Free Speech

Social Media Platforms as Common Carriers?

An interesting conversation I had with UMass law professor (and associate dean) Shaun Spencer, organized by the UMass Law Federalist Society.

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At least it was interesting (and highly enjoyable) for me; hope it will be for you as well.

 

NEXT: The “Essential” Free Exercise Clause, Forthcoming in the Harvard Journal of Law & Public Policy

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  1. Nationalize social media. Content-based restrictions. Rationalize Section 230. Analogizing twitter to the telephone company?!

    Man, how the worm has turned.

    I’m skeptical of Silicon Valley’s good intentions, but nothing I’ve seen makes me think market failure as one might with telephone companies or utilities.

    1. That government ain’t gonna expand itself, now nose to the grindstone to enact Dear Orange Leader’s will in that area.

      1. Still living in the past aren’t you. I bet you miss those heady days of Brian Stelter and Rachel Maddow and their latest Russian investigation revelations from anonymous sources.

        Biden pooped today all by himself and didn’t fall down. That was something I guess. From an anonymous source.

        1. You got over a single sentence in a post! Good for you, your parents have got to be elated.

    2. That road goes two ways. According to liberals at one time, Citizens United was the worst law in history. Corporations are not people; they can’t act like them either.

      Then the 2016 election happened, and those same corporations spent the next 4 years doing it’s best to affect elections in favor of liberals. Liberal response? It’s a private company; who are we to tell corporations they’re not allowed to do things?

      If you’re going to complain about worms turning, you may want to tend to the ones in your own back yard first.

      1. I think the reaction to Citizens was wacky too.

      2. My back yard is in America, and I’ll tend to it however the fuck I want.

        1. Great response, but it doesn’t address the complete hypocrisy of the belief. Try again.

      3. This has nothing to do with CU.

        I’m fine with CU, BTW. It’s Buckley v. Valeo I take issue with.

        1. This has nothing to do with CU.

          Bingo.

          I’m fine with CU, BTW.

          Bingo.

          It’s Buckley v. Valeo I take issue with.

          Yahtzee.

    3. I tend to agree with you here, overall. The counterargument is that social media is like telephone companies in part because of “network effects,” and potentially also because of the coordination we have seen among different elements of Big Tech. The Parler app still does not work! I don’t think the “network effects” of a social media platform is enough, by itself. But when it’s not even possible to get your competing service into the hands of customers on their devices, then it becomes much more akin to the physical, tangible nature of telephone companies’ supposed “natural monopolies.”

      As for the separate issue of Section 230, I might be alone in my view that it’s not really a big deal either way, as things stand. I’m not a fan of the legislation and would repeal it. But I also think that it shouldn’t make much difference, because a platform or an interactive computer service generally wouldn’t or shouldn’t be treated as a speaker or publisher anyway.

      1. To the extent that the platform removes content as an expression of its own viewpoints, it is acting as a sort of publisher.

        Just forget poltical speech for a moment and think of platforms removing what they consider “fake news.” That was exactly what China did in the scouring of social media to remove any and all content relative to the “strange new disease in Wuhan.” That deplatforming of respiratory illness related speech cost at least one month, and more likely 2 months, in informing the world about SARS-CoV-2.
        While that censorship was done by a government, our political system has pressure media companies to do their censoring of “news or activities” contrary to the government’s prevailing views.
        That is not helpful. In fact it is damaging to a free society

        1. I’ve been saying something similar: The platforms ARE exercising an editorial function, making themselves publishers, not simply serving as a neutral conduit with a bit of moderation for content that is illegal or widely agreed to be offensive.

          And they’re doing so in cahoots with the government. Well, not the “government”, as such, a particular party regardless of whether it is in or out of power in the government. Not so much coerced by, as allied with, or maybe even just two hands of the same entity.

          But that’s sufficient connection to the government to bring the 1st amendment into play.

          And they’re not finding that sufficient, they also collude to obstruct the rise of competing platforms that wouldn’t join the arrangement.

        2. Don Nico, even more damaging to our political system is the ability of government to pressure media companies in the first place. Where does that come from? It comes from the ability of government to threaten withdrawal of special government-granted privileges which turned those very media companies into monopolistic giants, at the expense of the rest of the publishing industry. Fix that by repealing Section 230 and this becomes an entirely different discussion. Problem is, all the folks demanding more control of media are dead set against fixing what sent these media out of control. That makes the whole discussion stupidly paradoxical.

          1. As I see it, two things sent them out of control:

            1. The “in good faith” language of Section 230 being ignored, so that a carve-out for moderation of widely objectionable material was transformed into an authorization to censor on any basis whatsoever.

            2. The industry ended up with enough of a partisan tilt that it passed the tipping point, where left-wingers purge dissenters, and organizations become ideological monocultures. Once that happened, there wasn’t any more internal push-back against ideological censorship, because anybody who did push back would just get fired.

            Once that happened, it was just obvious that any insurgent platform that didn’t share the ideology or determination to censor desperately needed to be crushed. Thus Gab, and Parler.

            Without #2, you’d have probably seen competing biased platforms, which itself would have moderated the bias. But just as a company that’s past the tipping point purges dissenters, so does an industry, and the internet platform industry no longer has tolerance for companies that won’t join in the censorship, and turns on them.

      2. M L, it is reckless to suppose, “a platform or an interactive computer service,” shouldn’t be treated as a publisher. Supposing does nothing to alter facts, and the fact is that those businesses are sufficiently publisher-like that they have cannibalized most of the advertising revenue which previously supported a more various and diverse publishing industry. If they are wiping out competing publishers, that is a plenty good reason to class them as publishers. There are other reasons too, such as business models which match publishing business models in most particulars, but the competes-with-publishers reason is really all you need.

    4. Ever hear of the equal time rule. (Not the fairness doctrine, but the equal time rule).

      Ever wonder why it is still in place? Why it was put in place initially?

      1. Not what Prof. Volokh was talking about.

  2. Oh, yes — the Southern New England School of Law which first tried to sell — and then literally “donated” itself to what is undoubtedly the most politicized and corrupt campus of the 5-campi UMass system. (Boston Marathon bomber Dzhokhar Tsarnaev built his bombs in a UM-D dorm room…)

    As the law school focuses on “social justice”, I’m actually surprised that it even *has* a Federalist Society, but more power to them…

  3. Three thoughts:

    1: Can there be class action libel suits?

    Presuming that Farcebook & Twatter have the ability to ban anyone they wish as their own free speech, that doesn’t include the right to libel without consequences. Hence if they said “we just randomly ban whatever and whomever we feel like for no rational reason” then they’d be OK — but once they say that the are banning stuff and people for specific reasons, if those reasons aren’t true, then that’s libel.

    I’m thinking of the $3.375 million that the SPLC had to pay to Maajid Nawaz’s Quilliam writ large.

    2: Should we even be thinking this is speech?
    Why isn’t it commerce? Congress clearly has the right to regulate interstate commerce, and states the right to regulate intrastate commerce. Newspapers can be regulated — I think it was Portsmouth, NH that mandated all newspaper distribution boxes be painted a particular shade of brown and that was upheld.

    3: Using Prof Volokh’s example of the telephone company — as almost all telephone service is now digital, it is very much possible to monitor for certain words and to disconnect a phone call if certain words are said. It’s not just disconnecting the phones of the Klan but being able to flag all their supporters.

    1. 1: No. For reasons I couldn’t explain to you or an earthworm.

      2: It does not matter if it is commerce. The First Amendment places a limit on Congress’s commerce power, too. (The question betrays your fundamental misunderstanding with the Constitution.)

      1. Fundamental understanding. Why even have a legal discussion about the constitution when there couldn’t possibly be different views on what it actually means.

        Oh wait…

        1. Because there’s a body of interpretation of the Constitution, like societies have a body of interpretation of everything from holy books to paintings.

          And coming in hot with your own idiosyncratic take absent that body (or, worse, misapplying it) does not mean anyone has to give you the time of day.

      2. “The First Amendment places a limit on Congress’s commerce power, too”

        _Katchenback v. McClung_?
        _Heart of Atlanta Motel_?
        Freedom of association is a First Amendment right….

    2. “Using Prof Volokh’s example of the telephone company — as almost all telephone service is now digital, it is very much possible to monitor for certain words and to disconnect a phone call if certain words are said. It’s not just disconnecting the phones of the Klan but being able to flag all their supporters.”

      That is just what China did to cover-up the emergence of covid-19

  4. I don’t get why this wouldn’t be solved via the simple market way. If Twitter is really bothering Republicans or Trump voters, well, there’s tens of tens of millions of you. Just tell Twitter you’re dumping them and go to a competitor (like here https://parler.com/auth/access ).

    Easy peasy. Twitter and other companies aren’t being ‘woke’ for shits and giggles, if they start losing out to competitors they will change their tune. That’s how I’ve always been told by conservatives and libertarians free markets work. Why run to nationalization? Has the Orange Man deranged conservatism on this too?

    1. Most have already done that, and just shit post to twitter and elsewhere to get you all riled up.

      1. “shit post to twitter and elsewhere to get you all riled up”

        How sad…

        Also, I don’t and have never had a Twitter account.

    2. And then the woke mobs get the hosting services to de-platform Twitter’s competitors.

      1. So now the hosting services need nationalization too?

        Also, my link to parler sems to be working.

        1. Apple and Google colluded and kicked Parler off basically every phone in the US. How do you solve this? Do conservatives need to build a completely parallel universe? Where does it end. If shoe was on other foot, would you tell libs to suck it up and stop complaining or do cons have a legitimate grievance?

          1. “How do you solve this?”

            By recognizing it’s not a problem (Amazon is not the only entity that can support Parler).

            1. Really, 2 ideologically similar companies control 100% of what apps are allowed on phones. Both companies have stong ties to one party of the government and have demonstrated they will use their resources to get them elected. Not a problem at all!

          2. Cons do not have a legitimate grievance. They are just demanding that the same bad shoe go on their foot, instead of the other way round. Get behind actual correctives if you want solutions to legitimate grievances.

            1. Cons do have a real problem with all of big tech being aligned against them. Tech has increasingly used their near monopoly power against them and recently coordinated their considerable reasources to influence the presidential election. I don’t understand why people just cant admit this is a real.

              Solutions are a separate issue. Giving govt more power in content moderation is not going to work out well for cons in the end. Building an entire parallel system of tech and banking – doesnt seem practical either.

              1. The parallel system is more practical than giving government more power. But still not terribly practical until the right has regained enough power in government to punish coordinated attacks on the infant system.

      2. Does the United States Government have to fund the servers for Stormfront? Or does it merely have to order a private party to do so?

        By the way, how did “the woke mobs get hosting services to de-platform Twitter’s competitors”?

        1. The local TelCo and electric utility are required to provide service to Stormfront at the same price they provide it to everyone else.

        2. Do you agree with the Federal Reserve buying corporate bonds? This practice began in 2020.

    3. The problem is the monopoly and lack of interconnections.

      i still think they should be broken up the way that Ma Bell was — local operating companies and long lines.

    4. “You can just open your own version of Twitter!”

      —Parler gets popular

      —Big Tech coordinates to destroy it, wiping out its ability to be downloaded, then destroying its web hosting.

      1. It’s not destroyed, you can click on the link I provided above. And, it’s not the only alternative, either.

    5. QA,
      I suggest that by concentrating on the matter of deplatforming political speech one let’s partisanship distort the issues surrounding the question of whether megamedia are de facto publishers exerting their own free press rights as do newspapers or should be common carriers like the phone company.
      In either case, that is not nationalizing any company.

      1. Don Nico, keep in mind that common carrier is a way to come to terms with natural monopoly, by regulating national interest into the mix. Leaving aside that none of the so-called platforms conforms at all to a typical common carrier business model, why for gods’ sake does the nation need a publishing industry run as a regulated monopoly?

        You are right of course that the deplatforming issue burdens the discussion with partisan distortions.

  5. Why run to nationalization?

    Are you a Saracastr0 sockpuppet? Or are both of you really so ignorant that you don’t know what “nationalize” means? Hint: It’s not a synonym for “treat as a common carrier”.

    1. I don’t know about Sarcastro but I’m more than a little mocking the kind of hyperbole your comrades usually use about this sort of thing (any significant increase of regulation=nationalization! socialism! communism! and such).

    2. Maybe a bit hyperbolic, but common carriers are as much nationalized utility than private business.

      Or didn’t you take torts?

      1. More than a little hyperbolic, S0.
        But the construction “as much… than” is rather strange and not even the Queen’s English

    3. You both even responded in harmony with the same bullshit song-and-dance.

      1. It’s a big government move, for partisan reasons.

        It’s a sign of the GOP times.

        1. “for partisan reasons”

          In your view, no one who is concerned about conservative voices being muzzled today would be equally concerned if the situation was inverted? Out of a quaint notion, perhaps, that society is best served by an open marketplace of ideas, rather than one where orthodoxy is enforced and only opinions acceptable to the powers that be may be voiced?

          That quaint notion was not uncommon across the political spectrum until quite recently – for example, that was the position of the ACLU until recently. In your view, was the ACLU wrong then or is it wrong now?

          And, heaven forfend, the newly hatched realization on the left that society is best served when public speech is molded by large corporations is not a partisan reaction to that molding being in their favor? If, for example, twitter and facebook were suppressing speech in the other direction, you would still find it best to have them shaping the debate in that way, even though it hurt the causes you favor? If so, I salute your faithfulness to your bedrock principles.

          1. I don’t believe conservative voices are being muzzled. Covid and election denial is of the right, but not conservative.

            The GOP runs on rabble-rousing and victimization these days, so they’ve seized on it as an issue. Sad to see Prof. Volokh fall for that.

            One way you can tell that now they’re targeting companies not for content-based restrictions, but just for speaking out against conservative policies.

            This is about culture war nonsense, not censorship;

            1. I think you are mistaking ‘it’s not visible from my bubble’ with ‘it isn’t happening’.

          2. Absaroka, have you been reading my stuff? Do you think any of it has anything to do with your conservatives-vs-badness characterization? Have you noticed that what I advocate takes care of your Twitter and Facebook suppression objection, while still leaving them free to act as uncensored private publishers?

            I am at a loss why this discussion can’t be extended beyond the horizons of a publishing world run exclusively by giant, government-protected enterprises which escape liability for everything. Why is every counter-argument just some gerry-built demand to tinker with government censorship to improve the standing of the guy making the demand?

  6. EV mentioned the fine line when it comes to some kind of law allowing content restrictions but not viewpoint restrictions.

    If Facebook simply has the content restriction of not allowing anything false or misleading, but they are the arbiters of what is false and misleading, would that shield them from any anti viewpoint restriction laws?
    Even if it turns out they tend to discover more misleading posts from a particular viewpoint?

    Btw, it can in fact be very plausible that folks from a particular viewpoint tend to post more false and misleading stuff than others. If people of a certain philosophical and political persuasion tend to post a bunch of Holocaust denial articles, removing those for being false and misleading might seem viewpoint discriminatory simply because people from that viewpoint tend to believe a lot of bullshit.

    1. What is more likely to happen is Armenians arguing that the Armenian genocide was worse than the Holocaust, and by some criteria, it arguably was.

      (EG, Germany recognizes that the Holocaust happened, Turkey refuses to this day to recognize that anything happened to the Armenians.)

      1. Well, my guess is that Facebook in Turkey might deal with those kinds of posts very differently than Facebook in America. Which kind of leads in to my question below about foreign laws.

    2. Roman, a good comment.

  7. Another question I have is, are there any companies that are currently subject to common carrier laws that aren’t primarily in the business of one on one communications and deliveries, but are more public in nature like Facebook and Twitter, or newspapers? I’m not sure if the difference has any potential legal significance, but the kinds of companies I think of as common carriers provide a very different service to internet platforms.

    Also, I mostly hear discussions about how we should approach these potential laws in America, given our robust interest in free speech and freedom from government intrusion, but I have to imagine that Facebook and Twitter have to deal with all kinds of restrictions and liability laws in other countries. Has anyone examined what these various laws are and what intended, and unintended, consequences they’ve yielded? Are any of them applicable to potential laws being discussed here?

    My guess is that most regulations they have to deal with in other countries don’t solve the perceived problems we’re discussing here, but I’m still curious if anyone knows more about it.

  8. The volokh guy says that UPS and FedEx are common carriers, that they generally have to accept shipments from all comers.

    After the PACT Act was passed (prohibiting the post office from transporting vaping products) UPS and FedEx were under no legal obligation to prohibit these products as well, but they did anyway.

  9. An interesting discussion.

    The mention of cell phone companies was thought provoking. Clearly that aren’t a monopoly, but I don’t think I want a world where Verizon or Spring refuses service to people who like Stormfront or the CPUSA.

    Also, I thought EV had the better side of the question whether people would ignore a ‘we are required to allow all viewpoints’ disclaimer and blame Facebook for what is posted on the NAMBLA page. I have seen the signs at stores saying that they have to allow leafleting and don’t endorse the message, and they seem pretty straightforward. I would think that insofar as Facebook is politically neutral and just wants to collect ad revenue, they would welcome such a shield, as opposed to being criticized from either side for blocking too much/little.

  10. What a sad spectacle. Two lawyers discuss the future of publishing, apparently without noticing that publishing is their subject.

    How many times did EV say, “platform?” It might have been hundreds. I think I heard “publishing” once, plus a few slighting references to newspapers, which seemed intended to allude to publishing as a legally inconvenient, bygone phenomenon.

    Even more surprising? Not a mention, not one, by either of them, of the reason the topic they struggled with has become such a red-hot focus, in law, in congress, and in society.

    What is that reason? It is that pre-internet, content-related problems on which the lawyers opined were less salient, and much less troublesome to the law. Now the law struggles to cope.

    Previously, those problems were sorted out privately, by the private publishing industry, using private editing. The law was thus relieved of the burden of struggling with them. Legally troubling content problems were less common, because the vast majority of such problems got prevented before publication. A body of law grew up, tacitly relying on a presumption that private editing would keep most thorny content problems out of court, at least most of the time.

    Factors tacitly relied upon tend to attract little notice. That happened to the law of published content.

    Thanks to platforms, that social and legal advantage for customary publishing—to prevent damage before it happens—is no longer effective enough to keep it reliably useful. Plus which, the useful part is what is under attack.

    Previously, published libels, scams, gratuitous racial hatred, big political lies, scurrilous attacks on private persons, etc. were almost always prevented, by private editors, before their publication dealt damage. But on, “platforms,” that stuff almost never gets prevented. It gets published first, and does full damage. And then mostly just festers, without being corrected or taken down. That change is the issue feeding social urgency into the discussion. And these two lawyers never mentioned it.

    Also unmentioned—a big surprise given analogies being drawn to common carriers—was the fact that common data carriers do not mine data content to promote advertising sales. It is a striking fact, but somehow mostly escapes the notice of proponents for common carrier status for platforms. It escaped mention by EV.

    It is, of course, an everyday mistake to try to discuss publishing issues without reference to business models. Those concern publishers, but not much the general public. The general public supposes, mistakenly, that the content part is all there is to it. Lawyers who want to change laws governing publishing should be better informed.

    Legal experts who propose to regulate publishing by law ought to notice is that business models are intertwined with content. EV went wrong when he said, and then returned to, an assertion that newspapers are intended to be read complete, and are not presented as selections of disparate pieces. Maybe he does not understand the typical publishing business model.

    For most newspaper publishers the exact opposite is true. The style of publishing business most commonly practiced is about assembling and curating an audience—with an eye to pleasing would-be advertisers looking for large audiences, and looking for preferred audience demographics. Sometimes models call for various demographics, other times for specialized demographics—but in every case the models call for whatever advertisers want from a publication with content tailored to that kind of demographic selection.

    Thus, that business fact affects publishing content choices. The aim insofar as possible is to define the audience by interests—whether diverse or conflicting interests, or narrowly focused interests, or otherwise—and then make sure that every edition includes at least one thing to serve each interest so well that it makes a compelling case for a reader with that kind of interest to return to read subsequent editions. That is why major newspapers feature national news sections, local news sections, opinion sections, politics sections, arts sections, financial news, photography, social news, sports coverage, and so on. To publish one compelling item for each reader in each edition is an ideal to which most newspaper publishers are glad to subscribe. Doing it will keep all readers coming back, edition after edition, to the delight of the advertisers.

    EV’s attempt, then, to identify common carriers with publishers was beside the point. An imposing difference distinguishes them. Common carriers do not try to curate an audience, at all. They are generally barred by law from doing it. That fact of the common carrier business utterly separates its business model—and thus every content consideration as well—from the typical publishing business model.

    But make it a point to notice. Unlike common carrier practice, curating an audience is what the, “platform,” publishing business is all about. They all do it. It is a defining characteristic shared alike by platforms and legacy publishers.

    Compared to legacy publishing, platform publishing’s great business advantage is its ability to mine media feeds of various users, and use that data to curate an audience which advertisers regard as a better product for their ad dollars. But until the telephone company starts eavesdropping on our phone calls, and using what we say to leverage sales to advertisers, proper common carrier legal standards will have nothing to do with publishing legal standards.

    Among differently organized publishers, however, business model differences are more a matter of degree than they are a difference in kind. Publishers, whatever the particulars of their business models, compete in the same marketplace for advertising dollars. Platform media are no less publishers than traditional newspapers. That means every legal twist and turn meant to apply to platforms will likewise affect other publishers, of all kinds, for better or for worse.

    And decisions on business models will always affect content. Business coordination to align commercial practice with content selection is what the publishing business is about.

    Thus, if they are done heedlessly—without specific consideration of all publishers as a class—proposals to separate out, “platforms,” and write laws just for them, risk collateral damage to all other publishers. Section 230, for instance, is an example of such heedless regulation. It did not just empower platforms. It utterly changed the business strategies, and thus the content, of most of the nation’s newspapers.

    That change has already happened. It will continue. However unmentioned, and apparently unconsidered, the fate of publishing as a whole—the choice of its content, and its viability as a business—was the most important subject of EV’s debate. Too bad the participants did not seem to notice.

  11. Comment after comment on this thread, from folks who accept monopolistic internet publishers just as they are—but demand that government censor them. Why not instead a free market, anti-monopoly solution, based on diversity and profusion among private publishers?

    I will tell you why not. Too many commenters oppose press freedom. They think press freedom has worked against them. They see a pure question of who gets to dominate media, and look to government for help to make themselves dominant. They thought the internet would do that on its own, and now discover that was mistaken. Hence the turn to government.

    Far better to take media dominance off the table. Support vastly disorganized profusion among private publishers, representing whatever viewpoints can compete for space in a far larger marketplace of ideas. Concentrate on making the publishing marketplace fair, and wide open for entry by even impecunious would-be publishers. Get rid of ad sales monopolies by regulating business practices, and you won’t have to worry about content monopolies.

    Why wouldn’t anyone who wants press freedom prefer a future where they could compete with Facebook, instead of a future where they have to cooperate with Facebook? For that matter, why wouldn’t a would-be retailer prefer a future where they could compete with Amazon, instead of a future where they have to cooperate with Amazon?

    What sane person supposes that either Facebook or Amazon—in a future which leaves those giants mostly as they are—will not dictate all the terms of cooperation, including especially the terms which governments purport to decree? Don’t choose the wrong road to get to the right destination.

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