    Albeit public sector, the holding was that merely compelling one to belong to a union *was* compelled speech, hence an impairment of the freedom of expression. Now I know it’s a leap to go to private sector, but if SCOTUS felt it necessary to evaluate the Railway Labor Act in light of the 1st Amd, then why wouldn’t Janus apply to such an evaluation?

    And with that foundation gone — assuming it is — then what?

    Of course, what Nebraska could have done would have been to tax closed shop railroads to create a fund to facilitate employee anti-union expression. States could (and currently do) tax railroads: sales, excise, & property taxes come to mind and taxes in the midwest (where it had six or more tracks but only needed one or two) was a factor in the collapse of the Penn Central.

    1. In Janus, the state (of Illinois) imposed the union membership requirement. In a railroad union case, the railroad imposes it, and a privately owned railroad is not limited by the First Amendment.

      Normally, state law controls whether closed shops are allowed. In the railroad case, there is at least a rational argument that regularity of interstate transport corporations gives the federal government an interest in whether closed shops are allowed.

      1. ARE closed shops allowed, or does the state law permitting them violate Janus?

        1. The supreme court did uphold the right to resign your union membership without getting fired in Pattern Makers v NLRB. So in the most literal sense, closed shops are not allowed in the US, and have not been for 35 years. (I’m sure that many here would argue that being made to pay a fee to a union, even if not a member, is a distinction without a difference)

        2. Neither. Closed shops were outlawed by Taft-Hartley in the late 1940s.

          1. At least at the time of Hanson, the Railway Labor Act permitted the union shop in the railway industry (and I believe the airline industry); that’s “a variant of the closed shop, since union membership is required of every employee after the 60-day period designated in the Act.” I believe the Act still does permit the union shop, though I can’t vouch for that.

  7. Why is an explicit state law right necessary for standing here? Why can’t a person censored for decency etc. sue directly, claim Section 230 is not content-neutral, and get the same First Amendment analysis? What would a state statute add to this? It doesn’t appear Professor Volokh is arguing it would change the First Amendment analysis.

    Perhaps a state statute might sometimes clarify standing – but for the federal law, the plaintiff would prevail. But it seems to me plaintiffs can establish injury and redresssbility without one.

    Professor Volokh – can you come up with a hypothetical where it would matter? That is, with a state statute there is standing to sue, and without one there isn’t.

    1. The content neutrality standard is about government action. Section 230 is content-neutral from the government’s perspective. Your hypothetical is akin arguing that a permitting system for a park is content-based because some permitted groups who use the park to speak on matters of public concern.

      State law is relevant here because the whole question posed is whether federal preemption gets First Amendment scrutiny in the case of speech-protective laws, at least where those limit another private party’s freedom of expression or association.

      1. But isn’t the question, once the merits are reached, whether the federal law passes First Amendment scrutiny? If it does, then the federal preemption associated with it does too. I don’t see how the state statute creates a new merits question that wouldn’t have existed without it.

        1. ReaderY, ask a lawyer. IANAL, but I assume from what I read here that it has something to do with strict scrutiny, and its demand that laws which burden rights be tailored to minimize the burdens. Hence, if a state law regime were more rights-supportive than a federal law regime, the federal law regime would have to give way, as not sufficiently rights supportive by comparison. That’s just me guessing about law, based on nothing but plausibility. Could be totally wrong.

    2. Simce the existence of a state statute doesn’t seem to change the First Amendment analysis once we get there, its role seems to be to establish standing where standing would not otherwise exist. But is it actually necessary? Does it even play a real role? I’m skeptical. When would standing exist with a state statute but not exist without it?

      1. Standing isn’t the issue. It’s all about the merits and the First Amendment analysis changes.

        Without a state statute protecting your speech, you have standing to sue claiming your First Amendment rights were violated when Twitter censored you. But, you will lose unless you persuade the courts Section 230 made Twitter an agent of the government (good luck with that).

        But with a state statue that prevents Twitter from censoring you, you will of course win under that statute in isolation. Twitter will counter that Section 230 preempts the state statute and now you lose. Finally, you will counter Section 230 as applied to the state statute violates the First Amendment because it is a government action to preempt a state law (so sayeth Ramaswamy and Rubenfeld).

        1. I would think there is another angle you could use as plaintiff: Twitter blocked your comment but your comment did not actually violate the terms of service as stated on Twitter’s web site — therefore Twitter’s blocking was not “in good faith” as those words are used in 230(c)(2)(A), so that section doesn’t apply and Twitter’s action is breach of contract.

          I have not seen any case law that defines, or gives teeth to, the words “good faith” in the context of 230(c)(2)(A). Is there any?

          1. Eugene previously discussed what “good faith” means and it doesn’t refer to a breach of contract. However, Eugene also said I do think that a finding that the defendant breached a binding contract should be sufficient to avoid (c)(2), simply because § 230 immunity can be waived by contract the way other rights can be.On the other hand, I doubt you will succeed in arguing that the terms of the contract implicitly protect posts which Twitter finds offensive. I would think such an agreement would have to be explicitly stated.

    3. ReaderY: Say your comment is blocked because of vulgarity — perhaps on this very blog! If you want to sue me, you need to explain which of your legal rights I’ve violated; what will you say? I haven’t libeled you, I haven’t breached a contract with you, I haven’t violated the First Amendment (I’m not a state actor; there’s a theory that I would be under Skinner v. Railway Labor Executives Ass’n, because 230 supposedly makes me an “agent or instrument” of the government, but I doubt that will fly). But if there is a state common carrier statute applicable to people like me (or, shifting back to the example, like Twitter or Facebook), then you can sue under that.

      (For theory 4, you might also be able to sue for declaratory judgment that, if I delete your comment, I’ll become liable for comments that I don’t delete and that defame you — but you’d still be relying there on a state cause of action, which is the state law of libel, assuming the state would have followed the Stratton Oakmont incentive system absent 230.)

      It’s like in the Hanson case: The plaintiffs weren’t just suing their employers claiming the Railway Labor Act’s permission of closed shops was unconstitutional. They were suing their employers under the express Nebraska provision that banned closed shops, and trying to use the First Amendment to invalidate the defendants’ Railway Labor Act defense.

      1. BUT if you were to publicly state that “X is a clear and present threat to the lives and property of the public”, that could be libelous, couldn’t it?

        If you then were to say that “anyone I ban is a clear and present threat to the lives and property of the public” *and* say that you had banned X, wouldn’t that be the same thing as directly saying it about X?

        I’m thinking of what Twatter posted when they banned Trump — not that they had banned him because they felt like it, but something about how he was a threat to public safety or something. How would Section 230 preclude Trump for suing for that statement, alleging libel?

        And as to _Sullivan v. NYT_, wasn’t the principle that the pubic figure has the ability to rebut the libel — well if he is banned from Twatter and they then ban everyone speaking on his behalf, how does _Sullivan_ still apply? He CAN’T rebut the false statement, and thus why isn’t he a private figure for this purpose?

        1. I’m thinking of what Twatter posted when they banned Trump — not that they had banned him because they felt like it, but something about how he was a threat to public safety or something. How would Section 230 preclude Trump for suing for that statement, alleging libel?

          Section 230 would have absolutely nothing to do with that statement. It wouldn’t preclude Trump for suing for anything.

          The suit would be meritless, of course, because (a) truth is a defense; and (b) it’s opinion.

      2. “They were suing their employers under the express Nebraska provision that banned closed shops, and trying to use the First Amendment to invalidate the defendants’ Railway Labor Act defense.”

        I’d argue that they actually were trying to argue that the Railway Labor Act violated the First Amendment when used to supersede Nebraska’s law. Or something like that — my point being what would the court have done *had* it found (as in Janus) that the closed shop combined with the Nebraska law violated the 1st Amd restriction on Congress.

  8. That “any action voluntarily taken in good faith to restrict access” in the act is extremely broad.
    The usual analysis may be described as follows: for brevity, let A be original author, B be the service provider, and C be a member of the audience. Then C cannot sue B for content authored by A.
    But. Lert us set up a deliberately-extreme example of something else:
    Suppose B says “I am censoring A because he is encouraging the sadistic torture and murder of multitudes of small children” when in fact A has not said any such thing. May A sue B for libel? (a) under state law, independent of the act and of the First Amendment; or (b) Such a falsehood from B is not “good faith” and so B does not have any defense under the Act? or (c) what?

    1. B’s suit against A is for B’s having libeled A to C and Sect 230 doesn’t address that. I think.

    2. A cannot sue B for the fact that B deleted A’s posts (unless B violated a contract it had with A). § 230 protects B, but there’s also just no cause of action there in the first place.

      But A can sue B for anything B himself/itself says. Good faith is irrelevant to that suit; § 230 does not address that scenario at all.

  9. This is an interesting line of thinking, and I wonder how it would apply in the context of state anti-SLAPP laws. Those laws are designed to give more protection to speech by making it more difficult for plaintiffs to succeed on libel, slander, and similar claims. But many federal courts have held that those laws don’t apply in federal court. Instead, they’re displaced by the Federal Rules of Civil Procedure, which do not provide same solicitude for defendants who are engaged in expressive activity. This arguably burdens the defendants’ speech by making it more likely that they will chill their expressive activity to avoid lawsuits. And does this burden mean that the Federal Rules of Civil Procedure, at least as applied in this context, violate the First Amendment?

    1. Roger21: Interesting argument, but I don’t think it quite works. State legislatures can’t control the procedures of federal courts; they lack the constitutional authority to do so. The anti-SLAPP statute isn’t preempted by the Federal Rules of Civil Procedure; even if the legislature sought to apply it to federal courts, it would be preempted by the Constitution itself, which makes federal courts creatures of federal law and not subject to state law.

      Now federal courts do follow state substantive law under Erie, and several federal circuits have said that at least some features of anti-SLAPP laws are substantive. But if they are procedural, they just don’t apply in federal court.

      Section 230, on the other hand, preempts certain kinds of state causes of action even in state court. It is indeed an example of federal preemption that’s structurally similar to that in Hanson.

  10. Section 230 preempts a state rule that encourages private platforms not to restrict speech.

    Or perhaps Section 230 preempts a state rule that discourages private platforms from removing speech they don’t want to, and thus promotes the right not to publish compelled speech.

    Whose speech rights are at stake and how does that affect the analysis?

  11. Gosh this is an interesting discussion! I’ve learned a lot reading the post and the comments. Unless I’ve missed it, there have been no trolls or flame wars.
    I have two points to ponder. (1) As I understand the Alcoa antitrust case decision, being a monopoly violates the Sherman Act even if the company didn’t violate the law in becoming and maintaining its monopoly. Therefore, if there’s a monopoly in some form of electronic communicatrion (“if”), the court can fashion a remedy. (In the Alcoa case, by the time the court came to the remedy stage, government policy during WWII had fostered two independent aluminum manufacturers so the monopoly problem was solved.) Do certain tech companies have a monopoly? If yes, what shall we do about it? Break them up? Regulate them? Sponsor the creation of competitors to them?
    (2) When a question like this comes up, instead of reading only court decisions from the nineteen teens or nineteen thirties, -fifties, etc., do a seance, call up the spirits of Hamilton, Madison, and Jay, explain modern-day commerce, etc. to them, and ask them what the Constitution they promoted tells us the government can do about the current issue. Or, if the seance doesn’t work, use our own intellect, knowledge, and imagination to figure out what the Constitution tells us to do about the current problem.

  12. Top of the head, likely wrong, not advice, don’t rely:

    First, I’ve always (from a distance) understood CDA to be a liability shield against private suit. And while I might not be able to sue someone for taking away my Twitter egg, perhaps that’s not necessarily a bar to the website’s state imposing sanctions (or even civil fines) if that action separately violated a state nondiscrimination/anticompetitive behavior/etc. law. The field Congress intended to occupy was perhaps private causes of action.

    Second, I’m not sure how this theory might handle implied preemption. Can an affirmative defense valid by operation of law against a novel state sanctions regime or state cause of action violate a constitutional limit that begins: “Congress shall make no law…”?

    Third, if congressional intent is the lodestone of preemption, how could that Congress have intended to occupy this field of state regulation of online speech that wasn’t contemplated when the law was passed?

    Fourth, and I say this with hesitation in response to the ideas of a leading 1A scholar, but the idea seems to rely on 1A having the 4A element of constantly changing to encompass those things which society is prepared to recognize as reasonable, and I wonder if a state law protecting unprotected speech legitimately creates that constitutional right.

    And now on to the Fifth. It is, after all, Burns Night. Cheers.

    Mr. D.

  13. My 2 cents…
    When Twitter invites former US Secretary of State Madeleine Albright or Tulsi Gabbard to its Washington DC facility to speak about political issues such as the death penalty, to a live event at Twitter, or when Twitter hosts a live event from Atlanta facility with Rep John Lewis speaking about Black Lives Matter, or when Twitter tweets out that it supports the Black Caucus to talk about equal access for citizens or allows other political or government officials to post political statements or opinions concerning, Gun Control, death sentencing, health care, and unemployment, Black Lives Matter, it opens itself up to free or political speech in that same forum.

    In part, Congress lacks authority under Article I, Section 8 of the Constitution as it regulates speech without the due process of laws and violates Plaintiff’s and other U.S. and New Hampshire Citizens’ Constitutional rights under Articles [I], [V] and [XIV] of the Constitution, and Part I, Article 22 of the New Hampshire Constitution.

    Twitter also provides policing of speech on behalf of Congress which is generally provide by the States. If a private actor is engaged in inherently governmental functions, or if the government delegates the operation of one of its traditional and quintessential functions to a private actor, then the private actor will be deemed to be a state actor subject to constitutional limitations. See NCAA v. Tarkanian, 488 U.S. 179, 195 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 163-64 (1978); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349-50 (1974); Evans v. Newton, 382 U.S. 296,299 (1966), (“When private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”). See Marsh v. Alabama, 326 U.S. 501,506 (1946).

    Does §230 impermissibly violate the nondelegation doctrine and the separation of powers by placing exercise powers traditionally reserved to the State to a private entity?

    Does §230 encroach on States’ policing powers to regulate free speech?

    Is §230 unconstitutional because it is too narrowly drawn, vague, or too broad as (1) it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; (2) it authorizes or even encourages arbitrary and discriminatory enforcement.