Prof. Eric Goldman & Me on Whether Governments Can Limit Platforms' Content Blocking Decisions

A forthcoming panel Thu., Feb. 11, 2 to 3 pm Pacific, organized by the UCLA Institute for Technology, Law, and Policy.

It's free but you need to register here; here's the summary:

As private entities, social media platforms are not bound by the First Amendment, and are free to permit—or block—content and users as they see fit; and 47 U.S.C. § 230 preempts any state statutes that would impose greater limits on such companies. That, at least, is the traditional view.

But some state legislatures are considering statutes that would ban viewpoint-based blocking by platforms; and some scholars are arguing that those laws might prevail, notwithstanding § 230. What are these theories? And what are their strengths and weaknesses?

It's always a pleasure to talk to Eric—who teaches technology law at Santa Clara—about such matters, and I hope you folks find it interesting to listen (and to ask questions during the Q & A).

Comments

[AmosArch]

We already limit and control private companies and their freedom of expression and association in every aspect of their existence from cake baking to hijabed employees to who they can service and hire and promote and pay. And we are especially hard and controlling of monopolies and industry collusion.

So I am baffled why suddenly it is of paramount importance to freedom to make this and only this one sole exception and allow a global oligarchy to disenfranchise millions of people of a critical set of services that are increasingly necessary to conduct a normal life. While keeping all quotas, and the slave baking, and abortion mandates for religious organizations, and other regulations in place.

If sudden hardcore laissez faire progs want a true freemarket I’m game. Lets lift all onerous restrictions evenly, not just the ones you dislike.

[jb]

Should Breitbart be required to publish content from Bernie or AOC?

[AmosArch]

Are you saying Twitter/Facebook is exactly the same as Breitbart?

[NToJ]

Yes. I am saying that.

[David Nieporent]

No; you're saying that Twitter/Facebook is exactly the same as a bakery.

You're also misusing the term "disenfranchise."

[Don Nico]

jb,
You said the word that defeats your argument. Breitbart is a publisher. FB and Twitter are not.

[Stephen Lathrop]

Don Nico, remember the last thread, where I explained to you three criteria which define publishers? Neither you nor anyone disagreed. And Facebook and Twitter met all those criteria.

I suppose I should just add now that even the law can't turn a dog's tail into a leg, to create a 5-legged dog.

[rsteinmetz]

In your last post you left out the fourth criteria for a publisher,

A publisher selects the content they choose to publish. A function generally called editing.

[David Nieporent]

That's not the three criteria which define publishers. That's the three criteria that someone with no legal training thinks define publishers.

[NToJ]

Don,

If you think Twitter should be required to publish the work of someone, you’re treating them like a publisher.

[Jason Cavanaugh]

"We already limit and control private companies and their freedom of expression and association in every aspect of their existence..."

The premise of your point of view is completely false. Try posting without delusions contrary to facts and reality.

[Krayt]

If sudden hardcore laissez faire progs want a true freemarket I’m game. Lets lift all onerous restrictions evenly, not just the ones you dislike.

It's not hands off capitalism. The powerful in government have been raging around for two years now about ripping down section 230, opening the tech giants up to lawsuits, and the subsequent collapse of trillion dollar valuations, literally because they wouldn't censor harrassment.

And immediately point out how their opponents' tweets were harrassment.

Facebook even stated they would not censor politicians because people need to hear them, when considering voting. And the pols raged against facebook, dragging them on cement.

This is not free choice. It is government-forced censorship, immediately further abused to silence political opponents.

[Jimmy the Dane]

If a platform decides to moderate its content it should lose any form of statutory immunity. No free swings and no more working both sides. Either own the content your platform allows others to publish because you are actively moderator it or don't. Pretty easy.

[Don Nico]

Not so simple Jimmy.
The matter could be settled by denoting the platforms as common carriers like FEDEX, phone companies, UPS, etc.

[Jimmy the Dane]

Most people are overthinking this. Without statutory immunity, platforms that choose moderation are really going to quickly grow to regret that decision. Subjecting them to normal tort law in every jurisdiction is going to mean that they will need an army of lawyers to just keep up with all the court filings. It won't take much for even Facebook to cry "uncle" under the deluge of litigation.

It is tempting to say just treat Facebook like we did with the phone company back in the 70's. We didn't let Big Bell deny service to people based upon their political belief or regulate copper lines based upon what was being transmitted (or even permit the phone company to listen in and try to do something like that). But the nature of a phone conversation was private. The internet is not so much especially when it comes to social media. That makes applying a common carrier type rule a lot harder when you are not talking about simply assuring service is available, but getting down to having to regulate (or not regulate) public facing content.

[Krayt]

The purpose of speech is to have an effect on people. The purpose of "the press" is to mass produce and distribute speech.

It's no wonder those in government are troubled by all this free speech...about themselves...to the public.

[Stephen Lathrop]

Don Nico, the same stuff over again? Remember the 3 criteria for publishers? I will repeat them:

1. A publisher assembles an audience.

2. A publisher attracts the audience by presenting expressive content created by either the publisher, or by contributors.

3. A publisher monetizes the audience by selling advertising to companies and others which want to reach the publishers' audience with their own messages.

Please, once again, note that those criteria fit Facebook and Twitter perfectly, because they are publishers. Note also, they do not fit the common carriers you mention, because they are not publishers. In the real world you cannot turn a publisher into a common carrier by legal fantasy. The 1A gets in the way.

[rsteinmetz]

4. A publisher selects the content they choose to publish.

[MatthewSlyfield]

Is that the criteria the courts used to distinguish platforms from publishers before section 230 was passed? Can you cite the court decisions that laid out those criteria?

[David Nieporent]

Stephen Lathrop's definition would have bookstores and baseball teams be publishers — but magazines that don't accept advertising would not be.

[NToJ]

What would you do about bookstores? If they choose not to sell Das Kapital, it’s a publisher and liable for any defamatory content in the other books it sells?

[David Nieporent]

So if someone starts spamming these comment threads with ads for life insurance, and Prof. Volokh or Reason deletes that, then anyone could sue Reason for anything that Kirkland posts?

[Rev. Arthur L. Kirkland]

Absent a rare court order, anyone could sue.

Which of my comments, in your judgment, has created a risk of liability? So far as I am aware, calling a bigot a bigot is still lawful, as is referring to superstition as superstition or to clingers as clingers.

You seem to accept Prof. Volokh's position, which is that calling someone a "c_p succ_r" or a "sl_ck-jaw" is objectionable -- warranting censorship or a ban -- while these statements are unobjectionable and are freely accepted at this White, male, conservative blog:

> calling for liberals to be placed face-down in landfills
> advocating that liberals be sent to Zyklon showers
> urging that liberals be shot in the face upon opening doors
> calling for all liberal judges to be gassed
> repeated, gratuitous use of a vile racial slur

#NoWonderConservativesHaveLostTheCultureWar
#OpenWiderClingers

[DaivdBehar]

These platforms are of a size as be utilities, like the electric company. They may not discriminate by viewpoint, as the electric company may not shut off service to Republicans.