Free Speech

Whose Rules Should Govern How Americans Speak with Other Americans?

(1) American law? (2) Rules set by a large corporation? (3) International law?

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Today's Facebook Oversight Board decision on the Trump ban raises many interesting questions: When should politicians' speech be blocked on the grounds that it "supports" or "legitimizes" riots (whether right-wing or left-wing)? When can Facebook ban claims of electoral fraud on the grounds that they are "unfounded," and when should it conclude that the debate about the often uncertain events in a recent election is ongoing and legitimate? (Say what you will about bans on Holocaust denial, but those came after a consensus built on decades of comprehensive scholarly study of the subject.) What sort of further transparency should Facebook provide for its decisions? How long should Trump be banned from Facebook?

But for this post, I want to set those questions aside, because the question at the heart of the matter is much more far-reaching: It is,

What rules should govern how Americans communicate with other Americans, including on Facebook, which "has become a virtually indispensable medium for political discourse, and especially so in election periods"?

There are at least three possible answers:

  1. American free speech principles, coupled with the judgment of American speakers and American listeners.
  2. An immensely rich and powerful corporation, and its immensely rich and powerful owners and managers.
  3. International law principles, as made and enforced by an international group of decisionmakers (on which Americans are represented but are understandably not in control).

There is a lot to be said for each of the possible answers. Obviously, many libertarians and other supporters of private property rights would support option 2: By default, property owners are entitled to control what is said and done on and with their property. That of course has historically been so for many other powerful entities, such as newspaper, magazine, and book publishers. It isn't always so: For instance, phone companies (land-line or cell) and delivery services (such as UPS and FedEx) are "common carriers," which can't just cancel someone's phone number or delivery service because they think that person's or group's viewpoints are dangerous or evil.

But many libertarians would oppose such common-carrier rules as well. And even people who think private-property principles can be overcome in unusual situations might view Big Tech power as not being perilous enough to justify restrictions on private property here. (Plus there are few problems so bad that they can't be made even worse by badly crafted or implemented government regulations.)

Likewise, many people might support option 3—the option that the Facebook Oversight Board seemed to take (you can start by counting the number of references to international norms in their decision). They might think that international law principles related to free speech are better than American free speech principles. Or they might think that it's just better to have uniform principles, especially for decisions of a multinational corporation. Or they might think that American free speech principles are better when it comes to threat of jail or fines, but the international free speech principles are better when it comes to decisions about whom to eject from social media platforms.

I have to say, though, that I'm tentatively inclined towards option 1 (and of course towards similar options for other democracies' laws as to speech among their residents). That's so for speech by a sitting President to his citizens. It's so for speech by other officials, who may have fewer other ways than Trump did of reaching the public. It's so for speech by candidates for office, and activists, and ordinary citizens. This ability to effectively communicate with each other is vital to American democracy, not just to our individual rights.

I was just on a radio program on this with an expert from the Brennan Center, who noted that Facebook couldn't "totally suppress" people's speech. Of course that's right—it can only partially suppress their speech. But such partial suppression can still do much to shape the course of American political debate. Should it be able to?

Of course, historically newspapers and other publishers have had substantial power over public debate, and I think they have the First Amendment rights what to print in their pages. But I think (more on that in later posts) that, when it comes to their decisions about what to host, Facebook, Twitter, and Google's YouTube should be treated more like phone companies, who don't have such a right.

As Facebook's own Oversight Board mentioned, and as I quoted above, Facebook "has become a virtually indispensable medium for political discourse, and especially so in election periods." It is in effect close to a monopoly in its immensely important market niche—which is especially important in an environment of political competition, where even small restraints on speech can swing elections and other public decisions. Facebook shouldn't have the power to control political debate, any more than phone companies should.

That's particularly clear when you see the minority views mentioned in the Oversight Board opinion. (We don't know how large the minority was, but my guess is that it was repeatedly mentioned in the opinion because it wasn't just one or two people—and a minority today can become a majority soon enough.) Here is the passage; the citations are to international legal rules (emphases and paragraph breaks added added):

For the minority of the Board, while a suspension of an extended duration or permanent disablement could be justified on the basis of the January 6 events alone, the proportionality analysis should also be informed by Mr. Trump's use of Facebook's platforms prior to the November 2020 presidential election.

In particular, the minority noted the May 28, 2020, post "when the looting starts, the shooting starts," made in the context of protests for racial justice, as well as multiple posts referencing the "China Virus." Facebook has made commitments to respect the right to non-discrimination (Article 2, para. 1 ICCPR, Article 2 ICERD) and, in line with the requirements for restrictions on the right to freedom of expression (Article 19, para. 3 ICCPR), to prevent the use of its platforms for advocacy of racial or national hatred constituting incitement to hostility, discrimination or violence (Article 20 ICCPR, Article 4 ICERD). The frequency, quantity and extent of harmful communications should inform the Rabat incitement analysis (Rabat Plan of Action, para. 29), in particular the factors on context and intent.

For the minority, this broader analysis would be crucial to inform Facebook's assessment of a proportionate penalty on January 7, which should serve as both a deterrent to other political leaders and, where appropriate, an opportunity of rehabilitation. [The majority also noted that "[p]eriods of suspension should be long enough to deter misconduct."]

I'm all for deterrents to political leaders. I just think that the deterrent should be threat of voters throwing the bums out—not the viewpoint-based judgments of a massive corporation applying international law norms.

I don't want American candidates (or activists or citizens) to be pressured to adjust their messages to foreign legal standards, or to the judgment of Facebook employees or executives or oversight board members. And I don't want people who want to operate on an equal footing with their political opponents to feel the need to "rehabilitate" themselves, in international lawyers' eyes or a massive corporation's eyes.

NEXT: Some Academic Freedom Victories

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  1. Your thesis is that someone who isn’t Facebook should decide who gets to use Facebook’s stuff?

    1. Right, just as someone (the government) who isn’t the phone company can decide that the phone company can’t unilaterally block, say, Republican get-out-the-vote efforts, or a phone line used for recruiting by the local Socialist party, or texts sent by suspected members of antifa.

      1. The Volokh Conspiracy

        Mostly law professors | Sometimes contrarian | Often liberta – naw, let’s drop that | Always independent

        1. If I wanted to say “Always libertarian,” I’d have said “Always libertarian.” “Often,” by definition, is not “always.”

          1. I was gong to point that out too, but you beat me too it.

            1. Movement conservatives in unconvincing, garish libertarian drag are among my favorite political spectacles.

              1. Can we stopping playing. Seize Facebook in civil forfeiture for the billions of crimes committed on its platform, and for its own millions of crimes fraudulently inflating its viewership to advertisers with non-human accounts.

                1. Why stop there? Every large enough business has been involved in crimes of various nature. Big Oil has been involved in the getaways of countless bank robberies.

          2. “If I wanted to say “Always libertarian,” I’d have said “Always libertarian.” “Often,” by definition, is not “always.””

            It’s your show, but pointing out that it’s mislabeled is fair criticism.

      2. Ironically, FB is treated as a common carrier today… just without the accompanying obligation to actually “carry” anything.

        >And even people who think private-property principles can be overcome in unusual situations might view Big Tech power as not being perilous enough to justify restrictions on private property here.

        I think the more sophisticated libertarian position is we need to either treat Big Tech as a common carrier *or* a private company. Big Tech don’t get to pick which legal regime to apply on a case-by-case basis.

        1. “Ironically, FB is treated as a common carrier today… just without the accompanying obligation to actually “carry” anything.”

          Nope.

          1. >Nope.

            They have the legal immunities of a common carrier.

            1. OldCurmudgeon is right on this point: Historically, common carriers have had a duty to carry everything, and therefore had immunity from legal liability (for instance, for defamation or invasion of privacy) for things they carried. Non-common-carriers could pick and choose, but they also were legally liable for what they choose.

              Congress, in 47 U.S.C. 230, chose to gave online platforms the immunity of common carriers, but not the common carriage obligation. That may have been sensible, and it might still be sensible today. But that indeed reflects what OldCurmudgeon is saying.

              1. The CDA gives platforms immunity from publisher liability. It does not give them immunity as distributors. Therefore their legal status is more like that of a bookstore than a common carrier. No one thinks that bookstores should have to stock all books or even that the children’s bookstore down the street should have to sell romance novels, but that doesn’t mean that they’re liable for the content of all the books in the store.

                1. jb: (1) I can see how you might interpret the statute this way, but in fact courts have almost uniformly read sec. 230 as immunizing online services from distributor liability as well as publisher liability.

                  (2) Bookstores are potentially liable for defamation and the like in books they carry — but only when they’ve been alerted to the alleged defamation. That would roughly translate to liability on a “notice-and-takedown” basis for online providers (see this post for more); but, as I said, courts haven’t adopted that, because they read sec. 230 as rejecting distributor liability as well as publisher liability.

                  1. Okay, I went back and read your thoughtful post on this last year:

                    https://reason.com/volokh/2020/05/28/47-u-s-c-%C2%A7-230-and-the-publisher-distributor-platform-distinction/

                    And you’ve clearly done more due diligence than me, so I’ll concede the point and encourage others to read the same since it helps contextualize the discussion reasonably well.

                    Having said that, most of the discussion here is about removals not liability for original publication, and I think the ground is a bit more nuanced here. I don’t think that the issue around removals under 230(c)(2) are as problematic as (notably) Justice Thomas seemed to suggest in his recent statement re: Malwarebytes. With one notable exception (Sikhs for Justice v. Facebook), it seems like courts are still looking for tech platforms to apply some sort of “good faith” standard to removals and not just giving them blanket immunity under 230(c)(1) because they’re not the publisher. In fact, one of the very decisions that Justice Thomas cites (e-ventures v. Google) has the court explicitly evaluating whether Google was removing content in good faith.

                    And not quite on point, but just today we had the 9th Circuit ruling that Section 230 didn’t protect Snapchat from product liability claims even where the arise from the process of content generation, so I definitely think the liability protections under Section 230 are not as all-encompassing as conservatives are trying to assert lately.

                2. “We’re gonnna remove your protection from liability if you don’t censor harrassing books. Start with the harrassing books of our political opponents.”

                  This is not a proud moment for freedom of speech. Corporations should not be dancing this dance of censorship trying to avoid those politicians who want to hurt them if they don’t censor, and others if they do.

              2. Immunity is to grow an enterprise. Liability is to shrink it. These represent unauthorized industrial policy by the lawyer profession for its enrichment. Social media are big now. They no longer need the protection of immunity.

                1. See also Elon Musk, who has outlived his usefulness to the rhetorical device of electric cars, and is just one more billionaire to be threatened with heavy regulation oh my goodness some politicians’ incomes are rising fast.

      3. So you’re coming out in favor of government control.

        1. Why, yes (though tentatively). I sometimes support certain kinds of government control in certain situations.

          1. Respectfully, you are missing the bigger point — Federal Court is being replaced by Facebook Court. That alone should scare people.

            Zuckerberg has become so powerful that he has literally set up his own supreme court, which is now more relevant than SCOTUS….

            I wish I could remember the parade of possible evils that was used as part of the rationale for the Ma Bell breakup because Zuckerberg IS doing the things that the Court worried that AT&T’s men could. And the issue is that we need to either break up or shut down Farcebook. Soonest!

            1. “Zuckerberg has become so powerful that he has literally set up his own supreme court, which is now more relevant than SCOTUS….”

              To an idiot, perhaps, but since this is a response to Special Ed, perhaps that’s redundant.

              On the issue of who gets to use (X)’s property, the important decision belongs to (X). They get zero authority to decide anything else.

              1. Property rights are anything but absolute…

                Although it would be hard to determine what is Farcebook’s property and what is the property of others…

                1. Jumping in on the push to nationalize the data centers, are we?

              2. Florists, bakers, photographers, diners, hotels, retail stores among others get to exclude whoever they choose?

                1. Yes, they do, actually, except on grounds specifically prohibited by law. Of course if a vendor’s true motive is in dispute, determining it is a job for a finder-of-fact.

                  1. “Yes, but…” really means “No”.

                    1. If that’s what you really want to believe, it’s what you’re going to believe.

          2. “I sometimes support certain kinds of government control in certain situations.”

            Right, Seize the means of production for the good of the working class Comrade Volokh!

      4. It would be nice if Section 230 could be amended to hold forum owners responsible once they know that terrorist groups are using their site to coordinate attacks. Yes, I mean Antifa, but not only Antifa; there are ISIS and Al-Qaeda sites on Facebook and Facebook refuses to shut them down.

        1. No, it would be nice if Section 230 was eliminated

          Second best would be “anyone who claims Section 230 protections is a common carrier, and may not impose any political litmus tests on any posting. Any violation of this can be taken to court as a private action, with a $1 million payout to anyone who was discriminated against for each act of discrimination”

          1. Why would it be good if Section 230 was eliminated? You’d prefer it if online sites had to moderate more heavily?

            1. It is a pity that Section 230 wasn’t thrown out with the rest of the CDA…

              1. If they had to moderate more thoroughly, you’d be silenced, and that would be a net win for everybody. But it’s hard to understand why you’d be in favor of that.

                It’s because you’re Special Ed.

                1. If you only have nonsense to spout, please do (most of) the rest of us (and your intellectual reputation) a favor and remain silent. Ad hominem attacks just demonstrate lack of intellect.

                  1. “Ad hominem attacks just demonstrate lack of intellect.”

                    irony alert.

            2. No, I’d prefer for Facebook, Twitter, YouTube (Google), and every other left wing social media company, whose very existence depends on Section 230, to go bankrupt

              Then, with all them dead, we could start a new protection law like the one I described above, but applied to a clear playing field.

              And why would I be bothered by our would be tech overlords being forced to “moderate more heavily”?

              “Moderating” the Right wouldn’t fix their legal exposure. What they would have to do is do to the Left what they’ve been doing to the Right.

              I don’t see a downside in that

              1. You and Special Ed deserve each other.

                1. So, you are a fascist who wants everyone who disagrees with you silenced

                  Because you know your ideas are garbage, and they can’t survive rational debate.

                  Thank you for clearing that up

                  1. No, I’d prefer for Facebook, Twitter, YouTube (Google), and every other left wing social media company, whose very existence depends on Section 230, to go bankrupt

                    So, you are a fascist who wants everyone who disagrees with you silenced

                    Said by the same person, a few hours apart.

                    1. I want the tech overlords bankrupted

                      I don’t want you, or James, silenced

                      Why is it that you are so desperate that only the people running the social media companies should have free speech?

                      What’s that? You say I’m “silencing people” by advocating that Twitter, FB, etc. go bankrupt?

                      So, if the people running social media companies censor all conservative thought off of those companies, that’s not “silencing people”.

                      But causing them to go bankrupt, by removing the special gov’t subsidy that allows their business model to prosper, THAT would be “silencing people”?

                      My memory says that normally your brain works better than that. Am I just misremembering?

                    2. “Why is it that you are so desperate that only the people running the social media companies should have free speech?”

                      People who own things get to decide who uses it and for what. so when Donald decides that Mar-a-Lago is for rich people to play golf, my vote that it’d be a cool place for skidding donuts with a golf cart loses out because I don’t own it. (nor even a golf cart.)

                      Once you start deciding that property law only applies when the owner of property does what you want them to do with with property, you might as well go full-on Communist and just expropriate it.

                    3. “So, if the people running social media companies censor all conservative thought off of those companies, that’s not ‘silencing people’.”

                      It’s not. Build your own network system and use that instead of somebody else’s. Or follow the rules that the somebody else sets for using theirs.

                  2. “you are a fascist who wants everyone who disagrees with you silenced

                    Because you know your ideas are garbage, and they can’t survive rational debate.”

                    You have an extraordinarily vivid imagination, and the same dedication to truth as Special Ed.

      5. Prof. Volokh, I’m sure you’ve published (no pun intended) on this and I just haven’t gotten around to reading it, but surely the words “common carrier” aren’t a magic incantation that allows the government to control what content a private company can publish/distribute. Miami Herald vs. Tornillo could not be circumvented just by dint of the government by fiat declaring the newspaper to be a common carrier. Nor could the state of Massachusetts have forced the admission of the Irish American Gay, Lesbian, and Bisexual Group of Boston into the St. Patrick’s Day parade by calling the parade “common carriers.”

        So what principle would allow the government to declare FB or Twitter to be “common carriers” for the purpose of eliminating their ability to control the content hosted on their servers?

    2. Your thesis is that Facebook is entitled to protection for the libel laws that affect every other publisher, but shouldn’t have to pay anything for that privilege?

      Hint: “supporting corporate welfare” is not consistent with any libertarian ideals.

      And just checking here: Do you think States / the Federal government should be able to pass and enforce civil rights laws that allow them to decide “who gets to buys” a businesses products?

      Or is it “different” when your policy goals are beign advanced?

      1. “Your thesis is that Facebook is entitled to protection for the libel laws that affect every other publisher, but shouldn’t have to pay anything for that privilege?”

        And your competing thesis is that Facebook should be liable if someone who is not Facebook libels someone?

        1. According to you, Facebook is a publisher that has the right to decide what they will publish.

          That’s fine.

          But that means they are responsible for everything they chose to publish.

          Just like any other publisher.

          In a functional system, power == responsibility.

          If you don’t have the power to delete offensive speech on your platform, then you’re not responsible for it.

          But if you do have the power, and exercise that power, then you are / should be clearly responsible for everything you let through

          1. “According to you, Facebook is a publisher that has the right to decide what they will publish.

            That’s fine.

            But that means they are responsible for everything they chose to publish.

            Just like any other publisher.”

            Yeah. Just like. What is your complaint with this system?

            1. My complaint is that people aren’t allowed to sue FB, Twitter, etc for the libels they chose to publish

              1. My complaint is that people aren’t allowed to sue FB, Twitter, etc for the libels they chose to publish

                Incorrect. People are allowed to sue FB, Twitter, etc. for the libels they choose to publish. People aren’t allowed to sue FB, Twitter, etc. for the libels other people choose to publish on these companies’ websites.

                And of course the Trumpkin temper tantrum about § 230 isn’t about immunity from libel in the first place; it’s about the fact that these sites can’t be sued for taking down content. But they couldn’t be even without § 230.

                1. Wrong, wrong, wrong.

                  You have stated that you believe that FB has the right to decide what statements may be published on their site.

                  Just like the NYT has the right to decide what will be published in their paper.

                  Well, unless I’m really mis-remembering libel law, the NYT is on the hock for everything they publish, which is every single thing in their paper (with possible exceptions for something that’s clearly identifiable as test / images that someone else paid to put in the NYT).

                  So FB should equally be on the hook for everything on their site.

                  Because, by choosing to impose an editorial voice on their site, by saying “this site is our voice, and therefore we will not allow on it things that don’t match our voice”, FB published that smear that appeared in your timeline.

                  You could also sue the person who wrote it, and should. But the publisher has deeper pockets, so they should be part of the mix.

                  Let’s go back to the Boston St. Patrick’s Day Parade. If someone puts a libelous float in the Boston St. Patrick’s Day Parade, can the organizers of the parade be sued? I expect so. No?

                  If FB is running the parade, then FB is responsible for what’s in it. If it’s not possible for FB to monitor what’s going on in the parade, then there are two legitimate choices:

                  1: FB stops putting on the parade at all
                  2: FB stops claiming that they’re running the parade, and gives up any power to exclude people from it

                  Your preferred option, below, is not legitimate:
                  3: FB runs the parade, decides who can be in, decides what they can say without being kicked out, but FB isn’t responsible for any of the harm caused by any of the people they chose to let into the parade.

                  1. Well, unless I’m really mis-remembering libel law, the NYT is on the hock for everything they publish, which is every single thing in their paper (with possible exceptions for something that’s clearly identifiable as test / images that someone else paid to put in the NYT).

                    The problem isn’t your memory; the problem is your misunderstanding of Section 230. Go find a story from the NYT that interests you, and go post a comment on that story over at NYT.com. The NYT is not liable for your comment, thanks to Section 230.

                    Section 230 of course does not apply to every business in the country. But it applies to all interactive computer service providers (which one can colloquially think of as websites, though there’s a more technical definition). It draws a line, in other words, between online and offline. But not between social media and traditional media. Not between social media and other services. Not between big and small. Not between your grandmother’s knitting blog and Amazon.

                    I have not really spent any time thinking about the concept of libelous parade floats, to be sure, so I don’t know whether FB would be liable for one of those, but your claim that my preferred option is “not legitimate” is nothing more than ipse dixit. Of course it’s legitimate. It has been the online legal regime in the United States for a quarter century and has led to one of the most successful market segments in the economy. Why exactly would we want to change that just because Donald Trump has to post his thoughts on his blog rather than on Facebook?

                  2. As for your parade hypo:

                    I have a dinner party at my house. I invite some people and not others, based on how much I think their views are compatible with me. My guests talk about all sorts of things. I’m perfectly happy with the people discussing the MCU or their grandkids or Winston Churchill. But then someone gets up and starts ranting and raving in favor of Trump. I decide the guy’s a jackass and I don’t want him in my house. I kick him out. Do you think I thereby become liable for everything said by my other guests? Do you think my only legitimate choices are to:

                    1. Stop throwing a dinner party altogether; or
                    2. Give up the power to decide who attends the party?

                    Do you think it’s “not legitimate” for me to both pick and choose who comes but not be liable for the things they say when they’re there? Why? Or if you don’t think that, why not? How is my party different from the hypothetical parade, or from Facebook?

          2. Your position is confused. Here, you are claiming that social media platforms should bear liability for anything posted on their sites. Earlier today, you claimed that social media platforms should be unable to filter political speech. So, under your rules, Twitter, et al, should be prevented from filtering the my pillow guy when he defames Dominion but liable for that defamation. Sense-wise, this is non.

            1. No, my position is perfectly clear:

              Either
              1: Social media platforms may not block anyone
              or
              2: Social media platforms are responsible for everything they chose to publish on their sites

              James position is “so long as the Social media platforms are suppressing people I don’t like, they shoudl have full power to decide what they will publish, but should bear not responsibility for their choices.”

              1. So, your position is no moderation or impossible to control liability: Alex Jones or the poorhouse.

                As for James’s position, my inference is that he does not have an ideological demand for filtering. your “so long as” seems to be of your own invention.

                1. ” your “so long as” seems to be of your own invention.”

                  Greg’s analysis of what my opinion is is a fucking backward as his other opinions are.

              2. Either
                1: Social media platforms may not block anyone
                or
                2: Social media platforms are responsible for everything they chose to publish on their sites

                This position is so incredibly stupid that even a Trumpkin can’t really hold it. I will assume that you just haven’t thought it through, and are just whining like a sore loser because your Dear Leader finally suffered some mild consequences for his conduct.

                I run an Internet website devoted to discussion of, I dunno, travel soccer parenting. Some spammer goes on this site every day and posts hundreds of comments offering MLM opportunities. Under your proposal, my choices are to (a) allow this spammer to overwhelm the site with his spam, or (b) be liable for everything that every single user on the site posts?

                Someone goes on the site every day and posts “Heil Hitler!!!!! The Nazis were right!!! Kill all the minorities!!!!” hundreds of times. My choices are to (a) allow this loser to overwhelm the site with his trolling, or (b) be liable for everything that every single user on the site posts?

                Someone goes on the site every day and posts hundreds of comments about the NFL. My choices are to (a) allow this malcontent to overwhelm the site with his off-topic comments, or (b) be liable for everything that every single user on the site posts?

                1. What’s the word for someone so stupid that they think that calling people “Trumpkin” marks them as special?

                  Pathetic loser? Deranged fool? I’m curious.

                  Congratulations on becoming a market dominating social media company. I’m so happy for your massive financial success.

                  Now, to get to the honest version of a reasonable hypothetical:

                  Hypothetical A:
                  You wish to set up a site that’s about X
                  When people post things that aren’t about X, you delete them from your site

                  Section 230 properly exists to protect people like you, You ahve no problem

                  Hypothetical B:
                  You claim you wish to set up a site that’s about travel soccer parenting
                  You set up that site
                  Whenever people post to that site messages attacking Israel, you leave them up, even when the message celebrate or promote anti-Israeli terrorism
                  Whenever people post to that site messages defending Israel, or condemning terrorism, or pointing out that the posters you’re allowing are supporting the murder of children, you take those down. Because they don’t match “your voice”

                  You argument is that you deserve Section 230 protection, and that fact that your “travel soccer parenting” site happens to also be a hotbed of support for terrorism is not something that can / should be attributed to you. And that people planning terrorist attacks on your site? That’s not your problem, and you’re in no way an accessory for those crimes.

                  My argument is that at the point where you decided to impose “your voice” on your site, everything you allowed to be published on your site became your voice, and your responsibility.

                  The Orange Man Bad nutcasery you’re showing here could indicate that you’re really as stupid as your argument appears. But I’m going to hold out hope that you’re better than that.

                  1. So if I delete some things that I don’t want from my travel soccer parenting site — because they don’t match my voice — it’s okay; I still get § 230 protection. Indeed, according to you, “Section 230 properly exists to protect people like me.” But if I delete other things that I don’t want from my travel soccer parenting site — because they don’t match my voice — then I become responsible for things I didn’t delete, because reasons. Your argument isn’t even a bit coherent.

                    Charitably, maybe you’re trying to make a content neutral vs. viewpoint neutral argument. But of course that doesn’t make any more logical sense than your other claims:

                    Hypothetical C: I have a travel soccer parenting site. Like most specialized websites, over time people start talking about some off-topic stuff. (See Prof. Volokh’s Open Thread Thursdays, for instance.) So some of the parents start talking about their vacation plans once the soccer season ends, and their upcoming trip to Israel, and people chime in to talk about how great Israel is and how much they enjoyed visiting and such. I let that remain up because it builds community among the parents and they enjoy the site more. But some trolls come and start posting every day about the crimes of Israel and how terrorism against Israelis is justified. According to you my choice would be to

                    (a) delete the entire discussion, not let the parents chat to each other about Israel even to say nice things about it; or
                    (b) delete only the anti-Israel stuff and then face liability for anything anyone posts on the site because I am selectively deleting.

                    All for… what? What social good is this supposed to accomplish, other than salving your butthurt over the fact that Dear Leader got kicked off Facebook?

        2. “And your competing thesis is ..” Or that Facebook gets the obligations of a common carrier, not just the immunity.

          1. So you don’t understand Section 230, either.

            1. No, James, we understand it perfectly

              You do, too. you’re just lying about it because you know in a world with honest debate, you would lose

              1. Jesus Christ on a fucking pogo stick, are you on drugs? It would explain a lot.

              2. “No, James, we understand it perfectly”

                If you understand it perfectly, would you mind writing about it as if you understood it?

                You know, instead of the way you’ve been doing it.

      2. Your thesis is that Facebook is entitled to protection for the libel laws that affect every other publisher, but shouldn’t have to pay anything for that privilege?

        Facebook isn’t a publisher of its users’ content, and of course “every other” website is entitled to exactly the same protection. There are no special rules for Facebook.

        And how exactly is it a “privilege” to not be sued for someone one didn’t do in the first place?

    3. Yes, just as someone other than a landlord decided to give a year of free rent to a tenant!

      1. Oops, this got posted as reply to wrong comment, lol.

  2. “Oversight Board”

    Amusing we are treating a bunch of paid employees/contractors of Facebook like they are the US Supreme Court. Like they did not fashion their “ruling” to conform to Facebook wishes.

    Oh well, if they are establishing a shadow government and sanctioning one party only, I will be content when the real government smashes them.

    1. Just noticed they have a dissent also! Have to admire the chutzpah.

      1. The Board would not exist if Facebook didn’t feel the need to present to the world the appearance that they provide due process. If there weren’t genuine dissent among its members they would pretend there is, to preserve the illusion.

        1. Its all pretend. The “dissent” is just rube bait as you say.

          1. Disaffectedness is sad.

            But in some cases deserved and even neceessary.

          2. Mute button works!

            1. Whether you read my words is not so important as your compliance with the preferences of your betters, who have earned that right by defeating the conservatives in the culture war. So long as you toe that line, what you read (or don’t read) doesn’t matter much.

          3. “Its all pretend. The ‘dissent’ is just rube bait as you say.”

            If you don’t like the way they run their business, don’t patronize it. Is that too complicated?

            1. I don’t have a Facebook account nor have I ever had one.

              1. So why are you complaining about how it works for people who like the way it works?

                1. I bet a lot of Facebook users did not care for Trump’s ban.

                  1. Perhaps, but if so, they didn’t like it enough to stop being Facebook users.

            2. I’ve got no problem with that!

              So, you’re ready to dump every single civil rights law on the books?

              No protections for blacks, gays, Muslims, whoever else it is you care about?

              “If you don’t like the way they run their business, don’t patronize it. Is that too complicated?” And if they don’t want you, they can refuse to do business with you.

              Let me guess: no, you’re not ok with that.

              You’re just ok with companies whose ideology you like attacking people whose ideology you don’t like

              1. Do you just like making accusations you can’t back up, or am I getting a special show?

                1. So, no, you’re not ever remotely honest

                  Thanks for clearing that up

                  1. Another accusation from you with nothing to back it up with?

                    Yawn. As if there was a reason to care.

            3. While I don’t like and don’t patronize. I also do not like the US government granting immunity without obligation. That is apublic policy and I get to have a voters opinion on it.

              1. Perhaps you should take the time to learn the public policy before airing your opinion(s) on it.

      2. No kidding! And all of these citations to “international law.” What is that?

        This is all made up. They are one-world-government globalists on a power trip.

        1. “all of these citations to “international law.” What is that? ”

          It’s almost like multinational corporations operate beyond national borders. Naw, can’t be.

    2. Yes, the Supreme Court is the only oversight body in existence. Internal controls are not a thing, and making them transparent only serves to fuel my hatred of private companies taking private actions!

      I want a more regulated market, and do think we need to think hard about how to navigate the current moment of corporation-mediated speech.

      But this is just spite.

      1. “But this is just spite.”

        Politics ain’t beanbag. Play it for one side, expect the other side to strike back.

        1. My main expectation is for people to post better than your 1:47pm comment furious that oversight boards are a thing outside of the Supreme Court.

          1. Wasnt his point that being a rubber stamp for FB isnt really acting like an ‘oversight board’ and people shouldnt put any stock into their ‘ruling’?

            1. Fun fact! The majority of the Oversight Board’s decisions so far have overturned Facebook’s original determination.

              1. Facts are for elitists . . . certainly not for good regular Americans.

              2. Hilarious that you think this “fact” is meaningful in any way.

                A purple haired dipshit sitting in Menlo Park clicks a button, censoring the discussion some guy in, say, Wisconsin was having with his friends and family.

                But then, some time later, a higher level compendium of dipshits from all over the world allowed the Wisconsin man’s utterance to be reinstated! Wow, amazing.

                1. 1) If the board were a rubber stamp, it wouldn’t matter.
                  2) Just so we can have a reality-based conversation, you may want to look at some of the decisions other than the one you’re all riled up about.

                  1. Facebook has the right to censor and ban people for their political views all it wants.

                    But why would I want to read pages of gobbledygook that this, that, or the other group of pinheads cooked up to mollify themselves and other idiots regarding these decisions?

                    1. Once again, since most of the decisions are AGAINST Facebook, you don’t need to read anything that supports Facebook’s decision-making if you don’t want to. I always find that actually having some factual grounding in the topic I’m discussing can be kind of useful, but I guess you’re free to just rant away while admitting that you have no idea what you’re talking about.

                    2. If you take a large room full of purple hairs in Menlo Park, even if they are all morons who groupthink the same way, there will be all kinds of disagreement about where precisely to draw the line of looney leftwing censorship in this or that case. In fact, they could spend all day or even an entire career flapping their gums about this, and I assume they do just that.

                      It couldn’t be less interesting. And the same goes for this “independent board” occasionally opining about some meme a guy posted. Months ago. On a platform with billions of interactions per day. It’s meaningless.

                      Looking back at the thread, I acknowledge you were responding to someone who said the board is or could be a “rubber stamp for FB.” And so your comment is that they are not a rubber stamp because they reverse some acts of censorship months later. Ok. Either way, the whole thing is meaningless and kind of funny in an absurd way.

                    3. I always find that actually having some factual grounding in the topic I’m discussing can be kind of useful

                      Oh, honey. Tell us all about factual grounding.

          2. “furious”

            Amused, as I said.

            Its the reaction among media figures and “blue checks” on twitter that are discussing this like it means something that I was referring to anyways.

            1. So delete your account.

              1. i don’t have one.

                1. Fixed that problem, didn’t it?

        2. Bob, remember when Netscape sued Microsquish?

          Why can’t Trump file a similar suit against Farcebook?

          1. “Why can’t Trump file a similar suit against Farcebook?”

            Doesn’t seem to know how to hire a competent lawyer.

            1. You actually may be right on that one…

              1. Funny how that keeps happening…

          2. Does juvenile name calling really help you feel better about the fact you’re universally recognized as a serial fabricator?

            He can’t file a similar suit against Facebook because he doesn’t have a cause of action against Facebook.

    3. “Amusing we are treating a bunch of paid employees/contractors of Facebook like they are the US Supreme Court. Like they did not fashion their “ruling” to conform to Facebook wishes.”

      They’re not meaningfully employees/contractors of Facebook any more than a panel of arbitrators are contractors of the parties to the dispute.

      Moreover, they’re people that probably care more about their personal credibility and integrity more than whatever Facebook is paying them. I know that in the Trump era it is hard to imagine that such people still exist, but I’m reasonably convinced that they do.

      1. Arbitrators are paid by both sides and have a legal requirement to be impartial. Plus, the parties know who ruled which way.

        These people are paid by one side and have no legal obligations at all. Nor are we told who is in the “majority” and who is in the “minority”.

        Its a rube bait panel for rubes like you.

        1. “Arbitrators are paid by both sides”

          I’m sure Facebook would be happy to let people appealing decisions pay half, but I suspect then you’d be complaining that people have to pay to retain their free speech rights so seems like kind of a lose/lose for them.

          “and have a legal requirement to be impartial”

          I actually suspect that Facebook would be happy with a law like this as well (e.g., content decisions are appealable to some sort of impartial panel). Despite all the conspiracy-mongering, Facebook just wants you to waste time on their platform so you can see some ads and all of this stuff is just a big distraction.

        2. “These people are paid by one side and have no legal obligations at all.”

          So the core of your complaint is that conservatives are freeloaders who aren’t paying their way?

  3. Trump’s use of social media resulted in a riot at the Capitol on January 6. I’m fine with social media deciding he’s not welcome.

    1. The official term is ‘insurrection’. Please conform.

      1. For purposes of social media deciding he’s not welcome, the result is the same whether it was a riot or an insurrection. The two of which, by the way, are not mutually exclusive.

        1. Is Maxine Waters on Facebook? (Not a rhetorical question. I don’t have an account.)

    2. Which politicians are you willing to blacklist over other riots in the last year?

      1. I think if there would have been riots in response to the Chauvin verdict, you might take a look at Maxine Waters. Having said that, I think her comments were made to reporters and not on a social media platform, so it’s less clear.

        Other than that, if you can point to something a politician Tweeted or posted on Facebook that you think directly encouraged rioting, that would be an interesting conversation to have. Mostly I saw politicians telling people to knock it off.

        1. Well, if the info about the Chauvin juror is true, you’re gonna have a mistrial and rioting, and then?

          1. Sorry, I haven’t been reading Brietbart lately. You’re gonna have to elaborate.

            (But no, if there was a riot several months after someone said something, I wouldn’t think that was the same as a riot in direct response to Trump’s speech and Tweets on the day of the riot.)

              1. Seems like a valid topic for discussion by the judge and/or on appeal.

                I would assume if there was a mistrial he’d be re-tried with the same result. Regardless, I would hope that there’s no forthcoming riots.

                1. there’s been a bunch of desperate straw-grasping.

      2. “But what about . . .”

        1. Maybe you havent noticed but “But what about . . .” is at the center of the entire social media issue.

          1. It’s still a logical fallacy no matter what it’s at the center of. Suppose I stipulate that there are a bunch of Democrats who also behaved badly. That doesn’t answer the question of whether *Trump* behaved badly, and it’s his social media that’s at issue in this thread.

            The other problem with what-abouting, as I’ve said before, is that it basically gives everyone a free pass because you can always find someone else who’s just as bad. Hitler gets a free pass because what about Stalin, and Stalin gets a free pass because what about Hitler.

            1. The thing is, most people, around the time they’re ten years old or so, try to weasel out of being punished for wrongdoing by pointing out other wrongdoers. Everyone’s mother should have put a stop to that by the time everyone is no older than 12-years-old by pointing out that someone else’s wrongdoing does not excuse one’s own wrongdoing. I believe the usual formulation is “if all your friends jumped off a bridge…”

      3. “Which politicians are you willing to blacklist over other riots in the last year?”

        I’d have to give a shit about who says anything on social media to want to blacklist anybody. But, no interest whatsoever. Which lack of interest extends to which crybabies are whining because Facebook took their Facebook and went home.

    3. Are you really that stupid?

      An election where the rules were tossed at the whim of Democrat politicians, where poll watchers were blocked from being able to observe, and where “vote counters” stopped counting on election night, while there were a large number of ballots left to count, until they knew exactly what was needed to make sure their side won, happen in Nov 2020.

      And those who acted in that fraudulent manner were allowed to get away with it.

      If you think that anything would have kept a response from happening to that, you are delusional

      1. Greg, anyone who thinks that what you claim happened actually happened should not be calling anyone else stupid.

        1. “No fault” absentee voting violates the PA State Constitution. It happened anyway

          WI requires you to submit a valid State Photo ID in order to vote absentee your first time, unless you’re “indefinitely confined”. Democrats on the WI Elections Board publicly announced that anyone who was afraid of Covid could claim to be “indefinitely confined” and get around that rule.

          More votes came in that way than Biden’s margin of victory in WI.

          If you haven’t seen the many videos of poll watchers being force to be so far from the action that they couldn’t effectively monitor the voting, it’s because your head is permanently encased by your backside.

          If you’re unaware of the Democrat counties that stopped counting on Election night before all the votes were counted, you’re too ignorant to be commenting on the election.

          So, if you prefer “dishonest” to “stupid”, I’ll grant you that change

          1. “No fault” absentee voting violates the PA State Constitution.

            PA Supreme Court disagrees.

            Biden won the election, and your evidence of fraud (Legal cases you disagree with, election monitoring rules you disagree with, and misunderstandings of how vote counting is performed) is not even probative, much less sufficient.

            1. The 5 Democrat members of the PA SC are lying political hacks

              ballotpedia.org/Article_VII,_Pennsylvania_Constitution

              Section 14:
              (a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the State or county of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of Election Day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.

              Democrats stole the election

              1. Jeez, posting a single statute as though that’s all that matters really shows how little you know about the law.

              2. 1) You’ll notice what that provision doesn’t say? “The legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the State or county of their residence only because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of Election Day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.” See how that boldfaced word isn’t in there?

                “The legislature shall do X” is not a command that the legislature shall do no more than X. This provision sets a floor, not a ceiling, on absentee voting.

                2) Even if you were right that absentee voting shouldn’t have been allowed in Pennsylvania, that has nothing to do with “stealing” an election. That doesn’t mean a single vote that was cast was cast by someone ineligible to vote. (Again: we know of exactly one such vote in Pennsylvania, and it was cast by a Trump supporter.)

                3) Moreover, the law in question was passed by a Republican-controlled state legislature, not a Democratic state supreme court.
                So it would not be “Democrats” stealing the election even if your other arguments were correct.

                1. 3) Moreover, the law in question was passed by a Republican-controlled state legislature, not a Democratic state supreme court.

                  The law was passed as part of the Constitutional Amendment process for PA.

                  Except that there were multiple more steps that needed to be followed, and they weren’t

                  Which means that the Constitution hasn’t been amended, and the current rules “for cause absentee balloting only” are in effect.

                  1. The law was passed as part of the Constitutional Amendment process for PA.

                    I see we’re in the making-things-up portion of the program. No. Act 77 was not a proposed constitutional amendment; it was passed as an ordinary statute.

                2. 2) Even if you were right that absentee voting shouldn’t have been allowed in Pennsylvania, that has nothing to do with “stealing” an election. That doesn’t mean a single vote that was cast was cast by someone ineligible to vote.

                  Um, no.

                  If I pay 10,000 people who are legal voters to vote for me, and win by 5,000 votes, have I stolen the election?

                  Or does the fact that they were all potential legal voters mean that the total violation of election law doesn’t matter?

                  A ballot cast in violation of the law is an illegal vote. If the illegal votes change the outcome of the election, then the election is stolen.

                  TDS must be one hell of a drug, if it forces you to make arguments that stupid.

                  Seriously? “Oh, sure, they completely ignored the State Constitution / election laws, but by doing so they came up with the voting result I want, so it’s no big deal”?

                  1. A ballot cast in violation of the law is an illegal vote.

                    No. As I keep trying to explain to Brett, that’s not how it works. It’s not a game; the idea isn’t to make participants jump through arbitrary hoops for the entertainment of spectators. The rules exist only to ensure that legitimate, eligible voters cast votes, and that the election can be reasonably administered — not to see if one can catch someone for stepping on the sideline and disqualify them for being out of bounds.

                    If a state legislature passes a law that says, “No polling place may be within 1,000 feet of a liquor store,” and then the board of elections for Nowheresville County selects a location that’s only 900 feet away from one, you don’t get to wait until after the residents of the county cast their ballots and say, “Ha! These are illegal because the ballots were cast in a polling place in violation of the law! Stolen election!!!!!!!!!!!! Disqualify the votes of everyone who followed the board of elections’ instructions!!!!”

                    The Pennsylvania state legislature passed a law saying that anyone could vote absentee. This law was in fact constitutional; nothing in the Pennsylvania constitution says otherwise. But even if it wasn’t, eligible voters complied with the instructions they were given and cast their ballots. You don’t get to wait until after they did and then say, “Ha! Tricked you! Those votes weren’t valid! Disqualify all of them!”

                  2. “TDS must be one hell of a drug, if it forces you to make arguments that stupid.”

                    Indeed, in both pro- and anti- variants.

          2. Greg, you might consider getting your news from actual news outlets.

            1. I do get my news from actual news outlets

              Which is why I’m aware of reality

              As, apparently, you are, too.

              Since you’re not trying to dispute any of my points, which you apparently are aware are all true

              1. “Which is why I’m aware of reality”

                Aware of: possibly
                constrained by: Clearly not.

          3. “No fault” absentee voting violates the PA State Constitution.

            1) No, it doesn’t.
            2) The law allowing no excuse absentee voting was passed by the Republican controlled legislature. It was not a rule tossed at the whim of anyone.
            3) Even assuming for the sake of argument that you weren’t 100% clueless about the constitutionality and provenance of the law, how is this a harm? This isn’t “fraud.” There’s no evidence anyone except one Trump voter who cast a ballot in the name of his dead mother cast a fraudulent vote in Pennsylvania.

            WI requires you to submit a valid State Photo ID in order to vote absentee your first time, unless you’re “indefinitely confined”. Democrats on the WI Elections Board publicly announced that anyone who was afraid of Covid could claim to be “indefinitely confined” and get around that rule.

            The board — not “Democrats on the board” — announced that. Literally three days later the courts said that this wasn’t a valid interpretation of the law, and this announcement was rescinded. And again: no evidence any fraudulent votes were cast.

            More votes came in that way than Biden’s margin of victory in WI.

            Utterly fictional — but again, not fraud.

            If you haven’t seen the many videos of poll watchers being force to be so far from the action that they couldn’t effectively monitor the voting, it’s because your head is permanently encased by your backside.

            You saw no such videos.

            If you’re unaware of the Democrat counties that stopped counting on Election night before all the votes were counted, you’re too ignorant to be commenting on the election.

            Someone who doesn’t know that there’s no such thing as “Democrat counties” probably shouldn’t be talking about ignorance.

            1. “Someone who doesn’t know that there’s no such thing as “Democrat counties” probably shouldn’t be talking about ignorance.”

              Wow. Now that’s special.

              News flash, numb nuts: Wayne County (Detroit), is a Democrat County. Virtually all the elected officials are Democrats. Virtually everyone they appoint is a Democrat. The election officials who were in charge of counting the votes are Democrats.

              In a world where one isn’t mainlining TDS, that’s a Democrat County.

              1. Wayne County is a Democratic County.

                1. Details like accurately identifying one’s political opponents seem so trivial in a modern world.

            2. From that notorious GOP rag The Milwaukee journal Sentinel (that’s sarcasm, just in case your TDS makes you too stupid to catch it):

              http://www.jsonline.com/story/news/politics/2020/05/26/200-000-wisconsin-voters-did-not-have-show-id-april-election/5246892002/

              MADISON – Nearly 200,000 voters dubbed themselves indefinitely confined for the April election, allowing them to cast absentee ballots without providing a photo ID.

              Those voters will automatically receive absentee ballots this fall.

              The spring election for state Supreme Court saw an unprecedented level of absentee voting as people tried to keep away from others because of the coronavirus outbreak spreading across the globe.

              Of the nearly 1 million people who voted by mail, about 195,000 labeled themselves indefinitely confined, according to the Wisconsin Elections Commission. That’s more than 2½ times the nearly 72,000 who called themselves indefinitely confined in 2019.

              But “nobody did that”. It’s “Utterly fictional”.

              BTW, Biden’s margin in WI was 20,000 votes. Yes, that would be 1/10 the number of “indefinitely confined” WI voters, or less than 1/6 the 123,000 “indefinitely confined” voter increase from 2019 to April of 2020. Not counting the further increase of “indefinitely confined” voters from April to November.

              1. Sigh. You’re not very good at this. Of course people dubbed themselves indefinitely confined. That’s perfectly legitimate; Wisconsin law expressly provides for people to do that.

                What was a (brief) problem was that two county clerks posted online the advice that all voters could declare themselves indefinitely confined, based on nothing more than fear of COVID for themselves or a household member. Three days later, the Wisconsin Election Board said that was wrong, and the advice was taken down. (The courts later upheld the election board’s interpretation. I had a few of these procedural issues off because I was relying on memory — it wasn’t the election board that issued the wrong advice. It was county clerks. The election board issued correct advice.)

                There is no evidence that (a) a single person relied on this erroneous advice — that was only posted for three days — in declaring themselves indefinitely confined; (b) that a single person cast an absentee ballot who wasn’t entitled to; or (c) that a single Biden voter did so.

                1. “There is no evidence that (a) a single person relied on this erroneous advice — that was only posted for three days — in declaring themselves indefinitely confined; (b) that a single person cast an absentee ballot who wasn’t entitled to; or (c) that a single Biden voter did so.”

                  Here’s the evidence. Trump fans desperately want it to be true. To them, that MAKES it true.

      2. “An election where the rules were tossed at the whim of Democrat politicians, where poll watchers were blocked from being able to observe, and where “vote counters” stopped counting on election night, while there were a large number of ballots left to count, until they knew exactly what was needed to make sure their side won, happen in Nov 2020. And those who acted in that fraudulent manner were allowed to get away with it.”

        This is why certain people, and blogs, and their fans, will never amount to much worthwhile.

        These ‘stolen election’ advocates are no better than birthers (OK, except for the racism being a bit less obvious).

      3. “An election where the rules were tossed at the whim of Democrat politicians, where poll watchers were blocked from being able to observe, and where “vote counters” stopped counting on election night, while there were a large number of ballots left to count, until they knew exactly what was needed to make sure their side won, happen in Greg’s active imagination.”

        Boo-hoo.

  4. Prof. Volokh,

    What’s your definition of a large, immensely rich and powerful corporation, massive, corporation?

    Where do you draw the line?

    Your home’s door?

    1. In principle, a very interesting question; generally speaking, the law doesn’t distinguish based on corporate size as such, but usually focuses on the market sector involved. Transportation companies, for instance, are common carriers even if they aren’t vast. The concern about large corporate power is usually the reason for the regulation, but not itself an element of the regulation (though lines based on market share or yearly revenue could in principle be drawn).

      But however one draws the line, I can confidently tell you that “large, immensely rich and powerful corporation” is very far from my home’s door.

      1. What’s Farcebook’s market share as opposed to pre-breakup Ma Bell?

        An interesting aside: geographically, at the time, a third of Maine had Bell System, a third had a mosiac of private non-Bell TelCos, and the remaining third didn’t have anything.

        1. “What’s Farcebook’s market share as opposed to pre-breakup Ma Bell? ”

          One of the fun games is sub-defining “market” so as to support one’s other claims.
          Special Ed can’t even be bothered with this, and is trying to outsource it.

          Facebook’s market share of long-distance voice calling is much smaller than pre-breakup Ma Bell. Did that help you understand anything, Special Ed?

      2. So, current rules and laws about common carriers (truckers, phone companies, etc) affect all participants in those endeavors no matter the size: small bus companies and large, small cable providers and large. But, for social media companies/providers , there is to be a “large, immensely rich and powerful corporation” exception. Rules are different for participants in those endeavors based on the ability of the participant to be successful and popular. I think words of caution about petards might be appropriate. That is, be careful what you wish for.

        This leads me to offer a fourth answer to your question:

        4: Rupert Murdoch decides.

        Rupert owns various Fox enterprises, the WSJ, the NY Post and much more. Rupert can say anything he wants through any of these vehicles, and does. But wait, there’s more. When Rupert publishes something on a social media platform that violates the platform’s TOS and which the owners/operators of the social media platform find objectionable, Rupert should be able to deny the social media platform the ability to filter whatever nonsensical, evil bullshit it is that Rupert wants published.

        What a spectacle it is to observe Ted Cruz (the Canadian named Rafael who calls himself Ted) following close behind Rupert, Ted on his hands and knees sticking his cold wet nose where it doesn’t belong, whining about how Rupert is being censored. HITF can Twitter censor Rupert Murdoch?

  5. Are China and Russia represended on Facebook’s Oversight Board?

    I’m waiting to see how new new Florida deplatforming law will play out in this game. It is easy to visualize how much the field could be slanted in and election if FB and Google decided to completely ban one party’s candidates and supporters.

    Imagine if Trump was rich enough to buy a controlling interest in FB and then to staff the Oversight Board with his own picks.

    1. So you want Trump to be a hypocrite.

      Got it.

    2. The Board members are listed here; they aren’t expected to represent their governments, though I can certainly see how a board member might be influenced (through pressure or through political connections) by a government. (I don’t know to what extent Facebook engaged in screening processes to diminish the risk of such influence.) There are no board members from Russia or China right now.

      1. One solitary conservative.

        Mostly foreigners “judging” what an American company did to the President of the United States. Including, for those conspiracy buffs out there, at least employee of a George Soros funded organization.

        1. “One solitary conservative”? Does John Samples of the Cato Institute count as libertarian rather than conservative? (I would also count Michael McConnell as conservative. I don’t know anyone else on the board well enough to ascribe political affiliation to them.)

          1. Michael McConnell is whom I refer to.

    3. “…was rich enough to buy a controlling interest in FB…”

      Hypo: Zuckerberg (Dempsey, …) runs for president (and perhaps is elected). What are the rules then for facebook (twitter…)?

    4. >Imagine if Trump was rich enough to buy a controlling interest in FB

      IIRC, FB’s corporate structure is set up so that mere shareholders can’t do that. Zuckerberg will always have full control.

      1. Trump’s rich but on the richest day of his life adjusted for inflation he’d be hard pressed to buy 1% of facebook.

    5. I’m waiting for Trump to compete with Farcebook…

      1. Keep waiting.

    6. “I’m waiting to see how new new Florida deplatforming law will play out in this game.”

      I’m guessing it’s going to deplatform all of Florida.

      “Imagine if Trump was rich enough to buy a controlling interest in FB and then to staff the Oversight Board with his own picks.”

      Imagine if Trump was rich enough to have to pay income taxes.

      1. Deplatforming all of Florida would inevitably lead to a new platform.

        1. “Deplatforming all of Florida would inevitably lead to a new platform.”

          Or Florida caves. Hard.

  6. I think your criticism of option two fails because you accepted Facebook’s claim that they are a “virtually indispensable medium for political discourse”. Facebook is in fact entirely dispensible and controls a much smaller proportion of total information content than their advertising hype likes to suggest.

    I believe the common carrier argument is on stronger ground as applied to Google and maybe Apple. But not so strong for Facebook and Twitter.

    1. 2 companies (Google and Apple) basically control 100% of what is allowed onto every phone in the US.

      1. Your claim of fact is absolutely silly. Get yourself a Jitterbug and go back to bed.

        1. Go back a few months and try and upload the Parler app on an Apple or Android phone, which is basically 100% of the market.

          1. I don’t own a phone that needs either Apple or Google’s permission to load anything on it. Because I use a “phone” to make “phone calls”. It’s a single-function device.

            1. Gee, James, an IT man stuck in the mid-20th century…

              BTW, what to you do with the chit that you tear off computer paper?

              1. A cell phone offers no features that I need or want that I can’t access with a W10 or Linux computer, other than the ability to place calls home while at the grocery store (how annoying is that?). In my opinion, carrying a cell phone is a lot like being wired to an electric collar.

                1. Stella,
                  You might try moving up to the 1970’s in technology. It was amazing.

                  1. OK, smarty pants, what can my iphone do for me that I need or would find useful other than the ability to place and receive calls while away from home?

                    1. Oh, oh, I know the answer to the question!

                      With an iphone I can watch porn while driving. But, I’d need another hand.

                    2. Navigate to an unfamiliar place. Look up information on the Internet while out of the house. Transfer money while out of the house. Post really stupid comments on the Volokh Conspiracy while out of the house. Text your spouse to find out what he or she needs you to pick up while you’re at the store. Listen to a podcast while you’re out of the house. Listen to music while you’re out of the house. Check the weather report while you’re out of the house. Send a work email while you’re out of the house. Tell your DVR to record the game while you’re out of the house because you realize you’re not going to get home in time. Access your Ring device and find out who’s at your door while you’re out of the house. Arrange for an Uber while you’re out of the house. Look up movie times when you’re out of the house. Realize that you need something and buy it on Amazon when you’re out of the house. Play Candy Crush while you’re out of the house.

                    3. Ok, you have identified one thing that I find useful with my iphone. I do use maps when out of the house. The other things, not so much. I have no need, and no desire, to do any of those other things. Communication things, while out of the house, are handled by turning my iphone on and placing a call.

                      It’s not a matter of being stuck in pre-1970 technology. It is the fact that I can accomplish all those tasks that you suggest I need immediate connection to accomplish with about 10 seconds of planning each day. And, so could you, if you were not so onanistically enamored with the technology.

                    4. I have no need, and no desire, to do any of those other things

                      Well, whoop-de-doo. I have no need for or desire for a blender, but I don’t sneer that the devices are therefore useless and that anyone who has one is really stupid.

              2. “Gee, James, an IT man stuck in the mid-20th century…”

                I used the phone the company provided. Damn electronic leash.

          2. 2 companies (Google and Apple) basically control 100% of what is allowed onto every phone in the US.

            That’s wrong. Unlike Apple, for which one has to jailbreak an iPhone to install an unapproved app on it, Google only controls the Google Play store. Any Android user can install any app on his or her phone without Google having any ability to have any say in the matter.

            Moreover, even on iPhones Apple only controls the App Store; you can use web apps on an iPhone without Apple having any ability to have any say in the matter.

  7. and of course towards similar options for other democracies’ laws as to speech among their residents

    Why should the residence of the speaker be dispositive, rather than their location when they speak or the location of the recipient of their speech?

  8. Welcome to jewland. The america under the thumb of the jew. The goy will not be allowed to discuss what the jew forbids. As Voltaire correctly stated, the jew will be the downfall of humanity. Our masters are those who cannot be criticized.

    Facebook is the hand of the jew in the land of the free and the home of the brave. Just what the jew overlords want, parasitic control over the host society.

    The emperor of Rome expelled the jews a hundred years before Christ, for less than what the jews of facebook are doing today. Time to toss them out. A cancer on a free people and a free republic, the jews of facebook need to be banished.

    As for Volohk’s pathetic drivel, SCOTUS has already ruled that censorship by private towns is unconstitutional. Same applies for fb. See Marsh v. Alabama, 326 U.S. 501 (1946).

    Time to purge the jewish control of expression.

    1. Hey look! I found a good use of the Mute User function so quickly!

        1. Unfortunately there will always be someone to defame the famous.

      1. You made exactly the post I was going to make

  9. “An immensely rich and powerful corporation, and its immensely rich and powerful owners and managers.”

    Sounds to me like your problem is with antitrust law and not with freedom of speech. The solution isn’t to regulate what Facebook does; it’s to keep any company from having that level of market power.

    1. Naw. Facebook has power because they convinced the suckers, er, users that they were getting something of value in exchange for ceding power over their online social relationships. that’s a free market decision. so’s the response… don’t like the Facebook enforces rules you don’t like over the Facebook online service? Fine. So don’t use the Facebook online service. Done. All fixed.

      1. That’s still not an exemption from the antitrust laws….

        1. Not being a trust is an exemption from anti-trust laws.

          1. Are you really that stupid?!?

            1. As to follow you down a rabbit-hole? No.

        2. James cannot think that deeply. HIs mind stops at the first snark.

          1. Was this you thinking that deeply?

  10. A hypothetical. Suppose I manage to infest your computer with a malware that sends out mass email transmissions carrying my ideas out to the masses. If you decide to remove the software, are you infringing my American rights of free speech, or are you exercising your property rights? Would you factor any free speech principles at all in deciding to reclaim control of your system?

    1. Hmm, let’s see:

      “Using the system as a normal user to post messages”

      Hijacking the system to take a powers normal users don’t have.

      Gee, do you think you can figure out the difference there?

      1. I don’t recall giving anyone but me any power to post messages using my computer? Did you make a different decision?

  11. Option 3, at least as practiced by Facebook and Twitter, reduces to option 2 because all their alleged justifications are lies. For example, it is impossible to honestly believe that Trump encouraged violence.

    1. Indeed, “it is impossible to honestly believe […] Trump” Agreed.

    2. I agree that it’s difficult to believe someone could be as sociopathic as Trump — and yet, he did.

  12. On second thought, even the American Declaration of Independence could have been foreseen to promote violence.

    It is vital to the principles of free speech that even violence and hate speech be allowed. All speech must be allowed regardless of the negative consequences.

    1. Archibald Tuttle: “Could have been foreseen”? Of course it was promoting violence — it was a treasonous, insurrectionary document that was defending a violent revolution. That wasn’t just foreseeable; it was intended.

    2. The better example is _Uncle Tom’s Cabin_…

  13. “Obviously, many libertarians and other supporters of private property rights would support option 2:”

    Nah. Normally you’d expect libertarians to say that, while a corporation is entitled to behave badly, normatively it ought to implement free speech principles. (I hesitate to call them “American” free speech principles, because we’ve already backslid enough that “American” free speech principles are sub-optimal.)

    I would not expect FB to do so, though, because politically biased censorship is actually built into their business model, it is central to FB’s current purpose.

    If Zuckerberg, (And let’s face it, as the majority voting stockholder, FB is his puppet.) wishes to make political donations, he is VERY limited relative to his resources. He can only donate as much as somebody with a fraction of a percent as much wealth could, and is subject to disclosure rules.

    To some extent he bypassed that last year, by donating directly to elections officials, who then ran GOTV drives in heavily Democratic areas for him, but this loophole is now in the process of being slammed shut.

    HOWEVER, if he turns FB into a partisan censorship machine, (As he has.) he can have an influence on American elections equivalent to perhaps as much as a billion dollars in campaign donations, without any legal limits or transparency.

    Indeed, to the extent this makes FB less profitable, he actually gets a tax deduction for it!

    So, warping American politics by political censorship has become central to FB’s mission, they will NOT refrain from it, it is only going to get worse.

    1. HOWEVER, if he turns FB into a partisan censorship machine, (As he has.) he can have an influence on American elections equivalent to perhaps as much as a billion dollars in campaign donations, without any legal limits or transparency.

      And this is different from Rupert Murdoch how?

      1. I wasn’t aware the Murdoch controlled ABC, NBC, CBS, CNN, PBS, and MSNBC

        Thank you for letting us know that “fact”

        1. He doesn’t, but then there’s nothing in the segment that I quoted that talks about market power. Murdoch clearly has “an influence on American elections equivalent to perhaps as much as a billion dollars in campaign donations, without any legal limits or transparency.”

          (Which, for the record, I’m not criticising, because I rather like free speech.)

          1. FB gets to block out voices they don’t like

            Murdoch does not

            That’s a rather large difference

            1. … in your imagination. If you don’t like it, imagine it differently.

            2. FB gets to block out voices they don’t like

              No. FB gets to block out voices it doesn’t like from Facebook. Just as Murdoch gets to block out voices he doesn’t like from the properties he owns.

      2. >And this is different from Rupert Murdoch how?

        Arguably, focusing on the underrepresented half of the country made Murdoch’s empire more profitable, not less.

        Obviously, the business model for one cable network out of $Many is different than it is for a natural monopoly internet “platform”

        1. If you think Facebook is a monopoly, much less a natural monopoly, I really don’t know what to tell you. They have lots of market power in lots of markets, sure, but they are nowhere near a monopoly.

      3. As Greg points out, Murdock wasn’t manipulating public opinion, he had just identified a (large!) segment of it the existing media were leaving unserved, and figured their money spent as well as anybody else’s.

        Murdock set out to get money regardless of politics, Zuckerberg was willing to leave money on the table to advance his politics.

        That’s pretty different.

        1. Murdock wasn’t manipulating public opinion

          Are you insane?

          Rupert Murdoch wants to be in the manipulating public opinion business, but occasionally finds that he can’t, while Mark Zuckerberg doesn’t want to be in the manipulation business, but occasionally finds that he can’t avoid it. I’m not saying that either self-image is particularly realistic, but come on…

          1. A big part of modern conservatism consists of finding a reason to ignore facts that contradict one’s chosen policy.

        2. “As Greg points out, Murdock wasn’t manipulating public opinion, he had just identified a (large!) segment of it the existing media were leaving unserved, and figured their money spent as well as anybody else’s.”

          True, the market of people who wanted news slanted to only things they wanted to hear was underserved, but AM radio was already a thing.

    2. “HOWEVER, if he turns FB into a partisan censorship machine, (As he has.) he can have an influence on American elections equivalent to perhaps as much as a billion dollars in campaign donations, without any legal limits or transparency.”

      FB has approximately 0 power to censor me, even if Zuck wanted to.

      1. Really?

        Is that because you’re more powerful than the Babylon Bee?

        Or because no one wants to listen to you, so there’s nothing to censor?

        The Babylon Bee used to be at the top of that FB Top Ten list. They’re not, anymore, because FB decided to censor them

        1. It’s because I don’t use Facebook for anything, so they’re not in between me and anyone.

        2. The Babylon Bee used to be at the top of that FB Top Ten list. They’re not, anymore, because FB decided to censor them

          1) You have made up this fact.
          2) The Babylon Bee is not, despite what you appear to think, a news source. It is a satirical website. I would hope you aren’t getting your information from it.
          3) Every single person in the U.S. with Internet access can read the Babylon Bee whenever they want. Facebook has no power to interfere with that even if it wanted to.

  14. Facebook operates in a context where it gets hints and threats – publicly and through private channels – from governments who don’t like what is being posted there.

    How do we adapt the Constitution’s “state action doctrine” to deal with governments laundering censorship decisions through private companies?

    1. Yes. That I think is going to be a big legal issue in the next decade.

      1. don’t like Facebook’s censorship decision(s). Delete the app. Dja do it yet? OK. You just censored the censoring, you big stud, you.

        1. James’ broken record is stuck again. If you want government granted immunity from prosecution ot tort damages, then you should incur community obligations.

          1. telling you facts you don’t like is a broken record?
            bummer.

          2. No, you shouldn’t.

  15. “(and of course towards similar options for other democracies’ laws as to speech among their residents).”

    Why? Readers in the US and other countries might be interested in what people other democracies have to say, regardless of the laws of those counties.

    If we go the “common carrier” route, simply require Facebook to host all protected speech, regardless of what is censored in other countries.

    1. The important thing is, we nationalize the resources for the working man, right, comrade?

  16. Absolutely hilarious that Facebook sets up a “board” and pretends to make a judicial-like corporate decision that has any shred of credibility.

    Trump did nothing wrong. Trump did nothing that leftists of the type who run Facebook haven’t done 100x worse without internet censorship.

    1. Sounds like you’re a judicial-like board all by yourself!

      1. Sounds like he hasn’t listened to what the oversight board actually ruled:

        …it said Facebook was attempting to “avoid its responsibilities” by imposing an indefinite suspension — which the board slammed as “a vague, standardless penalty” — and then asking the board to make the final call.

        “The Board declines Facebook’s request and insists that Facebook apply and justify a defined penalty,” the decision said.

        “We’re not here for Facebook just to lob politically controversial hot potatoes at us for us to decide,” board co-chair Michael McConnell, a Stanford law professor,

    2. “Trump did nothing ”

      That’s his Presidency, in a nutshell.

  17. So “interesting” that Prof. Volokh believes that Facebook has, or should have, a legal duty to lend this enormous megaphone that it has constructed, in order to make money, to anyone who wants to use it. This is the same Prof. Volokh who wrote, mere days before Jan. 6, “True, it’s not Jan. 20 yet. But my prediction is that (setting aside the surface matters related to the epidemic) it will be a Jan. 20 of an inauguration year much like any other.” You know, Gene, I wonder if maybe you aren’t the guy who should be giving folks advice on matters Trumpian.

    1. I disagree with his take, but Prof. Volokh is making a policy argument, not a legal argument.
      He’s citing to ‘free speech principles’ not to the 1st Amendment.

      1. The “free speech principles” he’s advocating is “government control of private resources”.

        1. That already exists in the grant of common carrier immunity.

          1. I think it’d be a policy change to give common carrier status to these infrastructure-light communications platform.

            I don’t see a market failure here. And I don’t think this medium of speech (one among many) requires government rationing.

            1. “And I don’t think this medium of speech (one among many) requires government rationing.”
              Then remove the indemnity. It’s not buying you or me anything at present.

              1. Then remove the indemnity. It’s not buying you or me anything at present.

                It certainly is. It’s buying us the ability to post on Facebook, Twitter, the Volokh Conspiracy, and trillions of other Internet sites we don’t own.

    2. FB could only construct the megaphone because of the government gift of Section 230.

      You’re basically taking the position that a local cable company, that was granted a monopoly by the city council, and which censors everything posted by anyone the city council doesn’t like, has a “free speech right” to do that

      Which is rather shamelessly dishonest of you

      1. You don’t understand what Section 230 does, or what it was intended to do.

        Section 230 frees up Facebook from having staff read over everything that gets posted on it to approve it before publishing it.

        1. Section 230 allows Facebook to publish whatever they want, without feel of being held liable for what they chose to publish.

          This is a perfectly reasonable protection to give a common carrier

          It is an utterly illegitimate protection to give to a company that routinely blocks / deletes postings they don’t like.

          1. James is incapable of understanding that privilege and obligation should be a two way street.

            1. That’s not the intent of 230, though. It was a deregulate to allow growth.

              When Congress wants to make an obligation, whether legal or informal, they know how to say so.

              1. Sure, S-0 and they failed the public at this point.
                In fact their indemnity was not needed to promote growth.
                It was the result of special pleading.
                And it certainly is not needed any more.

                1. In fact their indemnity was not needed to promote growth.

                  Yes, it was. If Stratton Oakmont had been the law of the land, the web as we know it likely could not exist.

                  But of course the CDA was primarily intended not to promote growth, but to encourage moderation.

          2. “Section 230 allows Facebook to publish whatever they want, without feel of being held liable for what they chose to publish.”

            It does not. Try asking someone who knows what they’re talking about before spouting nonsense like this.

            1. Really?

              So I can sue Facebook for any libel of me that ends up published on their site?

              No?

              But they get to chose whether or not I’m allowed to post there, and what I’m allowed to post?

              Yes. You’re a big fan of that part.

              So, are you claiming that you’re just so stupid you can’t understand basic logic? Or are you a liar?

              1. So I can sue Facebook for any libel of me that ends up published on their site?

                No?

                No. You can sue Facebook for any libel of you that they publish. You can’t sue Facebook for any libel of you published by someone else on their site.

              2. “But they get to chose whether or not I’m allowed to post there, and what I’m allowed to post?

                Yes. You’re a big fan of that part.”

                That’s how property works. It’s good to own things. This is one of the areas where I actually agree with Republicans.

                “So, are you claiming that you’re just so stupid you can’t understand basic logic?”

                No, I’m claiming that YOU are that stupid, AND that you don’t do a very good job of reading comprehension. This is just another example.

      2. You’re basically taking the position that a local cable company, that was granted a monopoly by the city council, and which censors everything posted by anyone the city council doesn’t like, has a “free speech right” to do that

        Facebook wasn’t granted a monopoly by anyone.

    3. Why Vanneman keeps stalking EV to post this incredibly inane comment, I’m not sure, especially since the comment he’s trying to “gotcha” isn’t even wrong! January 20 did go smoothly. January 6 did not, but EV’s comment wasn’t about January 6.

      1. ” January 20 did go smoothly.”
        Of course it did. Trump went slinking out of town and wasn’t involved in any way.

  18. “Obviously, many libertarians and other supporters of private property rights would support option 2: By default, property owners are entitled to control what is said and done on and with their property.”

    That would make perfectly good sense, in a world where the private property owners are not being given a massive government subsidy.

    But Facebook and the rest are being given that subsidy. Section 230, which protects them from the libel laws that everyone else has to follow.

    Eliminate their subsidy, eliminate their government gift, and by all means they should be entirely free to decide what they will and will not publish.

    And any person who is libeled or otherwise illegally harmed by anything they publish should be entirely free to sue them for that harm, and collect if they prove the harm.

    But so long as they receive that subsidy, they should not be able to ban anyone’s legal speech. And any hypocrisy on the subject should be grounds for massive lawsuits.

    1. What the heck. Anyone libeled by ANYBODY should be free to sue anybody else for it. Facebook has some money. Sue them because some rando libeled you. Makes perfect sense.

      1. No, I should be able to sue them any time they chose to publish someone libeling me.

        Since you claim they have the right to chose what goes on their platform, that means that every single thing on their platform is something they have chosen to publish.

        Is logic just not your strong suit?

        1. “No, I should be able to sue them any time they chose to publish someone libeling me.”

          Indeed, and that is what the law is. If they choose to publish someone libeling you, and you can prove it, sue them and cash the check.

        2. “Since you claim they have the right to chose what goes on their platform”

          Since I didn’t claim that. Let’s go back to what I DID claim, which is that they get to chose who can use their property and who can’t. Because that’s how property works.

          “Is logic just not your strong suit?”

          Clearly, reading is not yours.

          1. “Since I didn’t claim that. Let’s go back to what I DID claim, which is that they get to chose who can use their property and who can’t. Because that’s how property works.”

            No, they also get to chose what those you use their property can say while using it.

            See deletion of posts about vote fraud, about problems with the Covid vaccine, etc.

            So, is your defense that you’re an utter ignoramus who doesn’t know what FB is doing?

            But that you’re so arrogantly stupid that you’re willing to shoot your mouth off about it, despite having no idea what you’re talking about?

            Word to the wise: that’s not a defense

            1. Greg,
              FB wants it both ways. They what to be a publish when they what to decide what should not be published and not a publisher and protected by 230 when someone complains.
              Having it both ways is a common feature of special pleading.

              1. Yes, that’s “having it both ways,” in the same way that I want to choose when to let certain people into my home and when to ban them, but at the same time don’t want to be liable for what they say when they’re in my home, is “having it both ways.”

                1. Egads, you’re Big Tech!

            2. “So, is your defense that you’re an utter ignoramus who doesn’t know what FB is doing?

              But that you’re so arrogantly stupid that you’re willing to shoot your mouth off about it, despite having no idea what you’re talking about?

              Word to the wise: that’s not a defense”

              My defense is that I don’t live in your fever dream.

    2. But Facebook and the rest are being given that subsidy. Section 230, which protects them from the libel laws that everyone else has to follow.

      False. Even aside from the absurd characterization of the government not punishing someone as a “subsidy,” Section 230 “gives” nothing to Facebook that it doesn’t “give” to everyone. Section 230 doesn’t mention Facebook.

  19. And then there’s the whole issue of corporate personhood – which is particularly annoying when not even all *human* persons have recognized legal personhood.

    https://www.reddit.com/r/Libertarian/comments/1li108/whats_the_libertarian_stance_on_corporate/

  20. I don’t understand how Option #1 and Option #2 aren’t the same thing. At least as currently interpreted, the First Amendment supports Facebook’s own rights to freedom of speech and freedom of association, and that includes the ability to choose who can use their platform and what points of view they want to encourage or allow.

    Now maybe Professor Volokh is arguing that Facebook ought to be applying American free speech principles in its own decision-making about what speech to allow or not (i.e., to treat itself like a US-based governmental entity when it comes to making free speech decisions). I think there’s two problems with this:

    First, Facebook is a for-profit institution, and their primary revenue model is advertising. The reason that we get to have the forum for political discourse on the platform *at all* is that there’s advertisers interested enough in the platform that they can afford to pay for the employees, data centers, etc. required to provide that infrastructure. Unlike a state or local government, Facebook can’t tax its user base to make sure that vital infrastructure is paid for. And it turns out there’s a lot of content that advertisers do not want to be associated with. Facebook therefore necessarily can’t take the same approach to regulating speech as the government does, because it would put their entire business model at risk in a way that the government does not have to worry about.

    Second, it’s hard to see the model scaling. Remember, 90+% of Facebook’s users are not in the US! If we apply American rules to Americans talking to (mostly) other Americans, presumably we should apply German rules to Germans talking to (mostly) other Germans or Iranians talking to Iranians, etc. This implies developing decision-making bodies with robust understandings of each country’s free speech regimes. And of course, how do we judge that speech is “mostly” between Americans, because the platform is inherently international even when topics of US interest are being judged. Do we apply US rules when 90% of the readers for a particular posting are Americans, but International principles when it’s 30 or 50 or 75? If you’re going to adopt a decision-making framework on a platform like framework, having something that you can apply consistently seems like it makes a lot more sense rather than trying to adapt to per-country rules that won’t even cover many of the interactions on the platform.

    1. >At least as currently interpreted, the First Amendment

      Free speech principles != the 1st Amendment.

      1. Wow, the meaning of my sentence changes so much if you substitute one for the other. “At least as currently understood, free speech principles in the US support Facebook’s own rights to freedom of speech and freedom of association”. Hmm, actually–that’s the exact same thing!

      2. “Free speech principles != the 1st Amendment.”

        Relax. It’s not like they’re unrelated.

  21. As a geek I say power to the platform.

    1. And on that note, VC really needs a discord server.

  22. I do not have a Facebook account. I do not have a Twitter account.

    Did someone change the meaning of indispensable recently — and if, so, toward what partisan end?

    1. I’m sort of ashamed to say it, but having the ability to tell you I’m muting you makes it all worth it.

      1. Enjoy your clinger content — the racism, the snowflakey superstition, the immigrant-bashing, the gay-bashing, the disdain for science and education and credentials, the hatred toward modern, successful communities and strong, reality-based institutions — without the occasional leavening of liberal-libertarian mainstream information. (I assume you’ll be banishing Prof. Somin, too, for his offenses against Trump-era, Volokh-class movement conservatism.)

        I hope you also enjoy complying with the preferences of your betters for the remainder of your life.

    2. Perhaps the applicable standard is not “indisensible” but “predominant.”

      Personally I am not for government control of social media. Not yet. But on a scale of 1 to 10, they are far closer to monopoly than, say, the local radio or TV stations, or the local paper.

      1. “Personally I am not for government control of social media.”

        Our host is.

  23. Somewhat off topic, but still in the ball park of creeping (and creepy) power of Big-Tech.
    Today my wife and I went out for a few hours in the middle of the day. I took her to lunch, and then we went shopping. On the way home, she tells me Google sent her a message she should review the restaurant and store we went to.
    “But honey,” I say. “We did not use Google Maps or Waze to get to these places. I just knew where to go. So how does Google know you went there?”
    Turns out her phone’s GPS is connected to Google, the computer figures out she went to Restaurant A and Store B. Then it asks for reviews.
    Now to me, that is highly intrusive. Who wants Big Tech to know your every move, where you shop, where you eat?
    Are people aware of what to me is a massive invasion of privacy?

    1. Google’s location tracking is opt-in, so to the extent it’s happening it’s because your wife enabled it. (Compare to, e.g., cell phone companies who are not only tracking you through your cell phone, but selling your location to third parties without your consent.)

      Personally, I find it pretty useful. It can do stuff like tell you where you parked your car in a stadium parking lot. I’ve never seen Google to prompt me to review somewhere I just visited even though I’m one of their “Local Guides”, though, so she may have opted into something else as well.

      1. I moved across the country a couple of years ago, and I’m still fairly dependent on Google Maps to find anything in my new home state. And the service is offered at a price I don’t mind paying.

      2. This is dumb. “Your wife enabled it” just means she wants to actually be able to use some of the basic features of a smartphone.

        What they won’t let you do, is opt out of having them track you and collect all conceivable information for every conceivable purpose, while still using the map and doing something like saving addresses.

        And even if you do opt out, they will still track you when you use a map, search, take a photo etc. And at the end of the day, they are probably still tracking you 100% no matter what, under agreements with the NSA and such. You may not get the ads and the prompt to review a restaurant based on it, but they are still doing it.

        1. “This is dumb. “Your wife enabled it” just means she wants to actually be able to use some of the basic features of a smartphone.

          What they won’t let you do, is opt out of having them track you and collect all conceivable information for every conceivable purpose, while still using the map and doing something like saving addresses.”

          As usual, you are wrong.

          https://www.pcmag.com/how-to/how-to-get-google-to-quit-tracking-you

          You can turn off location tracking completely independently of using GPS for one-of purposes like finding something on Maps.

          1. One-off purposes. Notice I said, and saving addresses/locations.

            And this is from Google’s page: “When Location History is off . . . Some location data may continue to be saved in other settings, like Web & App Activity, as part of your use of other services, like Search and Maps, even after you turn off Location History.”

            There you have it. Continues to be saved if you use other services. Like search. And maps.

            You chose not to respond to the most substantial parts of my comment.

            Now go to your link to PC Mag, and take a look at the top-rated comment on the article.

            “Casper
            13 December, 2020

            Very boring. Turn off Google services and history. This does nothing, and you know it. As a technical writer, you should know the field better than to throw a few switches off and expect Google to obey. In spite of the glossy image, Google is malicious in tracking and keeping data. You have a spy phone and you are chipped. No polite way of saying that every app, every service, every link will use your data against you in any way they see fit. Ditch the phone. That is the only way, or try Graphene OS or another Linux OS.

            Someone
            Casper
            5 February, 2021

            This was more helpful than the article. I’m exploring graphene, /e/os, and fair phones now. Much more what I was looking for.”

            1. Don’t take your phone with you to any place you don’t want your phone to know you’ve been.

              1. Finally a comment based on logic

              2. Except that’s not the whole issue. A lot of privacy issues revolve around aggregation of data, each piece of which might be innocuous. That I went to one restaurant today for lunch is hardly some intrusive piece of data about me. A record of all the restaurants I have gone to in the last 10 years is a different story.

                1. Well, if you look at the article I posted earlier it lets you go and delete whatever location data you want. (Google recently committed to not retaining location data for 18 months too, which will help in your 10 year horizon, but I agree that still allows a pretty broad picture.)

                  Google at least makes it pretty obvious what they’re doing. There’s a bunch of data aggregators out there with big profiles on you that you never directly interact with, which feels way more insidious because you’re not even getting the trade of a useful service out of them in exchange.

            2. So some random commenter agrees with your conspiracy, and you feel validated? Congrats.

              1. That comment is the truth, actually. If you don’t know this you’re just ignorant.

      3. Google’s location tracking is opt-in

        Anyone who actually has a smartphone and has actually used Google services for any length of time knows that’s simply untrue. And ironically, the PC Magazine article you yourself linked two posts down (in a reflexive effort to contradict a different point) clearly confirms that it’s untrue. You’re a riot.

        1. The PC Magazine article does not say anything about location tracking being opt in or opt out. It tells you how to turn it off and perhaps implies that it is opt-out, but it is not. From https://medium.com/@thegeospatialnews/google-will-no-longer-keep-your-location-history-3d082bbf1c0

          “Google location tracking, the feature used for many studies and advertisers, is off by default.”

          I admit it’s easier to turn on than off, and Google encourages you to turn it on, but you do have to affirmatively turn it on.

          This is a pretty easy hypothesis to test, so you don’t need to trust me or anyone on the Internet. Reset an Android phone to factory defaults. Create a new GMail account. Set both up while paying close attention to the various toggles and options as you go along, and then go check the location history setting at the end.

          Google at least gives you the option to turn this off and on (and to delete your history). Once again, all of the carriers store your location history and there’s no way to opt out. As others have pointed out, you can’t have a cellphone in the US if you want to avoid being tracked, but it’s not Google that’s is your problem.

  24. “Common carrier status” seems reasonably paired with “not legally responsible for content”.

    That is, a forum could declare themselves a common carrier, and accept the demand to carry all traffic except that barred by a court order. In return, nothing said would be their responsibility. The phone company is not responsible for crimes planned over the phone, or even for detecting such activity.

    Or they could declare themselves private, and not be required to carry any traffic as they saw fit, but would then be the legal “speaker” of all things said.

    1. So everyone needs to allow porn on their websites or risk being sued into oblivion when some yahoo posts something obviously libelous about Hulk Hogan?

      1. One need not allow pictures.

        1. Sure, just pornographic comments. It’s cool that people post their erotic stories in a church forum, right? Or maybe a forum where kids discuss their homework.

          1. You can solve that potential problem by leaving 230 protections for most sites.

            Use revenue [more than say a million $] or being a publicly traded company as triggers.

            1. Okay, so to give an example from a previous week’s discussion on the site:

              Kodak wants to create a site to let you share cool photos you took. They’re a really big company. Under your theory, they have to allow porn to be included or they’re liable for every picture everyone posts?

              1. Nope

                Kodak can set up a photo sharing site

                They can say “we will not allow any pictures that show the bare breasts of females over the age of 5, or anyone’s bare genitals or bare buttocks.”

                And they can enforce that. No problem. They can provide and follow an objective rule, and should get full Section 230 protection. Because they’re not acting as a publisher.

                However, if they were to say “we will not allow any political photos on our site”, and then deleted 90+% of the Right supporting political photos, while leaving up 90+% of the Left supporting political photos, then they would be acting as publishers, and would not deserve any Section 230 protections.

                It’s really not a difficult concept:

                If the site presents your corporate voice, then you’re responsible for everything there, and liable for lawsuits for anything there that’s lawsuit worthy.

                If it doesn’t present your corporate voice, if it’s a place where people get to speak with their voices, no matter how much or how little you like them, then you’re not responsible.

                1. Well it turns out that other than in right wing conspiracy echo chambers, this is actually how the world already works. The tech companies have policies against things like hate speech or Covid misinformation, and they take down posts that don’t comply with those policies.

                  Now it may be true that people on the right are engaging in a lot more hate speech and Covid misinformation than people on the left, but that doesn’t mean there’s not an objective rule being applied.

            2. You could solve most of the problems by just giving that “good faith” language in Section 230 teeth, and not treating the safe harbor for censoring enumerated classes of offensive content as a blank check.

              1. You could “solve” the “problems” by just selectively enforcing bits of statute in a blatantly partisan way in the direction that Brett prefers and that wouldn’t bother anyone that Brett cares about.

      2. Ways would quickly evolve to eliminate persistent anti-social activity, but they would not involve the forum censoring.

  25. Just because Facebook’s Board says that Facebook is a “virtually indispensable medium for political discourse” doesn’t make it so. It’s a self-serving statement.

  26. “What Rules Should Govern How Americans Speak with Other Americans?”

    Those of the Volokh Conspiracy Board of Censors?

    Those of Facebook’s Advisory Board?

    Those of Sinclair Broadcasting, Ann Althouse, and whomever is in charge at Reddit?

    Or does it depend on whether a forum is adjudged to be hospitable enough to certain views?

  27. An interesting and thoughtful opinion.

    I have been doubtful that the social media companies will prove to have durable monopolies. I can see Facebook and others faltering in a big way as more open communication concepts come forth. This has made me less concerned about regulating their blatantly biased political censorship of users.

    However, research has suggested that tech companies have power to influence opinions and the flow of information to a degree that would have been unimaginable a short time ago. For example, research by Dr. Robert Epstein showed that Google can cause massive shifts in voters’ perceptions of candidates merely by tinkering with auto-complete search suggestions.

    It’s possible that the collusion and conglomeration among corporate directorships, crony capitalists and governments is too entrenched. The last year has certainly shaken my belief that fair market competition still has a fair shake after all the communization we’ve been through. The Federal Reserve even buys corporate bonds now.

    1. As usual, you cite to crap.

      https://slate.com/technology/2019/08/robert-epstein-google-bias-conservative-bogus-trump.html
      In his research, Epstein graded search engines for bias, determining that mainstream news outlets like the New York Times dominated over conservative sources like Breitbart in Google’s results. Epstein doesn’t explain the context in which the searches were conducted—which is important to know, since the whole point of Google Search is that it personalizes results based on prior searches and the user’s location. Someone with a recent search history about guns in Tennessee will likely see different search results than someone with a recent search history about women’s health care in New York City. And a good study would take care to somehow sanitize or disclose each participant’s search environment before reaching any conclusions.

      Dude’s not a scientist, he’s a media personality.

      FFS, search to see if you’re posting debunked nonsense before you post the latest you read on Breitbart.

      1. Bullshit

        I occasionally have used Google for searches for political content, using terms like “what is the militia”, or trying to find something I read a month ago that supports the conservative side.

        Google’s top results are always from the political Left

        Then I go and do the same search using Duck Duck Go, and get the hit I was looking for at the top.

        It takes a completely lying sack of garbage to even try to pretend that’s not the case. Which is why you’re the one doing it

        1. Duck Duck Go is basically Bing. Is Microsoft not part of the tech cabal today, ’cause it seems like they usually are.

      2. *unironically cites to Slate*

        So, the guy is a Hillary Clinton supporter. And your Slate excerpt is not even referring to the same study I am referencing. It’s a different study. And the study they are referring to, isn’t “nonsense” and they haven’t “debunked” it or even come close to doing so.

    2. “I have been doubtful that the social media companies will prove to have durable monopolies.”

      Well, if any of them GET to the point of having monopolies, they probably won’t be durable, indeed. The history of tech offers lots of examples of once-dominant products that went to the wayside. Novell NetWare once absolutely OWNED the network operating-system category. Does anyone remember WordPerfect for DOS? Netscape Navigator? Microsoft Internet Exploder? AOL Instant Messenger?

      1. Cute bit of dishonesty.
        You mention obsolete products and on that basis claim the the companies are gone. Internet Exploder has a different name , Microsoft exists as much as ever and tries mightly on every use of another search engine to get you to make theirs the default on your PC.

        1. But don’t your examples prove the point? Yes IE is called Edge now, but Chrome is by far the most popular browser. Similarly, Microsoft does indeed use every trick in the book to get you to use Bing, but people like Google more and switching costs are SUPER low so they just use that instead.

          If someone makes a better search engine or browser, people will switch again. And FWIW, Chrome’s market share has been starting to decline lately as it has lost some of its reputation as the best and fastest browser.

          1. “But don’t your examples prove the point? ”

            Yes, I used examples to prove my point. I do that sometimes.

            1. I think he meant Don Nico’s examples prove your point.

        2. “You mention obsolete products and on that basis claim the the companies are gone.”
          Why are you making claims, and then pretending they originated with me? Do you feel that fellow commentary readers are unable to read what I actually wrote, which include no claims about companies are gone? Or is it just that you can’t read, and would prefer to argue with someone who knows as little as you do about tech history?

        3. ” Internet Exploder has a different name”

          It has always had a different name, there, genius.

  28. Eugene, does your argument also apply to algorithmic decisions about what content companies choose to amplify? The analogy to phone companies (where communication is point-to-point, without amplification) seems problematic.

    If your argument does apply to algorithmic amplification decisions, what would it even mean for such decisions to conform to “free speech principles?” What principle requires that a company ever amplify the President’s messages, over other messages?

    1. If I’m searching for what the President said, and honest search company will return that to me

      A dishonest one will return what their preferred propaganda outlets have to say abotu what the President said

      Are they a search engine? Or a publisher?

      Publishers are entitled to a “voice”. Search engines are not. Because the point of a search engine is to return the information the user is looking for, NOT to return what others want forced on the users.

      1. What does Google, which isn’t even a social media company, even have to do with this discussion? Other than gmail — which is a different category altogether — (and a few failed and shuttered initiatives like Google+), Google has little to do with the topic of “how Americans communicate with other Americans.”

        1. Listen, the company line is that all the big tech companies are bad regardless of what they do. Don’t expect the loyal party members to turn against the party’s chosen storyline. Google is bad because you can use it to find people who criticize Conservatives. Period.

      2. “If I’m searching for what the President said, and honest search company will return that to me

        A dishonest one will return what their preferred propaganda outlets have to say abotu what the President said”

        A good one will return both.

  29. I think the fb oversight’s board use of international law has more to do with their limited remit and fact that FB seems to have formally pledged to respect certain notions from international law but not US constitutional norms re: speech than anything about international law.

    1. Plus the fact that FB has users who aren’t subject to US law, and aren’t particularly familiar with it. (these two groups overlap considerably, but not completely.)

  30. I love how we keep talking about how an alleged multi-billionaire former President of the United States who just opened up his own blog has been unfairly stripped of his voice. And because of this man who has nowhere to turn, then it’s okay in Libertarian Town for the government to impose its will over a private company. Because that company, one of the largest of the many social media companies, is “indispensable.”

  31. Facebook is a private corporation. I do not see why they should have to have any justification for removing any and all content they want beyond that they wanted to. Private corporations have the right to regulate the views that are put on their platforms. It may not be good business for them to do so, but they have the legal right to, at least under my reading of the First Amendment.

  32. As I’ve expressed before, I think that network effects ensure that the most efficient social media platform will be a monopoly. This means that the interests of the using public cannot be met through competition, but require some form of government regulation. Interoperable standards to ensure all competing platforms are compatible and interoperable, and are in effect components of a single seemless metaplatform, are possible but they are also a form of regulation.

    So long as there are de facto monopoly platforms, regulation to protect customers from being arbitrarily dispossed is probably necessary.

    That regulation doesn’t necessarily have to extend as far as full common carrier status. One intermediate option would be to require platforms to pre-specify their terms of use, require cause and notice of the cause for dispossessing users, and permit dispossessed users to sue for violation of the terms. This would mean that while the government wouldn’t be setting the terms or doing any censoring itself, nonetheless the ability to go to court (or perhaps an administrative agency) would mean courts would be holding the platform to its terms and also interpreting what the terms mean. In addition, government could enact partial non-discrimination rules forbidding dispossessing on specific grounds, limiting the platforms’ discretion but without the government setting the rules itself or imposing the complete non-discrimination required of a full common carrier.

  33. The “scholarly study” of the Holocaust was/is anything BUT scholarly, starting with the declaration in the founding articles of the International Military Tribunal (Nuremberg) that JUDICIAL NOTICE is taken of certain atrocities that may not be controverted in proceedings (and, of course, they weren’t, and still aren’t/can’t be, except in the trials of Ernst Zündel in Canada).
    Meantime, “scholarly studies” such as that of Arthur Butz in his 1976 “Hoax of the Twentieth Century” are suppressed (by Amazon and Barnes and Noble) to this day. “Consensus” can be manufactured (and often is) by censorship.
    Bans on any subject or position are everywhere and always censorship. No matter how much you might personally favor one or another.

  34. Why would we analogize individual websites to phone companies instead of to individual phones?

    The ISPs, not the individual sites, are akin to phone companies. In fact they almost always ARE phone companies.

    This whole movement of the libertarian legal world to turn private property, freedom of association, and the idea of a free internet upside down just because some bigots got thrown off private property is a terrible look. It just seems like entirely motivated reasoning. How long have libertarians been on the internet? Why is this only an problem now?

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