Social Media Common Carrier

Social Media Platforms and the Dangers of Censorship Creep


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

[* * *]

Now at this point Facebook's and Twitter's influence on political life has been relatively modest. They haven't, for instance, visibly tried to deploy their power in a way to block legislation that would specifically harm their business interests. Nor have they, to my knowledge, blocked major candidates' speech during an actual campaign. (The deplatforming of President Trump happened two months after the election.)

At the same time, they have certainly been willing to restrict opinion that are well within the American political mainstream. Twitter, for instance, famously blocked a New York Post story based on the material from Hunter Biden's laptop, on the theory that it involved sharing of "hacked materials," though that hacked material policy has since been changed.[51] Yet newspapers have long published stories based on likely illegally leaked material—consider the Pentagon Papers—and publishing a story about material taken from a laptop that had allegedly been abandoned at a repair shop isn't substantially different.

Facebook blocked another New York Post story, posted in February 2020, about COVID possibly leaking from a Chinese virology lab.[52] While it's not clear whether that allegation is correct, it's far from clear that it's incorrect, either, as many have recently acknowledged.[53]

Facebook blocked yet another Post story, about expensive real estate bought by a Black Lives Matter cofounder, on the grounds that the story allegedly revealing personal information.[54] But the story didn't give the addresses of the houses, though it included photos; the information was apparently drawn from public records. Stories about house purchases by prominent people are routine in mainstream media.[55]

Newt Gingrich was apparently suspended from Twitter for "hateful conduct," for a Tweet saying that "The greatest threat of a covid surge comes from Biden's untested illegal immigrants pouring across the border. We have no way of knowing how many of them are bringing covid with them."[56] While such a threat may be overstated, it seems quite plausible: Many Latin American countries, including Mexico, have very high COVID rates, and of course international travel is indeed a potential vector of disease transmission.

YouTube deleted a video in which Florida Gov. Ron DeSantis and a panel of scientists were discussing COVID, because it "contradicts the consensus of local and global health authorities regarding the efficacy of masks to prevent the spread of Covid-19″—the scientists apparently stated that children should not wear masks, and the CDC calls for children age 2 and above to wear masks.[57] But as recently as August 2020 the World Health Organization took a different view for 2-to-5-year-olds (which it said shouldn't wear masks) and perhaps 6-to-11-year-olds (for which it said the decision should turn on various contextual factors).[58]

To be sure, even businesses' suppression of "extremist" views, such as those of Louis Farrakhan or Milo Yiannopoulos,[59] or of Naomi Wolf's claims that the COVID vaccines are a "software platform that can receive uploads,"[60] may undermine democracy.[61] But the actual impact of the platforms on political life is especially great if they choose to block material that is seriously being debated.

Consider, too, that the app for the conservative-focused Twitter competitor Parler was removed by Apple and Google from their app stores, and blocked by its hosting company, Amazon Web Services, because of concerns that some of Parler's users were encouraging violence.[62] Parler was merely refusing to forbid certain speech, much of which is constitutionally protected—thus voluntarily acting in a way close to how the post office and phone companies are required by law to act.[63] Yet this now seems to be a basis for deplatforming.

And it seems likely that platforms will over time become even more willing to block material they disapprove of. Why wouldn't platforms that get a taste for exercising such power (in a way that I'm sure they think has done good) be inclined to exercise it even more?[64] And if one day social media executives and other influential employees see some speech as not just ideologically offensive but highly economically threatening—for instance, urging regulations that they think would be devastating to their businesses—wouldn't it be especially likely that they would try to tamp it down?[65] Shouldn't we indeed worry "that tomorrow's apex platforms under deregulatory conditions might adopt content regulation policies that are far more at odds with basic liberal norms than anything today's Californian cohort have adopted so far"?[66]

Tech company managers are, after all, just people. Like people generally, they are capable of public-spiritedness, but also of narrow-mindedness and bias and self-interest.[67] Indeed, being people, they are capable of viewing their narrow-mindedness and bias and self-interest as public-spiritedness.[68]

But beyond this, there will likely be increasing public pressure to get Facebook, Twitter, and other companies to suppress other supposedly dangerous speech, such as fiery rhetoric against the police or oil companies or world trade authorities. People will demand: If you blocked A, why aren't you blocking B? Aren't you being hypocritical or discriminatory?

To offer just one example, consider this headline: "Facebook banned Holocaust denial from its platform in October. Anti-hate groups now want the social media giant to block posts denying the Armenian genocide."[69] If that call is accepted, it seems likely that other groups will make similar calls, whether about the treatment of American Indians by the U.S. or other North or South American countries, treatment of the Uyghurs or Tibetans by China, or a wide range of other historical events. And since the Facebook policy bans "[d]enying or distorting information about the Holocaust,"[70] the scope of such potential restrictions could be quite broad and quite vague.

I've called this phenomenon "censorship envy."[71] People may sometimes be willing to tolerate speech that they view as offensive and evil, if they perceive that it's protected by a broadly accepted free speech norm. But once some viewpoints get suppressed, foes of other viewpoints are likely to wonder: Why not the viewpoints that we condemn as well?

No-one wants to feel like a chump who isn't getting the moral victories that others are getting, and who has to suffer in silence while others get what they want. Plus trying to suppress speech that one sees as evil may seem like a virtuous cause to many people. Once that avenue for feeling good becomes available to some, others will likely want to use it, too.

And there is little reason to think that the platforms will enforce the rules in any generally politically neutral way, even setting aside the rules' express viewpoint-based prohibitions (e.g., on supposedly hateful viewpoints). It's only human nature for people to think the worst of their adversaries' views—including by labeling them hate speech or fake news or incitement—while giving their allies the benefit of the doubt.

It's likewise only human nature to view even factually defensible but incomplete positions as "distorting" history if they are inconsistent with one's ideology, but as unavoidable simplifications or legitimate judgment calls if they fit one's own views. Orson Welles, when he was married to Rita Hayworth, famously said, on hearing someone say Hayworth was sweating, "Horses sweat. People perspire. Miss Hayworth glows."[72] So it goes with ideas we love and ideas we don't.

We have also seen a different sort of censorship creep: from banning certain viewpoints on the platform (with perhaps a total ban on a speaker if the speaker violates the ban often enough), to banning speakers who express views off the platform, or even who belong to groups that hold such views. Amazon's Twitch live-broadcasting service has recently banned users "even [for] actions [that] occur entirely off Twitch," such as "membership in a known hate group."[73] I doubt any of us would have predicted in 2016 that, in five years, social media platforms would start blacklisting users simply for belonging to an ideological group, even if the users say nothing on the platform endorsing that group. Yet this is happening now, and there's little reason to think that the censorship creep has stopped.

Finally, sometimes just the risk of suspension may pressure politicians and other speakers to avoid taking positions a company dislikes, as Justice Stevens warned about in Citizens United.[74] To be sure, being banned by Twitter and Facebook might in some situations be good publicity, especially if one is trying to make a name for oneself: It's still rare enough to be a news story. But often the ban would just seriously interfere with one's ability to reach one's constituents. Given how heavily politicians and advocacy groups rely on social media,[75] the threat of losing that outlet can be quite serious.

Similarly, in a media world where social media pass­-along is often key to a story's success—and therefore to a journalist's success[76]—knowing that a story is likely to be blocked by Twitter or Facebook might well steer the journalists away from the story. Perhaps we might like that, if we trust Twitter and Facebook to block only stories we think are "bad." But just how much should we trust them?[77]

Likewise, Amazon Web Services' banning Parler didn't permanently destroy Parler; thanks to a billionaire supporter, Parler managed to get back online some weeks later.[78] But Amazon's actions—and Google and Apple's actions in banning Parler from its app store—sent a powerful message to other platforms, and other speakers: Better do what we say, unless you too have a billionaire on your side.

Note that none of these arguments requires a showing that the platforms' blocking decisions disproportionately and substantially affect conservatives, or progressives, or any other large ideological group. The concern here isn't about group rights or interests, under which the toleration of many conservative or progressive views justifies the exclusion of other such views.

The concern rather is about platforms' leveraging their economic power into control over public debate; and that concern can exist regardless of whether the aggregate leverage has any particular ideological valence. We may rightly worry what would happen if phone companies could block phone service to disfavored groups, even if we can't predict the ideological mix of the groups that would be blocked, and even if we expect that it will just nip off some ideological advocacy here and there rather than broadly damaging any particular major political movement. Likewise for social media platforms.

[51] Emma-Jo Morris & Gabrielle Fonrouge, Hunter Biden Introduced Ukrainian Businessman to VP Dad, N.Y. Post (Oct. 14 2020), https:‌//‌‌5TYC-S9WG; Steven Musil, Twitter Revises Policy on Posting Hacked Materials After Hunter Biden Story, Cnet (Oct. 16, 2020), https:‌//‌‌P25G-EAKP; Twitter, Distribution of Hacked Material Policy (Oct. 2020), https:‌//‌‌H6ML-8Z3L Consistently with the change, Twitter is now sometimes even promoting stories based on hacks. Luke Rosiak, Paper Uses 'Breached' Data to Dox Police Who Donated to Innocent Colleague Targeted by BLM; Twitter Promotes, Daily Wire (Apr 17, 2021), https:‌//‌‌58JN-HCXE.

[52] Post Editorial Board, Opinion, Facebook's COVID Coverup, N.Y. Post (Jan 5, 2021), https:‌//‌‌P3MX-KRU6; Emily Jacobs, Twitter Won't Confirm if Users Can Post About Lab Leak COVID Origin Theory, N.Y. Post (May 28, 2921), https:‌//‌‌N3FK-ZSDF.

[53] E.g., Nicholson Baker, The Lab-Leak Hypothesis, N.Y. Mag.: Intelligencer (Jan 4, 2021), https:‌//‌‌HM42-VERH; Statement on the Investigation Into the Origins of COVID-19, 2009 Daily Comp. Pres. Doc. (May 26, 2021); Glen Kessler, Timeline: How the Wuhan Lab-Leak Theory Suddenly Became Credible, Wash. Post (May 25, 2021) ("In some instances, important information was available from the start but was generally ignored."); Sohrab Ahmari, Facebook's Lab-leak Censors Owe The Post, and America, an Apology, Wash. Post (May 27, 2021); Katherine Eban, The Lab-Leak Theory: Inside the Fight to Uncover COVID-19's Origins, Vanity Fair (June 3, 2021), https:‌//‌‌5GPK-DMJL; Rowan Jacobson, How Amateur Sleuths Broke the Wuhan Lab Story and Embarrassed the Media, Newsweek (June 2, 2021), https:‌//‌‌EL34-9JMK.

[54] Post Editorial Board, Opinion, Social Media Again Silenced The Post for Reporting the News, N.Y. Post (Apr. 16, 2021), https:‌//‌‌SPS3-9HYR.

[55] E.g., Mark David, Ben Affleck Snags Stately $19 Million Pacific Palisades Mansion, Variety (Apr. 12, 2018)‌; Builder Says Rush Bought His House, Tampa Bay Times (Sep. 15, 2005), https:‌//‌‌JW2N-WVWA.

[56] Sarah Rumpf, Newt Gingrich Fires Back at Twitter After His Account Gets Suspended for 'Hateful Conduct', Mediaite (Mar. 5, 2021) https:‌//‌‌JST7-AE72.

[57] Corky Siemaszko, YouTube Pulls Florida Governor's Video, Says His Panel Spread COVID-19 Misinformation, NBC News (Apr. 9, 2021), https:‌//‌‌L6FD-5J5R.5

[58] Kelly Young, WHO Recommends Against Face Masks for Kids in Community Settings Under Age 5, NEJM J. Watch (Aug. 24, 2020), https:‌//‌‌L4SM-6B9P.

[59] Oliver Darcy, Louis Farrakhan, Alex Jones and Other "Dangerous' Voices Banned by Facebook and Instagram, CNN Business (May 3, 2019, 6:14 am), https:‌//‌‌L6FD-5J5R.

[60] Joseph Guzman, Famous Feminist Naomi Wolf Banned From Twitter, The Hill: Changing America (June 7, 2021), https:‌//‌‌TM8K-HCWJ.

[61] See also Natasha Lennard, Facebook's Ban on Far-Left Pages Is an Extension of Trump Propaganda, Intercept (Aug. 20, 2020, 12:30 pm), https:‌//‌‌LF6N-TYZB (arguing that Facebook was banning a wide variety of "anarchist[] and anti-fascist[]" groups).

[62] Alex Fitzpatrick, Why Amazon's Move to Drop Parler Is a Big Deal for the Future of the Internet, Time (Jan. 21, 2021); Jay Peters, Google Pulls Parler from Play Store for Fostering Calls to Violence, Verge (Jan. 8, 2021, 7:57 pm), https:‌//‌‌2GVY-N6PE; Shirin Ghaffary, Parler Is Back on Apple's App Store, With a Promise to Crack Down on Hate Speech, Vox: Recode (May 17, 2021, 6:50 pm), https:‌//‌‌94JU-263X ("Parler is back in Apple's App Store, with a promise to crack down on hate speech").

One reader suggested that Amazon Web Services may have been risking federal criminal liability for hosting incitement of violence by Parler users (which means Parler would have been, even more clearly). But I don't think that's so. Incitement liability turns on the defendant's intent to produce a criminal act, Hess v. Indiana, 414 U.S. 105, 109 (1973); a hosting company would lack such an intent. The same is generally true of aiding and abetting. Rosemond v. United States, 572 U.S. 65, 76 (2014). And conspiracy generally requires both an intent to further the underlying crime and an agreement to commit it. United States v. Williams, 974 F.3d 320, 369–70 (3d Cir. 2020). Some specialized statutes, such as the ban on "knowingly provid[ing] material support or resources" (including "communications equipment") "to a foreign terrorist organization," 18 U.S.C. § 2339B(a)(1), don't require such an intention; and indeed both platforms and hosting companies may be required to block accounts used by designated foreign terrorist organizations once they learn that those accounts are indeed so used. But that is a rare exception, and I know of no reason to think it was involved in Amazon Web Services' deplatforming of Parler.

[63] Close, though not identical: Parler did apparently try to remove "threats of violence" and "illegal activity." Jeff Horwitz & Keach Hagey, Mercer Cash Backs Upstart App Parler, Wall St. J., Nov. 16, 2020, at B1.

[64] See Stewart Baker, What I Learned When Linkedin Suppressed My Post, Volokh Conspiracy (Apr. 19, 2021, 5:30 pm),

[65] Cf. Langvardt, supra note 23, at 7 (discussing this possibility).

[66] Kyle Langvardt, Platform Speech Governance and the First Amendment: A User-Centered Approach, Digital Social Contract: A Lawfare Paper Series, Nov. 2020,

[67] Cf. Varadarajan, supra note 9 ("[Richard] Epstein describes Mr. Dorsey's Jan. 13 Twitter thread, in which the CEO purports to explain the ban on Mr. Trump, as displaying 'a rare combination of hubris and ignorance, proof of how dangerous it is to have a committed partisan as an ostensible umpire.'").

[68] "Man is not a rational animal; he is a rationalizing animal." Robert A. Heinlein, Gulf, in Assignment in Eternity 542 (1953).

[69] Isabella Jibilian, Facebook Banned Holocaust Denial from Its Platform in October. Anti-Hate Groups Now Want the Social Media Giant to Block Posts Denying the Armenian Genocide, Business Insider (Dec. 31, 2020, 10:24 am), https:‌//‌‌9KRV-83X4.

[70] Facebook, Community Standards: Hate Speech, (2021), https:‌//‌‌9UJU-2BDD.

[71] Alex Kozinski & Eugene Volokh, A Penumbra Too Far, 106 Harv. L. Rev. 1639, 1656 n.88 (1993); Eugene Volokh, The U.S. Constitution Says We All Have To Live with Being Offended, L.A. Times, July 18, 2001, §2, at 13.

[72] Judith Martin, Forgo, Young Lovers, Wherever You Are, Wash. Post (May 21, 1978).

[73] Twitch, Our Plans for Addressing Sever Off-Service Misconduct (Apr. 7, 2021), https:‌//‌‌J38R-V4WZ.

[74] See supra Citizens United, 558 U.S. at 471 (Stevens, J., concurring in part and dissenting in part).

[75] How Social Media Is Shaping Political Campaigns, Knowledge@Wharton (Aug. 17, 2020), https:‌//‌‌938K-A93H.

[76] See, e.g., Archie Bland, Daily Telegraph Plans to Link Journalists' Pay with Article Popularity, Daily Telegraph (UK), Mar. 15, 2021.

[77] See Kyle Langvardt, Regulating Online Content Moderation, 106 Geo. L.J. 1353, 1388 (2018) ("If you are comfortable with this approach, and you have faith that the well-meaning, blandly progressive oligopolists of the West Coast can secure the future of online free speech, ask yourself how you might feel if they were owned by someone with a different political or cultural baseline—the Walton family, or the Koch brothers, or the Breitbart-affiliated hedge-fund billionaire Robert Mercer. And whoever is at the helm, how much faith do you have in the major online platforms to protect robust speech rights online during the next major national security crisis?").

[78] See Rachel Lerman, Parler Is Back Online, More Than a Month After Tangle with Amazon Knocked It Offline, Wash. Post, Feb. 15, 2021.

NEXT: Today in Supreme Court History: July 7, 1893

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  1. Yet Facebook allows many terrorist attacks, gang stalkings, flash mobs that burn down cities. Yet, they take down patriotic speech.
    One explanation is simple. They are agents of the Chinese Commie Party trying to attack the West.

    1. He’s a lunatic, lunatic on the floor
      And he’s posting like he’s never posted before

      1. Well, to quote a man whom you referenced yesterday,

        “there’s more to see than can be seen; more said than what is heard. The day is brighter, softer, lighter when its slightly blurred.”

      2. That is a pretty good comment for someone who attended school in your Democrat jurisdiction. It is barely literate, ungrammatical, nonsensical. Yet, it does reach the fourth grade level. Your comment illustrates the point that moving people from grade to grade to avoid accusations of discrimination does not help the student.

        1. Crazy
          He’s crazy for feeling so loony
          He’s crazy
          Crazy for feeling so blue

          1. No, the man who you channeled yesterday and whom I quote above, is much the better composer and lyricist.

            1. Dude, Crazy was written by Willie Nelson, it doesn’t get much better than that.

              1. Yes, I am cognizant of that; nevertheless, he ain’t no Rupert Holmes.

                1. Blasphemy!

          2. Typo or auto-correct correction:
            Crazy for feeling so LONELY.

      3. “He’s a lunatic for claiming they are defacto agents of the Chinese government.”

        Or maybe voluntary. Or worse.

        Should this be silenced?

        I will grant out of hand it may be several levels deep in right wing media. I hope it is wrong.

    2. We should point all resident students to posts like these to easily ascertain lunacy.

    3. Right, “patriotic speech”.

      DaivdBehar seems to want to prove Prof. Volokh’s statement here true:

      It’s only human nature for people to think the worst of their adversaries’ views—including by labeling them hate speech or fake news or incitement—while giving their allies the benefit of the doubt.

      1. And yet people are concerned about China leveraging access to their markets, movie theaters, sportswear or other manufacturing, to “export censorship” and force silence, or even acquiescence in a few notorious cases.

        Companies say “we obey local laws”. This is fine, I guess. But that means only within the borders of the dictatorships. The high seas, to say nothing about interiors of other, free countries, should not be controllable.

      2. Jas. Whom did you vote for President in 2020?

  2. “that had allegedly been abandoned at a repair shop”

    I really don’t think you have to give into this reflex to attach “allegedly” to every factual claim that hasn’t been tested in court; Biden’s counsel has conceded it’s Hunter’s laptop, and that he left it there.

    1. Biden’s counsel has conceded it’s Hunter’s laptop, and that he left it there.

      I’d imagine the “allegedly” was directed to the state of play at the time Twitter first made the censorship decision.

      1. When admitted illicitly obtained “detrimental” material about Trump was just dandy but if you could torture the known facts enough you could squint sideways and come up with a flimsy excuse to ban detrimental information about Biden? Those facts.

    2. Biden’s counsel has conceded it’s Hunter’s laptop, and that he left it there.

      Did he? Or did he say something that Trumpkins tried to spin as an admission?

      Certainly three months ago when directly asked Hunter Biden himself in no way made such a concession. He was asked if it was his laptop, and he said “I don’t know,” and then when pressed whether it could be his, said, “Of course, certainly. There could be a laptop out there that was stolen from me. There could be that I was hacked. There could be that it was, that it was Russian intelligence. It could be that it was stolen from me.” And he denied that he had dropped it off at the repair shop: “No. No. Not that I remember — at all, at all.”

      1. This is apologetics.

        1. This is apologetics.

          This… is DMN.

      2. Seriously?

        He’s been questioned about it repeatedly. And he’s never denied it’s his. Just a whole lot of “I don’t seem to remember.”

        At some point you need to read between the lines.

        1. “At some point you need to read between the lines.”

          The manna which conspiracy theorists live on.

          1. OK Queenie,

            We’ll ask you directly. Do you think, based on the current evidence, that Hunter Biden left his laptop at that repair shop? Greater than 50% probability. Yes or no?

            It’s a simple question, and I’d hope you answer it directly.

            1. Looks like Queenie doesn’t deign to answer… Hmm…

        2. Admittedly, his “I don’t remember” is actually plausible, given how much of the time he spends in a drug induced haze. That appears to be exactly what happened: He was so zonked out of his mind it didn’t occur to him that handing a laptop full of incriminating photos and emails to a repair shop was stupid, and then he forgot where he’d left it to be repaired until it surfaced in the news.

          Of course, standard policy on these shops is that if you don’t come back to get it in some fixed period of time, they get to keep it so that they can recoup their expenses doing the repair.

          1. Do you have a link that Biden’s counsel admitted the laptop was his and that he left it there? Just curious.

            1. This might be what I was recalling, as I can’t at the moment find any quotes from the lawyer.

              Out of curiosity, have you any reason for doubting the laptop’s authenticity, aside from it being bad for the Bidens?

              1. This is pretty hysterical coming from birther brett

                1. He has indicated — strenuously, that he is ‘birther-curious Brett,’ or ‘birther-friendly Brett,’ or ‘formerly birther Brett.’

                  1. Certainly not “formerly”, because that would imply I had at one time when. I’d own up to being curious and friendly, though. I gather you view those as character defects?

                    Really, though, I just thought, and think, that the natural born citizen clause is a live part of the Constitution, and so, if the status of a candidate is brought into question, it is proper for the courts to hold a hearing on the merits, using the best evidence. No Clause Left Behind!

              2. IOW, you’re making shit up again.

              3. Wait a minute. You went from “Biden’s counsel has conceded it’s Hunter’s laptop, and that he left it there” to a trashy English paper saying Bannon said that. Aren’t you embarrassed?

                1. Next, you will be referring to Rupert Holmes as a “trashy English” singer / songwriter.

                2. So, what you’re saying is that you don’t actually have a reason for questioning it’s authenticity, aside from it being politically inconvenient.

          2. Standard policy or not, it seems super scummy/sketchy to go through the contents of a laptop left at your store. Sure, erase the drive and resell the hardware at some point if you want, but that’s not really the same thing at all.

            1. The owner of that computer repair shop seemed to have majored in scummy/sketchy. Did he not admit at one point that his brain didn’t work so good?

              1. Nitpicky defense of the indefensible betrayal of our nation, but by a Democrat operative.

              2. That was Hunter, wasn’t it?

        3. Somehow we got from “conceded it was his” to “he didn’t say it’s not his”. Those…aren’t the same thing.

          1. “Is this laptop your Hunter?”

            “Could be mine? Might be…might not be. Who knows knows with absolute certainty? Maybe it’s a different laptop of the exact same model that just has my hard drive in it…ever think of that? Then it wouldn’t be my laptop, would it? It would be a different laptop.”

            (Sorry, I took some license there with the wordplay. Those weren’t the exact words used.)

        4. Even if I conceded what you were saying, it would be non-responsive. Brett didn’t say, “Hunter Biden implicitly admitted through a weak denial that it was his laptop.” He said that Hunter Biden’s lawyer said it was Hunter Biden’s laptop.

          I didn’t hear that and didn’t see anything like that with a google, and I pointed out that Hunter Biden himself didn’t say that it was his laptop. And if Hunter isn’t saying it, I doubt his lawyer would.

          1. Yeah, I seem to have misremembered a news report. Happens, I’m in my 60’s. Still, I’ve yet to see any reason for doubting the authenticity of the laptop that boils down to anything more than it being politically inconvenient.

            1. Eh. I think the most likely reality is that someone hacked his iCloud account and then made up this bizarre laptop story to give cover to the hacking for some reason. I agree that at least some of the contents seems to be genuine, but since the origin story is super dubious, it makes me skeptical that all the content is legit as well.

              1. Now that’s some tin-hat conspiracy minded thinking….

              2. I think the most likely reality is that someone hacked his iCloud account and then made up this bizarre laptop story to give cover to the hacking for some reason.

                When you hear hoofbeats at the Kentucky Derby do you think they’re most likely coming from zebras?

                1. Since literally every item from the “laptop” are actually from iCloud, and there’s lots of examples of iCloud hacks and no other examples of “left waterlogged laptop with a creepy Trump stooge”, Occam’s razor actually points pretty clearly in favor of the hack.

          2. “Even if I conceded what you were saying,”

            Do you concede it though? Is is more likely than not (IE, >50% probability) that it is Hunter’s laptop, based on everything you know?

  3. Nor have they, to my knowledge, blocked major candidates’ speech during an actual campaign.

    Really ? This story recounts both Facebook and Twitter removing Trump messages (also appending editorial comment – eg “misleading”) and acquits Twitter of “banning Trump” , ie preventing him from tweeting, only because the ban was applied to the Trump Campaign rather than to Trump personally.

    One might argue that “the campaign” had not started because it was a couple of weeks before the nominating conventions, but it seems a bit of a stretch to say that August 2020 was not during the campiagn.

  4. Again- who cares? It’s social media. They have a right to dictate and run their platform as they wish.

    We’d be better off leaving them as is and hoping they crash and burn.

    If you want news, go to a news site. If you want a politician’s opinion (shitty or not) go to their website. Why we’re relying on the generosity and fickleness of social media platforms is beyond me.

    1. Again- who cares? It’s social media. They have a right to dictate and run their platform as they wish.

      As they wish, yes. Not as Congress wishes, or else Congress will cost them hundreds of billions in stock valuation by wiping section 230 and opening them up to lawsuits, or breakup, unless they censor harrassment, oh look, our political opponents are being harrassing, or dangerous speech, oh look, our political opponents’ speech is dangerous.

      Kamala Harris even suggested during the debates other laws that could punish such companies that don’t censor harrassment.

      To any historians reading this 10 or 50 years in the future, I hope we get out of this fine. But it is currently exceedingly troublesome.

    2. “Why we’re relying on the generosity and fickleness of social media platforms is beyond me.”
      But Americans are, whether you understand it or not.

    3. These platforms are partisan advocates of the Democrat Party. The Democrat Party is their political outlet for their greater enrichment. Attack on these platforms is attack on the Democrat Party, and its affiliate, the Chinese Commie Party. The platforms want to grow their Chinese market and will kowtow to the Chinese Commie Party to gain favor.

      All three are the mortal enemy of our nation.

  5. It’s been a while since censorship “creep” was an issue. At this point we’re more concerned with censorship “sprint”. Mere “creep” would be a change for the better, censorship is advancing so fast, in order to be fully in place before the midterms.

  6. Dr. Volokh
    Just cut to the chase. The argument being made is to call the tech application providers common carriers. That would invoke a net neutrality regime that has been anathema to telcos, techs, ISP’s and the the most recent iteration of the FCC.

    The first question is whether internet service and infrastructure providers are common carrier or public utilities – I think that they are and should be so regulated. The second question is whether applications that make use of the physical infrastructure are common carrier. Here I diverge from your views. They are not. Facebook and YouTube, to use two examples, have every right to invoke terms of use for their platforms. The reason why is that they have an alternative economic model that is quite different from the ISP and telco providers who maintain the physical infrastructure. Facebook and YouTube business models are paid for by advertising. Monitoring and and management of user engagement is key to maximize the value of their platform and the advertisement dollar. The interaction with the platform allows the underlying math to precisely target goods and services to users. The platform is a monitoring regime designed to generate specifically biased outputs (targeted advertising) for a user or group of users. That does not describe a common carrier.

    The issue at hand is the scale at which these providers operate. At such a scale they have become more important as a common utility. But where in the law is scale useful in determining the status of a particular company. That might be in anti-trust law.

    1. Anti-trust is dubious. It has been defeated as it should have been, just recently.

      This is self evident. Are the FTC lawyers idiots? All lawyers are, not matter the native IQ and morality. More than that, they are rent seekers, generating massive employment for the lawyer occupation. Anti-trust litigation is a lawyer scam. It is a form of corruption.

      How about massive criminality, on the platform and by the platform? Why is no one discussing that? It justifies the seizure of the platform in civil forfeiture.

      1. Insane in the membrane
        Insane in the brain
        Insane in the membrane
        Insane in the brain
        Insane in the membrane
        Crazy insane, got no brain
        Insane in the membrane
        Insane in the brain

        1. People go into politics to get in the way, to get paid to get back out of the way.

          This is the way of the world. They have to hide it better here.

        2. Good 4th grade rhetoric. Your comment illustrates the unintended consequences of affirmative action privileges.

          Ironic that people bring up white privilege. All legal privileges now discriminate against meritorious whites and Asians. As with all discriminations, economic consequences will correct the woke.

          1. Sanity now it’s beyond Behar
            There’s no choice

        3. Don’t egg him on.
          You only succeed in what looks like hijacking the thread.

          1. There’s a really “mute user” button. Some posters here are just not worth engaging with. Or reading their crap. Use it.

      2. Perhaps, these lawyer idiots are paid off by Facebook itself. After this frivolous lawsuit was dismissed, Facebook valuation hit $trillion. Bribe idiots to file frivolous lawsuits, buy the shares at a discount. Score big after the idiot lawsuit is dismissed. Who knows? This exploitation of the stupidity of the lawyer may turn into an established business method.

        1. Don’t you know he’s loco?

          1. I do not deny the chromosomal genome of every human cell of my body.

            1. Where is his mind?

              1. What is the Ebonics word for mind?

    2. You don’t know what net neutrality is, if you think common carrier status is the holy grail.

    3. That sounds mostly right. I agree whole heartedly that providers should fall under Common Carriers. Content providers (Facebook, YouTube, Twitter, et al); however, do not, but they do need reigning in and anti trust is the wrong avenue.

      The problem is, while they are not Common Carriers, government over watch, or deciding what is/isn’t acceptable, is most certainly not the answer. Breaking them up isn’t likely to do much either, other than perhaps kick the can down the road a bit.

      Section 230 vs. Traditional Publishers…

      Very generally, Section 230 largely gives content providers on the internet a free pass, exempting them from most content which is posted by users of its service. Traditional publisher’s; however, are responsible for the speech they publish.

      The theory goes that a publisher uses editors to vet material and decides what is and what is not fit to publish within its space. If it doesn’t want to risk being liable, it can simply choose not to publish.

      A very broad example would be Reason: The magazine and blog would fall under “publisher” contest, while this “chat” section would likely fall under Section 230.

      Where things get interesting is when internet services like Facebook and Twitter begin to edit content in a manner similar to what a traditional publication might do. Internet moderation has been around since the beginning and is very much necessary for it to work. Take a Jeep forum I frequent as an example: If not for user moderation to keep threads on topic and civil, it would likely follow the path of Tumblr a few years back and become a cesspool of porn. That said, they operation on mostly volunteer moderation and typically only filter for on-topic, civility, banning known federally illegal activates (e.g. certain emission mods), and for family friendliness. What they do not do is ban user interaction and viewpoint differences (or at least the mods are not supposed to… nothing is perfect).

      The question I have is, at what point does content filtering, labeling, and editing make an entity more akin to a traditional publisher than what Section 230 was intended for?

      It seems to me a solution might be that Section 230 could be amended to say that companies have a choice: Either hands off and all (or at least the bulk of) moderation must be either volunteer (most small niche forums) or community based (e.g. /.), or you can filter for content, are a publisher, and are responsible for all content.

      1. I think the simplest solution is to separate content moderation from the platform altogether, aside from legally mandated takedown orders. Section 230 as written expected the moderation for anything short of violent threats or obscenity to be via third party filter software. (In fact, even the 3rd party filter software was just expected to block content inappropriate for minors.)

        The platforms really did not favor the filter software, of course, because it tends to filter their advertisements. They very much do NOT want the user in control of what they see. So at least FB keeps changing features to render the third party filters non-functional.

        1. “Section 230 as written expected the moderation for anything short of violent threats or obscenity to be via third party filter software.”

          This is definitely not correct. Why do you think that’s true?

          1. It absolutely did. We’ve discussed ejusdem generis here. Interpreting “or otherwise objectionable” to render the list preceding it redundant, rather than meaningfully delineating the sort of “objectionable” intended, was just a way of converting limited purpose moderation into full editorial power.

            1. That has to do with what type of content was in scope, not the mechanism by which it would be filtered.

              There’s a reasonable argument to be made about what the scoping of “or otherwise objectionable” should mean. There’s no language at all to support the notion that Congress imagined it being limited to third party automated filters.

            2. It absolutely did. We’ve discussed ejusdem generis here

              We have indeed. And NToJ and I pointed out how it was being misused. “Otherwise” is a broadening word, not a word of similarity. Ejusdem generis means “of the same kind,” but “otherwise” means “in a way different from the other things on the list.”

        2. Section 230 as written expected the moderation for anything short of violent threats or obscenity to be via third party filter software.

          No. It. Didn’t.

          That’s 180° the opposite of true.

          It was passed significantly in response to Stratton Oakmont v. Prodigy. Prodigy used human moderators.

      2. It seems to me a solution might be that Section 230 could be amended to say that companies have a choice: Either hands off and all (or at least the bulk of) moderation must be either volunteer (most small niche forums) or community based (e.g. /.), or you can filter for content, are a publisher, and are responsible for all content.

        Sigh. Again, that is not “amending” 230. That is repealing 230.

        1. No it is not. Repealing 230 would create a number of new headaches and issues and would largely end up with out the baby with the bathwater. I was suggesting targeted changes to the law which could be accomplished by the act of amending it. Repeal and replace would also work, but for some reason I trust the maggots in D.C. even less whenever they attempt go that route.

          1. Saying that companies have to choose between moderation and immunity is indeed repealing 230, because 230 was enacted precisely to make such a choice unnecessary.

            1. I am not disputing the reasoning for putting it is place or in what it does.

              “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

              That was enacted 25 years ago, when nobody could have predicted what the internet would look like today. I do not believe it adequately addresses the modern internet.

              Quite simply (but with better wording) you could amend that so instead of “No provider…” it would indicate that if a provider is going to act like a [traditional] publisher, they will be treated like one and Further sub sections would need to be added to carve out exceptions for moderation and such and to provide additional clarity.

              See FOSTA-SESTA ( for an example of how you can make sweeping changes to US Code (230 specifically even) w/o the nastiness of having to scrap it in its entirety.

              1. Look, if your argument is “230 is no longer needed/appropriate; let’s repeal it,” I will disagree with you on the merits, but it’s a coherent position. But “Okay, let’s keep 230, but let’s amend it so that it doesn’t do anything at all,” I will point out that it makes no sense.

                1. That is not my argument at all; nor have I said anything of the sort about amending it so that it “doesn’t do anything at all”.

                  The options are… keep it, take it away completely, remove it and replace it with something else, amend/update it. Much like most tech based law, over time 230 has become outdated and does not adequately address current issues, cultures, and use. Much like Congress amended 230 to remove/weakend the save harbor law in regards to sex trafficking, they could do so again, but against certain tech type companies. My suggestion is to do so, targeting companies who act like traditional print publishers/editors.

                  I have zero issue if anyone agrees that this is the best way to handle it or not. I also wouldn’t take issue with anyone who said congress is not competent to pass gas, let along any sort of comprehensive reform.

                  I do; however, find it very odd that your issue is one of a procedural choice rather than any sort of an argument for/against the principal. Maybe the strawman that you are building is so that you can dismiss what I did say (a classic go after the messenger instead tactic), or maybe I am just feeding a troll. Regardless… I find that a bit perplexing.

                  1. My suggestion is to do so, targeting companies who act like traditional print publishers/editors.

                    If (as it appears) by “companies who act like traditional print publishers/editors,” you mean “companies that pick and choose what content will appear on their sites,” those are the only companies for which § 230 does anything. A company that does no moderation at all does not need § 230; it’s already immune.

                    1. That is not was not what I am saying at all. You keep acting like I am saying “repeal” or that I am advocating all-or-nothing. I am not. I am saying it should be updated so that SOME companies would not be protected by it. There is a demarc which am suggesting that we move.

                      Newspapers and magazines, etc. all edit and approve content before publication. They have complete control over what is and is not published. If a story is not one the publication wants to be associated with, they don’t like topic, they dislike the history of author, or don’t believe the quality is up to par, etc. it is not approved or it is edited to bring it within the scope of what they will approve. They are also forced to stand behind the material that they are putting their name on.

                      Some of tech companies (most famously the social media giants) and playing the Boy Scouts game (no gays or athiests, because they are a religious intuition… unless they are looking for grants and govt. handouts, then they are a non-profit). At some point, you are no longer just offering moderation and are actively controlling content the way a traditional publisher does.

                      While I don’t know exactly where the demarc should be, l do believe that there is a difference between a moderator and an editor.

                      Take Facebook, for example: in early to mid 2020, they actively removed discussions regarding herd immunity, lab leak theories, reports that mask/distancing mandates may not work, garage antivirus/testing labs, etc. (I use those examples simply because they were all discussed within Reason) while they also pushed narratives that they believed represented the Facebook brand (they used words like “truth” and “science”, but make no mistake… Brand is all they care about). That is behavior that you expect from a traditional publisher like Reason or NYT, not a place of social gathering and chat which offers simple moderation. It doesn’t matter what you think of any of these stories, whether The Donald is an idiot or not, or how the weather is going change over the next few years… Facebook is taking on the role of a traditional publisher when they, as a “general” chat/social sight, begin taking an active role in what is narrative and opinion and choosing “news that is fit to print”.

                      Section 230 is a wonderful thing… it just needs to be updated to reflect modern practices and behaviors and companies should not be able to hide behind it when they are both competing with and acting like companies who are not protected by it.

      3. I don’t use Facebook or Twitter so I don’t know the details of how they operate, but as far as I know they never refused to publish any of Trump’s tweets. They determined after the fact that some of Trump’s tweets violated their terms of service, and responded by suspending and later deleting his account.

        Editing content “in a manner similar to what a traditional publication might do” means, at a minimum, reviewing all material prior to publication in enough depth that the company would have a good idea of what sort of legal liability each tweet would create. As far as I know, no social media company currently has an infrastructure that would make it practical for them to do this, and thus the case for section 230 protections is as strong as ever.

    4. This gets pretty close to the way I see it (not that it matters). The question of whether the infrastructure providers act as a cartel still remains.

  7. ” No-one wants to feel like a chump who isn’t getting the moral victories that others are getting, and who has to suffer in silence while others get what they want. ”

    That would explain the Volokh Conspiracy’s repeated imposition of viewpoint-driven censorship (often against center-left libertarians, an especially disfavored target).

    If Prof. Volokh has a legitimate point in this context, it is unfortunate he squandered his credibility — except among the disaffected clingers who avidly consume content from Trump, Fox, Instapundit, Stormfront, Newsmax, and the Volokh Conspiracy, who consider this blog’s partisan censorship an act of sovereign citizenship and patriotism.

    (Artie Ray Lee Wayne Jim-Bob Kirkland says ‘hey, y’all.’

    From afar.)

    1. Artie, stop living in the past. There is no taking down of Comments anymore. The Reason Foundation owner does not do that. There are nasty, idiotic, disruptive private emails.

      1. Mental wounds not healing
        Who and what’s to blame
        He’s going off the rails on a crazy train
        He’s going off the rails on a crazy train

          1. I remember when
            I remember, I remember when Behar lost his mind

        1. It’s ironic you post this 100% ad hominem attack in a sub-thread started by a guy bitter over a one time censorship, 6 years ago IIRC, and the continued existence of your post amply demonstrates the current state of Volokh censorship.

          Note that Volokh might start censoring posts like yours if the Democrats’ threats to abolish section 230 come to actual fruition.

          Of course, just the threat of it is coercing the FANG companies to bend the knee. 1st Amendment, how little we knew ye.

          1. It’s laughable to invoke ‘ad hominen attacks’ for mocking a crazy person.

            1. Try doing that in the many homeless camps of your Democrat jurisdiction. Chant some of your comments. Report back.

              1. He go loco, see me pumpin gas at your local saloco
                Stuck off the hydro mixed with cocoa
                Jump turn signs, then run from po po

            2. Your response would make a good example in Goedel, Escher, Bach.

            3. Stop your hijacking of the thread with senseless mocking of Behar. Just mute him if you don’t want to read his rants

          2. Queenie is obsessed. It cannot control itself.

            1. She does seem to be losing it. I sometimes disagree with you, but at least your comments tend to be relevant and responsive.

              1. Really? Do you think Facebook and Twitter should have their assets seized and their employees arrested? You consider that kind of talk ‘relevant and responsive?’ Because I think that’s what a crazy person who deserves only mocking says, but YMMV.

                1. I said I sometimes disagree with him. But, yes, his proposals, while often wrongheaded, are at least relevant to the topic at hand.

                  Which is more than I can say of your responses to him lately.

            2. No, you mean they cannot control themself.

          3. ” over a one time censorship ”

            It was at least five-time censorship, over a period of years. Sometimes, words were vanished by the Board of Censors. Other times, I was warned to stop using certain words (when criticizing conservatives, at least). Another time, the punishment was banishment. The current state of censorship at this blog is that (1) the use of certain words to criticize conservatives is forbidden and (2) Artie Ray Lee Wayne Jim-Bob Kirkland is banned.

            Other than, though, great comment! Prof. Volokh surely is grateful for your sycophantic — albeit falsehood-based — support.

  8. Twitter has apparently risked / about to lose the Section 230 equivalent in India (worlds second largest internet market, for some definition of large):

    So putting your thumb on the scale invites, almost begs, the governments of the world to demand input on the thumb.

    1. Every time buffoon politicians here do things like threaten companies for not censoring, or, worse, drumbeat for panopticon powers (cams, eye in the sky, crackable encryption), corrupt countries, to say nothing of dictatorships, rub their hands and the boot stepping on a human face, forever, no longer must be merely imagined.

  9. I wonder if there has been more government pressure behind the scenes. A senator has a meeting with a CEO and says, “There’s a lot of weird wrongthink on your platform. It would be a shame if we had to do some legislating about that…”

  10. Boring. This reminds me of psychologists doing experiments to show people get mad if you cut them in line.

    If you want to be provocative, how about an argument that this is a good idea given the number of papers and documentaries being done right now showing that the internet has spread crackpot theories and made the fringe mainstream? I think it’s a function of people living in big cities leading upper class lives that you have no grasp on how violent the rhetoric is that i overhear at the bar or restaurant every day from all sorts of white people here in flyover red state. If you want to convince me the internet should be free, tell me how we survive this. Because it will do us no good to preserve freedom only to lead to civil war.

    1. “Because it will do us no good to preserve freedom only to lead to civil war.”

      Every time I see someone say something along these line I think of this John Adams quote:
      “You will never know how much it has cost my generation to preserve YOUR freedom. I hope you will make a good use of it.”

      People sacrificing everything to fight a revolution to preserve the freedoms of future generations and then only few short years later, fighting a civil war for the future generation’s freedoms.

      Today? We would rather be bankrupting future generations by spending trillions of dollars we don’t have while doing everything we can to stirp them of those freedoms.

      1. I highly doubt you will enjoy the war as much as you think you will. John Adams knew also the horror of war and did everything he could to avoid another. He also engaged in extreme censorship during his presidency. Don’t quote history to me. You are quite out of your depth.

  11. It is not the censorship creep that is dangerous; it is the censorship itself.

  12. Your first paragraph turns out not to be true (depending on what you consider a “major” election). Both Facebook and Twitter have blocked candidates for Congress for entire election cycles, as well as candidates for president of Argentina and Brazil and several races in other countries.

  13. The problem with the censorship creep argument is not that this is not a possibility – how live remains to be seen – but that it pretends the other side of the issue doesn’t exist, and doesn’t threaten “creep” of its own in the other direction.

    Suppose some looney on FB urges mob violence. Why can’t that “creep,” as said looney attracts allies, organizes some insanity, etc. Or as other brands of loonies catch on.

    IOW, the argument assumes the risks are one-sided. They are not.

    1. Yes. I do think this is the most interesting portion of Professor Volokh’s paper, but the implication seems to be that since there’s a risk of creeping censorship there should be no censorship at all.

      One thing that Facebook gets taken to task for is its role in the Rohingya genocide in Myanmar, which they’ve subsequently admitted was encouraged and coordinated on this platform. By the logic Professor Volokh lays out here, Facebook either shouldn’t be allowed to or should voluntarily decide that it shouldn’t interfere with such communication because of the risk that once they censor genocide coordination one day they might use it to thwart attempts to pass legislation they don’t like. Somewhere in this discussion there needs to be a recognition of the fact that it might be an even worse outcome to have no censorship at all. I don’t think that Professor Volokh is a free-speech absolutist in this respect, but this section of the paper doesn’t seem to provide any help in understanding what censorship might actually be positive.

      I do like that Professor Volokh explains that the partisan valence isn’t really important to the discussion here, and that censorship is likely problematic even if facially neutral since it will end up being applied in ways that aren’t neutral just due to the inherent biases of the humans involved in decision-making. I think this much more closely reflects what’s going on that claims by conservatives that the tech platforms are explicitly putting their finger on the scales of elections and issues.

  14. That was my comment. I certainly think that to discover your inner dissenter when it’s your ox being suddenly being gored is not to your credit. The purpose of an inner dissenter is to help you see the other side’s complaints.

  15. HA! Sears and Kmart pulled the t-shirt they were selling of the dead insurrectionist.


    BTW, I do agree that the officer’s identity should be released since that is standard practice in other police shootings.

  16. You will NOT express ANY skepticism regarding the government-approved narrative of that Holocaust (the one with the capital “H”).

  17. Prof. Volokh’s comments are insightful as usual, but I have to ask if what the big media companies are doing is any worse than the selectivity and ideological bias of print newspapers or broadcast tv? If anything the media companies are much more inclusive.

    Yet, it could be argued that the small number and vast reach of large social media companies make them more of a gatekeeper.

  18. Recently I posted on Facebook a graph from the EPA website showing how much more frequent heat waves were in the 1930’s. This was deleted by Facebook as “being against their community standards”. So truth is against Facebook community standards.

    1. Hardly a surprise – – – – – – – – –

  19. Heres the thing. In a perfect world no regulation would be needed. In a perfect world Roosevelt should not have busted up the Sugar Trust. In a perfect world Standard Oil and Ma Ball should have been left to do as they please. But in the real world Big Tech forms perhaps the biggest most significant monopoly that formed because of and acts in concert with each other and with the financial systems monopoly and the government to benefit exclusively from the taxpayer spigot and snuff out rivals…especially conservative rivals making new competition effectively impossible. In fact this is quite a bit more insidious than previous monopolies due to the inherent social ideological component behind it and the dangers of control of information itself.

    Since for various reasons we/they are unable or unwilling to make smaller more voluntary changes work I don’t see what would be that amiss with a tiny bit of regulation to nudge things a little into balance. Regulation far more draconian occurs on a daily basis a million times for thousands of forgotten rules…especially for monopolies and has been unquestioned and uncontroversial for decades even for relatively die hard libertarians.

    So excuse me if I find the sudden cries for extreme no compromise 100% pure laissez faire capitalism from sudden hardcore Randian leftists on this and only this single issue a bit insincere when they joyfully continue support massive interference in all other matters bigger and smaller.

    1. Congrats, you’ve justified every liberal market regulation ever.

      1. Nope theres matter of degrees. Virtually every group except for anarchists accept some level of regulation so its reasonable to regulate the most extreme and dangerous monopolies while leaving everything else alone unless you are a prog who within the past couple years suddenly has adapted the inverse position of leaving extreme tech monopolies alone while regulating everything else.

  20. I may not know the correct Legal position on this but, this may be illustrative. One of the reasons for blocking content on Facebook includes, ‘bullying’ President Biden. Now, since thin-skinned Joe has apparently decided to have a conniption fit over my repost, something MUST be done. A certifiable loony in the White House being propped up by Fakebook whilst, magnifying every lie that came down the Pike 2016-2020.

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