Social Media Common Carrier

Economic Power Being Leveraged to Control Political Discourse

I'm serializing my new Social Media Platforms as Common Carriers? article, forthcoming in the Journal of Free Speech Law.

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You can also read the article in PDF, or read all the posts that have been posted so far on this thread; but in this post, I excerpt the start of the policy analysis.

A commenter on the Introduction post, by the way, remarked that such calls for treating social media platforms as common carriers aren't very libertarian or conservative—and they're not. They stem from a concern that's mostly associated with liberals (though not foreign to conservatives): the concern over excessive private corporate power, which sometimes needs to be checked by government power. I'm generally skeptical about such concerns (more on that later), but I wonder whether in this instance this traditional liberal worry is justified. More below, and more on the First Amendment questions coming up soon.

[* * *]

Let's begin with the policy question, and ask: Why might we want phone companies to be barred from cutting off service based on subscribers' viewpoints?

Say a phone company argues: We don't want our service to be used to promote racial hatred or advocacy of Communism or conspiracy theories, and our other subscribers don't want it, either. We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in "hate speech" or advocating violence or revolution.[17] That speech is "terrible," and it "hurts society."[18] Why does the law preclude the companies from doing this—even when they're not monopolies, such as landline companies might be,[19] but are highly competitive cell phone providers?

I take it one answer might be something like this: We don't want large business corporations deciding what Americans can say in a particular medium of public communication. Sometimes, in the few areas where the First Amendment permits government regulation, the people's representatives decide that. Usually, individual speakers and listeners decide that.[20] But companies that provide communications infrastructure should provide the infrastructure, not control what may be communicated on it.[21] When "dominant digital platforms" have the power "to cut off speech," we should be as concerned about that power as we are about, say, government power to exclude people from limited public forums.[22]

This is generally the attitude, I think, even as to many platforms that aren't legally common carriers. For instance, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that, "Tomorrow, like today, our text messages will go through."[23]

Likewise, e-mail systems are generally not treated as common carriers, and can in theory legally screen messages based on their viewpoints or on their supposedly spreading conspiracy theories or misinformation. Still, I suspect that most people would be surprised if Microsoft (Outlook) and Google (Gmail) decided to control their communications this way. In the words of New York's high court, an e-mail system's "role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers' conversations."[24]

Of course, phone companies or delivery companies might well use their power wisely, to block speech that the government can't suppress but that is still bad—bad for its subjects who are being insulted or harassed or defamed, bad for democracy, bad for public health, bad for the victims of crimes that the speech might inspire.[25] But such companies, like all human institutions, can act badly as well as well. And common-carrier law allows us "not to place all one's hopes in the good will of corporate actor."[26]

This is connected to the argument of the Court's majority in Austin v. Michigan Chamber of Commerce and of the four dissenters in Citizens United v. FEC: The power of immensely rich corporations may "give corporations unfair influence" and "distort public debate[s]."[27] Or, in the words of the liberal think tank Demos, criticizing Citizens United: "Concentrated wealth has a distorting effect on democracy[;] therefore, winners in the economic marketplace should not be allowed to dominate the political marketplace."[28]

I think the Citizens United majority was right to hold that this couldn't justify restricting corporations' own speech. But the argument for limiting the power of massive corporations strikes me as especially strong—and, as the next Part will argue, consistent with the First Amendment—when the corporations are using their immense "financial resources" not just to try to persuade listeners through the corporations' own speech, but to suppress others' speech.

Indeed, much of Justice Stevens' argument in his Citizens United dissent would apply to such selective blocking decisions by infrastructure companies:

A legislature might [reasonably] conclude that unregulated general treasury expenditures will give corporations "unfair influence" in the electoral process, and distort public debate in ways that undermine rather than advance the interests of listeners. The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match…. [Because of the speech of corporations,] the opinions of real people may be marginalized…. "[Corporate] expenditure restrictions … are thus meant to ensure that competition among actors in the political arena is truly competition among ideas."

Corporate "domination" of electioneering can [also] generate the impression that corporations dominate our democracy…. The predictable result is cynicism and disenchantment: an increased perception that large spenders call the tune and a reduced willingness of voters to take part in democratic governance.

To the extent that corporations are allowed to exert undue influence in electoral races, the speech of the eventual winners of those races may also be chilled. Politicians who fear that a certain corporation can make or break their reelection chances may be cowed into silence about that corporation…. Unregulated corporate electioneering might diminish the ability of citizens to hold officials accountable to the people, and disserve the goal of a public debate that is uninhibited, robust, and wide-open.[29]

Though Justice Stevens wrote this about corporate speech about particular candidates,[30] I think it applies to corporate restrictions on speech about public issues more broadly, since such restrictions can obviously affect elections, whether imminent ones or future ones. And of course such speech about public issues can range from detailed ideological argument, to short slogans ("Fuck the Draft" / "God Hates Fags"[31]), and to the personal-as-political (such as sexual minorities' coming out of the closet or some speakers' refusal to use transgender people's preferred names or pronouns[32]).

These concerns also apply to social media platforms as much as to phone companies and other business corporations. For many advocacy groups, social media presence is as important as having a phone line, and might even be more so.[33]

It's true that groups could communicate even without Facebook or Twitter, and historically had of course done so before social media was invented. But likewise they could communicate without phone lines, as political movements did throughout much of American history.

In an environment where advocacy groups compete with each other for support and attention—and do so by communicating to the public—denying a group a vastly important means of public communication is a serious burden. And it's a serious leveraging of the platforms' economic power to affect the community's political life.[34]

Indeed, it's a much more serious leveraging, I think, than with corporate election-related speech as such. Corporate independent expenditures related to political campaigns are a relatively minor portion of all political expenditures (likely only about 5–10%), roughly the same as unions.[35] "While corporations and unions gained potential political power as a result of Citizens United, it's individual donors who are fueling the explosion of money in recent elections."[36] But the social media platforms put together have far greater control over the speech marketplace. Likewise, Justice Stevens argued that, "The legal structure of corporations allows them to amass and deploy financial resources on a scale few natural persons can match"[37]—and one could add that 47 U.S.C. § 230(c)(1) immunity from libel and similar lawsuits has likewise allowed platforms to amass and deploy financial resources on a scale that few corporations can match.

And recall that Justice Stevens was concerned about a fairly indirect form of speech restriction: "corporations grabbing up the prime broadcasting slots on the eve of an election" and thus "drowning out … noncorporate voices"[38] (something that appears not to happen that much). Corporations' actually restricting what people can say on hugely important social media platforms seems like an even more significant interference with public debate. "That private technology platforms exert unparalleled power over political discourse is deeply undemocratic," write Prasad Krishnamurthy and Erwin Chemerinsky,[39] and I'm inclined to agree.

This is particularly so for platforms that are near monopolies in their particular fields. But even in the absence of a monopoly, "similar terms, similar market forces, and the societal pressures all services face regarding a controversial or distasteful product" may end up broadly restricting viewpoints of which Big Tech managers and employees.[40]

To be sure, all this doesn't mean that diminishing this power is necessarily a wise idea. Perhaps some solutions to the problem are even more undemocratic, or perhaps the platforms' free speech rights justify even such undemocratic results (more on that in the next Part). But we should seriously consider whether something can and should be done about that power, and treating the platforms' hosting function like we treat phone companies seems like one plausible option.

[17] Assume all this is done without listening in on private phone calls, but just by consulting public statements (e.g., an extremist group's public ads that list a phone number) or reviewing texts that come from a phone number and that were passed along to the phone company by the recipient. Texting is generally not governed by common carrier rules, but telephone service is; and seeing a text from a phone number might move the phone company to cancel that number's phone service and not just its text service.

[18] [Add citation.]

[19] These days, even landline phone companies often face competition from cable operators, which can provide phone service, as well as cellular companies.

[20] When speakers and listeners disagree, telephone companies can implement viewpoint-neutral technologies helping listeners, such as call blocking; but let's focus here on speakers speaking to willing listeners.

[21] See Angela J. Campbell, Publish or Carriage: Approaches to Analyzing the First Amendment Rights of Telephone Companies, 70 N.C. L. Rev. 1071, 1133 n.326 (1992).

[22] Biden v. Knight First Am. Inst. at Columbia Univ., 141 S. Ct. 1220, 1224, 1227 (2021) (Thomas, J., concurring).

[23] In re Petitions for Declaratory Ruling on Regulatory Status of Wireless Messaging Service, FCC 18-178, at 6 (Dec. 13, 2018) (O'Rielly, Comm'r).

[24] Lunney v. Prodigy Servs. Co., 723 N.E.2d 539, 542 (N.Y. 1999). The court so held in concluding that e-mail systems should be categorically immune from libel liability for their users' messages to each other, just as phone companies are; the case arose before 47 U.S.C. § 230 was enacted, so the court chose to decide it as a matter of state libel law, rather than considering whether § 230 should be applied retroactively. Id. at 543.

[25] See, e.g., Mary Anne Franks, The Free Speech Black Hole: Can The Internet Escape the Gravitational Pull of the First Amendment?, Knight First Amend. Inst. Colum Univ. (Aug. 21, 2019), https:‌//‌perma.cc/‌HAX8-3RZN .

[26] Genevieve Lakier & Nelson Tebbe, After the "Great Deplatforming": Reconsidering the Shape of the First Amendment, Law & Political Economy [LPE] Project (Mar. 1. 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[27] Citizens United v. FEC, 558 U.S. 310, 469, (2010) (Stevens, J., dissenting) (cleaned up).

[28] Liz Kennedy, 10 Ways Citizens United Endangers Democracy, Demos (Jan. 19, 2012), https:‌//‌perma.cc/‌NMX4-NNUE; see also Adam Candeub, Reading Section 230 as Written: Content Moderation and the Beggar's Democracy, 1 J. Free Speech L. __ (2021) (expressing concern about "an elite oligarchy controlling information").

[29] Citizens United, 558 U.S. at 469 (cleaned up in part).

[30] See also Kyle Langvardt, Will the First Amendment Scale? (forthcoming 2021) (likewise suggesting that social media platforms' decisions "by selectively amplifying and tamping newspaper coverage of competing candidates in the run-up to the election, and then on election day tweaking the emotional content of news feeds to drive and depress voter turnout along party lines" would raise similar concerns).

[31] Cohen v. California, 403 U.S. 15, 16  (1971); 562 U.S. 443, 448 (2011).

[32] See, e.g., Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P. 2d 592, 610–11 (Cal. 1979) (concluding that people's "identify[ing] themselves as homosexual" is a form of "political activity"); Meriwether v. Hartop, 992 F.3d 492, 506 (6th Cir. 2021) (concluding that not using a person's preferred pronouns "touches on gender identity—a hotly contested matter of public concern").

[33] Phone lines might be necessary for individuals if they need to call 911 or deal with various necessities of life (e.g., making a doctor's appointment). But a phone company's decision to cancel an advocacy group's publicly advertised phone line—or at least block incoming phone calls to that line—wouldn't generally jeopardize individual health and safety.

[34] By way of analogy, Adam Smith wrote against taxing "necessar[y]" commodities, but noted that necessity needs to be measured based on the realities of current life, not of the past. "By necessaries I understand not only the commodities which are indispensably necessary for the support of life, but whatever the custom of the country renders it indecent for creditable people, even of the lowest order, to be without. A linen shirt, for example, is, strictly speaking, not a necessary of life. The Greeks and Romans lived, I suppose, very comfortably though they had no linen. But in the present times, through the greater part of Europe, a creditable day-labourer would be ashamed to appear in public without a linen shirt, the want of which would be supposed to denote that disgraceful degree of poverty which, it is presumed, nobody can well fall into without extreme bad conduct." Adam Smith, The Wealth of Nations 368 (1843). So it is with social media: More than just the Greeks and Romans lived very comfortably without them, but in our society access to the major social media platforms is a necessity—especially in a competitive political environment—for political groups.

[35] Corporations contributed about $300 million to outside spending groups in the 2012–18 federal election campaign cycles, and unions contributed about $275 million. Karl Evers-Hillstrom, More Money, Less Transparency: A Decade Under Citizens United, OpenSecrets.org (Jan. 14, 2020), https:‌//‌perma.cc/‌KQ46-VUQM. The corporate contributions "made up 10 percent of funding to these groups in the 2012 cycle, a high water mark," falling to 5% in 2018. Id. There is also an unknown amount of undisclosed spending (which includes some corporate spending) through groups such as 501(c)(4) organizations that engage in both political and nonpolitical activities; the government could in principle require disclosure of contributions to such groups, but current law does not comprehensively do so.

[36] Id.

[37] Citizens United v. FEC, 558 U.S. 310, 469 (2010).

[38] Id. at 470 (cleaned up).

[39] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Prevent Big Tech from Becoming the Speech Police, Hill (Feb. 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[40] See, e.g., Jennifer Huddleston, Consequences of Classifying Elements of the Internet as a Common Carrier, American Action Forum (Feb. 23, 2021), https://perma.cc/FC6A-FA6U (so arguing, in the process of arguing against regulating social media platforms); Epstein, supra note 9, at 5–6 (so arguing, in the process of tentatively arguing in favor of regulating social media platforms).

NEXT: Today in Supreme Court History: July 6, 1835

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  1. When the NY Post got blocked on Twitter for a factual News Story about Hunters Laptop the month before the Election, Twitter made the decision to censor truth. When RSBN was kicked off YouTube for showing a President Trump Rally with millions of views, they are acting as an organ of the Democratic Party. Perhaps, we should just consider these cases as Illegal Campaign Contributions made in concert for the DNC. They obviously were far more valuable than the current dollar value limit for Contributions by, a large margin.

    1. Worse. The companies want access to the Chinese Commie market for their enrichment. They will not tolerate any content that offends the Chinese Commie Party in the US. They are agents of the Chinese Commie Party, with their huge wealth and power in the USA.

      1. ‘If you like crude Red Baiting, mixed with being insane
        If you’re not into thinking, if you have only half a brain”

        1. Frustrated fulminations by a f*****.

          1. It’s a beautiful day in the neighborhood,
            A beautiful day for a crazy neighbor,
            Could you be mine?

        1. Oompa loompa doompety doo
          I’ve got a perfect nutjob for you

          1. Still attacking the messenger instead of the message. The wronger the message, the easier to refute; that you don’t attempt refutation implies you can’t. You should be careful of your own message to the public.

            1. No, your position is what happens when people make a simplistic fetish out of free expression/debate. Of course government shouldn’t censor viewpoints, but for any decent discussion or debate to take place it must be able to move on from bad faith and/or nutty speakers. If you went to hear from a panel of noted cosmologists and during question time a Flat Earther tried to turn the debate into one about his arguments as to why the Earth is flat he should be laughed or escorted out so good discussion can be had. Likewise if you were talking football with friends at a bar if someone walked up insisting that the games are all rigged by lizard people then they should be met with mocking (at best) or your discussion is ruined. Sans formal moderation informal norms are critical to preserve a decent discussion/debate.

              1. Queenie, you are a denier, down to the last human cell in your body. Deniers do not argue in good faith. They have an agenda that cannot be overcome by facts, logic or by morality. Your personal attacks confirm that view.

                You can help the people here judge your credibility. How much of your income is coming from the tax payer?

    2. Spot on. These are billions worth of in kind campaign contributions.

  2. If a major party and large tech and social media companies are in cahoots to control information, that’s not a free market. Depending on who’s pulling the strings, it’s either fascism or an oligarchy – brands of authoritarianism. We don’t have a lot of weapons to fight this threat. Use of the common carrier label is one of the weapons.

    Btw, Facebook changed my mind on this last weekend when it labeled Libertarians as violent extremists. Why focus on the only political party who’s members swear to abide by the non-aggression principle? I can only assume it’s because we’re free thinkers who believe in liberty and that gives us a pretty good indication what Facebook is against. It also gives us a pretty good indication what our government is against. Well, we are free thinkers because we’re considering the support of labeling FB a common carrier, something Libertarians would previously never do.

    1. Help me out . . . I can’t find where Facebook labled libertarians as “violent extremists.” Plenty of references to Jeremy Cohen claiming that Biden said libertarians were terrorists (he didn’t), a falsehood that was blocked by Facebook. But nothing that Faebook initiated.

      1. The only thing better than a son-disssant libertarian who wants the government to control how private companies express themselves because the company said something ,ean about him would be a libertarian who endorses that government censorship based on a mistaken belief that the company said something mean about him.

        1. “how private companies express themselves ”

          If the content they allow is their expression and not just that of the users, should they be liable for it?

      2. Facebook started popping up “extremism” warnings to people that visited libertarian pages (or the pages of many other social/political movements).

        Not BLM pages, though.

  3. We might consider two things:

    1) The extent to which this media power has become centralized with assistance from the government itself. Section 230 hugely decreased the legal risks of running large scale platforms hosting user generated content. And, while this had upsides, one obvious downside, in retrospect, has been market concentration.

    It’s hard to imagine platform censorship would be the issue it is today, if we had a healthy ecosystem of thousands of platforms, instead of a highly concentrated market.

    2) To what extent is platform censorship genuinely a free choice by the private sector, as opposed to coerced by government threats?

    You’ll recall Operation Choke Point, that coerced various financial services companies into what superficially looked like private decisions to cut disfavored customers off from banking and credit card services, but was really being orchestrated from the highest levels of government, using threats of abusive regulatory actions to force action.

    It’s quite possible that we’re looking at something similar going on in social media. That the regulatory threats are coercing the platforms into engaging in censorship they’d otherwise have refrained from

    And it’s even more plausible that the problems alternate platforms have had with retaining financial services represent a renewed Choke Point in action, not spontaneous decisions.

    Anyway, do you have to ask, at what point do the enforced (By mutual threats of adverse ‘private’ action.) coordination of private sector entities in effect create a shadow government, which should no longer be viewed by libertarians as genuinely private?

    1. 1) While I think 230 had the right idea but was poorly constructed, I doubt it has anything to do with the First Entrant issue that gives rise to dominant players in certain technology verticals.

      2) I don’t think you’d ever be able to successfully disentangle the effects. Regardless, the great awokening has led to an enormous shift in what customers believe is an appropriate level of filtering. As such, FB/Google/etc. filtering can as easily be attributed to customer demand as it might be to external Government pressure.

      I don’t know that I agree with taking the common carrier approach, given that the revenue model of social media isn’t simply customer usage. The existing problems are better solved by customer driven filters. I’m not clear though on the best path to incentivize forum providers to give the keys to moderation back to the consumers.

      1. 230 was the right idea in 1996, to grow the internet with immunity. The internet is big, and 230 is not needed anymore.

        1. You’re the craziest,
          Around!
          Nothing’s (like sanity) gonna ever keep you down

      2. ” Regardless, the great awokening has led to an enormous shift in what customers believe is an appropriate level of filtering.”

        What SOME of the customers believe is appropriate, with other of the customers being the the target of the filtering. The problem is that the platforms are only listening to one side of the argument between them. Normally if a company had a wide customer base, some of whom disliked others, they’d stay out of the fight, because which ever side won, they’d lose a big chunk of their business to a competitor who took the other side.

        But that isn’t happening. One particular side keeps winning the fight, and the competitors who’ll serve the disaffected don’t seem to get anywhere.

        To some extent this is network effects; I haven’t totally abandoned Facebook, (Though I no longer post there.) because too many of my distant relatives are only online there, and because FB has locked up a big part of the commenting business at unrelated sites, such that you can’t comment at such sites without maintaining a FB account.

        But that doesn’t explain why, when somebody tries to set up a competitor, they keep getting cut off from credit card processing, or their hosting service kicks them off, or other inconvenient things happen. No, I think there’s definitely some coordinated action being taken to prevent the people being kicked off the dominant platforms from finding any alternative.

        ” The existing problems are better solved by customer driven filters. I’m not clear though on the best path to incentivize forum providers to give the keys to moderation back to the consumers.”

        I agree that all filtering should be done at the customer level. An amendment to Section 230 could remove their safe harbor for content moderation which isn’t legally mandated, and still permit 3rd party filtering.

        1. I don’t think it’s customer driven at all. I do think the overwhelmingly left to far left authoritarian employees are part of it.

    2. Choke Point is ongoing; Chase/JP Morgan is one current instance, against lawmakers who voiced support for election integrity.

      1. I’d always figured a program like that wouldn’t cleanly end, just go under cover. It’s too easy to pretend to end programs which were illegal and secretive in the first place.

    3. To what extent is platform censorship genuinely a free choice by the private sector, as opposed to coerced by government threats?

      This is just your paranoia at work.

      Do you have the slightest evidence of coercion?

      Who was in charge o fthe government during the recent Presidential campaign? Please, no “deep state” BS.

      1. The left and the Dems have been uproariously, incessantly, publicly calling for censorship, coupled with the express threat of regulation, for 5-6 years now. Do you really not pay attention? “Fake news” was even coined from one of their talking point cycles.

    4. I agree that we don’t have a free market by and large. The biggest companies are controlled by interlocking directorships, and are also deeply in bed with lobbyists and the bureaucratic state in Washington DC, a state which functions mostly independently with little oversight or control by elected representatives, and which has broad power over industry and trade. The Federal Reserve controls the money supply and also purchases corporate bonds and equities. Is that a government or private entity? Nobody knows, they identify as nonbinary.

      Anyway, I’m also not sure the common carrier approach is the right approach. If we were able to dismantle the administrative state in D.C., return government to the people and the states, and foster free markets, that would be nice, but it won’t happen without upheaval. But as far as a technical and market solution to social media, I suspect some kind of open network protocol could challenge and replace social media platforms as we know them.

  4. Poland came up with an interesting solution to this. Prohibit the companies from censoring anything the government cannot censor. If the companies censor anything which is legal, they can be fined.

    1. The United States came up with an interesting solution too; it’s called the First Amendment.

      1. It only seems to apply to agents of the Chinese Commie Party, not to patriotic ideas.

        1. Give us a rant, you’re the loony man,
          Give us a rant, tonight,
          Well we’re all in the mood for a diatribe,
          And you certainly ain’t feeling alright

          1. Poor poetry does not disguise an attack on the messenger as an attack on the message. Good poetry would not do any better, but there’s little chance you’ll ever progress enough for us to know.

            1. Not a big pop culture guy, eh?

    2. Not familiar with Poland’s authoritarian shift, are you?

    3. That’s actually awful. You’re then mandating that the company follow the nuances of every law that might apply *exactly*. Leave up borderline illegal content, get arrested. Take down borderline legal content, get fined.

  5. The viewpoint that bothers some platforms isn’t conservatism — or or libertarianism, or libertianishism, or often libertarianism, or whatever sheepish right-wingers try to call themselves these days.

    The viewpoint some decline to be associated with often is the bigoted — racist, misogynistic, xenophobic, gay-bashing, etc. — viewpoint. Or the falsehood viewpoint (belligerent ignorance, malignant lies). Or the ‘call to violence’ viewpoint.

    Ben Sasse and Rob Portman, who appears not to be bigots, also appear to have no problem in this regard. John Thune and Pat Toomey, who seem to be able to avoid belligerent lying, also seem to have no problems in this regard. Nikki Haley and Mike Pence, who seem able to avoid calls for violence or support for insurrection, seem to have no problems, despite their prominent involvement in the Trump administration. Marco Rubio and Mike DeWine, who appear to resist delusion, also seem unaffected.

    Donald Trump, Marjorie Taylor Greene, Paul Gosar, and a few others seem unable to find footing for participation in modern, reasoning, decent, reality-based society. That’s their problem, not Twitter’s.

    1. The problem is actually that the left, having decided that it no longer needs tolerance as a shield against its foes, had dropped all pretense of being tolerant itself.

      The left, of course, has always viewed all dissent from its own opinions as ‘bigotry’. But it formerly thought it had to refrain from ‘punching nazis’ for fear of losing the ensuing fight. Now they feel confident in their power, and are itching for fights. Time for the purge and the camps!

      An ironic kind of Gresham’s law ensues: You attack people by claiming they’re bigots, and only the people who don’t care if they’re called bigots really fight back. So all the opposition to you has to be channeled through such people, some of whom might even BE bigots.

      Not that you’re any reliable judge of that, thinking everybody who disagrees with you is one.

      1. Except there have been calls to violence against even Republicans like Mike Pence. Facebook and Twitter must allow that because some will say it’s not really meant seriously or, worse, “but he’s a traitor”? No.

        1. FB and Twitter must allow that, because they demonstrably are incapable of impartially just censoring threats. Or just unwilling. They have a long, long track record of pretextually banning right wing speech that isn’t really violent, while permitting literal terrorists to have a platform.

          Twitter banned Trump on very dubious grounds, while Iran’s Khamenei still has his blue check. (Only not in English, where Americans might easily see the hypocrisy.)

          Since they can’t honestly refrain from partisan censorship that pretends to be impartial banning of violence, they should just be stopped from censoring any legal content.

        2. Funny how the media focuses on a few loons on the right who called for violence, such that you are aware of it. But an entire summer of countless calls for violence coupled with countless acts of violence from the left is glossed over.

    2. Hi, Artie. Come 2025, start shopping the Caracas apartment. The reaction to treason will be wicked.

      1. Crazy, crazy
        When will those clouds all disappear?
        Crazy, crazy
        When will proper taking of meds lead you from here?

  6. Why might we want phone companies to be barred from cutting off service based on subscribers’ viewpoints?

    Say a phone company argues: We don’t want our service to be used to promote racial hatred or advocacy of Communism or conspiracy theories, and our other subscribers don’t want it, either. We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in “hate speech” or advocating violence or revolution.[17] That speech is “terrible,” and it “hurts society.”[18] Why does the law preclude the companies from doing this—even when they’re not monopolies, such as landline companies might be,[19] but are highly competitive cell phone providers?

    I think this is a poor analogy.

    First, the phone company doesn’t, or shouldn’t, know the content of a customer’s conversation, so it can’t cut off service based on content, as social media do. You are sliding from regulating content to cutting off subscribers based on their known public activities.

    “We want to be able to cancel phone lines of subscribers who are publicly known to be engaging in “hate speech” or advocating violence or revolution.”

    That’s not what the social media companies do.

    Second, much of the impetus for the whole notion of common carrier requirements stems from fear of economic discrimination, not political power. If you carry steel from Pittsburgh to Chicago you have to charge me the same rate you charge my competitor.

    Third, common carriers in general offer point-to-point, not broadcast service. Seems to me there is a difference.

    1. First, the phone company doesn’t, or shouldn’t, know the content of a customer’s conversation, so it can’t cut off service based on content, as social media do.

      Why not? Can’t you make the same argument that providers of public forums shouldn’t “know” the content of forum? Social media companies “know” because they built software that allows them to. All telecommunication providers could do that given today’s technology. Only encrypted point-to-point communications are currently safe from prying eyes.

      1. True, they don’t strictly have to know, but it’s in the nature of social media that the content is public. That’s the whole point, unlike the content of a telephone conversation.

        Even if the companies don’t automatically read the content, things are going to come to their attention.

        1. “but it’s in the nature of social media that the content is public.”

          I’m part of a private group on MeWe, that was formerly a private group on Facebook. Membership by invitation only.

          Why did we migrate? Because, although the content WASN’T public, (In public I traded pickle recipes and travel photos.) FB gave some third party lunatics the power to go digging though private groups looking for reason to be offended, and we were notified that either we started censoring our private discussions, or the group would be taken down. Then they started deleting posts, apparently at random, just to prove they were serious.

          Look, nobody on FB has to see anything you post if they don’t want to. Unless FB forces it on them, of course, which it had an ever escalating tendency to do while I was still active there. If you see a post on FB, it’s because you went out of your way to be exposed to it. So it’s your own damned fault if you’re offended, and if you’re offended twice by the same person, it’s because you meant to be.

          And nobody has to see anything you post on MeWe, unless they go looking for it, because MeWe doesn’t even push content, except for the occasional platform news.

          So, I’ve got to ask: What platform are you talking about? I don’t know of any where the content is meaningfully public, except in the sense that you can find some of it if you go looking for it. But not remotely all of it.

  7. benard11 has it right to a point.
    A person to person phone call is private unless one of the participants chooses to make the content public. The same can be said for an e-mail. A post on social media is to an extent public. I know that there are private groups, I belong to a few of them and for the most part we are left alone. With that being said, social media is the new “town square”. That’s where the First Amendment comes into the picture. A determination needs to be made. Is “social media” like a town square, where technically anyone is free to express their views or is like the Court of a Mall where the owners have the right to restrict what is said and done. By the way Rev. you have it all wrong. The only restrictions that i have seen are placed on the Conservative viewpoint.

    1. There are plenty of conservative views still posted on Twitter et al. Unless you mean “true” conservative comments by the likes of Trump, Gosar, and Johnson-Green?

      1. Taylor Green I mean.

      2. Gosar is still there, as are McConnell, McCarthy, National Review, Louie Gohmert, Christopher Rufo, Ted Cruz, etc.

        1. Clingers who get criticized by better people confuse that with cancellation.

          Backwater religious schooling and downscale homeschooling have consequences.

          May the better ideas continue to prevail in the modern American marketplace. Of course, it’s easy for me to say that . . . and has been for more than a half-century.

    2. I’m not sure your mall analogy works given that Eugene will invoke Pruneyard where the Court held the First Amendment does not protect a mall owner’s desire to not host speech he disagrees with.

  8. There’s a lot that continues to be wrong with this, including the analogy to telephone companies that rely on government power to grant them exclusive benefits like the limited space in a public easement or an allocation of radio spectrum, or even to transport common carriers like UPS that actually carry things across public rights of way for others, but this really bothered me:

    “For instance, though the FCC has held phone companies are not common carriers as to text messaging, the rationale for that decision was the need to block unwanted robotexting—and as to messages among willing customers, a concurring opinion assured readers that, “Tomorrow, like today, our text messages will go through.”

    That rationale certainly seems to be the driving force of why the FCC ruled text messaging to be an information service, but that should be a critique of its decision, not a reason to hold it up as an example of sound rationale. The concurring opinion’s assurances notwithstanding, the designation of them as information services is an on/off switch. They aren’t an information service to the extent a provider uses them to block spam, and then a telecommunications service subject to common carriage regulation elsewise, they are just an information service now, and providers are free to block messages for far more reasons than simply spamming as a result. Whether or not one agrees with their classification as an information service as a general rule, motivated reasoning ought to be called out and criticized for what it is.

  9. Watching Volokh discover his inner Chomsky is sure interesting (though maybe he’s just been working on this idea since Citizens United and it’s just coming to fruition now).

    1. Queen, in some ways EV has seemed pretty consistent, if a bit muddled. His habit of conflating the constitutionally separate rights of speech freedom and press freedom have had a practical effect of turning EV into something of an enemy of press freedom, while going all out in his free speech advocacy. Turns out that has been a popular take among members of the disaffected right wing, who prize speech freedom for themselves, and hate press freedom for others. (They get outraged when anyone points out they could try availing themselves of press freedom, though.)

      1. I always thought speech freedom and press freedom *were* the same thing. If you look at how the First Amendment is punctuated, there are semicolons before and after “or abridging the freedom of speech, or of the press” indicating that they’re in the same clause. Really, the press is just “written speech” so to speak.

      2. SL wants to privilege “The Press” over the right of the plebs to speak.

  10. I just love how conservatives and libertarians have discovered the joy of regulation when it’s their own ox being gored. Predatory corporations screwing over consumers? No problem. Massive environmental catastrophes brought to you by big business? Yawn. But let the cuckoo right — not even the mainstream right, just the cuckoo right — be held to standards by corporations, and we need regulation yesterday.

    Pass the popcorn.

    1. How I Learned to Stop Worrying and Love the Federal Government

  11. IANAL, so this may be a naive question.

    I live on a private road which crosses at least a dozen other parcels to get to the closest public road. If any of those parcel owners were to block me, they’d lose a lawsuit in one way or another. California has a civil code, I think section 845, which deals with maintenance of private road easements. It doesn’t matter what I do which upsets these neighbors; they have no legal manner of forbidding me access to my property, no matter how noisy I get or whether I start a pig farm and stink up the area.

    Would any of this apply to the big tech companies? Amazon, for instance, is infamous for yanking the rug out from under Parler with little notice; Facebook and Twitter are notorious for deleting accounts with no chance of recovering their posts and pictures and contacts.

    Is it possible that these tech giants could become so successful that they become a part of the social fabric, to the extent that they become de facto common carriers?

    Another factor is consistency. A bigoted business owner, in a society where freedom of association still exists, could refuse service to people he hates. As long as he personally runs the business and makes the decisions, they will generally be consistent. But if the business gets bigger, it will be employees at other branches or at other times making those decisions, which will require written policies, and that seems like a recipe for inconsistency. This isn’t like a recipe for seven secret spices and herbs. Will the inevitable arbitrary and capricious enforcement lead to lawsuits and the downfall of such a business?

  12. “and one could add that 47 U.S.C. § 230(c)(1) immunity from libel and similar lawsuits has likewise allowed platforms to amass and deploy financial resources on a scale that few corporations can match.”

    I don’t think there’s much behind this assertion. Amazon and Microsoft do not rely to any significant degree on Section 230 immunity for their business models (unless you think that reviews are Amazon’s secret sauce). Google’s core search and ads businesses probably depend on it to some extent, but search could probably revert to a purely unfiltered model and Ads to a fully moderated model without disrupting the business model to a huge degree. Facebook and Twitter depend on Section 230 immunity considerably for their business models, but they’re the smallest of this gang so there seems to be very little link between business models linked to Section 230 immunity and the ability to amass and deploy financial resources.

    1. I do think that reviews are quite important to Amazon’s business model. § 230 protects search engines, which Microsoft operates.

      1. If reviews are important to Amazon’s business model, then they should stop displaying reviews for ‘similar’ products when you ask for the reviews for a specific product.

        But I think the reason Section 230 is relevant to Amazon is that they derive a lot of their revenue from being an internet hosting company. Which is why they were in a position to screw over Parler in the first place.

        1. If reviews are important to Amazon’s business model, then they should stop displaying reviews for ‘similar’ products when you ask for the reviews for a specific product.

          If you enjoyed Game of Thrones, then people should not sell pizza with pineapple on it.

          (I assume based on your comment that this is National Non Sequitur Day.)

      2. It’s not clear to what degree Section 230 immunity is important to search engines, but I’m skeptical that search engines would be looked at as publishers in a pre-230 context. I don’t think there’s any case law on the question one way or the other. Brett’s assertion that Amazon depends on Section 230 immunity for AWS is even more tenuous–they’re just supplying raw infrastructure. No one was trying to sue the modem companies for publisher liability back in the Compuserve and Prodigy days.

        But regardless, if Bing went away tomorrow, my guess is that it would improve Microsoft’s earnings. At the very least, it’s clearly not a significant contributor to their overall business.

    2. jb, your comment overlooks the necessity of Section 230 immunity to support the scale of internet, “platform,” operations. Publishing companies the size of Facebook were unknown to the world prior to Section 230, because shared liability for civil damages among publishers and contributors turned editing capacity into a de facto check on growth. Section 230 eliminated shared liability online, and thus blew to smithereens any practical size limits for online publishers. Online publishing giantism and outsized potential for political influence are both direct results of Section 230.

      1. I don’t know what you’re quibbling with. I acknowledge that it was very important to Facebook and Twitter, but that the larger and more successful tech companies don’t depend on Section 230 for their business models.

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