Free Speech

The Return to Intermediary Control

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I'm continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I'm talking about how "cheap speech" has led to a revival of calls for restrictions imposed by intermediaries. Recall that the article is mostly descriptive, focusing on what's happening, for better or worse.

[* * *]

Cheap speech, as the Introduction noted, has made it easier for people to spread their own views, good or evil, and their own understandings of the facts, true or false. And the Internet has in many ways made it easier to speak anonymously, and in ways that hide one's identity. Foreign governments can take advantage of this, too, and so can foreign groups that might be under the influence of a foreign government. That too was much harder under the old media system, for better or for worse.

The spread of such bad ideas and factual falsehoods — or things that people think are bad ideas and factual falsehoods — may be constitutionally protected, but that doesn't mean the public and Congress have to like it. As a result, there has been pressure to get intermediaries into "voluntarily" doing the policing of supposed "hate speech," "fake news," and the like that the First Amendment precludes the government from doing.[1] And even for speech that the government might be able to itself restrict, such as revenge porn, intermediaries have been providing much more prompt takedown procedures than the legal system can practically provide.

Curiously, then, we seem to be reinventing, and many of us seem to be approving of, intermediary control: it's just that instead of newspaper and broadcaster editors choosing what to block, we're having that done by Facebook, Twitter, and occasionally other companies.

In a sense, one can imagine four different approaches to control of public speech:

  1. control by being regulated expressly by the government,
  2. control by being too expensive for ordinary people,
  3. control by private intermediaries, and
  4. no real control (at least of people's viewpoints and broad factual claims, as opposed to, say, of spam).

Modern First Amendment law largely precludes option (1), so as option (2) has retreated in significance, option 3) is being promoted as a substitute by those who find option (4) unacceptable.

On one hand, this form of Internet intermediary power is a less categorical control — if your speech is banned from Facebook, you can still get it out through other platforms (at least for now, while the infrastructure companies, such as hosting companies and search engines, police things only rarely). Such intermediary power also covers fewer subject matters: Facebook excludes a tiny fraction of all content that people try to post, while traditional editors excluded all except that which they chose to fit on their limited pages.

On the other hand, the control is more oligarchical than ever: a huge share of the control is in the hands of the people running three companies (Facebook, Google, and Twitter). In the past, the control was more broadly shared among executives and editors at broadcast networks, local broadcasters, national magazines, and national but mostly local newspapers.

And, unsurprisingly, this sort of oligarchical control is leading to resentment among many users who had gotten used to the early Internet's more egalitarian model. Why should Mark Zuckerberg get to say what's on my Facebook page, they might think, rather than my having exclusive control over that?

They might not have thought that back in the pre-Internet era, where of course the local newspaper editor got to say what was in the newspaper, or even on the letters to the editor page. But give people a taste of the power to publish, and some of them won't be happy to give it up.

Some have remarked on a certain degree of ideological reversal that seems to be happening here. These days, it is (some) conservatives who, perceiving that the platforms are run by liberals, are worried about the platforms' restricting conservative speech.[2] As a result, some conservatives are calling for extra regulation of privately owned businesses, something that conservatives generally tend to oppose.

Likewise, these days it is generally (some) liberals who enthusiastically support the power of large corporations — indeed, among the largest of corporations — to influence political speech. Ten years ago, many liberals sharply condemned the Supreme Court's decision in Citizens United v. FEC, which held that corporations and unions have a First Amendment right to speak about political candidates (independently of those candidates' campaigns). Thus, for instance, from one 2012 article from liberal think tank Demos, titled 10 Ways Citizens United Endangers Democracy: "[C]oncentrated wealth has a distorting effect on democracy, therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace."

Yet urging Facebook, Twitter, and similar companies to restrict alleged "hate speech" and to police alleged "fake news" involves some of the biggest "winners in the economic marketplace" using their power to affect "the political marketplace." And while of course that power is limited, since Facebook and Twitter are indeed far from the whole of the Internet, corporate advertising about candidates after Citizens United was also comparatively modest.

According to OpenSecrets.org's More Money, Less Transparency: A Decade Under Citizens United, corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. The corporate contributions "made up 10 percent of funding to these groups in the 2012 cycle, a high water mark," falling to 5% in 2018. And "[w]hile corporations and unions gained potential political power as a result of Citizens United, it's individual donors who are fueling the explosion of money in recent elections." Even taking into account the fact that the platforms generally don't overtly endorse one or another political candidate as such, their content policing likely affects politics at least as much as does the corporate political advertising protected by Citizens United.

Now neither some conservatives' support for restraining private platforms' policing power, nor some liberals' support for increasing the political influence of giant corporations, necessarily reflect logical inconsistency. Few conservatives are categorical foes of all regulation of private business. (Indeed, the most libertarian conservatives, who are the most skeptical of regulation, tend to also oppose regulation of platforms.) And few liberals are categorical foes of all corporate influence on the political process.

Most such political principles are, quite sensibly, presumptions rather than categorical rules. The conservatives who back regulation and the liberals who back platform power may simply see those presumptions as being rebutted by sufficiently strong countervailing interests (whether in protecting user speech, or in fighting "hate speech" and "fake news"). But in both cases, it seems that we are seeing a reaction to the advent of cheap speech, and a reaction to that reaction.

Conclusion

Reno v. ACLU; Ashcroft v. ACLU (I); United States v. American Library Association; Ashcroft v. ACLU (II); Packingham v. North Carolina. Perhaps Elonis v. United States (if you focus on the facts of that case rather than the legal issue). Those are the Internet First Amendment cases that the Supreme Court has considered, mostly dealing with shielding children from sexually themed material, but also, in Elonis, online threats.

But this is not where most of the interesting recent Internet free speech developments have arisen. Rather, they have come in surprising places:

  • the survival and perhaps resurgence of criminal libel law;
  • trial courts' broad acceptance of anti-libel injunctions;
  • trial courts' willingness to issue remarkably broad bans on public online speech about people, in the name of preventing "harassment" or "stalking";
  • the criminalization of the disclosure of private facts, whether through outright criminal laws or through injunctions enforced using the threat of contempt;
  • the enactment or broader application of narrower restrictions on specific kinds of false statements and disclosure of private facts, such as impersonation and nonconsensual porn;
  • the growth of calls for greater policing of online speech by the platforms.

For decades, the main lever for dealing with libel and disclosure of private facts has been the threat of civil damages liability. As that lever has become increasingly irrelevant for many speakers, the legal system has had to grasp for other levers, odd as they might have seemed in 1993. Likewise, for decades, the main lever for dealing with extremist speech and with conspiracy theories has been the control exerted by media intermediaries. As that lever has fallen away, people have called for the platforms to step into the gap.

Some of these developments have been promising. Some have been misguided. But they all represent, I think, the legal system's largely bottom-up struggle with the dark side of cheap speech and of the democratization of mass communications.

[1] I set aside here intermediaries providing extra speech, such as pointing to fact-checks of posts, cf. Dawn Carla Nunziato, Cheap Speech and Counterspeech by the New Intermediaries, 54 UC Davis L. Rev. (manuscript at 22-25) (2021); that does not involve restrictions (private or governmental) on speech, and indeed the government could itself publish such fact-checks (though it likely couldn't require platforms to publish them).

[2] There's debate about the degree to which the platforms' editing does target conservative speech. But it's of course human nature for people faced with a massive, largely hidden editing process to assume the worst about the process, especially when it is run by those who are largely on the other side of the political aisle.

NEXT: Today in Supreme Court History: February 22, 2005

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  1. “Curiously, then, we seem to be reinventing, and many of us seem to be approving of, intermediary control: it’s just that instead of newspaper and broadcaster editors choosing what to block, we’re having that done by Facebook, Twitter, and occasionally other companies.”

    Prof. Volokh, your premise is wrong.

    The govt can CONTROL speech (can’t say Fuck on TV, etc), but Facebook (et al), are not controlling anyone’s speech.

    They’re simply deciding whether they’ll allow someone to use their medium – which is simply not control.

    1. Correct. The government is not directly interfering with the speech of private individuals so there is no violation of the First amendment. Similarly, when state governments threaten banks with more regulations and oversight for doing business with gun manufacturers or gun advocacy groups, like the NRA, they are not violating either the First or Second amendments. The free market has just decided that weapons of war don’t belong on American streets.

    2. The government can only control speech on certain media that are tightly regulated for other purposes. You can’t say “fuck” on broadcast channels, but you can on cable. Similarly, when a private entity regulates speech on a platform it owns or controls, that absolutely is control of speech.

      In fact, private platforms can go well beyond what our government can do. They don’t need to declare their reasons, they don’t need to be consistent, they don’t need to be honest.

      1. If you don’t like it, just become a billionaire, like Charles Koch or Jeff Bezos, and build or buy your own platform.

        1. Build your own platform, and use it to become a billionaire.

      2. “In fact, private platforms can go well beyond what our government can do. They don’t need to declare their reasons, they don’t need to be consistent, they don’t need to be honest.”

        EXACTLY!

        Just like you can absolutely control what I can say/not say on your private property based on YOUR personal biases/perceptions/standards (which you can change at a whim), so can private businesses.

        1. So, then, a private business can say, “f*ck you, I’m not baking that cake.” Eh?

          1. One big distinction is the existence of a law versus no controlling statute.

            Another is a protected class versus not one.

            Another is no established discrimination by Facebook, etc, even if you stamp your foot and say sure there is.

            1. To clarify, exactly what would it take for you to acknowledge discrimination by Facebook et all?

              1. Statistics.
                Or, I suppose, an admission/credible whistleblower.

                The left is up in arms about Facebook’s bias this morning as well.
                https://www.businessinsider.com/mark-zuckerberg-alex-jones-facebook-ban-soften-lenient-report-2021-2

                Seems like a bad decision by Zuck, but just as non-probative of general bias, IMO.

                1. What the left are characterizing as “his bias” was him ordering underlings to ease off on the censorship. An alternative explanation would be his own bias being less extreme than their’s.

                  1. This is an impressive double standard. When the left is bent out of shape, it’s because they’re wrong and bad.

                    But when you are, it’s because you’re virtuous and good.

                    You need to do better than just begging the question.

                    1. It’s not a double standard if you’re bent out of shape by different things.

                      We’re bent out of shape over being censored.

                      You’re bent out of shape over our not being censored as much as you want.

                      Those are pretty fundamentally different.

                    2. You, who argue often about keeping to standard procedures in good faith, suddenly don’t care about that?

                      Your new thesis is an obligation to allow anyone to use these private platforms?

                      That’s not consistent with your past arguments. And also impracticable, absent some common-carrier like government support.

                    3. “We’re bent out of shape over being censored.”

                      Stick to AM talk radio, a media your team OWNS.

              2. The top-performing link posts by U.S. Facebook pages in the last 24 hours are from:

                1. Ben Shapiro
                2. Ben Shapiro
                3. CNN
                4. CNN
                5. FOX4 News Kansas City
                6. USA Patriots for Donald Trump
                7. 11Alive
                8. Cuteness overload
                9. Occupy Democrats
                10. Ben Shapiro

                https://twitter.com/facebookstop10?lang=en

                Not probative of bias, but perhaps countervailing evidence to your own narrative.

                1. If Ben Shapiro is the only large outlet in his niche (or one of the only), whereas CNN and MSNBC and NBC and CBS and NYT and WaPo are all fighting over the same niche, this means little.

                  Its like comparing Tucker Carlson’s numbers against only The Cuomo show. He’s getting all of the right wing partisans, while Cuomo is competing with Maddow for the same pie slice.

                  1. Shapiro is not some unique sole source of conservative voices on Facebook.

                    Lets look at some previous days:
                    1. Franklin Graham
                    2. Fox News
                    3. Dan Bongino
                    4. Ben Shapiro
                    5. Breitbart
                    6. ForAmerica
                    7. The Dodo
                    8. Newsmax
                    9. Bill Maher
                    10. Laura Ingraham
                    ————-
                    1. Fox News
                    2. Franklin Graham
                    3. Fox News
                    4. Ben Shapiro
                    5. Franklin Graham
                    6. Ben Shapiro
                    7. Dan Bongino
                    8. Barack Obama
                    9. Ben Shapiro
                    10. Ben Shapiro

          2. “So, then, a private business can say, “f*ck you, I’m not baking that cake.” Eh?”

            Absolutely. Very few businesses bake any cakes.

        2. So you agree that you were simply wrong to say that “is simply not control”.

          1. Absolutely not.

            Control means to be able to effectively influence something like steering a car.

            The car has absolutely no means of denying the control.

            The problem here is Prof. Volokh is trying to conflate Facebook’s activities – which ONLY influence Facebook users within the realm of Facebook – with the govt’s widespread and absolute authority to control speech (within constitutional restraint).

            1. The thing is that Facebook has vast power to control speech within facebook, while the government’s alleged authority to control speech doesn’t really translate into the power to do so.

      3. ” Similarly, when a private entity regulates speech on a platform it owns or controls, that absolutely is control of speech.”

        No it isn’t. If a private entity says that I can’t say what I want on their premises, it does absolutely nothing to prevent me from saying it on my own premises. the local McDonald’s doesn’t want me to stand in front of their drive thru lane and tell people that McDonald’s food is bland and unhealthy, and so they can come out and tell me to move along. But I can readily go somewhere else and say exactly what the McD managers/owners don’t want me to say. Even private entities that profess dedication to free expression retain the right to decide how their resources are used, and sometimes choose to suppress things they don’t like.

    3. And they are exercising monopolistic powers.

      1. Without being monopolies? That’s a neat trick.

    4. “They’re simply deciding whether they’ll allow someone to use their medium – which is simply not control”…Let me guess in another life you were a spin doctor for a fancy pants DC politician, right?

      Here is the dictionary definition of control:
      the power to influence or direct people’s behavior or the course of events

      Sounds an awful lot like what social media is trying to do when it regulates speech on its various platforms…

      1. What a surprise. You’ve got it wrong again.

        “Here is the dictionary definition of control:
        the power to influence or direct people’s behavior or the course of events

        Sounds an awful lot like what social media is trying to do when it regulates speech on its various platforms…”

        What they’re doing is responding to their paying customers who tell them what they want. Just like any other business does. You know, the way the Dairy Queen won’t let you pop into their restaurant, and spraypaint your message on the walls. The way Trump Tower in NYC wouldn’t let people put up “impeach now!” flyers on the exterior walls.

    5. I wonder what your opinion was of Citizens United when it came out.

  2. Speaking of cheap speech, Doctor Fauci needs to have his medical license revoked for spreading false COVID information that inflames, agitates, and disturbs the public with it’s hysterical outlook. Due to the competent and intelligent leadership of President Biden, COVID infection rates have plummeted and the American economy can now be reopened. The Democrats, as the party of Science, have led the American people to victory over the Trump virus. Now it is time to heal our democracy by rooting out dissent and wreckers who oppose or contest the current administration.

    1. What — exactly — has Biden done? This is all Trump’s doing.

      1. He has started healing the country with his leadership. The clouds parted, the tempest seas subsided, and the Trump virus ceased strangling the lungs of elderly people of color.

        1. This is some of your best work yet Rabbi.

      2. ” This is all Trump’s doing.”

        Which you can tell by the success the Trump regime had in controlling the disease.

  3. Facebook etc. do not have a First Amendment right to edit or reject user posts. Congress could simply declare them common carriers and take away all editorial control from them.

    Congress could also partially intervene in their self-regulation. For example, it could require that users be dropped only for cause, for terms expressly stated in contracts (no any reason or no reason clauses), and then have the judiciary or an administrative agency adjudicate those contracts, which means a branch of government gets to decide what those contracts and their clauses mean.

    The current regime comes not from the Constitution but from laws Congress passed, which it could change or repeal at any time.

    1. Facebook etc. do not have a First Amendment right to edit or reject user posts. Congress could simply declare them common carriers and take away all editorial control from them.

      [Citation needed.]

    2. “Facebook etc. do not have a First Amendment right to edit or reject user posts. Congress could simply declare them common carriers and take away all editorial control from them.”

      No. But they own the computer systems, and have ordinary property rights to decide who gets to use them and for what. If you want to take that away from them, the fifth amendment says you have to pay them for what gets taken.

  4. Off Facebook. On Parler.

    Seize these tech billionaire platforms in civil forfeiture for the 100 million federal crimes on there. They commit millions of crimes themselves inflating viewerships to defraud advertisers. Half their viewers are not human, but fake bots, who will not be buying products or services. Forget that lawyer rent seeking, bunko, unconstitutional scheme, antitrust.

    1. I hope you know that you are supporting white supremacy by using Parker. Can you sleep easy at night knowing that fact?

      1. While I have yet to quite figure out exactly what white supremacy actually *is* (and how it differs from, say, “Black is Beautiful”) but to the extent to which people believe in vile and hateful things, would you prefer to let them fester in secret, or be exposed to the light of day?

        While I think it is being blown all out of proportion, we wouldn’t have ever even heard of the “Jewish Space Laser” but for Farcebook & Twatter.

        1. “While I have yet to quite figure out exactly what white supremacy actually *is* (and how it differs from, say, “Black is Beautiful”)”

          I believe you when you say you can’t tell these apart, but that’s because I believe you are that stupid and proud of it.

          “to the extent to which people believe in vile and hateful things, would you prefer to let them fester in secret, or be exposed to the light of day?”

          I don’t give a damn what people believe in private, but when they do and say vile and hateful things, I want that to cause negative stimulus, so that learning can take place.

      2. Facebook banned me 30 days for saying current hispter haircut looked like the German Army haircut of 1943. When leftist made highly specific death threats to me, that did not violate their standards.

        1. A couple years ago just as an experiment I located an Antifa page that was openly advocating attacking people at political rallies, and flagged it.

          A week later FB did get back to me; “We didn’t see anything wrong with it.”

          They’re very biased in their moderation, to be sure, but what offends me is the censorship they commit, not the censorship they refrain from. If people are going to be discussing assaulting innocent people in public, you really want them to be doing it where they can be seen doing it, right?

          1. “They’re very biased in their moderation, to be sure, but what offends me is the censorship they commit, not the censorship they refrain from”

            I’m sure they’re as troubled by what offends you as I am.

        2. This topic of haircuts is kinda interesting in an odd way.

          An “undercut” is the style Hitler had. It’s common everywhere besides fashy circles, but that LARPer Richard Spencer made it the fascist haircut style in the mind’s eye of liberals. Yet, if a woman gets an undercut, it’s signaling that she’s a lesbian.

          1. Hitler was a lesbian? No wonder she never got married!

    2. Parler is a honeypot.

      1. So is Farcebook & Twatter.

        1. Neither twitter or fakebook require user verification with real names and identities. So they aren’t a honeypot by definition. This doesn’t mean that they aren’t both a farce and a twat.

          If the idea of Parler was to make sure that there weren’t bots and paid shills though verification, it’s failed, because it didn’t keep it’s user database secure. Even though they blame Amazon for the lax security, it was either bait for doxing on purpose by those that started it, or ineptitude on their part which led them to be taken advantage of by Amazon and other big tech for the purpose of making a honeypot.

          1. “Neither twitter or fakebook require user verification with real names and identities.”

            Nor do either require that you make any use of their services.

    3. “Off Facebook. On Parler. ”

      Still remarkably stupid, regardless.

  5. The elites want a return to intermediary control because they discovered the masses were revolting.

    1. Cool it with the anti-Semitism, buddy!

      1. (Is this a tacit acknowledgement of Jewish control of the media?)

        Perhaps Behar was making that old saw:

        “Your majesty, the peasants are revolting!” said the guard.
        “Revolting, you can say that again” said the king.

        1. When people talk about “elites” pulling strings behind the scenes, they are tapping into common anti-Semitic tropes about Jews somehow controlling the world. It is very offensive. Often, they won’t mention Jews but the reference to a mysterious elite is a good enough dog whistle for most anti-Semites to pick up on.

          1. From a certain perspective, from the numbers in the recently installed Biden regime, you could say there was a Catholic conspiracy as much as a Jewish one. But the number of Jews in the media…conspiracy or emergent phenomena?

            1. There are a lot of Catholics on the US Supreme Court, but that has nothing to do with Biden.

          2. Bullshyte.

            B. Hussain Obama is many things but Jewish isn’t one of them. And while some of his minions may be (I honestly don’t know), my issue with them is their policies, not their religion.

            It was “the elites” who didn’t want Trump re-elected and who did everything possible to facilitate that — Trump who was probably the best friend that Israel ever had.

          3. “When people talk about “elites” pulling strings behind the scenes, they are tapping into common anti-Semitic tropes about Jews somehow controlling the world.”

            The fact that somebody likes conspiracy theories in general does not imply that they support a specific conspiracy theory.

        2. I don’t think Behar was making any saw. That is certainly the reference I was making. And the “elites” I was referencing were the people who own media outlets, the talking heads, and celebrities. I do not think those elites are largely, or disproportionately, Jewish.

          1. Media is disproportionately Jewish. Jews are about 1% of the population but take up quite a few top slots in media and government. This varies depending on what counts as “Jewish” of course. Conspiracy? I think it’s an emergent phenomena combined with a little back scratching.

            When people see the media all come out with the same montage and groupthink, it’s easy enough to presume that it’s a Jewish conspiracy, when it’s more likely they are just liberals who are programmed NPCs running their scripts.

            1. ” it’s more likely they are just liberals who are programmed NPCs running their scripts.”

              Conservatives are more likely to read the same scripts, er, talking points. They actually value conformity.

          1. The King is a Fink!

            1. (sorry, no link to a cartoon)

  6. What we have is a defacto social credit score system like in China, but the rules are not explicit and the boundaries are squishy. It’s not “intermediate control.”

      1. Perhaps Rabbi. You must be thirsty with all this sh*tposting.

        1. When are you going to follow the Benedict option and retreat to your cabin up near Ruby Ridge?

          1. The spiritual war happens in the material realm. Matter matters. Theological misunderstanding on your part is to be expected. Rod (or me) is talking about parallel institutions with the Benedict option. In all seriousness, that’s the only way ahead.

    1. “What we have is a defacto social credit score system like in China, but the rules are not explicit and the boundaries are squishy”

      You’re describing capitalism, although the admission that you’re being beaten at it by the Chinese Commies is interesting. The challenge was always how to get the old money crowd to admit newcomers. Just having more money didn’t always work. the rules were not explicit and the boundaries were squishy.

  7. (5) Control by empowering individuals to freely choose what they do and do not want to see.

    Why are you leaving out such an obvious answer to this problem? There is no reason for corporate to get involved in content decisions, just as there’s no reason for government to get involved.

    These are matters of individual conscience. We already empower precisely this with spam blockers, ad blockers, IP blacklist extensions, parental controls, etc. Why not keep going in this direction?

    You can still make money hand over fist with targeted ads, because there’s nothing in this that interferes with the ability to target an ad. All you avoid is the expense and enormous risk of being labeled a censor.

    1. He’s leaving it out, I suspect, because on some level he wants to rationalize engaging in censorship.

      I was a member of a “private” FB group. Nobody outside the members could read anything in it. Except, apparently, for FB’s own roving censors, who started censoring posts within it, and warned the administrator that it would be shut down if he didn’t start censoring it for them.

      Nobody was being offended by our discussions, they came after us because they didn’t want anybody talking about such things even in private.

      Letting people control what they’re exposed to doesn’t do anything for that sort of busybodies.

      1. It is interesting to see how the parties have flipped on this free speech issue once they gained cultural dominance.

        It used to be conservatives who didn’t want to let commies speak and who used the House Un-American Activities Committee to go after leftists who spread poisonous ideas. People on the right who paraphrased Voltaire about “disagreeing but defending your right to free speech” got the bait and switch on them once the liberals took control of academia and the media and with Big Tech. Meanwhile, the 1960s free speechy liberal boomers are trying to real their cancel culture progeny back from the brink, ineffectually I might add.

        On a certain level, I think EV (for all his other defense of freedom elsewhere) is rationalizing this because of Trump.

      2. It is interesting to see how the parties have flipped on this free speech issue once they gained cultural dominance.

        It used to be conservatives who didn’t want to let commies speak and who used the House Un-American Activities Committee to go after leftists who spread poisonous ideas. People on the right who paraphrased Voltaire about “disagreeing but defending your right to free speech” got the bait and switch on them once the liberals took control of academia and the media and with Big Tech. Meanwhile, the 1960s free speechy liberal boomers are trying to real their cancel culture progeny back from the brink, ineffectually I might add.

        1. There really is no free speech issue when the government is not involved. So your comment could be better phrased as “It is interesting to see how the parties have flipped on this private property issue once they felt their cultural dominance was threatened”.

          Conservatives used to be confident that their market power would keep anything they didn’t like off their radar. Now, ‘Big Tech’ is not so easy to censor, and, indeed, might actually be willing to disassociate with them (ironically for wanting to disassociate from others!). That has triggered the conservatives massively.

          1. “Conservatives used to be confident that their market power would keep anything they didn’t like off their radar.”

            If you’ve known how long Republicans have been complaining about the media, you’d not make such a statement. Still, what exactly do you mean here?

            1. Of course they complain about ‘the media.’ But their preferred Cult Leader wasn’t insistent on speaking on ABC.

              1. Could you try harder to explain yourself?

                1. Liberals used to whine ‘we won’t ever have a real voice on big corporate media, so we need the Fairness Doctrine!’

                  Now you conservatives are doing the same thing.

                  1. Ah. Now I get it. It might help you to communicate if you don’t presume you’re on the comment section at HuffPo where your “conservatives bad” newspeak is understood, especially when you make factually erroneous statements that require double-think from readers.

                    If you knew the history of Fairness Doctrine, again, you’d not make such a statement. Nor are conservatives asking for a return to a fairness doctrine or anything like it.

                    1. I know the history of the Fairness Doctrine. It was still a thing back when I was a broadcast media major as an undergraduate. Reagan got rid of it because his team was winning on AM talk radio and they didn’t want to have to listen to “reasonable opposing viewpoints”. Reagan also removed some of the ownership limits on broadcast outlets, assuming that as ownership got more concentrated, management would get more Conservative. That turned out to be accurate, but shortsighted. The Information Superhighway came along, and changed the landscape. (because it was dominated by young, smart people instead of old, rich people.)

            2. “If you’ve known how long Republicans have been complaining about the media, you’d not make such a statement. ”

              Translation: This is true, but doesn’t fit our “poor victim” narrative.

          2. “There really is no free speech issue when the government is not involved.”

            That’s stark nonsense. There’s no “1st amendment” issue if government is not involved, but that doesn’t mean there isn’t a free speech issue.

            Facebook began and grew as a neutral forum for people to communicate with each other. Basically uncensored except for illegal content.

            Then when they got big, they changed. They got more and more aggressive about censoring content THEY didn’t like, even if they didn’t get complaints. Not just politics, suddenly you couldn’t discuss firearms. I was a member of a small farm group, and they started taking down posts discussing selling animals. Literally, if somebody offered a rooster for sale, they’d shut down the group!

            They got big as a neutral, lightly moderated forum, and then changed, and what has people on the losing end of that change mad is the bait and switch. We’d never have been on FB in the first place if they’d told us from the beginning they were going to be censoring any discussions they disapproved of, on an ever expanding list of topics!

            1. “Facebook began and grew as a neutral forum for people to communicate with each other. Basically uncensored except for illegal content.

              Then when they got big, they changed. They got more and more aggressive about censoring content THEY didn’t like, even if they didn’t get complaints. Not just politics, suddenly you couldn’t discuss firearms. I was a member of a small farm group, and they started taking down posts discussing selling animals. Literally, if somebody offered a rooster for sale, they’d shut down the group!”

              Money changes lots of things. But the fact is that you are still whining that THEY won’t let you use THEIR stuff as YOU see fit. That’s what owning things means. If you want something to be owned communally, either build it communally in the first place or use eminent domain and pay fair market price for it

              1. Or build your own and run it as you see fit.

            2. “That’s stark nonsense. There’s no “1st amendment” issue if government is not involved, but that doesn’t mean there isn’t a free speech issue. ”

              Are you forgetting that you don’t have a right, free speech or otherwise, to use other people’s property without their consent?

    2. ” There is no reason for corporate to get involved in content decisions”

      Except for the core reason in capitalist society, because they can make money doing it.

  8. “Modern First Amendment law largely precludes option (1), so as option (2) has retreated in significance, option 3) is being promoted as a substitute by those who find option (4) unacceptable.”

    Right. It’s being promoted by people who find freedom of speech unacceptable. Who want to control society by controlling what people are allowed to say.

    We shouldn’t beat around the bush, these people are DANGEROUS.

    1. ” It’s being promoted by people who find freedom of speech unacceptable. Who want to control society by controlling what people are allowed to say.”

      By and large, you’re describing Conservatives. People who spent decades trying to silence people who said that black people should be treated with dignity and equality, people who suggested that womenfolk were just as capable of doing things as men are, people who declined to be bound by religious orthodoxy, people who said “say, sex is really neat, and doesn’t need to be confined to people who are married to each other. These are the people who invented cancel culture, and are extremely frustrated by it now that they don’t have a monopoly on it anymore.

      “We shouldn’t beat around the bush, these people are DANGEROUS.”

      No, you aren’t DANGEROUS, or even dangerous.

  9. Professor Volokh — You are missing a very important point — people *hired* intermediaries — they literally hired the editor of the newspaper or magazine or radio/tv station to filter their content for them.

    Back in the 1960s & 1970s, there were families who watched Walter Chronkite and there were families that watched Huntley/Brinkley and it was a very clear choice. An even clearer one with magazines. A woman would read MS magazine or Good Housekeeping — but not both, and she was paying for an editor to be her intermediary. There was Time, Life, and US News & World Report and while they were all news related, they were directed at different audiences.

    Most communities were covered by at least two newspapers, even if a small town only had one paper, it also would be covered by the larger regional paper. There were two competing wire services (AP & UPI)

    And rent the movie _Anchorman_ — it shows just how hyper-competitive local TV news was in the 1970s, to the point where TV stations plastered pictures of their news anchors on highway billboards (when we still had billboards).

    The intermediary control of the past was driven by (and highly responsive to) customer demand. Not so now…

    1. ” to the point where TV stations plastered pictures of their news anchors on highway billboards (when we still had billboards).”

      They still do that around here, but mainly the weather babe.

    2. “The intermediary control of the past was driven by (and highly responsive to) customer demand. Not so now…”

      Your theory appears to be that Facebook isn’t responsive to what its customers demand. And that’s stupid. Like colossally stupid. Like, Dr. Ed level stupid.

      Facebook is extremely responsive to what its customers want, which is why they censor what some of their users want to say. Because it’s what their customers want.

    3. “Professor Volokh — You are missing a very important point — people *hired* intermediaries — they literally hired the editor of the newspaper or magazine or radio/tv station to filter their content for them.”

      I didn’t hire any of these people. The owners of the newspapers, magazines, and broadcast stations hired them.

  10. Um, okay. Look, I have always appreciated Prof. Volokh’s First Amendment scholarship, but IMO this article is terrible. Really terrible.

    Let’s look at this last footnote:
    ” There’s debate about the degree to which the platforms’ editing does target conservative speech. But it’s of course human nature for people faced with a massive, largely hidden editing process to assume the worst about the process, especially when it is run by those who are largely on the other side of the political aisle.”

    You have got to be kidding me; leaving aside the supposedly neutral language that then veers into absurdity … “Sure, we don’t know if conservatives are being targeted, but we can’t ignore that DEM LIBS control all the speech, amirite?” … it is clear that EV hasn’t been taking in a balanced media diet recently.

    Do you know who has been complaining about Facebook, Twitter, et al. incredibly loudly? Liberals. Progressives. Whatever you want to call them. They’ve been arguing (with some evidence) that companies like Facebook have been putting their thumbs on the scales to increase the influence of conservative speech, with executives like Kaplan (formerly Deputy Chief of Staff in the Bush Administration) amplifying right-wing sources. Then again, maybe EV isn’t aware of this, given that he has been singularly focused on other aspects of the issue.

    Moreover, this is not, fundamentally, a first amendment or free speech issue. It’s a market power issue. It is quite possible to live your life without Facebook (I’ve been doing that since 2010). If the issue is that people depend on X, then there are two simple, easy-to-understand solutions:

    1. Break them up. If Facebook can’t be beat, then force them to get rid of some of their parts (like Instagram, Whatsapp, etc.).

    2. Regulate them as a utility or common carrier; personally, I think this is the worst solution since it will entrench them, but whatever.

    The thing is, viewing this as a FA (or free speech) issue is entirely the wrong way to think about it. The issue isn’t that people can’t “speak,”- they can. There are innumerable websites, blogs, and methods to communicated on the internet. Instead, it’s a market power issue. People are saying that they want Facebook (or twitter, or something else) to carry their message because that medium has a wider scope.

    Great! But cry me a river.

    1. “Do you know who has been complaining about Facebook, Twitter, et al. incredibly loudly? Liberals. Progressives.”

      I was already aware you lived in your own alternate reality, but this kinda confirms it. Even if you can point to a few liberals complaining, and you can, the actual censorship of big tech is pointed towards the right, not the left.

      1. Projection is a heck of a drug.

      2. Before the “right” got its knickers up about “Cancel Culture” and “deplatforming” and the latest nonsense, the majority of intelligent Americans had been loudly decrying Facebook and its influence for years.

        I understand that you don’t get out much, but my god, are you this unaware of what is going on?

        1. “majority of intelligent Americans had been loudly decrying Facebook and its influence for years”

          Of course they have, but that’s quite a different argument from your original statement that liberals are complaining about conservative speech and the reach it has over big tech. Those are two separate things entirely.

          Define your argument better, or don’t shift them when someone asks you about them.

          1. The problem is that people with minority opinions can find other people with similar opinions, and reinforce each other. That’s why, for example, pedophiles like the Internet. They can find each other and convince each other that they’re perfectly normal.

        2. “Before the ‘right’ got its knickers up about ‘Cancel Culture’ and ‘deplatforming’ […]”

          When the right invented these things, they never dreamed they’d fall under the hammer.
          Have you no shame, sir, have you no shame?

      3. the actual censorship of big tech is pointed towards the right, not the left.

        This is a supportable statement. You provide only your own ipse dixit.
        Support your statement.

      4. “I was already aware you lived in your own alternate reality, but this kinda confirms it. Even if you can point to a few liberals complaining, and you can, the actual censorship of big tech is pointed towards the right, not the left.”

        Speaking of living in alternate reality, actual censorship of people on the right consists of what? Changing their message to one of support for diversity, modernism, and rejection of conservative values? No? Not that? rejection of conspiracy theory? Oh, that’s the one? Boo-hoo.

    2. “Do you know who has been complaining about Facebook, Twitter, et al. incredibly loudly? Liberals. Progressives. Whatever you want to call them. They’ve been arguing (with some evidence) that companies like Facebook have been putting their thumbs on the scales to increase the influence of conservative speech”

      Sure, but what they meant by “putting their thumbs on the scales to increase the influence of conservative speech” was that Facebook hadn’t been CENSORING conservative speech enough.

      They weren’t actually “amplifying” it, nothing in their setup was biased in its favor. Rather, it was popular, and they weren’t doing enough to suppress it. They were just letting it be popular!

      1. Brett, the more competitors you can suppress, the more, “popular,” you look. Of course, everything on Facebook looks, “popular.” It’s published world-wide! Fewer and fewer rival voices say anything else. Popular!

        Instead, put that same, “conservative,” speech into a diverse and profuse jungle of private publications—thousands of them—and give it a go in a survival-of-the-fittest test in the marketplace of ideas. If it rises toward the top that way, it’s proven popular.

        1. The point is, the conservative content wasn’t being given any special advantage over liberal content, no “thumb on the scale”, it was being treated exactly the same, and THAT is what had the left pissed off.

          What the left thought of as ‘special treatment’ was just FB refraining from censoring.

          1. Brett, doesn’t matter. You start with a tacit assumption that left-wing and right-wing speech ought to be at least a match, but you have no basis for that. Maybe in an honest test your right wing stuff would be at 19%, but via Facebook it’s getting an outrageous boost to put it at 34%—which you cluelessly conclude means unfair suppression. Or maybe that is happening on the left instead. Nobody knows.

            You missed the point. Once you get a vibrant marketplace of ideas out of the picture, it’s a no-horizons walk through a hall of mirrors, for everyone. Neither you, nor any leftists, have any notion whether their pet ideas are being suppressed or promoted—let alone by what relative amounts.

            1. “Maybe in an honest test your right wing stuff would be at 19%, but via Facebook it’s getting an outrageous boost to put it at 34%—which you cluelessly conclude means unfair suppression.”

              There. Is. No. Boost. That’s the point! Right-wing media just does better when people are given a choice, instead of having what they have access to externally dictated to them.

              The ‘thumb on the scale’ the left are complaining about isn’t FB artificially enhancing the circulation of right-wing ideas, it’s their not doing enough to suppress their circulation.

              1. Brett, this will be fun.

                I said you had no point of comparison, which you did not contest. Instead, you repeated your groundless assertion. But in boldface. With extra periods.

                I say it again. You have no basis for what you say. You are making it up.

                What graphical contrivance will you produce now, to further enhance your argument?

                1. We’re talking past each other. You’re talking about how much exposure the right gets, as though there was some natural level of exposure, and any departure from it represented ‘boosting’ or ‘suppression’.

                  But there is no such natural level of exposure, so no point of comparison is needed.

                  I’m talking about what FB is actually DOING. They’re actually banning people, censoring posts, locking accounts. I’ve experienced it personally, as part of a private group. Every day I hear from people on the right getting shut down, often without any opportunity for appeal.

                  FB has gotten ban happy, and the ban hammer is mostly coming down on the right.

                  1. Well, let’s hear about these posts that are getting “censored.” What do they say? What is the posting history? Maybe this week the left isn’t as insurrectionary as the right. What makes you think Facebook has to be even-handed with regard to ideology, if right-wingers are threatening, for want of a better term, violent crimes, or telling provocative lies about the election, and left-wingers are not?

                  2. “I’m talking about what FB is actually DOING. They’re actually banning people”

                    No, you aren’t. FB has approximately zero ability to ban people from discussing their ideas. They can only limit what people use FB’s equipment to do. In much the same way a radio station can decide not to broadcast a program, or decline to run an ad. The solution is for people who don’t like FB’s policies to flock to a different service provider and stop trying to use FB’s system for things that FB doesn’t want on their system.

              2. “There. Is. No. Boost. That’s the point! Right-wing media just does better when people are given a choice, instead of having what they have access to externally dictated to them.”

                This claim conflicts with reality. If you take all the media that allegedly has a “left wing bias”, they reach a far larger market share than does Right wing media. All the Right wingers focus on one option, while everybody else is split among multiple options. It’s their pursuit of conformity that makes the right-wingers look so monolithic.

          2. “The point is, the conservative content wasn’t being given any special advantage over liberal content”

            This is your real complaint, isn’t it?

  11. The sudden finding of their inner Chomsky/Warren by the Right is certainly entertaining.

  12. To me the troubling aspect of just giving social media companies carte blanche to police speech as they see fit is that these forums are becoming the equivalent of the town square. Do we really want our town square policed by private corporations? (And if you are saying “yes” please ask yourself if you would still say that if evil Republicans were running those companies and censoring left wing ideas.)

    The only other time the Supreme Court has been confronted with this question is was in a privately owned mining town and the answer was essentially even though it was private property that did not trump the public’s rights.

    I’m not fully convinced treating social media like a public utility is a good idea, but we should start by acknowledging that in 2021 if you can’t use the internet to discuss your ideas then you are most likely not going to be doing so in any effective means.

    1. Amazing.
      1. Suddenly, conservatives are worried about what private entities do re the public good vs their property rights!
      2. “if you can’t use the internet to discuss your ideas” The Tell. It’s not that anyone is being denied their right to the internet (notice conservatives have not been big ‘hey, let’s spend money to expand internet access to everyone!’), what’s at issue is *some especially successful internet platforms* might be denying some people.

      Look, for people like Jimmy it was all along about ‘is this good or bad for my side/people like me?’ That explains it.

      1. Did you even read my original post?

    2. “To me the troubling aspect of just giving social media companies carte blanche to police speech as they see fit is that these forums are becoming the equivalent of the town square. Do we
      really want our town square policed by private corporations? (And if you are saying “yes” please ask yourself if you would still say that if evil Republicans were running those companies and censoring left wing ideas.)”

      Does it even occur to you that you’re asking for government intervention and control of private property, displacing private ownership, ya commie?
      Are you under the impression that evil Republicans don’t own and control any media, or that they don’t censor left-wing ideas in the media they own and control?

    3. “To me the troubling aspect of just giving social media companies carte blanche to police speech as they see fit is that these forums are becoming the equivalent of the town square.”

      So A) either stop using social media companies as an equivalent of the town square, or B) find a way to to use the town square that isn’t equivalent to crapping on the floor and smearing the crap on the walls, so people won’t be so quick to want to throw you out.

  13. Facebook excludes a tiny fraction of all content that people try to post, while traditional editors excluded all except that which they chose to fit on their limited pages.

    Wrong comparison. You have to compare Facebook to traditional editors in the aggregate. Those are the real alternatives. Facebook and a few others have been supplanting traditional editors as a group, not competing with them as individuals. Section 230 was structured (mostly by accident, heedlessly) to make that happen, and it has.

    Also, traditional editors would enjoy access to nearly unlimited pages in the internet era, except for a few giants using government-created privilege to block competitors’ access to ad sales (I know that needs explanation, ask). Compared to the paper-and-ink pages of old, internet pages are super-cheap—and they can be nearly as cheap for traditional editors as for the Facebooks and Twitters.

    Moreover, this is not, fundamentally, a first amendment or free speech issue. It’s a market power issue.

    That, from Loki, has it right. As does this:

    People are saying that they want Facebook (or twitter, or something else) to carry their message because that medium has a wider scope.

    Exactly. The caterwauling isn’t about too much power. It’s about rivalry to wield too much power. No one is going to fix anything so long as most people cherish ambition for too much power over speech.

    The way to make a solution happen is to back public policy to promote diversity and profusion among private publishers. Put all the questions about what gets published back into the hands of private editors, and make sure there are 100,000 private editors, or more. That is how to assure that no one has power to keep any particular opinion from being published. The market place of ideas—instead of today’s rigged marketplace of ad sales—can then go back to adjudicating which contributions achieve broad public attention.

    First step to make a fix happen is to repeal Section 230.

    1. You still have it backwards. You want to repeal the one statute that provides what you wish you had. Ditch Section 230, and what happens is that fear of litigation causes the owner-operators of large Internet sites to close them to public participation, or force them to undergo heavy censorship.

    2. “Wrong comparison. You have to compare Facebook to traditional editors in the aggregate. Those are the real alternatives.”

      Stupid. If you don’t like the way Facebook does [whatever], build your own system that does [whatever] the way you want it done. If you’re right about the demand for your version of [whatever], then you reap the financial rewards. Rupert Murdoch correctly forecast that American sheep wanted news with a strong bias, so he launched a cable news service with the bias he preferred and he found a market for biased cable news.
      So quit whining about FB and build your own alternative. This advice fits regardless of what your exact complaint about FB is.

      The roadblock is not (and never has been) Section 230. It’s the Republican repeal of Net Neutrality. Restore Net Neutrality, and then you can build the Internet of your dreams. Or, I guess, you could just advocate that the government should take over private property on the Internet.

  14. Who helped Leonard Leo select the editorial board?

  15. Here is an old, but new again, idea. Maybe we just treat the internet as it was originally intended and designed – to be an open forum for society.

    1. And by open, you mean government mandated to be open, eh?

      There are three different questions here:
      -What the law is
      -What the law ought to be
      -What is generally good practice

      People are conflating these. I think largely because they don’t like the answer to the first question, and are a bit ashamed of the double standard in the second.

    2. “Here is an old, but new again, idea. Maybe we just treat the internet as it was originally intended and designed – to be an open forum for society.”

      If only some politicians hadn’t spiked that idea by putting Ajit Pai in charge of the FCC, and then standing by when he decided that net neutrality was a bad idea. You don’t get any sympathy for a broken Internet when it was your guys who broke it.

  16. Donald Trump got far more conservative votes than any candidate ever, far outperforming his own previous record. Does anyone really think that is a good fit for a notion that the internet suppressed conservative messages? Trump couldn’t keep up with Biden on ad buys. No real sign that the Trump ground game was better. How did Trump organize that huge conservative upsurge except on the internet?

    1. Nice shift from “social media companies” to “the internet”.

      It isn’t “the internet” censoring or suppressing anyone. It is however large social media companies suppressing conservative messages.

      Your supposition also dismisses the many other methods, and in some cases those who simply voted for Trump because of the resistance to conservative messages by so many. It’s not by happenstance that Fox News is so popular among conservatives. The left complains intensely about Fox and until recently it was ONLY them.

      The right, however has a litany of media companies that tailor their message to the left.

      Your supposition about ‘how did Trump keep up’ if ‘the internet’ was suppressing conservative messages falls apart when you stop moving goal posts and putting parameters around it that try to squeeze it into some non existent hyperbolic little box.

      1. I thought I was releasing it into a bigger box—which included social media companies to the extent of their actual proportions, whatever they are.

        Your guy did great—which is remarkable given that history will remember him as the most ineffectual president ever, and one of the worst people ever to hold the office. But he did great anyway. He just failed to beat the guy who did greater.

        1. The R’s are on a roll with their nominations. They got a guy elected who clearly wasn’t prepared or (really) interested in the job, and followed that up by electing Donald Trump.

      2. ” It is however large social media companies suppressing conservative messages.”

        It is society at large that doesn’t want to hear it, and social media companies responding to public opinion.

        “The right, however has a litany of media companies that tailor their message to the left.”

        Only if we agree with your definition of “the left” as encompassing anybody who isn’t pegged at the right end of the dial.

    2. “Donald Trump got far more conservative votes than any candidate ever”

      Donnie motivated more voters than anyone else: Some in his favor and even more in opposition. The 2020 election was Donald Trump vs. NOT DONALD TRUMP, and there were more votes for NOT DONALD TRUMP by several million. In 2016, he convinced a number of voters that they didn’t want a corrupt Hillary Clinton to become President. By 2020, he’d convinced an even larger number of voters that they didn’t want a corrupt Donald Trump to remain President. Biden just happened to be the guy in the right place to ride that wave.

  17. “Likewise, these days it is generally (some) liberals who enthusiastically support the power of large corporations — indeed, among the largest of corporations — to influence political speech.”

    It was conservatives who loved the idea of businesses wading into politics, back when they thought they controlled all the businesses. So that support has come back to bite them. (boo hoo) So now, their complaint is that they want to be free to use computer equipment and bandwidth that doesn’t belong to them as if they owned it, and if they aren’t allowed to do that, they want the government to expropriate it for them. So much for principle.

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