The Per Curiam Facebook Oversight Board

Opinions are unsigned, and members of the "minority" are unnumbered.

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Today the Facebook Oversight Board released its decision concerning the termination of Donald Trump's account. I am largely uninterested in the reasoning adopted by this non-judicial body. I view it as little more than a glorified law review article. Indeed, nine of the twenty members are academics. And these academics expressly rejected the jurisprudence I am most familiar with: the First Amendment. Rather, they favored a body of law I know very little about. Eugene observed that the Board gravitated towards principles of international law. When I read the word "proportionality," my eyes glaze over.

The decision also had other European features. The majority opinion is not signed. Nor is there a signed dissent. Rather, the opinion includes a "procedural note"

The Oversight Board's decisions are prepared by panels of five Members and approved by a majority of the Board. Board decisions do not necessarily represent the personal views of all Members.

We are left with a per curiam decision that refers to an unnamed "minority" view. Really, this opinion is not a law review article. Most forms of scholarship are signed. We have no idea who wrote this opinion. We have no idea who disagreed with it. For all we know, Michael McConnell, the lone conservative in the group, dissented. We will never find out. I suppose one of the plus sides is that the authors will be immune from public criticism for their decision. And they will not be trolled online for their actions–unlike virtually everyone else in the world. One of the reasons why tenure protections are afforded is to promote judicial independence. But now, the Oversight Board hides behind a fancy moniker.

Finally, one other note on the substantive issue. For the reasons Eugene explained, I am sensing a schism. More and more libertarians are trending towards the position that social media companies should be treated similar to phone companies. These sites seem to be viewed as different in kind from other types of private entities. These tech giants may be viewed as expressive forums, as distinguished from government-designated public forums. I hope to write more about this issue in due course.

My frequent co-author Randy Barnett wrote some useful threads on this issue.

Update: Professor Mike Rappaport wrote a relevant essay in January, titled Can a Classical Liberal Support Big Tech Regulation? Here is a snippet:

In sum, the reasons that justify prohibiting discrimination by monopolists under classical liberalism also often justify prohibiting big tech from discriminating based on political ideology. Such a prohibition would prevent big tech from coercing people as to their political views. While some classical liberals might still oppose a nondiscrimination requirement based on policy, one cannot argue that the requirement violates classical liberal principles.

And earlier today, I appeared on the Fox affiliate in Houston to discuss the Oversight Board's decision.

NEXT: 41-Month Prison Sentence for Multiple Swatting

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  1. Seize Facebook in civil forfeiture for the billions of crimes committed on its platform. It committed millions of crimes by defrauding advertisers with inflated viewerships. Most of its accounts are fake or not people.

    Then auction it off like the Ferrari of a drug dealer.

    1. Facebook is now effectively a utility. It should be regulated, and may not discriminate, not even against criminal content. Its size, its place in all societies, and its 230 exemption support that notion.

      Zuckerberg is effectively an agent of the Chinese Commie Party, promoting its interests in the USA. He should be removed and banned from any job at Facebook by the DOJ.

  2. Fun fact: if you think social media companies should be treated similar to phone companies, you are not a libertarian. (Or a Scotsman.)

    1. Why shouldn’t social media companies be treated similarly to phone companies, in your opinion?

      You don’t have to use AT&T. There’s always Verizon. Or T-Mobile.

      Why shouldn’t AT&T be able to pick and choose its customers, and cut people off for political actions it disagrees with?

      1. Yup. Clearly you can be a libertarian if you think that both phone companies and social media companies should be able to pick and choose their customers.

        And based on DNM’s comment, you can be a libertarian if you think phone companies should be required to serve everybody without regard to what they say on the phone.

        So why can’t you be a libertarian if you think social media companies should be subject to the same regulations?

        I have a sneaking suspicion that Dave’s “fun fact” might actually be an opinion.

        1. When you talk to somebody on the phone, nobody assumes you’re speaking on behalf of the phone company.

      2. Armchair, if you have access to Lexis (which I don’t anymore), look up the text of the Bell Antitrust Decision

        It was complex, but there was a thread that I can remember even now — “while the men of ATT have always been honorable and haven’t exploited their ability in the past, there is no guarantee that other men won’t do so in the future.”

        Farcebook has the monopoly that AT&T had before there was T-mobile. And Verizon is one of the fragments of the AT&T breakup, much like both Exxon and Mobil are fragments of the breakup of Standard Oil.

        (Esso — Eastern Standard Oil — Exxon. Mobil something similar.)

        1. Yes, that antitrust decision was nice.

          But while you’re there, also look up Bell Atlantic v. Twombly and Pacific Bell v. LinkLine. Not much competition left, 20-30 years on…

        2. It was complex, but there was a thread that I can remember even now — “while the men of ATT have always been honorable and haven’t exploited their ability in the past, there is no guarantee that other men won’t do so in the future.”

          People will not be surprised to hear that Dr. Ed is making this up.

          1. Right….

            And why would I do that?

            1. If I actually cared, that would be a question I would be asking myself about you every day. Best guess is that you’re desperate for attention.

              1. David. Do you ever, ever have a point of fact, of logic, or of law to make?

                1. That’s a good question. Do you have an answer?

            2. “People will not be surprised to hear that Dr. Ed is making this up.”

              “And why would I do that?”

              Some kind of odd psychological compulsion that forces you to lie in order to avoid admitting you were wrong (again).

        3. Exxon and Mobil are both ExxonMobil now.

      3. There are certainly arguments that social media companies should be forced to host speech they disagree with. There may even be compelling ones. But they’re not libertarian.

        1. They certainly aren’t. But neither are arguments that phone companies should be forced to carry speech that they disagree with.

        2. Are you a libertarian?

          1. He’s just telling you that No True Libertarian believes such things. What’s wrong with that?!

            1. No two libertarians agree about anything, including, specifically, as to what it means to be “libertarian”.

      4. Why shouldn’t social media companies be treated similarly to phone companies, in your opinion?

        Are there government created barriers to entry into the social media market? Can anyone on the planet at any time start operating a social media company, without authorization from the government? (Okay, anyone in the U.S., anyway.) Can anyone in the U.S. at any time start operating a phone company without authorization from the government?

        I mean, I’m not conceding that phone companies should necessarily be regulated either, but that seems like a pretty obvious reason why one might treat them differently than social media companies.

        1. Are there government created barriers to forming a phone company ? Can anyone on the planet at any time start operating a phone company, without authorization from the government?

          1. I think if you start digging up the road to start putting in cables, someone will come around to ask what you’re doing pretty quickly.

          2. Yes. No.

            1. Ultra Mobile seems to have done exactly that in 2015…

              1. Ultra Mobile is an MVNO, a Mobile *Virtual* Network Operator. They are a customer of a phone company more than an actual phone company themselves.

                1. And yet….they work like a phone company.

                  1. Only for as long as the MNOs let them, while charging you a markup over the price they pay to the MNOs.

                    1. I *thing* — emphasize *think* that there are regulations mandating the wholesale sale of services from the MNCs.

                    2. …which you need FCC permission and approval to access, and which have to be on “reasonable business terms”, whatever that means.

                    3. “I *thing*”

                      Yes. You are.

      5. David is a denier of reality. Facebook is now effectively a utility. It should be regulated, and may not discriminate, not even against criminal content. Its size, its place in all societies, and its 230 exemption support that notion.

        We can talk about committing a bank robbery on the phone. We can be Republicans. The phone company may not cut off our service. It may not even wiretap us without a court order.

        1. Facebook is now effectively a utility.

          Utility. n. an organization supplying the community with electricity, gas, water, or sewerage.

          1. Not phone or cable then eh?

            1. That’s what I was thinking too. (Well, phone/internet, not necessarily cable.)

              But I refrained from making that point because David is otherwise right: in no universe is Facebook a utility.

              1. We are conflating is/ought a bit.

                Facebook is not a “utility” right now. The discussion is whether they ought to be. There’s a pure ought question. It’s a relatively new invention. There’s also an “is” question that is different, much murkier and necessarily depends on imperfect analogies and economic issues.

                1. No, we’re not. Utilities are natural monopolies that provide essential services. Facebook is neither a natural monopoly nor essential, so there’s no “ought” about it.

                  1. Well, in one sense, “utilities” refer to those things that the government has elected to treat as such in some certain ways.

                    In another sense, it refers to an economic theory regarding “natural monopolies” as you say, which states that the government ought to treat them a certain way due to their economic characteristics. But the economic theory is theoretical and debated, particularly in its precise contours. Railroads, public transit, even highways and streets are also called utilities. But in fact, the first roads in the US were private. There’s reason to suppose that roads could exist just fine without government taking them over.

                    1. Railways and motorways are natural monopolies for the same reason that sewage systems and water mains are: because building two parallel systems is so massively inefficient that it would never happen. That doesn’t mean that you can’t have a private company build and operate that infrastructure, but it does mean that that company would have to be regulated in some way to avoid monopoly pricing. (Which, at very low price elasticities, implies very high markups.)

                      If you have a suggestion how “roads could exist without government taking them over”, I’d truly be curious to hear it.

                    2. Martinned, I can’t remember the name of the book, but there’s a book available at the Mises Institute that describes how a privatized road system might work. If I recall correctly, it’s about 600 pages, so it’s a bit too large to put as a comment here.

                      Full disclosure: I haven’t read the book, but I’d like to some day.

                      Also, in case you haven’t noticed, Amazon runs a good portion of the internet, as does Google. Just a few weeks ago, a shortage at Amazon caused a good portion of the United States to go dark. As a developer who makes use of AWS myself, it’s something I’m very keenly aware.

                      Additionally, there are large audiences that are difficult to reach if you’re not on Facebook. It’s not as big a stretch to wonder if these services are monopolies as you make it out to be.

                    3. “If you have a suggestion how ‘roads could exist without government taking them over’, I’d truly be curious to hear it.”

                      For highways, an ad-supported model might work. The owner of the roadway could recoup the cost of construction and maintenance by selling ad space along or on the roadways. Nor sure how you’d overcome premises liability, though.

                  2. Progressives usually want to regulate and communize everything, except of course for when it works in their favor to not do so. Like when the communications industry is revolutionized by the invention of social media, and its control is in the hands of a few tech oligarchs who favor heavy handed censorship of political views that they dislike.

                    1. Where did you get that from? Social media?

                      Everyone to the left of Biden has been screaming about regulating Big Tech for years. If you don’t believe me, here’s a nice report that the House judiciary committee published just last year: https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf?utm_campaign=4493-519

                    2. That’s true Martinned. And what have leftists been agitating about with respect to Big Tech? They’ve been screaming for more censorship of speech that they disagree with, not less. Of course, that makes it a first amendment issue.

                      Are there any progressives in favor of applying a common carrier rule to Facebook, so that they would have to allow Donald Trump to speak on their platform? I’m not aware of any. The leftwing party of a few decades ago may have been all for it. The ACLU that defended Nazis may have spoken out against the censorship of Trump. But those don’t exist any more.

                    3. Careful now, if you move those goalposts any further you’re going to get in trouble with Canadian border patrol.

                    4. Move the goalposts?!? Isn’t the entire discussion about whether Facebook should be considered a utility based solely on the fact that it censors people?

                      Whether it’s Leftists calling for more censorship, or Righties wanting less, I don’t think that discussing censorship has affected the goalposts at all.

                    5. ” Like when the communications industry is revolutionized by the invention of social media, and its control is in the hands of a few tech oligarchs who favor heavy handed censorship of political views that they dislike.”

                      don’t like the way the tech oligarchs censor their systems? No problem. Build your own system and censor it the way you’d prefer.

        2. “Daivd is a denier of reality.”

          Yep.

    2. Are you a libertarian?

      Is libertarian a set of inviolable absolutes or is it a relative term?

      Mildly interested because I’ve noticed that vigorous policing and fervent, hackneyed argumentation over that word seems to comprise the majority of commenting on reason.com.

      1. If you believe “Libertarianism is in the eye of the beholder” then you’re not libertarian and you know little about its tenets. You’re more like the vegetarian who eats fish and farm-raised, sustainable beef.

        1. Are you a libertarian?

          It seems to me that, like many words, libertarian means different things to different people.

          Usually, political alignments and labels are defined in large part with respect to how they compare as a relative matter to other political camps of the day.

          What’s interesting is that in all of the fervent, hackneyed argumentation here over semantics and labels, few people come right out and claim the mantle of libertarian, and many are braindead progressives.

          1. No two libertarians define the word the same way, so, obviously, only MY definition is the One True Way.

  3. Unless I am mistaken, the media companies are privately owned, for profit businesses. As they are not currently designated common carriers or designated anything other than a private company providing a service for which they collect (ad) revenues it is difficult if not impossible to see how government regulation of whom they allow and whom they do not allow to post on their sites is warranted under any type of conservative or libertarian principles.

    I would like to write in the WSJ about their editorials, most of which are incorrect, downright untruthful, stupid, ignorant and unchallenged. But the WSJ continues to reject publishing any of my commentary. Which is their right.

    Look, the market is open, anyone who wants to create a media site can do so. Yes, it takes a lot of money, but I have been told, although I am skeptical, that the main subject of all of this controversy is billionaire, who could start his own site. Why doesn’t he,? Well he is known to be very cheap, one who doesn’t pay his bills and a person whose rantings may not financially support such an effort.

    Such is the way of the private enterprise system, capitalism and all the other names for what conservatives seem to want, except when it does not go their way. Anybody can speak, that right is Constitutionally guaranteed, but nobody has the right to demand anyone listen or publish.

    1. I suspect that a lot of these companies would happily welcome a common carrier 1st Amendment-type rule as it would vastly simplify their lives and let them keep profitable conservative voices on the platform without constantly being harassed by employees and advocacy mobs.

    2. “Unless I am mistaken, the media companies are privately owned, for profit businesses. As they are not currently designated common carriers or designated anything other than a private company providing a service for which they collect (ad) revenues it is difficult if not impossible to see how government regulation of whom they allow and whom they do not allow to post on their sites is warranted under any type of conservative or libertarian principles.”

      So, we’ll answer seriously.

      1. They could be classified as common carriers.

      2. Broadly speaking, Libertarians believe in freedom, autonomy, freedom of choice, individualism, and so on. They view the power of the state as coercive and potentially detrimental to the freedom and individualism.

      The mistake you’re making is that it’s not JUST the power of the state that can be coercive and detrimental to libertarian ideals. Large monolithic religions could be just as detrimental. For example, the Catholic church in the 1600’s. Likewise, large monolithic corporate monopolies or corporate oligarchies could be viewed as coercive and destructive towards freedom according to their principles. One might view the East India Company as an original example of a corporate structure that could be utilized to squash libertarian ideals and freedom. Just because it was a company, didn’t mean it couldn’t squash freedoms.

      Likewise a corporate oligarchy structure which was allegedly designed for freedom of information and though, but one which actively squashed dissent, while projecting its own ideals instead could be viewed as detrimental towards libertarian ideals.

      1. The protestant reformation happened in the 1500s. The 1600 are no where near the peak of the Catholic Church’s secular power.

        1. I was thinking of Galileo in particular, but your point is taken.

        2. “The protestant reformation happened in the 1500s. The 1600 are no where near the peak of the Catholic Church’s secular power.”

          The first sentence is true, but nonetheless the second is highly debatable. Having opponents wasn’t new.

          1. ” but nonetheless the second is highly debatable. Having opponents wasn’t new.”

            Not that debatable.

            If you think I implied that the Protestant reformation toppled the Catholic Church off the peak of it’s secular power, I need to make a correction. The Catholic Church’s secular power had already been in decline for some time before the Protestant Reformation. Without that decline in secular power, the Protestant Reformation probably wouldn’t have happened.

            1. It definitely wouldn’t have happened without the corruption — Martin Luther considered himself a devout Catholic…

      2. Also, its not always clear that these companies are making these decisions free from state influence. Several of these censorship choices look a lot like the “Switch in Time that Saved Nine”. Similarly, a lot of private mask mandates appear to follow a *wink wink nudge nudge* coming out of federal agencies. That is why, for example, in open states, a lot of the time the national chain still has a mask mandate, while the local shop does not. The CDC and other agencies aren’t going to have time to investigate and harass every Joe’s coffee shop that goes maskless, but they might be motivated to look into Starbucks.

        1. That of course is an addition, important point. The so called “soft power” of the state to enforce censorship, by using corporations.

          1. When the President puts out statements like this.. You gotta wonder about the real independence of the big tech companies.

            “U.S. President Joe Biden believes social media platforms have a responsibility to “stop amplifying untrustworthy content,” the White House said on Wednesday, even as it declined to comment directly on a decision by Facebook Inc’s oversight board to keep a suspension in place for former President Donald Trump.

            “The president’s view is that the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation and misinformation, especially related to COVID-19, vaccinations and elections,” White House spokeswoman Jen Psaki told reporters.”

              1. They’ve aligned themselves with a particular party. That party happens to control the Government currently. What if they don’t do what the party says? The party pulls its support…directs a few more antitrust lawsuits their way.

                Gosh, there used to be a word for a Government like this, where the big businesses supported a particular party, the party supported the businesses, and they used each other’s influence and power to stay in power…

                1. Gosh, there used to be a word for a Government like this, where the big businesses supported a particular party, the party supported the businesses, and they used each other’s influence and power to stay in power…

                  The Republican Party?

                  https://www.sacurrent.com/the-daily/archives/2021/05/03/former-federal-ethics-chief-blasts-ted-cruzs-message-to-woke-corporations-as-openly-corrupt

                  1. Not in quite the same way…. We’re not talking about donations.

                    More about using the company’s “power” to hurt enemies of the politicians.

                    1. We’re not? Why not?

                    2. Donations are fairly straight-forwards, equal, tracked, and even limited in some situations by Campaign Finance Reform. They also tend to be a positive, they get you more exposure, rather than eliminating an opponent’s exposure.

                      In a simplified example, let’s say two candidates, Candidate A and Candidate B get donations of a $1 million and $2 million respectively. They use all their budget on TV advertisements. Voters hear about both candidates. It’s a 2:1 ratio of what they hear, but the ads are paid for, and both are heard.

                      Use the same example, but instead now, Candidate B pays the TV company $1 Million not to air Candidate A’s ads. This is a negative, using power to eliminate exposure. Now voters don’t ever hear about Candidate A. Which is a problem. Now it’s a 100:0 ratio, and one candidate isn’t heard.

                      Using the same example, but Candidate B just comes to a “deal” with the TV company that Candidate A’s ads won’t be aired, perhaps for some benefit in the future. Again, this is a negative, designed to eliminate exposure.

                      Negatives, like this, designed to eliminate viewpoints and exposure to candidates through power tactics are damaging to Democracy, because the “majority” party can effectively eliminate all minority viewpoints.

      3. The mistake you’re making is that it’s not JUST the power of the state that can be coercive and detrimental to libertarian ideals.

        Wake me up when Jack Dorsey can send armed thugs to stop my car or enter my house. Or take money out of my paycheck every two weeks. Or keep me in a 6 x 8 room with bars on the door.

        Literally the only thing that Facebook can do to you is stop you from posting things on its servers.

        1. Or call up its friends at Amazon and shut down your servers…

          1. If only there were other cloud companies. Cloud, much more than social media, has actual competition. But that doesn’t help you if they all think you’re odious and don’t want to touch you with a barge pole.

            1. Odious…. Interesting phrasing.

              You know Twitter and Facebook have a whole lot more racist and offensive content than any other platform.

              But THEY didn’t get shut down. Only the upcoming new organization. Right when it was poised to take a large swing and get a critical momentum.

              Bam. Contracts cancelled. Servers shut down. Good luck finding anyone tomorrow. Maybe in a month or so….

              Looks anticompetitive to me.

              1. And if Parler could prove collusion, they’d have a billion dollar lawsuit ready to go already.

              2. To echo Martinned, if you can back up your accusation, that’d indeed be a big deal and something that needs to be squashed quick.

                But no one has yet been able to do much more than grumble.

              3. Parler wasn’t ‘shut down’, it was breaching the terms of its contract with its provider. Facebook don’t have that problem because they don’t permit people to openly plan and/or advocate criminal activities on their site. No-one except Parler has tried that particular idiocy for, let’s be honest, abundantly obvious reasons: it’s against the law in most places, let alone against their hosts’ T&Cs.

                1. Delusional and ignorant. Parler was yanked from iOS and Android, which together are 99.71% of market share.

                2. Parler was shut down in the middle of a good faith effort in trying to get to compliance.

                  And to the contrary, Parler wasn’t being used for the planning or advocating of the criminal activities you are alleging to have happened. That kind of planning did happen on Facebook and Twitter, though.

              4. The real solution is an open source federated microblogging service (e.g., Mastadon).

          2. Whining, authoritarian bigots in faux libertarian costumes are among my favorite culture war casualties.

          3. Or call up its friends at Amazon and shut down your servers…

            No, it can’t do that.

        2. Or purchase your company out from under you and have you fired.

      4. “1. They could be classified as common carriers.

        2. Broadly speaking, Libertarians believe in freedom, autonomy, freedom of choice, individualism, and so on. They view the power of the state as coercive and potentially detrimental to the freedom and individualism.”

        There is a conflict between 1 and 2.
        I suggest this approach. Assuming you do not like the way the social media companies run their businesses, mentally substitute on that you do like. Are you still in favor of using the power of government to force them to carry something they don’t want to? Fox News is full of shows that censor opposing viewpoints. Should they be forced to carry them, instead? How about AM talk radio stations? Make them stop censoring the Whoopi Goldberg show by refusing to carry such a thing? Should Country/Western format radio stations be forced to put on Dixie Chicks records to make up for censoring the Chicks back during the W administration? Do these examples seem stupid? So does forcing a social media company to give access to anyone who wants it.

    3. Common carriers are private companies.

      The discussion is about what should be a common carriers.

      “Conservatives” are by and large, not free market absolutists or anything close to it.

      The “free market” is a social construct and also a government construct as it currently exists.

      Our system scarcely resembles a free market system, less and less so. The federal reserve buys corporate bonds of large companies now. Are they still private enterprises?

    4. And why can’t I build a small nuke power plant in my back yard?
      It’s my property….

      1. “And why can’t I build a small nuke power plant in my back yard?”

        Requires technical skill and engineering knowledge, that’s why.

  4. What is this facebook I keep reading about?

    1. In the olden times, big schools would publish a book of photographs of their students and distribute it to the new students so they’d know what the other students looked like.

  5. Oh, Libertarians are the best.

    Property rights are sacrosanct, perhaps derived from god.

    Unless, uh, they’re social media companies. That’s different, see.

    1. Thats a good one. Progressives who think tiny individual cake shops should be strictly regulated but global tech oligopolies should be given free rein is another kneeslapper.

      1. Plenty of progressives want global tech oligopolies regulated. But, as you noted, a) make no premise that tiny cake shops shouldn’t be regulated, and b) want a thumb on the scale on the side of disadvantaged groups (and however much you want right wingers to be disadvantaged, they aren’t).

        1. Thats a good one. Progressives who think tiny individual cake shops should be strictly regulated but global tech oligopolies should be given free rein is another kneeslapper.

          The left has been agitating for common carrier status for ISPs for years. They also have been agitating for regulating newspapers and TV stations to prevent them from having a local monopoly on news. (things the right and libertarians have traditionally been against for all my life) — So I dont really know why you would think that the left all of a sudden isn’t willing to regulate media and content publishers…

          What’s hilarious is watching people who have spent their careers elevating property rights above all others now decide property rights aren’t so important when the property owner is kicking them out.

          The left at least principles. Libertarians and the right are showing themselves to be un-principled reactionaries whose only guiding light these days seems to be grievance politics and victim-hood.

          Such delicate snowflakes

          1. The communists at least have principles, amirite?

            There’s no principled position between anarchist and communist.

            1. Well, that’s certainly a good defense for pointing out the fact that people who promote property rights over everything else are suddenly willing to surrender property rights (coincidentally, for other people’s property that they’d like to use over the objections of the owners of that property.)

        2. Who is more disadvantaged? 1 individual cake shop owner vs entire screaming mob of gay leftists? Pretty obvious who is in minority.

          1. Who cares about majority/minority when you have Sacred, God-Given, Property Rights on your side, which allow you to kick people off your property whenever you like?

            1. and progressives care little about other peoples property rights (excluding their own) so whats your point?

              1. That only one side in this argument is being consistent, and it isn’t you.

                1. Thats funny! Progressives are now one the side of big corporations, Lockean property rights and laissez faire govt. Total consistent.

                  1. How do you get that from any of the previous dozen or so comments in this thread? In this argument, “progressives” are in favour of enforcing the antitrust laws.

          2. Can’t you lot, on both sides, at least admit that either both cake shops and facebooks should be allowed to choose their customers, or neither should be allowed to?

            FWIW, I think cake shops should be allowed to take a political/pseudo-religious stance that pisses off the vast majority of their customers, if that’s what they fancy. They can’t complain when they’re then not the cake shop of choice for people who are doing the same thing they are. If facebooks were doing anything with comparable impact on their customer base, it’d be fine too.

            (Obviously, the real problem here is that facebook is doing something that doesn’t annoy 99.99% of people on the planet. Which is why suggesting you withdraw your custom in response upsets you so much: you will be in a tiny minority.)

            1. “FWIW, I think cake shops should be allowed to take a political/pseudo-religious”

              Obviously, everyone should have the power to do any damn thing they want as long as they claim it’s “because religion”.

    2. Property rights are sacrosanct, perhaps derived from god.

      Unless, uh, they’re social media companies. That’s different, see.

      Right???? This is the funniest thing I’ve seen in a long time.
      Libertarians and conservatives clamoring for monopoly enforcement and arguing about voices being shut out in the year 2021 ??

      When we didn’t have this tech, and there were only 3 major networks and limited airways — libertarians we’re all about keeping any government regulations away.

      Now that technology has made it’s way to the masses so that anyone can self publish any content make their voice heard — NOW libertarians and conservatives want to regulate private companies and do away with the first amendment rights of private corporations?!?!?

      When the left was complaining about liberal voices being shut out of corporate owned media the response from libertarians was “you dont have a right to have your message broadcast on someone else’s property”

      But now in 2021 I am seeing Libertarians and conservatives for :
      Anti-trust enforcement
      Common carriers treatment of tech companies
      Some version of the fairness doctrine

      As the left has been rightfully pointing out for years — these grifters have no principles at all.

      1. Don’t forget Libertarians For Statist Womb Management . . . those guys conduct regular meetings at the Volokh Conspiracy.

        Or Libertarians For Authoritarian, Bigoted Immigration Policies And Practices.

        Or Libertarians For Torture.

        Or Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.

        Or Libertarians For Ted Cruz (also a support group for those lacking testosterone).

        Or Libertarians For Abusive Policing.

        Or Libertarians For Affirmative Action For Right-Wing Law Professors.

        Or Libertarians For Drug Warriors.

        Or Libertarians For Government Gay-Bashing.

        Or Libertarians For Invading The Wrong Country.

        They have all kind of libertarians in these parts . . . that must be why the proprietor places “libertarian” right at the top of this blog, although there is no mention of anything about “movement conservative.”

        Carry on, clingers. Prancing about in silly libertarian drag, of course.

      2. Well some cons and libertarians are pragmatists and realize that their political enemies are using government powers against them and are choosing to not unilaterally disarm on this issue.

        1. Well some cons and libertarians are pragmatists and realize that their political enemies are using government powers against them and are choosing to not unilaterally disarm on this issue.

          And thus may one rationalize giving up all principles to own the libs.

          1. It must be nice for you having no real guiding principles to govern behavior. For the rest of us, what is lesser of 2 evils? If entire big tech is against you, trying to ensure you are stripped of voice and power, maybe it would be pragmatic to bend on principles and use the rules that are in place in your favor for once.

            1. ” If entire big tech is against you, trying to ensure you are stripped of voice and power”

              So build a competitive platform and fight back, instead of abandoning principle?

      3. In fairness, libertarians spend a ton of time thinking about the problems of monopolies, public domain, etc. It’s something of an obscession for them.

        The whole “no rulz” meme is more of an anarchist position, not a libertarian one.

        1. Some libertarians are indistinguishable from anarchists.

  6. Wonder what Democratic legislators’ threats of more regulation and anti-monopoly moves might have influenced this decision.

    Not really.

    1. Wonder what Democratic legislators’ threats of more regulation and anti-monopoly moves might have influenced this decision.M

      Or maybe they dont care about party affiliation but care about the fact that turning a blind eye to people inciting others to try and overthrow the government is bad for the brand???

      I mean most normal people don’t run to conspiracy theories when a simple, sane, logical explanation is staring them in the face.

      1. Nah, if there were anything to that theory they’d have been going after Antifa and BLM.

        1. Not to mention the Democrats in Congress openly encouraging them.

    2. I think the logical conclusion to draw from all of this is that it is bad when social media companies have market power. So why not applaud efforts to do something about that problem?

      1. It’s not bad for them to have market power. What is bad is when they meddle in elections by suppressing speech, enforce their rules in politically biased ways, and otherwise use their market power to decide what can be said. It is especially bad when, as here, they do all that in close cooperation with — and even at the open behest of — one political party.

        1. Just for the sake of argument, what uses of their market power aren’t bad?

          1. I don’t have time to give an exhaustive list, and I’m sure you don’t have the patience to read it. If you have a particular action in mind, why don’t you name it and we can discuss?

            To help narrow the field, I’ll give an example: tying Oculus VR headset use to a Facebook account. I think this is “bad” in the sense of being hostile to consumers in order to benefit Facebook as company, and it may be illegal under US antitrust law, but I think it should be allowed. The political meddling should not be allowed.

            1. If Facebook didn’t have market power, they wouldn’t be able to tie their Oculus VR headset to their social media platform?

              1. Your question was “what uses of their market power aren’t bad?” Bizarre counterfactual questions about what Facebook would or could or wouldn’t or couldn’t do it it didn’t have market power are beside the point. It has market power. Facebook has exploited its market power, and continues to exploit it. (See, for example, this week’s story about the ad campaign by Signal.)

                1. On the contrary: “What beneficial things wouldn’t Facebook be able to do if it didn’t have market power?” is literally the only way to answer my question.

                  1. No, that is literally an entirely different question that what you wrote the first time. It is almost, but not exactly, opposite in meaning.

        2. ” What is bad is when they meddle in elections by suppressing speech, enforce their rules in politically biased ways, and otherwise use their market power to decide what can be said. It is especially bad when, as here, they do all that in close cooperation with — and even at the open behest of — one political party.”

          Quick question: do you object when these things happen in your favor? When religious leaders do some electioneering from the pulpit? When your radio station cuts off anyone who tries to correct the call-in show’s host about important facts? How about a national “news” channel that airs mostly opinion programs that are blatantly and obviously to benefit — one political party?

  7. The fantasy that big social media companies can be treated legally as common carriers must somehow come to terms with the reality that their business models are publishing business models, not common carrier business models. For that reason, it would prove impossible to regulate these targets of right-wing angst as common carriers, without willy-nilly regulating thousands of other publishers likewise. Can anyone explain how to do that without writing press freedom out of the 1A?

    1. the tech companies are the overwhelmingly primary means of communication over the net for all intents and purposes. It doesn’t matter that there technically is another level beneath them. You try creating a company of any consequence today or gaining any influence or voice while avoiding all FAANGs and see how far you get. Even if by some miracle you succeed they will gang up together and with the financial system to knock you down a peg. See Parler, Gab, etc.

      There are already tons and tons of far more onerous laws regulating companies, especially for anticompetitive monopolistic behavior that are uncontroversial amoung both the right and left. What on earth makes this THE LINE THAT MUST NOT BE CROSSED? other than it happens to benefit conservatives.

      1. Sure it matters that there’s another level beneath them. They’re the equivalent of Disney or ViacomCBS pushing their signal over cable companies or Verizon, not of the cable companies or Verizon themselves.

        That aside, what you’ve actually suggested is a compelling reason for the use of antitrust law. If you’re worried about what these companies are doing, the solution is to break them up into lots of companies that have their own speech, not to regulate them into uselessness (and common carrier status would be uselessness, because it doesn’t mean “fair” curation, it means *no* curation).

        1. Simple regulation is actually my least favored option. I’m simply responding to progs who want to do nothing because they’re suddenly laissez faire hard core capitalists on this and only this case.

          1. AmosArch, I’m all in favor of breaking up the internet giants, or paring them down. I think it would be best to use repeal of Section 230 as the method. Quicker and easier than anti-trust, which would take many years in court, and which might fail.

            There are other good reasons to want Section 230 gone, but I have bored everyone with that before, so no need to go into it.

            1. I’m all in favor of breaking up the internet giants, or paring them down.

              That’s rather statist of you.
              Why not start a competing service instead and then all these aggrieved right wing snowflakes can vote with their feet and join that platform??

              Already we have the MyPillow guy’s platform, and Trump just launched his own “platform”

              If you don’t like FB’s rules, then go to another platform or start your own. The barriers to entry aren’t high and to listen to the folks around here apparently there is critical mass of people just clamoring for someplace new?

              Isn’t that how the market is supposed to work?

              1. ChicagoTom, you know what was really statist? Passage of Section 230 in the first place. Getting rid of it is what would be anti-statist. Doing it would largely restore private publishing to the thriving free-enterprise marketplace which Section 230 is currently strangling. No way would one more Section 230 supported internet platform get private free market diversity back into publishing. Profusion and diversity among private publishers strikes me as the only safe harbor for press freedom. I want public policy tailored to deliver that result.

                1. ChicagoTom, you know what was really statist? Passage of Section 230 in the first place. Getting rid of it is what would be anti-statist. Doing it would largely restore private publishing to the thriving free-enterprise marketplace which Section 230 is currently strangling. No way would one more Section 230 supported internet platform get private free market diversity back into publishing. Profusion and diversity among private publishers strikes me as the only safe harbor for press freedom. I want public policy tailored to deliver that result.

                  This is nothing but a word salad. To be honest…the more I read your postings the more I believe you have no clue that you are talking about. What is it that you think 230 is doing? All it does shield a content distributer liability from 3rd party content.

                  If you remove section 230, then the platforms will be choked out by litigation. The whole reason that section 230 came to be is because of lawsuits to ISPs due to third party content.

                  Section 230 is a logical and direct response to people like you:
                  “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

                  You keep trying to conflate content creators with distributors. All 230 does is keep the liability where it belongs — with the content creator. Why should you be able to sue facebook because some user posted something problematic? How/Why is that facebook’s responsibility?

                  Profusion and diversity among private publishers strikes me as the only safe harbor for press freedom. I want public policy tailored to deliver that result.

                  And section 230 provides that. There will be no diversity of opinion if everyone is afraid to get sued. At that point it will be nothing but mainstream views and conventional wisdom. Fringe views and controversial content will be verboten.

                  1. You keep trying to conflate content creators with distributors. All 230 does is keep the liability where it belongs — with the content creator. Why should you be able to sue facebook because some user posted something problematic? How/Why is that facebook’s responsibility?

                    Lathrop supports it because he was a newspaper publisher and he wants more power in the hands of newspaper publishers to control speech and prevent people from saying things he disapproves of.

                    1. Nieporent, get back when you work up the nerve to engage on specifics. You don’t know what you are talking about, so you stick to ad hominems. Probably wise.

                    2. Um, that’s not an ad hominem. “Lathrop is wrong because he’s an erstwhile newspaper publisher” would be an ad hominem. “Lathrop’s positions are motivated by his background” is not.

                      Moreover, I do know what I’m talking about, because you’ve posted it many times here over the years. You want the government to use the threat of fines to empower newspaper publishers to act as gatekeepers for what people can say. You have ad nauseam explained exactly that, lamenting the disappearance of the good old days when people couldn’t say what they wanted because they had to go through publishers motivated by fear of libel judgments to screen out things you didn’t think they should say.

                2. ChicagoTom, you know what was really statist? Passage of Section 230 in the first place.

                  Deregulation is statist. And war is peace, freedom is slavery, and ignorance is strength.

                  1. David>

                    If you add ‘and black is white’ you’ll really upset some people round here…

            2. Personally, I’d rather everyone move to an open source, federated microblogging service.

              How about VC?

        2. what you’ve actually suggested is a compelling reason for the use of antitrust law.

          That would be a great idea except for the fact that they aren’t a monopoly. There are plenty of social media platforms to use. The fact that other platforms have much smaller market share for whatever reason doesn’t make facebook a monopoly.

          and common carrier status would be uselessness, because it doesn’t mean “fair” curation, it means *no* curation)

          And who defines what is “fair” curation??
          I would say whoever pays the bills gets to decide what’s fair.

          1. ChicagoTom, your comment misjudges what the market is. Platform users are the product, not the market. The market is would-be advertisers, buying access to users from the platforms. You might still argue, though less effectively, that ad sales have not been completely monopolized. Against that the evidence would be the actual collapse of a notable fraction of American newspaper publishers, for want of advertising revenue.

            People who argue that internet platforms are not publishers will have to somehow account for the fact that the revenue which turned the platforms into giants was almost entirely cannibalized from publishers. The market the platforms are destroying must be the market they are in.

            1. Platform users are the product, not the market. The market is would-be advertisers, buying access to users from the platforms

              The same could be said for newspapers, radio stations or any other “product” whose revenue stream depends on advertising. The product is the subscribers/listeners/readers etc. and the market is would-be advertisers. Not sure why you think this makes any difference. Social media/digital media is no different than the local newspaper from that perspective.

              And if, as you say, the market is advertisers…then social media companies are even LESS of a monopoly. The market for advertising includes newspapers, periodicals, radio, television, streaming platforms, search engines etc as well as social media.

              Regardless of what you think the market is, you still haven’t actually explained how anything is a monopoly. (Or for that matter who the monopolistic entity actually is in this case)

              That print advertising fell out of favor doesn’t prove some sort of monopoly. All it proves is that the advertisers decided they no longer were going to overpay for limited and expensive real estate. Internet advertising is cheaper and more effective.

              Just as it would be absurd to claim that the adoption of the automobile created a monopoly in the transportation market by displacing horse and carriage manufacturers, it is equally absurd to claim that the demise of newspaper advertising somehow proves that social media is now a monopoly in advertising. Last I advertising exists in other forms.

              Also, if users are the product…..the social media company is even more within it’s right to get rid of users who they feel devalue their product or hurt their brand. (for example it would be logical to find fake accounts that aren’t real people and to get rid of them because it makes the data they are selling much less valuable)

              Why shouldn’t they have that right? Why do you think they should be compelled to keep users who they feel hurt their product?

              People who argue that internet platforms are not publishers will have to somehow account for the fact that the revenue which turned the platforms into giants was almost entirely cannibalized from publishers.

              Not sure who this is directed to or what the point is. Even if we accept your position that they are publishers….they are protected by the first amendment. They can’t be compelled to publish opinions they don’t want to publish.

              They allow people the privilege of posting whatever they want to share with others — regardless of what financial benefit the platform gets from giving you that privilege., that privilege can be taken away on whatever whims the publisher decides (per the Terms of Service) — ESPECIALLY if they deem that the content you are trying to publish on their platform is bad for their bottom line.

              They are a business after all. Or are we all supposed to start pretending like they are some altruistic entity or some sort common good like rivers and lakes??

              1. “Platform users are the product, not the market. The market is would-be advertisers, buying access to users from the platforms

                The same could be said for newspapers, radio stations or any other “product” whose revenue stream depends on advertising.”

                You’re off-base for newspapers, except the kind that are given away for free, and for satellite radio, which requires a subscription, but yes, the product that broadcasters sell is access to people’s attention. That’s what they sell, and it is the only thing they sell.

            2. “You might still argue, though less effectively, that ad sales have not been completely monopolized.”

              ROFL. TV, radio, billboards, sports sponsorships… But sure, convince yourself facebook has a monopoly…

              The only monopoly facebook has is an online version of the board game.

        3. They’re the equivalent of Disney or ViacomCBS pushing their signal over cable companies or Verizon, not of the cable companies or Verizon themselves.

          Not really. You see, the social media companies aren’t pushing their own information. They’re pushing OTHER PEOPLE’S information. They’re pushing the posts of millions of individuals.

          And that makes them more like Verizon or the Cable Companies.

          1. Armchair, nope. The platforms push ad sales to millions of individuals. That is their business model. It is a publishing business model, not a common carrier business model.

            Common carriers do not sell to advertisers access to the recipients of the communications the common carriers transmit.

            1. They push ads, and other people’s communications, which they largely don’t edit, or even look at.

              It would be like if you had a telephone service, but you had to listen to an ad before being able to use it.

              1. Please don’t give AT&T/Sprint/etc. ideas ….

        4. It does not mean no curation, it means user-driven curation, just like the “mute user” function just implemented here. The carriers should provide tools so that users can curate for themselves, or subscribe to curation managers who will curate for them. If someone wants the pure unfiltered firehose, they can have that, and if they want to see only the most woke comments, they can opt for that too.

          The carriers could even curate the way they do now, as long as they’re just another curation manager that people could opt not to use.

        5. > it doesn’t mean “fair” curation, it means *no* curation).

          We have decades of experience with this problem e.g., ads on municipal transit. It’s not that hard to manage.

      2. “the tech companies are the overwhelmingly primary means of communication over the net for all intents and purposes.”

        Bullshit. Did it occur to you that you’re making this claim without using any of “the tech companies”? The primary form of communication over the net is porn, by volume.

    2. The fantasy that big social media companies can be treated legally as common carriers must somehow come to terms with the reality that their business models are publishing business models, not common carrier business models. For that reason, it would prove impossible to regulate these targets of right-wing angst as common carriers, without willy-nilly regulating thousands of other publishers likewise. Can anyone explain how to do that without writing press freedom out of the 1A

      It can’t be explained because it isn’t possible.

      The irony of it is that the same people now demanding common carrier treatment for media companies are the same people who were adamanat that we can’t treat the internet providers as common carriers.

      I mean reason alone banged that drum all throughout the Obama years and cheered when Ajit Pai’s FCC overturned it.

      And now here we are reading posts and comments by the same people who vehemently objected to common carrier designation for ISPs (which actually makes logical sense) demanding common carrier designation for content publishers (which makes no sense at all).

  8. Sounds like a Kafka high court decision…a decision based on nothing issued by a faceless court who exist to….?

    The end day is coming for FB and Google and the bolshevik big tech folks….alternatives will pop up and their customer base will go..just a matter of time. Blockchain should end FB in five years..praise to allah!

    1. You mean a faceless court whose faces you can see here?

      https://oversightboard.com/meet-the-board/

      1. LOL. it’s like these commenters are actively trying to sound stupid.

        (Yes, I know it’s just that they mindlessly repeat phrases without understanding them. “Faceless” sounds bad, so they recite it.)

        1. Poe’s law applies. It’s indistinguishable from parody.

  9. I think I’m going to like this mute function. So far only one commenter qualifies. But it does make reading the the thread more readable, without having to deal with meaningless, repetitive trolling.

    1. “I’m going to like this mute function. So far only one commenter qualifies.”

      Are you self-identifying, or did you mean you AND one other?

  10. Stupid question, what is Facebook monopolizing and how does that fit into antitrust law?

      1. Thank you for the response. It seems that the 3rd complaint has merit. I must ask, weren’t the first 2 acquisitions approved by the FTC? How does one go about overturning approved acquisitions?
        This “too much power” argument seems a lot like Elizabeth Warren’s campaign talking points.

        1. Well, the acquisitions weren’t blocked by the FTC (or the DOJ or any private plaintiffs). But that doesn’t mean the FTC is estopped from arguing now that they should have been blocked.

        2. The court case decides it well.

          The core of the argument isn’t necessarily “too much power”. It’s that Facebook, when faced with an alternate platform-type that could intrude into Facebook’s core business, couldn’t compete successfully. And when it couldn’t, it just bought the competition, in order to prevent the competition, in order to ensure its monopoly. And that is anti-competitive behavior.

          https://www.ftc.gov/system/files/documents/cases/051_2021.01.21_revised_partially_redacted_complaint.pdf

          1. Instagram had not made a profit. There was no threat. Does Facebook have to build it’s own technology or can it buy technology?
            Are there no other means of sharing images?

  11. Yes, as you note, “Most forms of scholarship are signed.”

    I can honestly say that my comments on this blog are the only unsigned comments I make. It frightens me that some comments MUST now be made unsigned: the fact that an individual’s name cannot be ascribed to a comment suggests a lack of freedom of expression and a presence of a coercive force.

    So what next? I will ask my periodic question: is freedom of speech still a thing?

    1. You choose not to sign your name. This is not the same thing as you not being able to, or not allowed to, sign your name.

  12. Libertarianism – or, to be precise, the sort of quasi-political philosophy that a certain group of internet blowhards engage in, that we tend to refer to as “libertarianism” because it foregrounds individual rights and liberties – has typically always operated by establishing some basic first principles, and then deriving conclusions therefrom. Whatever results from valid and sound reasoning from these first principles is accepted as the “right” result, even if some non-libertarian might blanche at it, call it “perverse,” or whatever.

    So, you start with things like the non-aggression principle. Basic notions about bodily autonomy and a Lockean conception of property. And so on.

    Now that was always kind of a farce, and deeply hand-wavey, so these kinds of revisionist views by prominent “libertarians” in some ways just gives away the game. Of course it’s time to revisit libertarian principles, now that Facebook has moved to regulate speech – our sacrosanct methodology is no longer producing the results we wanted!

    For decades, “libertarians” have argued that the only thing that a government could do, with a monopoly, is make it worse. The solution to a problematic monopoly has always been – examine the ways that the government has made it possible. Lower the barriers to entry, reduce the regulatory burdens, and so on. So why isn’t that the prescription, here? Why, it’s because that doesn’t give these “libertarians” an argument for expanding state power and regulating the content that Facebook, Twitter, etc., permit and host on their own private servers. And that’s clearly what’s called for, now! Because racist insurrectionists are no longer free to speak on Facebook without being… possibly forced to find other ways to make themselves heard, in a robust and massively-online media environment? Oh, the horror.

    Josh – you, Randy, Richard, the whole lot – are a bunch of pseudo-intellectual, lightweight, outcome-oriented hypocrites. There is no commitment to principle, simply angling for power, and a bizarre discourse where libertarians have suddenly decided that a political philosophy rooted in centuries of writing and thought needs to be “updated” to deal with new technology. I’m sorry, but since when were powerful media monopolies new? How do we know something has gone wrong here, exactly, apart from the conviction that you’re not getting access to the full range of “freedom” at the expense of others you wrongly think you’re entitled to?

    One of the things that strikes me, in particular, when it comes to devising ways to reconcile state regulation of Facebook with “libertarian” or “conservative” principles – bracketing for now that we’re really talking about fascism – is how in the world we’re supposed to create a “free market of ideas” on these platforms without fundamentally impinging upon the algorithms and ad services that make them profitable (to the extent that they are). Facebook selects for content. It just does. It shows you the posts of your friends it thinks you want to see, mixes that with ads it believes you’ll be receptive to, throws in some misinformation. If it “takes all comers” like my spam-call line does, how in the world is it supposed to continue to do that? Aren’t you, fundamentally, attacking these institutions at their core?

    1. Now do “progressivism” or “liberalism”!

    2. I couldn’t make it through the whole post as it was too stupid.

      I always thought antitrust law seemed good in theory. Does this mean I’m a progressive? Please tell me who I am.

      I’ll join in the bashing of absolutist libertarianism all day long. But it seems like an rare viewpoint, something that is more talked about than held. Meanwhile the idea that “conservatives” can be conflated with this, not to mention the more moderate libertarians that actually exist, is stupid.

      1. “I couldn’t make it through the whole post as it was too stupid.”

        Do you make a habit of referring to yourself as “it”?

  13. I’m waiting for liberals to start lecturing us about evil corporations and how they are going to end democracy because of Citizens United…

    Turns out a stopped clock is right twice a day and they got the whole things about how corporations could be the end of democracy right. Not so much on how it would happen though…

    1. Breyer asked the question last week.
      Buckley is in play.

  14. They made up a story that satisfies their emotions and declared that a “risk” existed. They can repeat that any time. There’s no argument against someone making up a story about the future. There will always be a “risk”.

  15. Dear eggheads:

    The world doesn’t fit neatly into your little conceptual boxes. The more you try to cram the jagged pieces into your your clean little boxes, the more mangled and unrecognizable your lovely boxes become.

    Leave out the parts that don’t fit and judge them individually on their own merits, without regard to your precious boxes.

    1. You’re moving and you need boxes. Got it.

      If you mention “foot-voting” and you get a free malt courtesy of Ilya Somin.

    2. Dear Volokh Conspiracy fans:

      You get to whine about all of this damned progress as much as you like, but you will continue to comply with the preferences of your betters,

      — America’s liberal-libertarian mainstream

  16. When I read the word “proportionality,” my eyes glaze over.

    The decision also had other European features.

    So basically if it ain’t American, it ain’t much? I guess that’s one way to do legal scholarship.

    But seriously, I promise you if you make the effort to learn about it, you’ll find that proportionality is a much more detailed framework than the American rational basis/heightened scrutinity/strict scrutiny malarky, which seems to give utterly unpredictable answers depending on which bit of the Constitution we’re talking about, and depending on whether you catch the judge on a good day.

    1. For anyone who wants to see it in action, the leading case in the UK is Bank Mellat v. HM Treasury (No. 2): https://www.bailii.org/uk/cases/UKSC/2013/39.html

    2. “proportionality is a much more detailed framework than the American rational basis/heightened scrutinity/strict scrutiny malarky, which seems to give utterly unpredictable answers depending on which bit of the Constitution we’re talking about, and depending on whether you catch the judge on a good day.”

      But can the judge use it to reach the result they’d prefer to reach via simple manipulation?

  17. “Rather, they favored a body of law I know very little about.”

    But I’m going to talk about it anyway…..

    1. As long as Josh gets to start a sentence with the word “I,” he doesn’t really care what comes next.

  18. “‘Libertarian theory needs to be updated to take account of new technology. Natural rights have always been based on the nature of humans and the world in which they pursue happiness.'”

    Floating a trial balloon that being libertarian means you can use other people’s stuff as you see fit instead of the way they see fit?

  19. Th government must act immediately to address Facebook’s cancellation of all conservative voices! Libertarians and Republicans unite to regulate social media companies that mistreat conservatives and conservatives thought so ruthlessly!!!

    On an unrelated note, here are the top-performing FB “link” posts from May 4-5, 2021:

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

    1. Ben Shapiro
    2. Ben Shapiro
    3. Ben Shapiro
    4. Fox News
    5. ForAmerica
    6. Dan Bongino
    7. Sean Hannity
    8. Dan Bongino
    9. Fox News
    10. The Rachel Maddow Show

    1. Inner-city cops only knelt on one or two Black men last year, killing them. You can still see lots of them! By your logic, this shows… that inner-city policing is just fine?

      1. It shows that facebook doesn’t moderate based on political content, or being wrong, but based on whether or not you say something utterly vile.

        1. How dumb do you have to be to think that the existence of any conservative voices on Facebook proves that Facebook doesn’t censor based on political viewpoints? Facebook clearly censors based on political viewpoints and you have to be willfully ignorant to say otherwise.

          Moreover, the test of free speech principles is not whether the most thoroughly mainstream and widely popular voices on each side of your farcical Red/Blue team dichotomy are allowed to speak.

          The test of free speech principles is whether unpopular views, those outside of the mainstream, even those that are reprehensible, are allowed to be voiced.

          1. If they allow Ben Shapiro on their site, they clearly don’t have a problem with reprehensible speech. He’s a one-man poster child for Brandenburg v. Ohio.

            1. Yes and the folks with the other color jerseys say the same thing about Rachel Maddow, of course. But they’re both unfortunately mainstream.

              Again, mainstream voices are not the test of free speech principles. But Facebook is so anti-free speech, it even fails that test (see the banning of Donald J. Trump).

              1. Ben Shapiro is only mainstream in the sense that lots of people unfortunately read his stuff. But he’s far from mainstream compared to the supposed policy preferences of the people who run Facebook, whose nefarious censorship was the previous topic of conversation.

          2. “How dumb do you have to be to think that the existence of any conservative voices on Facebook proves that Facebook doesn’t censor based on political viewpoints?”

            How partisan do you have to be to assume that any censorship must so be censorship for partisan reasons?

          3. “The test of free speech principles is whether unpopular views, those outside of the mainstream, even those that are reprehensible, are allowed to be voiced.”

            Private parties are in no way obliged to allow speech using their property that they do not support. I can’t go down to Mar-a-Lago and spray paint “Trump sucks” on the 18th green. More correctly, I could, but then I could expect prosecution for trespassing and vandalism, and truth is not a defense to these offenses.

        2. It shows that facebook doesn’t moderate based on political content, or being wrong, but based on whether or not you say something utterly vile.

          Actually, it kind of shows that they don’t even do that.

        3. It doesn’t show any of that. It only shows that Facebook does not censor all right-wing speech.

          1. If the right-wingers don’t like Facebook’s censorship policies, why are they using Facebook?

    2. Approved milquetoast faux conservatism only.

      1. Jesus, you must read some awful shit.

        Who is being censored? Who do you want to see on that list?

    3. “Th government must act immediately to address Facebook’s cancellation of all conservative voices!”

      Do they get to act immediately to address the Republicans’ cancellation of Liz Cheney?

  20. What might be most interesting is that the majority of FB users seem to be non-US and decision may well reflect the fact that most users don’t care about the former President. This may well be why the decision was more European in nature and not more in keeping with American norms. Actually European or American does not matter as the majority of users appear to be from Asia and S. America.

  21. Of course when government really does try to shut down access to media,

    “Florida Gov. Ron DeSantis (R) signed a controversial bill that makes it harder to vote, in an event Thursday morning that excluded all media except for Fox News,” the Orlando Sentinel reports.”

    and it is faux conservatives who are doing it, no complaints or Prof. Blackman rants or anything.

  22. From Robert P George

    “The Facebook Oversight Board–which is supposed to protect free speech on Facebook–has upheld* the decision to ban Donald Trump. One needn’t be a fan of the former president to condemn this decision. That there are notable liberal Democratic Party politicians praising it is a sign of how far contemporary liberals have strayed from the faith of their fathers. Liberals used to pride themselves on defending the free speech rights and other civil liberties of everyone–even people whose ideas they detested. This, in my book, was always a point in favor of the liberal side. The collapse of civil libertarian liberalism is a national tragedy.

    Why do I say that the Facebook Oversight Board is supposed to protect free speech on the platform? I’ll tell you why. Because that’s what Facebook officials told me with their own mouths when they approached me to ask if I would be willing to serve on the Board. (I did not end up serving, but that’s beside the point here.) They told me that protecting free speech would be the Board’s priority. They also assured me that there would be ideological balance on the Board and that it would not be tilted toward one ideological side or the other.

    In the event, though, what I was told–what I was assured–turned out not to be true. the Board tilts left. There is a conservative member (who is also one of the co-chairman) and a libertarian member, but in no way is there ideological balance or anything remotely resembling a fair representation of conservatives.

    Had I been a member of the Board and (per impossibile) the company proposed to ban, say, Nancy Pelosi, or Ilhan Omar, or Eric Swalwell, all of whom I regard as liars and generally reprehensible human beings, I would have opposed the decision hammer and tongs. That’s because, unlike so many so-called liberals today, I actually believe in free speech–for everyone, including people I regard as reprehensible, as spreaders of falsehoods and evil ideas…”

    1. Your paeon to idealism doesn’t ring very true when at least on this blog every single time you need to deal with a non-hypothetical situation, you come down on the side that uses state power to benefit the GOP.

      Obviously Facebook banning *anyone* goes against free speech principles. But the thing is, there are other principles as well.

    2. When I hear Robert George set aside his superstition-laced right-wingery long enough to criticize our nation’s censorship-shackled, academic freedom-mocking, science-suppressing, dogma-enforcing, conservative-controlled campuses, it might make sense to being to try to take seriously his childish babble in this context.

      He should stick to arguing about whose fairy tale can beat up the other guy’s fairy tale.

    3. Facebook built it, so they get to decide who gets to use it and for what. This does not limit anybody’s free speech, because anyone wishing to speak may build their own Internet community and run it as they see fit.
      Indeed, I am using something that someone else built, right this very second, in accordance with their expressed wishes. Should I offend my host sufficiently as to become banned, my free speech will not be harmed because the ability to build a website is available to anyone with sufficient resources to build and maintain it.
      Not being allowed to use Facebook’s systems to reach Facebook’s audience because of not wanting to follow Facebook’s rules for doing so is not suppression. It’s basic property rights.
      Wanting to use government power to force one’s way onto Facebook’s service without being subject to Facebook’s rules is no different from having the government seize your private property because they think they have a better use for it than you do, except that valuation of the taking is much, much harder.

    4. ” One needn’t be a fan of the former president to condemn this decision.”

      On the other hand, one needn’t be a critic of former President Loompa to not give a damn if Facebook wants him to have an account or not.

    1. Here is some argle-bargle by a windbag who thinks European posers and third-world despots should dictate how American companies handle American politicians regarding American activities.

      Fixed that for you. He starts out with pure pretension and goes downhill from there. The only insightful things he said were cribbed from the Oversight Board’s screed.

      We will consider perspectives from people we haven’t had to beat down and/or rescue (twice) during world wars.

      1. Keep whining. The louder you clingers get, the more likely your betters will be to tune you out completely and restrict their attention to enforcing your compliance with the preferences of your betters.

      2. “We will consider perspectives from people we haven’t had to beat down and/or rescue (twice) during world wars.”

        There wouldn’t be an independent United States of America without the active participation of the French Fleet in keeping the British navy off the necks of the Continental army. For that matter, a good deal of the weaponry of the Continental army still had French price tags on it when the Continentals got their hands on it. Pour that on your Freedom Fries.

  23. Watching movement conservatives such as Prof. Barnett and Prof. Volokh congratulate each other for being “libertarians” — while proposing and embracing authoritarianism — is humorous . . . and solid reason not to regard either as very credible.

    I gather mainstream academia has already reached the proper conclusion.

  24. Here’s a trade that seems fair:
    If Facebook is to be forced to let the Oompa-Loompa use their system, then I get to go play golf at Mar-a-Lago and spray-paint slogans on the greens.

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