Free Speech

"President Trump, Justice Thomas, and the Future of Social Media": A National Constitution Center Podcast Episode,

with Center head Jeffrey Rosen; Katie Fallow, senior staff attorney at the Knight First Amendment Institute; and me.

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You can listen to the episode (part of the We The People series) here; the summary:

Recently, the Supreme Court seemingly put an end to the legal battle over whether President Trump violated the First Amendment by blocking people on Twitter by instructing the lower court to declare the case moot. Justice Thomas authored a separate concurring opinion that expanded … on the language of the Court's decision to discuss the power of social media platforms over free speech. This week, we discuss that opinion and the potential broader impacts of this case—now known as Biden v. Knight First Amendment Institute due to the change in administrations—on the future of the First Amendment. Katie Fallow, senior staff attorney at the Knight First Amendment Institute who led litigation of this case since its inception, and Eugene Volokh, professor of law at UCLA Law, joined host Jeffrey Rosen.

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  1. Trump blocks abusive people, that is illegal. Trump gets blocked completely. There is no problem. The legal system is controlled by partisan Democrats, even if they are registered as fake Republicans. The lawyer profession must be crushed to save this nation.

    1. “Trump blocks abusive people, that is illegal. Trump gets blocked completely. There is no problem.”

      David Behar blocks others from speaking in my yard, that is illegal. I block David Behar completely from speaking in my yard. There is no problem. Argle, bargle, outrage, nonsense!

      1. Can you restate your argument in a simple declarative sentence?

        1. Crazy trolls have trouble understanding neither.

          1. What do you mean? I don’t understand.

          2. Re “crazy trolls”, remember Trump was President Troll himself, and stocked his administration full with those of his kind. I only mention this to introduce today’s story on Larry Kudlow, former White House economic advisor and surely one of the dumbest persons who ever lived. While doing a Friday rant on Fox News, Larry said this:

            “Speaking of stupid,” he began. “America has to, get this, America has to stop eating meat, stop eating poultry and fish, seafood, eggs, dairy and animal-based fats. OK, got that? No burgers on July Fourth. No steaks on the barbecue. … So get ready. You can throw back a plant-based beer with your grilled Brussels sprouts and wave your American flag.”

            Speaking of stupid indeed. I guess it must be the lefty in me, but I kinda like “plant-based beer”……

          3. You get that you’re the crazy troll, right?

            I mean everyone else sees it.

            1. Queenie is the only one actually stupid enough to reply to me. I would be lonely here with him.

  2. That was a strong, enjoyable discussion.

    1. Hi, Artie. You belong to the most toxic occupation in our country. It is 10 times more toxic than organized crime. It is going to be cancelled. Take education courses to qualify to teach History in high school. When the purges start, you need to get to Venezuela for your welfare.

  3. The more Eugene posts on this subject, the more I have questioned my beliefs (which tended toward protecting social media providers’ abilities to censor speech). This podcast in particular highlight the complexities that make this subject so difficult.

    Having said that, at the very end Eugene posits that the state could prevent censoring original posts on social media but not comments under a common carrier doctrine. I’m not sure what to make of that distinction.

    It makes sense to me that telephony is a common carrier because we all need the ability to communicate with others. But, that ability is to only a small number of people at once. Perhaps we shouldn’t be so speech protective when QAnon (or pick your favorite left-wing conspiracy group) has the ability to multiply its message to a much greater degree? Does protecting Twitter’s ability to delete comments keep the harm done by QAnon to a minimum while respecting the ability of everyone to communicate? How about retweets?

    1. The social media have become essential utilities, for example, to businesses. They should be regulated as common carriers. The phone company is not responsible if we plan a robbery over the phone, because it does not publish, nor even know about it. Furthermore, the phone company cannot cut service to Republicans. That is the deal, no liability, no moderation of content. If you moderate, you get the liability of a publisher.

    2. No. The essential feature of a common carrier is not the number of people listening, it is the fact that non-participants may not wiretap the call without a warrant. If the phone company doesn’t know what you’re saying, they can’t censor what you say.

      The Internet leaves a written record of the speech open to almost anyone to discover. That’s why it would be very difficult to treat it as a common carrier.

      However, since with every passing day we communicate more by writing on the Internet and less with verbal phone calls, we desperately need protection similar to common carrier.

      1. You do know that there is no difference between the internet and a long distance phone call, don’t you?

      2. However, since with every passing day we communicate more by writing on the Internet and less with verbal phone calls, we desperately need protection similar to common carrier.

        That does not follow. It takes as a given the monopoly-tending hegemony of big internet platforms. They are not a natural phenomenon, nor even a natural market phenomenon. They are a creation of policy. Absent Section 230, their business model would not be practical, and communication on the internet would be mediated by a far more diverse, and far more profuse, array of private internet publishers.

    3. Does protecting Twitter’s ability to delete comments keep the harm done by QAnon to a minimum while respecting the ability of everyone to communicate?

      You don’t understand the concept of free speech, do you?

      Protecting QAnon protects *your* free speech — and the way of dealing with QAnon is to call them the nuts they are.

      Remember, truth is stronger than falsehood, and sunshine is the best disinfectant.

      1. I understand that protecting QAnon from being censored by Twitter protects me from being censored by Twitter. However, how important is it to protect my tweets from being censored? Or, my retweets or comments?

  4. Another good episode of “We the People” related to this subject:

    What is Section 230? (June 04, 2020)
    Kate Klonick, David French
    https://constitutioncenter.org/interactive-constitution/podcast/what-is-section-230

    1. Both French and Klonick echo what I believed before Eugene offered the common carrier argument. Perhaps Eugene could debate one or both of them in a We The People podcast? I would especially like to see how they react to Justice Thomas’ concurrence and the argument that Section 230 itself violates the First Amendment as applied to preemption of (yet-to-exist) state law which treats Twitter as a common carrier (French wanted to discuss whether Section 230 was required by the First Amendment).

  5. Professor Volokh stepped out of character, briefly, and mentioned publishing a few times during this podcast. But most of the way, as previously, it was, “platform,” “platform,” “platform,” until it would take software and an electronic transcript to count them all.

    That style of discussion begs the central question—which is, what kind of activity are we talking about when we talk about big social media businesses? It is interesting to listen to EV on that question, in part because his platform, platform spiel is so obviously at odds with his otherwise ostensible willingness to engage that question as undecided and controversial.

    A listener might justifiably suppose EV is as undecided on the question as his back-and-forth remarks suggest. But I don’t think it is hard to discern that EV tends to resist any notion that social media companies ought to be treated as publishers. His commentary trends instead toward agreement with other commenters, who overwhelmingly predicate remarks on a notion that internet “platforms,” are new, and different, and fascinatingly open to brand new regulatory structures commensurate with their novelty.

    Among the old regulatory structures available for jettison is, of course, 1A protection for press freedom. That one, EV seems not prepared to endorse outright, but neither does he firmly resist drift in that direction. And his commentary places him in numerous company, who clamor vociferously for novel approaches to regulating expressive activity. Actual government censorship is widely bruited, among the public, among local government officials, and even in the congress. Fellow traveling among that crowd is a striking departure—if as yet, only a semi-departure—from EV’s long-standing 1A fundamentalism.

    Big social media companies are not, “platforms.” They are not common carriers. They are not even fundamentally novel. They are readily recognized as publishers. Their business models depend critically on doing things which have for centuries distinguished the activity known as publishing from other kinds of businesses—including especially common carriers. Those business methods include:

    1. Presenting to a various public ready access to expressive products.

    2. Using the attraction produced by those offerings to assemble an audience which can be counted on to attend the offerings repeatedly.

    3. Curating that audience by control of the offerings, to suit characteristics among audience members who will especially encourage the interest of advertisers.

    4. By emphases on particular kinds of content, to optimize a match between audience characteristics, and the commercial strategies of businesses interested in advertising to audience members with those kinds of characteristics.

    5. To monetize that activity by selling advertising.

    All of that is typical publishing. All of that is fundamental to big social media business models. None of that has much to do with any kind of common carrier business model.

    No useful solution to the nation’s struggles over the internet will be found before general recognition that the subject is the future of publishing—and not some other unrelated topic. For compelling demonstration, make it a point to notice: it is the revenue source of the traditional publishing industry which the media “platforms” appropriated to fuel their startling expansion. If their erstwhile competitors were in the publishing industry, these online media giants can hardly be in any other.

    1. A publisher is liable for any third-party content it publishes. That standard puts Twitter out of business.

      1. That standard puts Twitter out of business.

        Josh R, if that turns out to be true—Volokh suggested it was in the podcast, by the way—and I think it is likely—too bad, so sad. What would follow would be an increase in press freedom, not a loss.

        Consider, if an end to Section 230 means Twitter can’t survive, all that really means is that a special privilege granted by Congress is what kept Twitter in business. This has not been the triumph of a superior business model. Just the opposite. The superior business model is what could have survived and thrived, had Congress not legislated a special privilege for its competitors. Absent that, there would have been instead a profusion of new privately edited publications, which could meet traditional publishing standards. There would also have been focused efforts to find ways to empower ordinary internet contributors to do so in a responsible way, and to make room in the law of liability to accommodate them.

        In passing Section 230, Congress heedlessly wiped out a substantial fraction of the the nation’s news publishing industry, and drastically reduced news gathering, while delivering nothing at all to replace what was lost. Section 230 has been a consequential bit of legislation; it is time for a forthright accounting of the negative consequences, to let people see if those outweigh the others.

        Real security for press freedom can only come from diverse opinions supported by a profusion of private publishers. It will never be found among a few government controlled, specially privileged, monopoly trending giants.

        Don’t worry, if the big platforms have to go, the internet can more than undo the damage they inflicted. Inherent efficiencies of online publishing (no paper, no ink, no costly presses, no delivery fleets and drivers) will make it more practical than ever for people to start their own publications, and make a go of it on the basis of free market business models. You will not have to be rich to do it.

        1. I strongly suspect the vast majority will not become publishers and as a result a huge number of voices will be silenced.

          1. Josh R, replacement of a few giant internet platforms by tens of thousands of private publishers of every ideological stripe will create enormously enlarged demand. That will open a broad way for contributions from those you fear might be silenced. It is a transition which could be well-begun using no more than already-existing editing skills, left over among editorial staff from legacy publishing days.

            Efforts should not stop with that however. The goal should be far more publication outlets than legacy publishing ever afforded, at least an order of magnitude more. The full potential of internet economic efficiencies will not be fulfilled until such an enlargement of private publishing is accomplished.

            Learning to avoid committing libel is not difficult for any reasonably literate person. That literacy plus a reliable source of rudimentary legal concepts are the only resources required. Merely-competent, play-it-safe editing does not demand sophisticated legal expertise at all, and will prove sufficient to empower risk-free publishing of well over 90% of the material most editors will ever see. Case-by-case legal consultation would almost never be needed.

            To do it in complete safety requires only ability to distinguish statements of fact from other kinds, and willingness to let caution decide uncertain cases on behalf of either prophylactic editing, or non-publication. That is a skill set which a summer workshop led by any lawyer could teach high school English teachers to impart to their students.

            Keep in mind that commenters on the internet right now get zero training about liability, but in principle remain as at-risk as anyone has ever been for libel damages. Unless the concept of libel is stricken from the laws—which would be disastrous for press freedom because a hostile public backlash demanding government censorship would ensue (those demands are already happening, by the way)—currently-ignorant internet commenters who have financial means will remain constantly at risk of bolt-from-the blue economic ruin at any time. The status quo is far from risk free.

            In a restructured internet publishing world with a much larger assortment of available outlets than previously seen, there will be a correspondingly larger supply of editing effort. That would serve to get a host of untrained would-be commenters over the bar, to help them not only make their comments safe to publish, but more effectively expressed and more influential.

            Doing that would vastly improve the quality of what gets published, without putting a thumb on any ideological scale—and while keeping government completely out of it. It would deliver a publishing resource to empower all but the most scurrilous commenters—whether educated or not—to express themselves more socially constructively. Any few who bridled at the help would alway remain free to go it on their own.

            Restructured internet publishing would do still more. It would give the nation back a desperately needed local news gathering resource, which has dwindled nearly away. It would school a new cadre of investigative reporters to keep an eye on government abuse and corporate abuse. It would vastly multiply the number of eyes on systematic lookout for signal environmental problems, for economic injustices, for pollution disasters, for local government abuses, and for a long list of other social ills. On the upside, the power to inform a broad audience about salutary technical advances, or useful social innovations would increase, and thus speed their implementation. Today’s lather of internet commenters is a far less efficient source of journalistic benefits than a similar (or even a smaller) number of commenters organized for journalistic purpose would be.

            Also, it would tend to prevent damage before it happens, from publication of non-libelous-but-destructive scams; from gratuitous published assaults by embittered ex-spouses; from would-be electoral saboteurs keen to publish polling place misinformation; from middle-school cliques intent on ostracizing a disabled person or a gay person; from revenge porn purveyors; from economic fraudsters; from crazy conspiracists intent on shooting up pizza parlors. The list is endless.

            In short, resumption of widespread private editing would once again ameliorate socially disruptive, non-libelous publishing practices which private editing previously prevented from doing damage to society—but which have now been released in a flood of swill from giant platforms which do not edit.

            If you have more questions, please do not hesitate. It is past time to discuss these urgent topics from all sides. I have yet to mention the business advantages, for instance.

            1. “Josh R, replacement of a few giant internet platforms by tens of thousands of private publishers of every ideological stripe will create enormously enlarged demand. That will open a broad way for contributions from those you fear might be silenced. It is a transition which could be well-begun using no more than already-existing editing skills, left over among editorial staff from legacy publishing days. ”

              There are already many tens of thousands of private publishers. I am publishing this comment. You published the dumpster fire that I am responding to. Your rent-seeking is transparent and ridiculous. Apparently, not as many people liked your publishing as your monopoly on information suggested.

              You are the weakest link, you’re fired.

              1. No. The Volokh Conspiracy is publishing your commentary, and mine. Tailoring reality to fit you ideology is foolish.

                As for how many people liked my publishing, working with a few others, I founded a weekly newspaper in 1974. Within a few years it came to dominate a highly competitive market. It is thriving today, and now dominates a larger market.

                1. No. The Volokh Conspiracy — Reason, actually, but why quibble — is distributing our commentary, not publishing it. We are publishing it.

        2. SL, give it up man.

          Nobody cares that you lost your job as a small newspaper publisher, and desperately yearn to legislate back your position of self-importance.

          “The press” are not fucking special, and neither are you.

          1. Vinni, you apparently number yourself among the old-time ditto heads, whom Rush Limbaugh taught to hate media. I get that right-wingers of your stripe learned to resent traditional media, and looked longingly to the internet to become your own tool to supplant the, “lame-stream media.” Now that isn’t happening, and guys like you are sore about it. You want government to step in and get the job done for you.

            If you understood anything at all about publishing, you would see that makes you an opponent of press freedom, not a supporter. But you understand nothing about publishing—not even who publishes your own stuff—so you avoid engaging on specifics. A wise choice, in your case.

            Never mind that, though. Very few people do understand much about publishing. It isn’t a disgrace to be among them. But choosing to be rude and belligerent about it? That won’t do anything to make you persuasive.

        3. Consider, if an end to Section 230 means Twitter can’t survive, all that really means is that a special privilege granted by Congress is what kept Twitter in business.

          Something that every person on the planet (well, in the country) can take advantage of is not a “special privilege.”

    2. Big social media companies are not, “platforms.” They are not common carriers. They are not even fundamentally novel. They are readily recognized as publishers.

      By people who don’t know what the ^!#$*^#($ publishing is, yes.

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