Social Media Common Carrier

The Political Shape of the Debate About Regulating Social Media

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Another excerpt from my Social Media as Common Carriers? article (see also this thread):

[* * *]

These days, calls to treat social media platforms as common carriers are mostly coming from the Right, likely because such platforms are perceived (rightly or wrongly) as run by progressives who are especially likely to censor conservative voices. But the link to the argument in the Citizens United dissent may help explain why some top scholars on the Left, such as Erwin Chemerinsky,[41] Michael Dorf,[42] Genevieve Lakier,[43] and Nelson Tebbe,[44] have suggested similar regulations.[45]

Some advocacy groups on the Left have likewise accused platforms of improperly restricting their speech.[46] And of course even many conservatives, while generally more skeptical of government regulation of private actors, have long been open to some regulation, especially when the private companies have been seen as monopolies or close to it.[47]

Hard-core libertarians, who oppose virtually all government regulation of private business transactions, are likely to oppose common carrier status for platforms (and perhaps the concept of a common carrier altogether).[48] And of course many liberals, moderates, and conservatives may conclude that, even if such common carrier rules aren't theoretically impermissible, they are likely to be unsound in practice. But my point here is simply that the concerns about platform power are not exclusively a matter for one or another side of the ideological divide.

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

[42] Michael C. Dorf, Could Clarence Thomas Be Right About Twitter?, Verdict (Apr. 14 2021), https:‌//‌perma.cc/‌D7AB-8Z4M.

[43] 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.

[44] Id.

[45] Rebecca Tushnet had long before likewise expressed some concern about excessive intermediary power. Rebecca Tushnet, Power Without Responsibility: Intermediaries and the First Amendment, 76 Geo. Wash. L. Rev. 986, 1010, 1015 (2008).

[46] See, e.g., Natasha Lennard, Facebook's Ban on Far-Left Pages Is an Extension of Trump Propaganda, Intercept (Aug. 20, 2020), https:‌//‌perma.cc/‌Z2JC-YEEB (arguing that Facebook was banning a wide variety of "anarchist[] and anti-fascist[]" groups); Andre Damon, Facebook Purges Left-Wing Pages and Individuals, Int. Comm. of the Fourth International [World Socialist Web Site] (Jan. 23 2021), https:‌//‌perma.cc/‌7EX8-ADUY.

[47] See, e.g., Ryan Cooper, Even Republicans are Getting Fed Up with Monopolies. Here's Why, The Week (Apr. 1 2016), https:‌//‌perma.cc/‌Z876-N337. Likewise, some arguments for wedding providers' right to refuse service to same-sex weddings under religious freedom protections or under the compelled speech doctrine—generally seen as a conservative position—have acknowledged that those exemptions might be denied if there are too few other alternatives to those businesses' services. See, e.g., Douglas Laycock, Afterword, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 200–01 (2008) ("Religious dissenters can live their own values, but not if they occupy choke points that empower them to prevent same-sex couples from living their own values. If the dissenters want complete moral autonomy on this issue, they must refrain from occupying such a choke point."); Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, 53 B.C. L. REV. 1417, 1485 (2012) ("An objector in the stream of commerce may object only if a 'substantial hardship' would not result."); Executive Summary of Statement of William Bassett et al., Hearing Before Hawaii Senate Committee on Judiciary and Labor 9–10 (Oct. 28, 2013), https://perma.cc/LW3R-XT4M; Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1629–30 (2018); cf. Attorney Gen. v. DeSilets, 636 N.E.2d 233, 242–43 (Mass. 1994) (concluding that whether landlords should get religious exemption from bans on housing discrimination against unmarried couples should turn on "whether the rental housing policies of people such as the defendants can be accommodated, at least in the [particular geographical] area, without significantly impeding the availability of rental housing for people who are cohabiting," and in particular on whether "a large percentage of [housing] units are unavailable to cohabitants"); see also John Inazu, Liberty's Refuge: The Forgotten Freedom of Assembly 172 (2012) (calling for a similarly "fact-specific contextual analysis" with regard to private clubs' right to exclude).

[48] See, e.g., Katherine Mangu-Ward, Don't Try to Fix Big Tech with Politics, Reason, July 2021, https:‌//‌perma.cc/‌8CQ7-2J6T (Mangu-Ward is the editor-in-chief of Reason magazine, the most prominent libertarian publication in the U.S.); John Samples, Why the Government Should Not Regulate Content Moderation of Social Media, Cato Institute (Apr. 9, 2019), https://perma.cc/XKR4-8V6Z (Samples is Vice President of the Cato Institute, one of the most prominent libertarian think tanks in the U.S.).

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  1. They are agents of Chinese Commie interests inside our shores. They should be seized in civil forfeiture, and auctioned off like the Ferrari of a drug dealer. The lawyer response seems weak and ridiculous.

    1. Difficult issues need to be fully debated. Hopefully there will be substantive debates the issues will be considered with a lower level of posturing. One can hope.

      1. More waste of time, lawyer fees, and stress. But do it your lawyer way. It will fail.

    2. Do I think he’s crazy?
      Do I think he’s crazy?
      Do I think he’s crazy?
      Prob-a-bly!

      1. He’s not totally wrong here. The social media platforms that are permitted to operate in China probably at least are operating as unregistered foreign agents; China is a totalitarian state, and exacts requirements of any company that wants to operate within its borders.

        1. All companies operating in China do as they are told or the business gets cut off.

        2. It’s one thing that American companies do things to please China it’s quite another to argue they are ‘agents’ of the CCP. That’s crazy John Birch Society talk.

          1. Sometimes they do those things in the US, rather than China. THAT could make them agents of the CCP, in the relevant sense.

            1. What things are they doing?

                1. YouTube eventually removed the block on the channel, according to the report, but has not reinstated all of the videos it took down, citing policies that ban personal information in its videos that could result in harassment.

                  Now, I don’t doubt that they were trying to please China and this was bullshit, but this is not how a foreign agent acts.

            2. Yeah, what are they doing in the US that demonstrates they are agents for the CCP.

              1. They destroyed our economy, 2020. They electedtheir good and paid off friend, Joe Biden. They infiltrated Red Guard woke ideology into every institution. They destroyed the masculinity of our warriors. They killed a million Americans with their biological weapons. They have hideous freaks mocking patriots.

                1. Crazy
                  I’m crazy for feeling so loony
                  I’m crazy
                  Crazy for feeling so silly

                  1. Grow up, Queenie.

              2. See, for instance: Chinese censorship invades the U.S. via WeChat

                Further, Facebook has banned The Epoch Times, a newspaper critical of China, and more than one Chinese dissident here in the US.

                Youtube deleted any use of “共匪” or “五毛”, Chinese phrases insulting the CCP.

                I could link to any number of examples.

                1. Brett, ‘I’m going to change how I deal with you because a close friend wants me to’ doesn’t make me an agent of the close friend.

                2. The Epoch Times also publishes lies. I think that may have been more determinative.

                  China sucks, and has a lot to answer for, and is our main global adversary. But melodrama about what kind of influence they have is not going to help.

                  They are using their market strength to influence the market. So do we. They are not subborning companies in to governemnt agents.

                  1. Name one lie.

                    1. Election fraud.
                      COVID as bioweapon.
                      January 06 was a false flag operation.

                      There are plenty of citations:
                      https://en.wikipedia.org/wiki/The_Epoch_Times

                    2. That you don’t want to believe any of that doesn’t make any of those cites lies. Epoch Times is an opinion rag. They were known for being anti-Chicom, so of course American progressives will accuse them of “lying”.

                    3. The statement “January 6 was a false flag operation” is a lie. One hundred percent. It doesn’t matter whether or not one believes it. That’s how truth works.

                  2. Sarcastro, CNN and the Washington Post publish lies. If Facebook banned every news source that ever published a lie, they’d ban essentially all of them.

                    Especially using your doubtless expansive definition of “lie”.

                    They didn’t ban the Epoch Times because they publish lies. They did it because they don’t like the lies that were published.

                    Because they pissed off China.

                    1. No, Brett. You think everything incorrect is intentional. It is not. Their editorial standards are open for all to see.

                      Even you talk about the real bias is in their coverage choices.

                      You seem to be arguing all journalism is lies, so lets all pick our favorites.

                      This depth of postmodernism is how far you’ve had to go to defend your position.

                  3. “They are using their market strength to influence the market.”

                    Using your market strength to suppress information about genocide is pretty despicable. I doubt you’d defend someone who boycotted stores who sold books about the holocaust.

                    And in this case, they’re suppressing information about genocide they committed.

                    So apologizing for them on this score is… not good.

                    1. You think I’m sayin China is cool and good? Follow the thread, dude.

                      YouTube is not a Chinese agent, and Brett is wrong.

                  4. “They are not suborning companies in to governemnt agents.”

                    Some of the activities claimed would meet the definition under FARA.

                    1. Which activities?

              3. For instance:

                How YouTube’s rules are used to silence human rights activists

                These media corporations ARE sucking up to the Chinese government. Or, alternatively, have been compromised by them.

                1. So by your logic, a Hollywood studio adding Chinese actors in order to get distribution in China is acting as a foreign agent.

                  Cut the melodrama some, dude.

                  1. Why do you protect those who commit genocide?

                    1. Fuck you.

                    2. Truth hurts Sarcastro.

                      The Chinese Government is perpetrating an ongoing genocide of its Muslim population. It’s suppressing any social media that tries to reveal this, and the true depth of the crimes and the literal concentration camps the Muslim population is being put in.

                      https://en.wikipedia.org/wiki/Uyghur_genocide

                      And you’re defending the Chinese government. And their genocide.

                      Perhaps you should reconsider your choices. Read more.

                    3. Which comment of his do you believe defends the Chinese government and their genocide? Perhaps you should stop constructing straw men and then commenting on them, instead of what people actually write.

                    4. I guess your comment cut deep.

                    5. https://reason.com/volokh/2021/07/06/the-political-shape-of-the-debate-about-regulating-social-media/#comment-8981891

                      It’s right above this comment. The way to deal with China is not to makes stuff up. And coming out in favor of the truth is not defending China.
                      Pretty clear I’m not defending China. AL is just being an asshole.

                      Don, I thought better if you.

                  2. Is that really the comparison you want to make? Would you please rethink that and decide if that’s really the case?

                    1. Do you think Hollywood is an agent of China?

                  3. Do I think Hollywood is an agent of China? Yes, if indirectly.

                2. Based on the article, the “are used” is a distortion. Nobody is “using” the rules to silence people; it’s just a mindless application of existing non-political rules by an algorithm.

                  1. Give me a break, why did the algorithms have insults directed at the CCP on the list of banned phrases? Because somebody put it there.

                    1. Who says that they did? (I mean, other than you — but you just made that up.)

                  2. DAvid,
                    Algorithms do not write themselves. They decide what they are programmed to decide. I thought that was obvious.

                    1. Did you read the article? YouTube has a rule against posting personally identifying information. That was what caused these videos to be blocked — not some ideological crusade.

          2. if you persistently act at the behest of another, you are acting as their agent

            1. Yet we also put demands on them that are met.

              They are more like a friend who has a couple friends who hate each other.

            2. So all US companies doing business in other countries are US agents? They have to abide by US regs like the FCPA.

              This is a massive expansion of what a foreign agent is for purposes of drama.

              1. S_0,
                You know that you are dissembling. China strong-arms companies to avoid criticism, especially id Chinese citizens might see it.

                1. China strong-arms companies to avoid criticism.

                  So do we. Certainly the GOP has gotten into that game.

                  I’m not saying China is good, I’m saying the level of menace from China’s actions is well below ‘have created foreign agents of American companies.’

                  You know that’s ridiculous.

                  1. “They do this!”

                    “So do they!”

                    Whataboutism:

                    the practice of answering a criticism or difficult question by attacking someone with a similar criticism… (per the Cambridge dictionary.)

        3. The social media platforms that are permitted to operate in China

          I’m pretty sure that all non-Chinese social media platforms are blocked in China. Even TikTok, which is Chinese owned, is banned in China (though there’s a segregated Chinese version of it).

          1. Yes and no.

            1. Depends where in China. Certain areas are “exempt.” Hong Kong, for some social media organizations Shanghai.

            2. Many have illegal access, via VPNs or other networks.

            3. Some Chinese Government Agencies and corporations have Twitter accounts and other “official” accounts they access via VPN.

  2. Whether it is leftist or rightist is sort of beside the point. We don’t want either private nor government to censor what we see or hear. We want free access for all sources to tell their version of “the truth”.

    Actually, that’s what we have had in recent years. It is the cacophony of billions of speakers on The Internet. That’s pretty dystopian too.

    I think it believable that we will see a future election where most of the voters never get to hear the uncensored speeches of the candidates. They will get only what other people say that the candidates said, or only edited versions of the candidate’s positions. Only by going to an in-person rally, do voters get to hear a candidate directly.

    Ironically, that returns us to the state of the 19th century when candidates could not possible reach all cities, when media was local, when voters could only read what the local paper claimed that the candidates said.

    1. The “Internet” is a pretty generic theoretical term. A more realistic view of most people is that Facebook, Twitter, Google, and Amazon are the internet, and they do not allow uncensored access to everyone’s version of “the truth”. That’s the problem. If those idiots had not decided to be censorious asshats, this would not be a problem.

      1. “A more realistic view of most people is that Facebook, Twitter, Google, and Amazon are the internet”

        That’s like saying Wal-mart, McDonalds and Coke are the market. There’s a ton of things on ‘the internet’ that are not Facebook, Twitter, Google and Amazon.

        If you want to binge on Trump’s words, you can go here anytime: https://www.donaldjtrump.com/

      2. I do not have a Facebook account.

        I do not have a Twitter account.

        I use Google on one computer; Duck Duck Go on another; Safari on the third.

        I buy two or three items each year from Amazon. I kept a Prime subscription mostly so my children could use it for televised content. I should drop it next time around.

        If you censor Donald Trump and Marjorie Taylor-Greene but do not censor Ben Sasse, Greg Abbott, Mitch McConnell, or Rich Lowry, you are not a censor of conservatives but instead an objector to lying, delusional bigots.

        1. And the idea that conservatives — let alone conservatives who claim to be libertarian (or “often libertarian” or “libertarianish”) — would mock their ostensible principles, engage in blatant hypocrisy, and squander their credibility to defend and promote lying, delusional bigots is . . . well, not such a bad idea, if the plan is to cement and accelerate conservatism’s loss in the American culture war.

          1. Artie. Collaborator of the CCP. Come 2025, shop the Caracas apartment.

    2. “I think it believable that we will see a future election where most of the voters never get to hear the uncensored speeches of the candidates. ”

      You realize this is the point third parties who get little tv coverage have said for decades?

      1. Well, of course I understand that. The system has been rigged against third parties since at least the mid 80’s, and to a deadly degree since the mid 90’s. As far as 3rd parties are concerned, we hold show elections, in which they are only permitted to participate under terms that assure they will lose.

        You think it’s not a significant step that this degree of rigging is starting to apply to the fight between the two major parties, too?

        1. I don’t think it’s a significant step. I mean, not historically. Look, according to the conservative narrative pre-Fox there was virtually a shut out of major media in favor of ‘mainstream’ networks and outlets hostile to them. And yet Republicans, and even conservatives, won elections at every level during this time. Likewise according to liberals since all big media is by definition corporate media they were at a systemic disadvantage. But they still got people nominated and elected regularly. This is the conservative version of leftists whining that Fox or Citizen’s United had changed the game so they could never win. It’s a moral panic.

          1. Yeah, I’m 62 years old, and I’ve been politically active for most of them, and a serious consumer of news media.

            I would say that the broadcast media were dominantly centrist/establishment, at least since the federal government nationalized the airwaves and started licensing their use. Conservatives, being the the ‘right’ of that center, perceived that as bias, (As indeed it was!) but so did the left, with equal justice.

            But at that time the print media were quite healthy and diverse. I would read both the liberal Detroit Free Press, AND the conservative Detroit News, and a whole array of news magazines ranging from The Nation to National Review. (As well as publications much further from the mainstream, such as Liberty, or Bob Black’s anarchist “Combozine” which I was a contributor to.) So the right did not lack for access to the public, relative to the left, though everything that wasn’t centrist was somewhat muted.

            Then the internet showed up, and was a real wild West, and we had somewhat of a golden age for unfettered political speech. It was pretty heady.

            However, the consolidation of the internet into major platforms involved the centrist/establishment empire striking back. Only, yeah, the right has a point: It struck back with a left-wing bias, which has been growing fast.

            And the internet undercut the economic model for traditional media, resulting in a collapse of that diverse traditional media environment. Detroit, for instance, still nominally has two newspapers, but since the JOA, not really, just one that publishes two editions. (And not two conservative editions, either!) And many of those publications have folded, or become shadows of their former selves. So that the right can no longer console itself that it’s on an equal footing with the left.

            This was sufficiently evident that Murdock created FOX to exploit an unserved demographic. Not to compete head to head with the big boys, to serve the half of the political spectrum the existing networks didn’t.

            Sure, that made it the ‘biggest’ network occasionally, but still a small fraction of the total media environment, which still tilts left, tipping further all the time.

            Which is the only reason deplatforming a PRESIDENT wasn’t the stuff of revolution: Most media outlets were determined to paint it as reasonable.

            1. “However, the consolidation of the internet into major platforms involved the centrist/establishment empire striking back.”

              WTF are you talking about? You’re making this argument in a *national forum* right now! You could never have done that with the Detroit Papers. Trump, just with his own website, which I’ve shown is up, has more access now than then, way, way, way more! Trump *right now* has a web site that almost anyone nationally and internationally can access anytime. Silenced? Laughable!

              You remind me of leftists whining that most talk radio was right wing a few decades ago and that that was a totally unfair and existential crisis for them.

              1. Regular people, especially older people, still expect to trust the traditional media. They shouldn’t, because the phenomena that Brett highlights has also affected traditional media. The news has gone hard left, and since most people aren’t going to Donald Trump’s website, what they’ll see is biased, hard left news.

                Brett’s point still stands.

  3. I don’t think this is even a close call. If you run a platform and invite people to post all kinds of information and interact with others, well, then your business becomes so wildly popular that you are effectively the phone company of the internet, well…..

    And lefties, don’t go all righteous on me now. You know damn well that if Zuckercrook was a right wing religious nut job who was censoring the gay agenda there would be no iota of this whole “but Facebook is a private company!!!!”

    1. The phone companies of the internet are the access ISPs. They’re the ones you need to “call” whomever you want. Facebook is just a call center that might decide not to pick up anymore when you call.

      1. Facebook is just a call center that might decide not to pick up anymore when you call.

        “Come stand tall before Congress and explain why you’re dragging ass on doing something about harrassment. Heck, we intend to punish you buy altering section 230, or breaking you up as too large and controlling.

        Facebook: fine, we’ll block and/or attach scary warning labels.

        Congress: Thanx! Oh look, our political plopponents’ tweets are harrassing. You agree, right?

        None of this is them operating as free people with first amendment rights.

        1. Lol, you think it’s primarily Democrats advocating for altering section 230 or breaking them up?

          1. No, which is part of my point.

            However, the Democrats started it, and Republicans responded in-kind.

            One side: do it or else!
            The other: don’t do it, or else!

            Correct answer: All politicians make public apologies and resign in shame.

            1. Ah right, I forgot, you already argued that principles and logic should be abandoned here.

        2. Oh how the tables have turned. I still remember when the left would decry the Family Research Council whenever they would flex their political muscle to get politicians to do something. Or when “Banned Book Week” actually featured books that had been banned in some capacity and not just a laundry list of liberal trash no one wanted to buy.

          1. I wonder if Banned Books Week will start including books like Ryan Anderson’s “When Harry Became Sally,” Dave Pilkey’s “The Adventures of Ook and Gluk,” and Dr. Seuss’s “And to Think that I Saw It on Mulberry Street.”

            1. Did someone ban Mulberry Street? I heard the publisher stopped publishing it but of course that’s not the same thing.

              1. Yeah, ceasing to public a book people actually want, and not selling the rights to anybody who would publish it? Totally not the same thing as banning it. [/sarc]

                1. No, it’s not the same as banning.

                  1. There has not been a truly “banned” book since the 1950s but every year a list of books pulled from a library in Podunk Kansas or Nowhere Montana is in a “banned” book list

                    https://www.ala.org/advocacy/bbooks/frequentlychallengedbooks/top10

                    So mau mauing a publisher into pulling a book must count as banning too.

                    1. Bob’s just a mirror image Jacobin.

                      Though with less principles, actually.

                    2. When a library says they won’t carry a book, that’s banning it.

                      When a publisher says they’ve stopped publishing a book, that’s not.

                      I disagree with the Seuss Estate, but it’s melodrama to call it a ban. Ban is on the access-side.

                    3. “When a library says they won’t carry a book, that’s banning it.
                      When a publisher says they’ve stopped publishing a book, that’s not.”

                      Convenient.

                      Both are making choices.

                      Neither is a ban.

                    4. Banned books refers to libraries and schools.

                      It does not refer to publishers, and never has.

                      I’m sorry the use of English is inconvenient for you. But you’re pretty Trotskyite like that.

                  2. just censoring with a vengance

          2. I don’t think I ever called Family Research Counsel a common carrier. Are you even trying to make your argument, or is your real argument “thems bad, I want control over thems!”

      2. Facebook is just a call center that can get you removed from the phonebook if they really don’t like you, because their cousin Eddie publishes it, and, oh, their sister happens to supply your electricity.

        I keep returning to this point: It’s not one company. It’s a whole ecosystem of companies that are cooperating. If you get deplatformed, you don’t just get kicked off one platform. The credit card companies stop processing payments to you. Your hosting service drops you. Your IT security company cuts you off, and maybe drops a dime to a hacker group before doing it. Maybe you even find DNS services (The Internet’s ‘phone book’) refusing to resolve your url into an address.

        If it were JUST Facebook, or JUST Twitter, or JUST Youtube, our society could route around that censorship. It’s NOT just them.

        It’s a pile on, and shows every sign of being coordinated.

        1. If you have a problem getting DNS services or financial institutions to serve you, Facebook really probably shouldn’t be your primary concern. Your argument is basically “there’s a vast conspiracy”, and your solution is “therefore facebook is a common carrier”?

          1. Didn’t I say facebook wasn’t the biggest concern here? It’s that a controlling majority of the entire IT infrastructure have found they agree about some things, and are willing to gang up on anybody who opposes them.

            1. You did not, in fact, you seemed to argue that Facebook is functionally synonymous with this cabal you’re worried about.

          2. CloudFlare, Amazon, and Google DNS accounts for the vast majority of all English language website lookups. Worldwide, the percentage is much smaller, but how many normal people can change to a different – especially a foreign – DNS provider, or use an IP instead of a domain name?

            If those three companies decide not to resolve your site, you stop existing to almost everyone in the English-speaking world.

            1. Well, in that case, Facebook MUST be a common carrier!

        2. This is just more of your conspiracy theory stuff, to the conspiracy theorist it’s always showing ever sign of being coordinated.

          When you get associated with something most people find outrageous then, yes, a bunch of people will stop doing business with you as they find that out. But if you have any amount of people there will always be other businesses that will still do so and that’s clearly the case here.

          1. All you’re saying here is that you think it’s a good thing that people you don’t like get made into unpeople, that it’s only natural that everybody gang up on people YOU don’t like.

            If it were typically happening to people on your end of the political spectrum, if you saw the people on the fringe being banned, then the people on the NEW fringe being banned, and the event horizon relentlessly sweeping towards you, you’d be scared spitless.

            But it’s the other guys watching that black hole engulf their ‘extremists’, and rushing their way. And your being happy it’s happening to them doesn’t make them irrational to be frightened and angry.

            1. This has ‘always’ been happening with the Left fringe (read Chomsky). That’s their position: all big media is corporate media, that media has no interest in pushing radical leftism, therefore it will never get a mainstream voice.

              Now, imagine that Left fringe said something like ‘this popular war fought now is bs!’

              Well, outlets would run from them.

              This happened, of course. What do you think this proved?

              1. You and Chomsky!

          2. “just more of your conspiracy theory stuff”
            What a convenient counter-argument.

    2. I think there’s a serious split on the left, and as we move farther away from 2020 you will see more liberals come out and at least express skepticism of these companies and perhaps even try to make common cause with right wing critics.

      Our polarized politics make these issues tough, because people never want to agree with a position taken by the leader of the other party. But with the new President basically staying out of the wars over social media, I think there will be more room for people on both sides to start talking to each other.

    3. I agree ‘lefties’ wouldn’t be worried much about them being private companies, rather I think they’re pointing out the hypocrisy on the right since they’ve so often said core principles are the market and property.

    4. To me this is a really thorny issue.

      I’m sympathetic to the “they shouldn’t be censoring” argument and also to the “It’s a private business and they can do what they want” argument.

      The whole thing is pretty fraught.

      1. First, it seems reasonable to ask ‘what is being censored?’ Anyone defending Donald Trump, Paul Gosar or Marjorie Taylor Green in this context deserves no respect and should be left to lose on that poorly chosen hill. If anyone is being censored for the offensive of being conservative, why are Sen. Blackburn, Sen. Sasse, Rich Lowry, Sen Braun, and the most conservative House members not being censored?

        Second, I have always recognized Prof. Volokh’s entitlement to engage in his repeated censorship of liberals at this blog.

  4. I’d just as soon the government got out of the way altogether. But wishes are not fishes.

    Seems to me the real problem is that the social media platforms have no more accountability than police. Than can deplatform Parler, take down posts about the origins of COVID-19, ban political candidates just before an election, and users have zero recourse.

    I would prefer holding them to their own terms of service, including requiring the ToS to be clear enough and simple enough that people can actually understand it — not dozens or hundreds of paragraphs of legalese. They should also be accountable for inconsistent enforcement, unless their ToS actually says they explicitly reserve the right to be arbitrary, capricious, and biased. And finally, lawsuit losers should have to pay all costs for both parties and the court.

    It would drive them to such bare bones neutral ToS that the only posts censored would be by court order. They’d implement user curation and rating, so people who wanted could filter by people they trusted, and other people could see everything in its raw state.

    Of course, that’s never going to happen. Maybe common carrier is the next best thing.

    1. “the real problem is that the social media platforms have no more accountability than police”

      The police are a government agency. Private social media platforms have accountability to their shareholders and/or contractual obligations to customers and associates. Do you really want to undercut this distinction further than we have?

      1. I said they should be accountable to their customers, not the government. How do you read my proposal as saying the reverse?

        1. I read your analogy which was to the police. If you only mean user answers then your analogy is a bit poor since ‘users’ of police can’t go elsewhere but users of any social media platform can.

          1. That’s silly. There are multiple police: FBI, state, city, sheriff. That distinction is about as useful as saying if you don’t like Facebook, you can go to Twitter. Remember Parler, who did try to compete with Facebook, and Amazon canceled them?

            Such excellent competition.

            1. I don’t think you got what I’m saying. The police don’t have ‘users,’ people that want and people that don’t want their services have to deal with them. It’s not about shopping between federal levels of law enforcement (and you can’t really ‘shop’ around with them usually, that’s also the point).

              “Remember Parler, who did try to compete with Facebook, and Amazon canceled them?”

              Remember? They are right here: https://parler.com/main.html

              1. I’ve said this before, I’ll say it again every time you try that stupid line:

                Just because the beating didn’t kill you, doesn’t mean you weren’t attacked.

                1. Well, the fact that some people didn’t want to hang out with you when they found our you were in business with the Klan doesn’t mean you were attacked.

                2. Did Parler abide by the TOS – the contract it signed with Amazon?

                  One thing I don’t mind censoring is calls for violence, which apparently were part of Parler’s stock in trade.

    2. I agree it’s problematic to block a political candidate on the eve of an election. I would have thought, however, that a supposedly brilliant businessman would have thought about negotiating some guarantee in advance instead of relying on the good graces of a huge company providing a free platform. I mean seriously, the irony of a big landlord complaining about a company pulling his free platform is rich.

      What exactly do the TOS say here?

  5. I think I’d be more sympathetic to complaints on the right if they actually tried fairly standard governmental responses first. Conservatives recently complained when Fox didn’t go as full throttle off the cliff of Trump election bs as they would have liked and many switched to OAN and other media sites, Fox certainly got the message and has heared their news coverage more to what conservatives would like. Likewise if millions of conservatives quit Facebook, Twitter, etc., today and signed up for Gab or Parler or whatever I think that would fix most things.

    But it’s awful hard not to run to Big Daddy government for immediate help…

    1. “But it’s awful hard not to run to Big Daddy government for immediate help…”

      Especially when the marketplace and mainstream are administering a long-term ass-kicking to your ideas.

    2. I’d find complaints that people didn’t depend on government enough to be more credible if it didn’t come from a died-in-the-wool statist who thinks government should run everybody’s life.

      1. Are you talking about yourself?

        1. He can’t be talking about the likes of me. I am a libertarian. By the standards of this blog I am a devout, profound libertarian. Hell, my middle name is Libertarian!

  6. The rationale for common carrier laws here is analogous to the original rationale for refuced-in-scope civil rights laws. Private property is nice. But when it gives people power to effectively completely exclude people from public life, it’s no longer entirely private, and becomes partly society’s concern.

  7. Social media companies managed to silence the President of the United States. Such is their power. Power only used against one side of the debate.

    Whatever tactics are needed should be tried. Common carrier, antitrust or others that smart lawyers can come up with. Or a combination.

    Just crush them, drive them and hear the lamentations of their stockholders.

    1. “Social media companies managed to silence the President of the United States.”

      This kind of thing shows you how suspect the conservative position is here. Silenced? Dude’s right here: https://www.donaldjtrump.com/ (among many, many other places if you want to hear the latest from him).

      1. Look, you want to rig a race, you don’t have to put you opponent in a cement overcoat, and dump him in the river. If you can force him to run with a ball and chain, that will be enough.

        One side gets to run flat out, the other hobbled. It’s the same principle that ended any chance for third parties, and once it’s finished reducing the Republican party to comparable irrelevancy, THEN they can drop the pretense of holding elections. In the mean while, just rigging them enough to make the outcome predictable will suffice.

        1. His argument is you have a street corner to yell on, its exactly the same as owning the New York Times. You can both get out your message.

          1. Bob is now the Green Party. Maybe Trump *can* work miracles!

          2. The New York Times is the fifth-most-popular news site in America, a quick search indicated. One notch ahead of Fox News. But clingers rail against The New York Times because it is a high-quality, respected, reality-based publication.

        2. What’s the ball and chain? Can you not click that link?

      2. “Silenced? Dude’s right here: ”
        You know that your response is disingenuous.

    2. Social media companies managed to silence the President of the United States. Such is their power.

      All he had to do was stop lying with every word he posted.

      1. He didn’t lie with every word he posted. Saying that is as big a lie as anything Trump said.

        1. OK. Every other word.

  8. The ideology underlying these discussions is plain. It is an uncritical dream, shared in common across varied political tendencies, that each person with a keyboard be empowered to publish anything whatever, with impunity from liability, world-wide, cost-free, without prior editing. That is the ideal and the principle in a nutshell. Among some who cherish that dream, there is added a dollop of self-righteous hostility to traditional publishing—they see their own unlimited freedom to publish as a righteous power they can use (or somebody can use) to bring down hated adversaries in the, “mainstream media.”

    Needless to say, the dream is single-minded. It takes no account whatever of damages to other people, massive loss of national news gathering capacity, or corruption of the public life of the nation. The dream admits no down-sides. All those get discounted to zero, so long as the utopian dream of unconstrained publishing for everyman can be kept in sight.

    1. Well, once upon a time the idea that people would be able to travel anywhere they wanted to without having to bring Green Books and worry about sunset laws was also just a dream.

      Why shouldn’t some dreams get realized? Isn’t that what political change is about?

      I don’t see how giving major social media platforms a choice between acting as publishers and acting as common carriers would harm traditional media any more than the platforms themselves have already harmed it. The difference is that a few platforms have quasi-monopoly power over information, so they and only they have freedom and nobody else does.

      1. Why shouldn’t some dreams get realized? Isn’t that what political change is about?

        Why should dreams with massive downsides get realized before the downsides even get considered? The harm to traditional media—and to the public life of the nation—has not come from social media platforms per se. It has come from the legal superpowers with which Congress endowed the platforms. That was a mistake. Why continue it?

        If, “platforms,” choose common carrier status in order to maintain their Section 230 fueled business models, that does nothing to relieve unreasonable burdens on traditional media. Editorially, traditional media continue to vastly outperform, “platforms.” Notably, almost everyone agrees that if, “platforms,” were required to operate under the legal standards which still apply to traditional competitors, the, “platforms,” could not keep up. That tells you there is nothing inherently superior in the, “platform,” business model.

        On a level legal playing field the, “platforms,” probably could not survive the competition. That shows that when measured by the overall quality of the product delivered, the, “platform,” model is the less efficient model, not the more efficient one.

        That said, the question which has yet to be faced squarely is whether giving everyone with a keyboard practical impunity for libel and fraud is some kind of advantage for press freedom? If it is, by how much does that advantage outweigh the downside of crippling media which routinely perform to a higher standard? Is the benefit of impunity great enough to offset, for instance, the national cost in lost news-gathering capacity?

        And how should the nation measure the upsides of empowering ready use of the press for stock market frauds, election scams, and publication of purely private animus? How do those outweigh the costs of burdening the part of the press which does much less of all of them? What is the value to the nation of ginning up conspiracy theories like Q-Anon? Or of redressing the nation’s long-neglected need to be criss-crossed by armed militia bands on mysterious missions? With so much to dream about, isn’t it time to start taking stock of it all?

  9. In what way are Twitter and Facebook monopolies?
    What product is being monopolized?

    1. Exactly. Posting things on the internet? We’re all doing that *right now, right here.* I guess Reason is a monopoly!

      And, really, they don’t have nearly enough left wing contributors, so I guess they’re ‘silencing’ and ‘censoring’ the left. Time for government to *do something!*

    2. Well, there are these things in our economy called “services,” “information,” and whatnot. Have been for a while.

      Similarly, and hate to break this as well, but if someone claims they gave you money, saying you didn’t get any gold or silver coin is no longer quite the gotcha slam-dunk refutation it once was.

    3. In what way was Arlene’s Flowers a monopoly? How were the plaintiffs prevented from buying flowers? Was Arlene’s the only florist around? Did no other florist do weddings?

  10. Would any of the conservative law professors abandoning their principles on this one care to identify two or three examples of platform conduct that was not warranted, in their judgment? Any content, in particular, they wish to associate themselves with?

    If statements that are not calls to violence or criminal conduct; that are not disgustingly bigoted; that are not delusional and perhaps dangerous falsehoods; or are not ‘otherwise objectionable’ have precipitated decisions by Twitter or Facebook to disassociate from a speaker, let’s hear them.

    That could influence my judgment in this context. Not only with respect to the substantive issue, but also with respect to whether these right-wing law professors are just polemical, practical, partisan hypocrites.

    1. If statements that are not calls to violence or criminal conduct; that are not disgustingly bigoted; that are not delusional and perhaps dangerous falsehoods; or are not ‘otherwise objectionable’ have precipitated decisions by Twitter or Facebook to disassociate from a speaker, let’s hear them.

      I second this.

      1. Define “bigoted”. It’s a word progressives love to use, but it seems to be a moving target so I want to know what the rule actually is.

        1. Others may have differing and perhaps better definitions, but a good start would involve racism, gay-bashing, misogyny, Muslim-bashing, anti-Semitism, xenophobia, Asian-bashing, White supremacy, and the like.

          What is your definition of bigoted, I Callahan?

        2. Conservative: I have been censored for my conservative views
          Me: Holy shit! You were censored for wanting lower taxes?
          Con: LOL no…no not those views
          Me: So….deregulation?
          Con: Haha no not those views either
          Me: Which views, exactly?
          Con: Oh, you know the ones

          https://twitter.com/ndrew_lawrence/status/1050391663552671744

  11. Others may have differing and perhaps better definitions, but a good start would involve racism, gay-bashing, misogyny, Muslim-bashing, anti-Semitism, xenophobia, Asian-bashing, White supremacy, and the like.

    What is your definition, I Callahan?

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