Laurence Tribe, Several Others, and Me on "The Free Speech Implications of the 'De-Platforming' of Donald Trump"

I much enjoyed being on this American Constitution Society chapter panel.

The quick summary:

The "de-platforming" of former President Donald Trump from prominent social media platforms following the January 6, 2021 attack on the United States Capitol raises questions about the power of private corporations to regulate public conversation, and the legal system's power to regulate them, in our wired age. Join the ACS Arizona, Austin, DC, Michigan, Orange County, and Philadelphia Lawyer Chapters as we welcome a panel of prominent experts to discuss the broader implications for free speech.

Featuring:

Katie Fallow, Senior Staff Attorney, Knight First Amendment Institute at Columbia University

Gautam Hans, Assistant Clinical Professor of Law, Vanderbilt Law School

Colin Stretch, Lecturer in Law, Columbia Law School, and former General Counsel of Facebook, Inc.

Laurence H. Tribe, Carl M. Loeb University Professor, Emeritus, Harvard Law School

Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law

Moderated by:

Dan Kaplan, Assistant Federal Public Defender; Member, ACS Phoenix Chapter Board of Directors

Comments

[Longtobefree]

Set aside for the moment free speech, and look at the obvious collusion among monopolies. Follow up with the co-ordinated elimination of parler. Then move on the the disparate impact.

[DaivdBehar]

Stop all that stupid lawyer bullshit. These are all stupid lawyers, just talking trash. They are disloyal, worthless garbage in their intellect and as people. They are promoting the interest of the Chinese Commie Party. Even Trump is a weak, liberal, New Yorker. He got played by the purely evil lawyer profession. He did not understand their vile criminality.

Seize all the platforms of the tech billionaires in civil forfeiture, for the billions of internet crimes committed on them and other federal crimes. They overstated their viewerships to advertisers and committed millions of frauds themselves. All these crimes involved federal conspiracies.

Then, auction them off like the Ferrari of a drug dealer.

[DaivdBehar]

Is this the best of the lawyer profession? Their triviality, their repetitiveness, their bumbling, tentative, stuttering, trouble talking were shocking. The asshole Commenters here seem far more original, intelligent, and knowledgeable than these doofuses. What was that, Special Class for Asperger?

[Queen Amalthea]

“Special Class for Asperger”

Black hole calls kettle black.

[Queen Amalthea]

Oh for crying out loud. Stop playing the victim and running to government because you want to play one. Put on your big boy pants. If Twitter or Google or Facebook are doing something you don’t like stop using them and use one of the many alternatives to each out there and urge your friends and family to do the same.

[DaivdBehar]

Are you proposing the cover up of millions of federal crimes by Democrat traitor corporations that are agents of the Chinese Commie Party? Maybe you need to be investigated.

For collusion.

[Bored Lawyer]

I agree with your free marketplace of ideas approach. (Forgive me for mixing metaphors). I would like to see Twitter die on its own in a cloud of contempt and shame.

Conservatives would do well to consider what liberals often do not — what would happen if the same rules were used against you. If Twitter is forced to “replatform” Donald Trump, then who else can it be forced to “platform?”*

Or as the ancient Chinese wisely said, Be careful what you wish for. You just might get it.

____________
*”platform” as a verb. Ucchh.

[Nige]

Meh. Donald Trump is a massive outlier – the most powerful man in the world using a social media platforms to undermine an election he lost. It’s ok, though. He’s a blogger now, like yourselves.

[Mr. Jwpvysig, Jr.]

When did you suffer this debilitating head injury, and have you been treated?

[Nige]

It’s called thinking, though I can see how it might look like brain damage to someone who doesn’t.

[Josh R]

I was hoping to comment on Florida’s recently signed SB 7072 in the Open Thread, but there doesn’t appear to be one this week. But, this thread seems like a good spot.

As I see it, the bill does two uncontroversial things: 1) requires social media platforms to publish and abide by terms of service when censoring users and 2) allows for the publishing of social media platforms that are found in violation of anti-trust law. A third thing the bill does is controversial and directly relates to this thread: social media platforms cannot de-platform candidates.

It’s the fourth thing that has me confused: social media platforms cannot censor, de-platform or “shadow ban” (limit the exposure of a user or content posted by a user to other users) a “journalistic enterprise” (which appears to be large-scale online content providers plus cable and broadcast channels). Do journalistic enterprises typically have user accounts on social media that we care about? If not, I can’t figure out how a social media platform would censor, de-platform or shadow ban a journalistic enterprise.

[Commenter_XY]

Josh R….didn’t that happen to the NY Post? = It’s the fourth thing that has me confused: social media platforms cannot censor, de-platform or “shadow ban” (limit the exposure of a user or content posted by a user to other users) a “journalistic enterprise” (which appears to be large-scale online content providers plus cable and broadcast channels).

[Josh R]

It looks like you are right. However, it might be a case of a bureaucratic snafu rather than intentional.
Facebook apparently limited the article’s reach while doing some fact checking which strikes me as reasonable. I think this bill would not permit Facebook’s actions.

[Illocust]

Twitter also outright censored them.

[Brett Bellmore]

The only fact checking they were doing was, “Has the election passed yet?”

[Dr. Ed 2]

I don’t see why shadow banning isn’t considered fraud.

[bernard11]

Because there is no money involved, for starters?

[Dr. Ed 2]

Actually, there is — advertising revenue.
The banned person wouldn’t be seeing the ads if the person knew of the banning.

[WuzYoungOnceToo]

Because there is no money involved, for starters?

That’s why Mark Zuckerberg and Jack Dorsey are homeless paupers.

[Nige]

Shadow banning made them wealthy beyond mere mortal’s dream of avarice!

[David Nieporent]

I don’t see why shadow banning isn’t considered fraud.

Realizing your ignorance is the first step.

Who do you think is being defrauded? How are the elements of fraud established by so-called shadowbanning?

[Kazinski]

Fraud, probably not.

Deceptive trade practice, yeah I can see that.

[Armchair Lawyer]

” Do journalistic enterprises typically have user accounts on social media that we care about? ”

Typically yes. They operate these user accounts as a way to drive traffic to their website, where the full story can be read.

” A third thing the bill does is controversial and directly relates to this thread: social media platforms cannot de-platform candidates.”

There’s a good parallel here with political broadcasting laws. Broadcasting companies are required to provide certain rates and times to political advertisers.

https://www.lermansenter.com/wp-content/uploads/sites/27/2019/10/Political-Broadcasting-Rules.pdf

[Queen Amalthea]

That’s a FCC thing.

[Dr. Ed 2]

No, FEC….

[ah....Clem]

Radio and Television were and are regulated because there are only so many frequencies available. So, you need a license from the FCC to operate a TV or radio station, and there are regulations about the content, including paid political advertising.

By contrast, you don’t need a license to put up a website, or make any service available over the internet. There is no scarcity rationale for the government to impose regulations like there are for broadcast.

A better parallel is the newspaper business. You don’t need a license from the government to start publishing a paper, and there are (to the best of my knowledge), no must-carry rules for political advertising. And social media sites, just like newspapers, tend to “clump” i.e. a relatively few major players that hoover the majority of the audience and a lot of minor ones with small audiences.

Do we want the government to force newspapers to publish things that the editors don’t want to? I don’t think so (and I doubt any such regulation would pass 1A muster). But some people are falling all over themselves to similarly violate the 1A rights of internet publishers.

Just a reminder: there are many hundreds of thousands of internet-based discussion fora in the US alone. There is far more ability for the average person to make public comments on, well *anything*, than there was back in the day. We’re basically living in the golden age of free speech, and what seems like a majority of commenters on a *libertarian* blog are trying to stifle that by over-regulation? The likely upshot of most of the proposed “remedies” would be the removal of comments sections and the shuttering of all the small discussion boards who can’t afford the legal headaches.

[ah....Clem]

RE: Florida’s recently signed SB 7072

How poorly thought out is it? This poorly thought out:

It bans “the use of algorithms to organise” content from/about politicians.

But any computer code that displays anything is an “algorithm” (even something as simple as sort-by-timestamp) so the new law
effectively bans social networks from displaying that content…

…while also forcing them to always display that content.

I know, it’s Florida…

[Cal Cetín]

“the legal system’s power to regulate them”

Wait, are we assuming the government is a potential *opponent* of the social media company censorship, rather than a cheerleader and enabler of it?

[Stephen Lathrop]

Before you ruminate on deplatforming the president, give some thought to the implications of platforming him in the first place. No previous president was ever empowered to use without limit (or cost!) private publishing resources to promote whatever he pleased, attack whatever he hated, or lie with impunity. That turns out to have created a notable increase in presidential power, and one not contemplated by the constitution.

[Queen Amalthea]

I’m pretty sure past Presidents used twitter and such.

[Dr. Ed 2]

” No previous president was ever empowered to use without limit (or cost!) private publishing resources to promote whatever he pleased, attack whatever he hated, or lie with impunity.”

Ummmmm…. Richard Nixon and Lyndon Johnson were.
Either man asked the three networks for an hour of prime TV time whenever he wanted it — and got it. (The evening programs and 11PM news ran late.)

That was a hell of a lot more expensive and invasive as this was pre-cable — it was the ONLY THING ON. Nixon used it to lie about Watergate, Johnson to lie about Vietnam.

And before Reagan, they didn’t even give the opposing party a time to respond to the State of the Union message — Reagan was so despised that they figured that was a way out of it.

[WuzYoungOnceToo]

No previous president was ever empowered to use without limit (or cost!) private publishing resources to promote whatever he pleased

So now you’re trying to erase Barack Obama from history? You racist.

[ambisinistral]

For the life of me, on YouTube I can’t find a single clip of George Washington’s TV appearances.

[Bored Lawyer]

Search for “Dead White Slave Holders”

[Archibald Tuttle]

I’m shocked!!! Such an outstanding panel. Learned, informed, and tempered. But they sound like a bunch of amateurs with the number of ahs, ums, you-knows, and double clutches in their speech. I’m a member of Toastmasters. I know that those speech habits are easily cured. I wager that Professor Tribe, for example, does not stumble with ah ah um when arguing before SCOTUS. But online meetings seem to bring out the bad habits for all. I further wager that all those on the panel could find a way themselves to break those bad habits. Please do so.

(To be fair, Prof Volokh was among the best on the panel in this regard, but even he used um a couple of dozen times.)

[DaivdBehar]

These awful lawyers are pretending to be thinking when umming, and that the resulting worthless bullshit is supposed to be deep.

[Bored Lawyer]

Currently, Donald Trump is banned (or “deplatformed”) from Twitter, but the Ayatollah Khameini is on, today, calling for Holocaust II in Israel. Contemplate that.

[Orbital Mechanic]

First Amendment issues aside, do the companies that operate the social media platforms have any right to take action to enforce the end-user license agreements all their users agree to by using their platform? Do they have any right to write an EULA to begin with?

My understanding is that Trump violated the EULA terms repeatedly, and continued to do so after warnings. The question is not why was he was thrown out, but why it took so long.

[DaivdBehar]

The EULA is unconscionable in procedure and in substance, and void. It is a contract of adhesion, and void. It is for an essential utility service and void. It is fraudulent, taking the value of personal information and not paying for it, and void. Suborning fraud in a contract is a crime, and void.

I am interested in an aggregate claim practice to retrieve the value of the personal information for all the users. I estimate it is worth half of all their gross revenue. If I had a license, I would be having a good payday from that one.

[Orbital Mechanic]

You, me, Volokh, or anyone else goes on social media and does what Trump did and we would be banned as well.

If you don’t believe EULAs are valid, what about the precept that a business is not required to serve any one person. They can’t discriminate, but the restaurant does not have to seat you if you are being an obnoxious asshole and disrupting their business.

And this was the president of the United States. It isn’t as if he had no other way to spew his toxic drivel. He is even doing it today.

[Voize of Reazon]

Orbital, the panel discussion, or at least part of it, was about the pros and cons of taking some of the power to set and enforce terms of use out of Facebook’s hands, not that the power was already out of their hands.

[DaivdBehar]

Whenever I talk to any specialist, I am always in awe about how much they know, and how difficult it would be to try to do their work. For example, there is an entire methodology to cleaning a hotel room, and I greatly respect hotel chamber maids.

Did anyone learn anything today from this gathering of legal eagles? Did anyone hear anything new, not heard 1000 times before?

[DaivdBehar]

As I said, more news and substance in the Comments, than from the discussion by these umming weasels.

[Rev. Arthur L. Kirkland]

Lying, authoritarian bigots have no better defender than that guy speaking a half-hour in. I’d love to hear him discuss the record of this blog’s Board Of Censors.

[DaivdBehar]

Zero tolerance for Commies. Staet shopping the apartment in Caracas. Bring toilet paper.

[JustAnotherBizLawyer]

Big Tech should be treated and regulated just like any other common carrier and monopoly. They should be regulated like AT&T and local phone companies were regulated in the 1960s.