Social Media Common Carrier

Social Media Power and the Newspaper/Broadcaster Analogy

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Another excerpt from my Social Media as Common Carriers? article (see also this thread). We're still on Part I, which asks whether it might make sense to mandate viewpoint neutrality of social media platforms, in at least some contexts—but if you're waiting for the First Amendment analysis of whether such mandates are constitutional, we'll be turning to that shortly.

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Now of course there have also long been rich, powerful organizations with the power to influence public debate: newspapers and broadcasters. Everything Justice Stevens said about business corporations generally in Citizens United also applies to newspaper corporations.

To be sure, some media outlets, such as magazines of opinion, acquire power because their audience agrees with their views; that might distinguish them from other businesses whose power has "little or no correlation to the public's support for the corporation's political ideas."[82] But that's not so for many of the most powerful media outlets, such as newspapers: Especially when there was only one newspaper in town, people often subscribed to it because of its classifieds, coupons, TV listings, or nonpolitical local affairs coverage, not because they agreed with its ideology.

Yet newspapers and broadcasters have long been seen as entitled to pick and choose which opinions to publish. And I support the continued freedom of newspapers and broadcasters to make such choices, both as a policy matter and as a First Amendment right (more on that in the next Part). Newspapers and broadcasters shouldn't be seen as common carriers, because of three related features of such media.

[1.] The limited space in a newspaper and limited time on a broadcast channel make editorial judgment necessary. A newspaper can't publish all the items submitted to it (especially given how many submissions it would get if it had such an obligation). Nor can a newspaper even adhere to a viewpoint neutrality rule, given the number of viewpoints, thoughtful or crank, that could be submitted on any subject. Twitter and Facebook, on the other hand, can host all viewpoints. When they exclude certain viewpoints—a tiny fraction of all the items that are posted on their services—they are certainly not doing it to save disk space.

[2.] Readers and viewers rely on newspapers and broadcasters to help avoid information overload, as well as to exclude material that readers and viewers might find offensive or useless.[83] For these publishers to be useful to the public, they need to publish 1% (or perhaps much less) of all the viewpoints available for them to publish.

Twitter and Facebook, on the other hand, even when they delete some views, likely distribute 99% of all the viewpoints submitted to their services.[84] Readers don't count on social media platforms to fight information overload using their hosting decisions (though readers may count on social media platforms to select the most interesting material in their recommendation decisions).

[3.] Both for newspapers and particular broadcasts, readers and viewers tend to consume them as a coherent product—they may read a newspaper (or at least a section) cover to cover, or watch a whole half-hour newscast, or even keep a channel on for hours on end. They do this to get an aggregate speech product, "today's news" (or perhaps "this weekly magazine's viewpoint on the past week's news"), again trusting the publisher's editorial judgment. Requiring publishers to include certain material in the product denies viewers the coherent speech product that they seek.

The major platforms, on the other hand, are not generally in the business of providing "coherent and consistent messaging"[85] the way that, say, an ideologically minded magazine or cable news channel might be. Even if Facebook and Twitter deliberately exclude some viewpoints, the aggregate of all the material they host is very far from coherent and consistent.

Those, then, are the reasons the platforms' hosting function differs from the media's function. But our legal system has also long been concerned about concentration of economic power, and its influence on democratic debate, even among the media. We've seen that in the FCC's media cross-ownership rules, which aimed to limit consolidation of newspaper and broadcaster power within the same city.[86] We've seen it in attempts to use antitrust law to preserve two-newspaper towns, for instance by insisting on joint operating agreements that maintain each newspaper's editorial independence even when the newspapers must merge for financial reasons.[87] We've seen it in the Fairness Doctrine,[88] the Personal Attack Rule,[89] the requirement that broadcasters sell ads to political candidates,[90] and the requirement that they not censor ads bought by political candidates.[91]

Not all these policies, to be sure, are good or constitutionally permissible. I think the Fairness Doctrine, for instance, was a mistake,[92] partly because it required the government to decide (1) when some speech by broadcasters triggered a duty to present other speech, and (2) which other speech broadcasters needed to air in response. Broadcasters had a duty to devote time to "controversial issues of public importance," and then had a "duty to present responsible conflicting views."[93] Policing those vague lines would itself inevitably involve viewpoint discrimination, unless the FCC were prepared to insist, for instance, that any pro-tolerance views triggered a duty to present racist views.

The Fairness Doctrine also limited broadcasters' own speech, both by diminishing the time available for that speech and by creating a disincentive to air controversial speech that would yield Fairness Doctrine obligations. I'm glad that Reno v. ACLU essentially foreclosed the implementation of a Fairness Doctrine for Internet sites.[94] But a rule of viewpoint neutrality in platform hosting, where platforms have essentially unlimited storage space—unlike broadcasters, who face a sharply limited broadcasting day—wouldn't pose the same problems.[95]

Yet in any event, the history of these policies, with all its missteps, shows an enduring concern about undue domination of political debate by powerful economic entities. Congress and the courts have not treated broadcasters as "common carriers" because of the countervailing reasons for publisher editorial discretion that I laid out above.[96] But while that decision makes sense for such publishers, it may not make sense for other platforms.

And indeed it seems to me that social media platforms, in their hosting function (rather than their recommendation function), are more like phone companies (whether often-monopoly landlines or competitive cellular companies) than like newspapers or broadcasters. They can indeed host all viewpoints. Their decisions to stop hosting certain feeds doesn't help readers deal with information overload, since it reduces the number of hosted feeds by only a small fraction. And people don't go to Facebook and Twitter to see the aggregate of all the pages they host, the way some people read a newspaper section or a magazine cover to cover.

Moreover, there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches.[97] Indeed, actions such as Amazon Web Services', the Google Store's, and the Apple Store's blockade of Parler[98] help make such near-monopoly status likely to endure.[99]

[82] Citizens United, 558 U.S. at 883 (quoting Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990)).

[83] In Benjamin Franklin's words, "having contracted with my subscribers to furnish them with what might be either useful or entertaining, I could not fill their papers with private altercation, in which they had no concern, without doing them manifest injustice." Benjamin Franklin, The Autobiography of Benjamin Franklin 88 (1850).

[84] "Social media providers, in contrast, routinely use algorithms to screen all content for unacceptable material but usually not for viewpoint, and the overwhelming majority of the material never gets reviewed except by algorithms. Something well north of 99% of the content that makes it onto a social media site never gets reviewed further." NetChoice, LLC v. Moody, No. 4:21CV220-RH-MAF, 2021 WL 2690876, *8 (N.D. Fla. June 30, 2021).

[85] Ashutosh Bhagwat, Do Platforms Have Editorial Rights?, 1 J. Free Speech L. __, 5-6 (2021).

[86] See, e.g., FCC v. Nat'l Citizens Comm. for Broadcasting, 436 U.S. 775, 780 (1978) (discussing FCC's interest in "preventing undue concentration of economic power" in "mass media ownership"); Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 FCC 1476, 1476–77 (1964).

[87] Newspaper Preservation Act, 15 U.S.C. §§ 1801 et seq.

[88] Red Lion Broad. Co. v. FCC, 395 U.S.367, 370 (1969).

[89] Id. at 378.

[90] 47 U.S.C. §§ 312(a)(7), 315(a).

[91] Id. § 315(a).

[92] See generally Thomas G. Krattenmaker & Lucas A. Powe, Jr., Regulating Broadcast Programming 240–74 (1994); Samples, supra note 38, text accompanying nn.47–48.

[93] NBC v. FCC, 516 F.2d 1101, 1110 (D.C. Cir. 1974); In re Responsibility Under the Fairness Doctrine, 40 FCC 576, 577 (1963).

[94] 521 U.S. 844, 868–69 (1997).

[95] Krishnamurthy & Chemerinsky, supra note 29. To be precise, server space does cost money; but there's little reason to think that the relatively few items that platforms choose to block based on viewpoint occupy a material fraction of the space that Facebook uses.

[96] See, e.g., FCC v. Midwest Video Corp., 440 U.S. 689 (1979); 47 U.S.C. § 153(11).

[97] "[T]he power that platforms such as Twitter and Facebook possess is far greater than that of individual broadcasters who compete with one another as well as with satellite and cable networks." Krishnamurthy & Chemerinsky, supra note 29.

[98] See supra note 52.

[99] For an argument that such monopoly status is overstated, and in any case is unlikely to endure, see Samples, supra note 38, at text accompanying nn.38–42. Epstein, supra note 9, at 5, responds briefly, expressing some sympathy for Samples' position but also some doubt.

NEXT: Channeling Your Inner Dissenter from Your Inner Majority

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  1. The difference between broadcasters and newspapers and social media is at least 2 things:

    1. Section 230 immunity from liability.

    2. Network effects mean the social media company’s success is mostly attributable to early-adopting power users who have a reliance interest in moderation policies not changing after they have put in the blood, sweat, and tears to get 1million followers under regime A, only to lose it all under moderation regime B. While Regime B wouldn’t even be possible (because the company would have failed) without those early adopters.

    1. Trump’s lawsuit could benefit from amicus briefs.

    2. Why do the no-limits-on-facebook-posts proponents want to get rid of section 230 immunity? Maybe I’m wrong, but that seems counterproductive. Holding Facebook liable for its users posts would encourage it to moderate. Indeed, it would make the posts Facebook’s speech.

      1. Its a subsidy. They can, right now, selectively host defamatory speech that they agree with without facing liability.

        I don’t think killing 230 is a good idea. I think giving longtime users with vested interests (followers, monetization) a fair process and straightforward standards is a reasonable trade for this federally granted subsidy. Without the subsidy FB and Youtube wouldn’t have ever gotten out of the crib, but the same is true of FB and Youtube and some of the people they banned.

        1. “I think giving longtime users with vested interests (followers, monetization) a fair process and straightforward standards is a reasonable trade for this federally granted subsidy.”

          I take it you’re referring to longtime users like Trump who get banned. I agree it’s preferable to do that. I’ve been wondering what the terms of service say about notice and all that. No one, not Eugene or anyone else, has actually talked about what the users (like Trump) and Facebook agreed to. I’m not on FB myself and honestly won’t mess with looking this up myself. But it seems critical to me, and I can’t tell that anyone here has addressed it.

          1. From what I’ve seen FB and YT and the like have illusory contracts (subject to unilateral change at any time) and unclear standards in their user agreements. What has happened, it seems (at least on YT which I am more familiar with), longtime channels will get demonetized for doing something like interviewing Charles Murray, and/or get banned for discussing such topics. Or also got banned for discussing the Wuhan lab leak theory (which I guess is now canon). But there is not really clear why those are banworthy offenses, based on a plain ready of the relevant sections of the user agreements. Particularly when applied to certain channels that do indeed make threats (TYT) or incite to violence much more explicitly.

            Given this, at the very least users should have damages recourse for their reliance interests when user agreements are unilaterally changed, and or a ban/demonetization does not follow a plain reading of the text. For example, YT has “impersonation guidelines” currently that are written vaguely, but should not, under a plain reading cover parodies (like say Pewdiepie impersonating Liam Hemsworth and doing a Thor thing), the examples make this pretty clear. But what if Hemsworth has a deal with google and gets whiny about it and gets the video demonetized. That’s a lot of money out of his pocket, and if its a ban, its easily tens of millions. But there is no external enforcement mechanism to hold YT to its obvious failure to read its own policies. And, if they change them to “no Hemsworth impersonation allowed” that is a material change to the contract anyways and they should have to pay for that as well.

            1. Now you’re trying to rewrite contract law as well as § 230.

              1. It’s very dizzying. The contracts contain “unclear standards” but are still somehow subject to a “plain reading”. I guess the reason that there is no “external enforcement mechanism” is because the contract doesn’t allow the remedy sought, but since it is “illusory” it’s not a contract at all. Of course it’s hard to justify a reliance interest on an illusory promise in the first place, but sure, tens of millions in future revenues is, uh, “out of his pocket” reliance damages. Did he spend the tens of millions on the video? No, but he would have made it, so it’s out of pocket, you see.

            2. At least we’re talking about contract interests now. I sense some people would just as soon conclude the TOSs are meaningless and toss them out the window, which doesn’t seem right to me.

              I do wonder about any tech company’s rights to change its TOS unilaterally after I’ve paid for a subscription for example. But I imagine FB’s response to a challenge would be something like “what did you pay? What is your consideration? What agreement, exactly, did we have when you signed up?” And I’m guessing (literally, I’m guessing) its position would be “nothing.” And again, that doesn’t seem right in context of a politician who is relying on the platform to reach voters and gets it yanked.

              (Aside, so you know where I’m coming from: I also think it’s problematic for politicians to abuse the platform to promote disinformation that causes widespread harm, and I’m not opposed to FB yanking that stuff).

              1. The consideration is obviously the content you upload, without which they have nothing to monetize.

                Its tricky because content creators on Youtube are a hybrid of tenants, employees, and pensioners. They’ve basically leased a username that lets them get eyeballs, like a tenet leasing a billboard, they provide ongoinig services for compensation (either monetary or publicity based on getting something out of views), and they have an interest in the old content that still pays them (again monetary or otherwise) as it accumulates views passively. No where else do we treat such property interests so cavalierly.

      2. I wondered exactly that. I get the feeling it’s fighting fire with fire. We wouldn’t be here but for Democrats threatening to yank 230 if they didn’t censor harrassment.

        What to do if your statements are starting to be censored in response to that?

        Dunno, but is threatening them with an even harder punch a valid option?

        We should not be in this state to begin with, is the only correct answer. Politicians are scum, “working around” the First Amendment this way.

        1. “We wouldn’t be here but for Democrats threatening to yank 230 if they didn’t censor harrassment.”

          You forgot the sneer quotes around ‘harassment’.

      3. 230 was a good idea in 1996, immunity to grow the internet. Now it is big and really offensive. It no longer needs the support of immunity. Immunity/liability is unauthorized industrial policy by the lawyer profession. We thus have the stupidest people calling winners and losers in the economy, rather than the consumer.

        1. But wouldn’t abolishing 230 give Facebook all the more reason to limit what people say on its platforms?

        2. Or maybe, as I ponder this, you mean that companies like FB are going to limit posts no matter what theories Eugene or anyone else comes up with, so dump 230 and go after them for whatever you can. Is that close to it?

          1. Nah, the theory is that, from behind the shield of Section 230, FB is free to censor whoever it dislikes for whatever reason, and not censor similarly situated people it likes. So the two sides of a debate are not on an equal footing, FB puts a very heavy thumb on the scale.

            Get rid of Section 230, (Really, only the part allowing legally optional moderation needs to go.) and FB would either have to lay off altogether, or moderate both sides heavily. Equality either way.

            1. If FB “moderate[d] both sides heavily” without 230, in some jurisdictions it would be a “publisher”. It can’t do that without assuming liability for all of its content, including the content it doesn’t moderate. It’s disingenuous to pretend that the goal is merely to require it to moderate everybody. The goal here is that Facebook will moderate nobody.

              1. NToJ, Facebook is a publisher. It uses a publishing business model. It competes economically in the publishing business market. Its activities and revenue share drastically affect the fortunes of other publishers. Asserting in legal language some contrary fairy tale changes none of that—nor does any such legislative fiddling have power to affect constitutionally-mandated protections.

                Thus, an imaginary exception to reality—even when written into law— cannot justify setting aside 1A protection for press freedom, which Facebook and other, “platform,” social media should fully enjoy. On the basis of the facts of their operations, those companies are not at all distinguishable from other publishers, which means any legal attempt to burden their 1A protection would threaten to burden other publishers as well.

                None of that means Facebook and other, “platforms,” are not a public menace. Their arbitrarily privileged status under Section 230 has demonstrably disrupted not only the publishing business, but also other kinds of essential public activities, including elections, much to the detriment of the nation’s public life.

                The right response is to recognize that the cause of all this harm and disruption is not some imaginary, made-up, categorical status for, “platforms,” but instead Section 230 itself. It is not logically required that recognition of disruptions calls for further legal fictionalization, with erstwhile, “platforms,” transmuted by fiat into, “common carriers”—with which actual online publishers share almost no business model points in common.

                Using law to make the situation still more complicated and ridiculous will not make it better. The right remedy is to repeal Section 230 altogether. Then start anew to prescribe rules to optimize the contributions the inherent strengths of online publishing can contribute, without tearing down press freedom in the process.

            2. Repealing Section 230 would not require Facebook to moderate “both sides” equally. It might have to moderate defamation regardless of political slant, for instance, but it would be perfectly free to deplatform the political party doubling down on pedophiles and scam artists.

            3. Get rid of Section 230, (Really, only the part allowing legally optional moderation needs to go.) and FB would either have to lay off altogether, or moderate both sides heavily. Equality either way.

              Once again, Dunning Kruger Brett comes out to play. This is completely wrong, and shows once again you don’t understand the legal issues at play. Get rid of § 230, and FB would either have to not moderate anything — which is not a viable business model — or delete anything that might even remotely be considered defamatory. What it would not have to do is “moderate both sides.”

              As people who actually understand the law have repeatedly tried to explain to you, a website’s authority to moderate as it sees fit derives from (a) the fact that it’s private property; and (b) the First Amendment. Not from § 230.

              1. “and FB would either have to not moderate anything — which is not a viable business model”

                First, they’d still be required to moderate on the basis of illegal content, whenever they were notified of it.

                Second, what the hell makes you think it wouldn’t be a viable business model? Even assuming that a total lack of moderation (Other than being responsive to takedown orders.) would drive away customers, third party filtering software would still be an option.

                Plenty of businesses survive without moderation. Acting as a common carrier would be a perfectly viable business model.

                In fact, I’d go so far as to say it’s a business model that’s so obviously viable, that every time somebody tries to set up a platform that would operate on that basis, the existing platforms move heaven and earth to kill it with fire.

                1. Second, what the hell makes you think it wouldn’t be a viable business model? Even assuming that a total lack of moderation (Other than being responsive to takedown orders.) would drive away customers, third party filtering software would still be an option.

                  The fact that not a single commercial social media site has a no-moderation policy ought to be a clue for you. If you read the TOS for Gab and Parler and GTTR (or whatever the Jason Miller grift from this past week was called), every single one — despite the fact that they market themselves to those disaffected with FB/Twitter/etc.’s moderation policies — says that they’ll delete stuff if they feel like it.

                  Every place that doesn’t moderate is overrun with spam, trolling, and Nazis.

                  Plenty of businesses survive without moderation. Acting as a common carrier would be a perfectly viable business model.

                  No. It. Wouldn’t. Again, these things are not common carriers. Common carriers, inter alia, carry private content. Social media carry public content.

              2. Getting rid of § 230 is not, as you say, a solution to consservative complaints about social media bias, since its demise would not prevent social media from censoring conservatives and conservative opinion.

                In one sense therefore, the calls to repeal § 230 protection are more akin to – they are being unfriendly to me, the government has given them a cupcake, let us take away their cupcake. It will not stop them being unfriendly to me, but it will allow me to retaliate. Not all retaliation has to be in kind.

                But in another sense the § 230 issue is not merely tit-for-tat, it’s germane to the question of whether we should consider social media companies as being more akin to publishers, or more akin to phone companies. The rationale for the § 230 protection is that what appears on their platforms is not their speech and they could not possibly edit and approve each item before it appears, as traditional publishers do. In this respect Congress has characterised them as more like a phone company than a newspaper.

                Which is the question relevant to EV’s learned paper – ie basically whose speech are we talking about – and so the question of how strong a social media company’s 1A protections really are.

                1. In connection with which, I have a couple of legal questions for the learned commentators. I see Facebook as more like an effectively infinite noticeboard, on which users can pin their messages.

                  (Obviously Facebook’s business involves all sorts of things that are then done wth the messages on the noticeboard, but it starts with the noticeboard.)

                  So – if I make a libellous statement on a billboard, apart from me, who is also liable for the libel ?

                  (a) the owner of the billboard ?
                  (b) the person on whose land the noticeboard is erected ?
                  (c) the person who printed or painted or wrote my message on the billboard ?
                  (d) the workmen who erected the billboard (let us assume it’s a new billboard, and was erected with my libellous message already affixed) ?

              3. Dunning-Kruger. Irony is thy name, self-awareness is not your strong point.

      4. I think eliminating 230 will encourage some small providers (websites) to moderate more. It will have the opposite effect on someone like Facebook or Twitter. There are over of 350,000 tweets sent per minute, 500 million per day, 200 billion per year. If Twitter employed every human being in the United States, it wouldn’t be able to eliminate speech that would make it liable without 230 (at least under the wrongest opinions of federal district court judges). Any company that scales as Twitter has will either become 4chan (and stop moderating entirely to avoid being labeled a “publisher”) or will just cease to exist.

    3. The difference isn’t “section 230” but rather the ability to directly interact with the news provider in a public manner. TV broadcasts are one-way. Newspapers are also largely one-way. The internet makes news more interactive and this would be true with or without section 230.

      And while section 230 shields the host from defamation suits, it doesn’t shield the author. The drive to kill section 230 is about deplatforming people who disagree with you not defending against defamation.

      1. The platforms are also largely one-way – its was DJT himself who went to court to force Facebook and Twitter to allow him to block folks despite that he was POTUS. Moreover, while I might be able to open a Facebook or Twitter account I can’t force anybody to read my posts. It is totally one-way in that those people who spend their lives attempting to get “followers” are the only ones being “followed.”

        1. And you have to say outrageous things to attract “followers” which is exactly the device DJT employed – until he got kicked off the platforms for doing it.

        2. Are you talking about Knight First Amendment Institute v. Trump, wherein part of a university joined other people to sue Donald Trump over him blocking the other people’s Twit accounts? That’s not “DJT himself who went to court”, and Facebook and Twitter were not parties to that lawsuit.

  2. “Moreover, there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches.[97]”

    And what does footnote 97 say?

    “[97] “[T]he power that platforms such as Twitter and Facebook possess is far greater than that of individual broadcasters who compete with one another as well as with satellite and cable networks.” Krishnamurthy & Chemerinsky, supra note 29.”

    How on earth does that support your claim that Facebook and Twitter have no major rivals? Youtube, TikTok, Reddit, and Pinterest all have more monthly active users than Twitter.

    1. Yes. Facebook is the 1000 pound gorilla here, they have over 3/4 of market share for all types of social media combined. Everybody else besides them is a bit player.

      1. It’s weird to call number of users vs number of potential users “market share” when many people use more than one service. Of note, though, YouTube’s active usage number equal to 82 percent Facebook’s. In terms of just the US, the share of adults that report using Facebook, at 69%, is *less* than the share that report using YouTube (at 81%). And one of the fastest growing social media sites in the US (TikTok, created in ’16, used by 21% of US adults) is an unambiguous competitor to YouTube.

        Seems like a pretty vibrant marketplace to me.

      2. Facebook Statistics
        Total Number of Monthly Active Users: 2.85 billion

        Total Number of Monthly Active YouTube Users: 2+ billion
        https://www.omnicoreagency.com/youtube-statistics/

    2. First off, YouTube and Reddit, or TikTok and Facebook, are not the same thing – different social media niches – and are not competitors.

      Second, “monthly active users” may be one of the worst metrics ever. Even in the 90s we knew it was garbage, which is why things like engagement measures or click-through rates were developed. And I’m sure that the intervening decades have further developed more meaningful metrics.

      1. If the “market” is speech from the public, they are all competitors.

        Engagement measures and click-through rates are relevant for advertisers, perhaps, but the “market” at issue here is not them, social media interactions with them are not what Eugene is arguing for regulating here. He’s arguing about user speech and prospective audience size.

        Try to connect your comments to what the actual discussion is about next time.

        1. The market is advertising sales. Speech from the public is akin to the product; public attention is curated by the publisher to guarantee the ad sales market can get the specific products it wants. That is a classic publishing business model, by the way.

          1. In Volokh’s construction above that I’m specifically commenting on, advertising sales are definitely not the market.

        2. “Speech from the public” seems like an unreasonably broad definition of “market”. For example, In the Matter of Realcomp II, Ltd.” an FTC ALJ treated MLS as a market more or less unto itself, excluding the other mechanisms by which a house could be listed for sale.

          1. It is the market as essentially defined by Volokh. If you think it’s different, propose a different one that still makes sense with what Volokh’s actual asserted concerns are.

            1. No, it is the market as defined by your straw man.

              1. As demonstrated by you giving us the real relevant market that fits with what Volokh was talking about …

      2. Facebook has a monopoly on the product of Facebook!

    3. Not to mention the barriers to entry for creating a new YouTube or Facebook are pretty low compared to creating a new network TV channel or printed newspaper.

  3. Another day, another equivocation.

    This entire distinction starts to unravel once we recognize that newspapers and broadcasters are on Facebook, as well. They “publish” content that they seek to distribute through Facebook to consumers. Once you see this, you realize that all of these superficial distinctions – people read newspapers cover to cover! Broadcasters have limited time and bandwidth! – are increasingly meaningless. Stories “published” by the NYTimes are disaggregated from the rest of its pages, repackaged on Facebook along with stories “published” by other content providers, are not subject to the ordinary physical or time limitations that traditional media are subject to, and so on. So why wouldn’t it follow that they ought to be required to “host” material, like Facebook is? How does this distinction hold up to any kind of intellectually honest scrutiny?

    More fundamentally, Eugene, you are making the wrong comparison here. You are comparing Facebook’s “hosting” function to newspapers’ “publishing” function and broadcasters’ “broadcasting” function. But people are not really concerned with whether Facebook is allowing conservative propagandists to upload their lies to Facebook’s servers. They are concerned with whether Facebook is communicating those lies to end users who may have some interest in seeing those lies. One might say, um, “publishing.”

    And the experience of using Facebook is almost the exact opposite of what you’ve described. It’s a single, cohesive “feed.” Users have limited space, time, and attention to scroll through or read the feed. Facebook decides what to present, how it’s presented, how much of it is presented. It’s not presented as part of a single, cohesive, editorial viewpoint, true (content distributed through broadcast media generally isn’t either, particularly when you consider commercials). But everything else you say about the limitations of print and broadcast media apply just as easily to the experience of using Facebook.

    1. I argue below that it is a “single, cohesive, editorial viewpoint” but that the editor is the algorithm and the viewpoint is based on the material that is most successful at engaging the user for the longest period of time (in order to maximize their value.) It’s a hyper-focused, curated news feed designed for a specific individual’s consumption habits.

    2. You are missing the argument altogether. The article above is trying to say that ‘legal treatment X made sense for (physical) newspapers which were constrained for length and read as a whole – and that legal treatment may make less sense for (nonphysical) social media which does not have those constraints.’

      “Newspapers” that are now publishing via facebook are no longer the physical newspapers that the article discusses. They are social media users just like the rest of us. But their current status is irrelevant to the analogy to the appropriateness of X given their historical limitations.

      1. I understand the argument. I am trying to show how it extends to include precisely those same media organizations Eugene thinks ought to be protected from treatment as “common carriers” or subject to rules like the Fairness Doctrine. If Facebook can be regulated as a “common carrier,” then so should newspapers and broadcasters (at least in their online “hosting” function, as Eugene has chosen to describe it).

        The point about them using Facebook to disseminate their material was incidental, an illustrative way of illustrating how news media no longer functions in the conventional way that Eugene cites to make his specious distinction.

        Think about it this way: the NYTimes still has an op-ed section. Any given day, an op-ed contributor may levy a harsh critique of a prominent politician. That politician might like to make use of NYTimes’s national platform to issue a rejoinder. He might even seek to use the law to compel the NYTimes to give him the opportunity to do so.

        When the NYTimes was primarily a physical paper, it made sense to say that it had limited column inches to accommodate any such rejoinder, and all of its content was between two covers, so the First Amendment couldn’t tolerate compelling the NYTimes to “host” the politician’s rejoinder. But that’s much less true now. The “offending” op-ed might be shared across multiple news aggregators, in addition to Twitter and Facebook; the NYTimes might code the op-ed so that, when it is shared by readers, it pops up on other platforms in a smooth, professional-looking way, isolated from its other stories; and it’s trivial to include several op-eds on their website that never appear in print.

        So why, per Eugene, shouldn’t the politician be entitled to force the NYTimes to “host” his rejoinder, in at least some online capacity?

  4. Is Volokh doing anything but just writing a bunch of words to convince himself to give up libertarian thought here? who cares about all this part? Where’s the alternative speech regime???

    1. He says he hasn’t got to the first amendment part of his paper yet, but you can read ahead.

      But he actually makes a good point referring to citizens united, is there anyone that thinks citizens united was wrongly decided that also thinks that social media companies can’t have their content regulated?

      1. I think that people who are critical of Citizens United understand that ordered liberty and free speech requires some attention to how the rules are structured, not just some freewheeling “hands-off” approach. Just like free markets. They might tend to agree that social media is conveniently demonstrating just how true this is – leaving everything unregulated and waiting for “good speech” to beat out “bad speech” isn’t working.

        The problem is that people like Eugene want to preserve things like Citizens United and reject the Fairness Doctrine, while applying the lessons and experiences they teach to Facebook. They are cynically invoking a “common cause” in order to achieve a political outcome and a distorted market for free speech, where some outlets – e.g., Facebook, Twitter, other “common carrier” social networks – are required to abide by regulations that reach deep into how they deliver content, while anonymously-funded PACs are free to spend as much money as they like to buy elections.

        1. SimonP, and perhaps more to the point, to buy legislation after the elections, or before the next election, when the threat becomes use of money on behalf of Mr. Incumbent’s opponent.

      2. Kazinski, me. I have been making both those points right along. But my take on Citizens United was that it would have been the right decision based on the record from below. The problem was in other stuff the Court dragged in or made up and called fact for purely political purposes.

    2. He is hoisting the Federalist Society-Heritage Foundation-Republican Party banner and charging anew into the culture war.

      With the usual dismal results, I expect.

      Carry on, clingers.

  5. Its not clear to me that “Reno v. ACLU essentially foreclosed the implementation of a Fairness Doctrine for Internet sites”.

    The Fairness doctrine was upheld based at least in part on the scarcity of licenses.

    From Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969), cited favorably:

    “(a) The First Amendment is relevant to public broadcasting, but it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount. Pp. 395 U. S. 386-390.

    (b) The First Amendment does not protect private censorship by broadcasters who are licensed by the Government to use a scarce resource which is denied to others. Pp. 395 U. S. 390-392.”

    Social media platforms are not licensees (maybe as monopolies they should be). The essential element of Red Lion is the “scarcity.” The government can regulate the airwaves because of the scarcity of time.

    Monopolies essentially result in a form of economic scarcity. “Bandwidth” is not scarce from a technological perspective, however the existence of the monopoly bottlenecks speech all the same. The salient type of scarcity is speech scarcity.

  6. The major platforms, on the other hand, are not generally in the business of providing “coherent and consistent messaging”…

    The major platforms are using a form of editorial filter and they are doing so precisely to encourage readers to read a significant volume of material. While this is not precisely the same as old media, it is directly analogous.

    1) While Facebook has an effectively infinite amount of space, what it doesn’t have is an infinite amount of time with their audience; Facebook and Twitter are just as limited but merely along another dimension than space. Perhaps it’s more analogous to broadcast news which may only be on television for an hour per night.
    2) Twitter and Facebook use an algorithm to curate content based on a person’s observed reading behavior. So the new media is able to edit content on a per-person basis and they use this to
    3) Encourage people to read more and stay connected longer in order to maximize ad revenue and information they could resell to other companies. Again, since the dimension social media sites are most limited by is time, their version of “reading the entire paper” is to identify and leverage personal biases to feed people yet another outrage in order to maximize the interaction.

    The algorithm appears designed to identify biases and feed them which puts them in the “business of providing coherent and consistent messaging.” The only difference here is that the messaging is tailored to the individual’s desirable responses to prior material (but not necessarily their deliberate choice.) I sometimes run into this issue with YouTube; if I binge on funny cat videos I’ll suddenly find my favorite cooking shows have disappeared from my feed to be replaced by more funny animal videos. To get around this, I have to manually search for cooking videos in order to redirect the algorithm to respond to my choices rather than my pattern.

  7. Does anyone actually think when corporations are absolved of the “moral” responsibility of policing speech and can just scream “the government made me do it” to advertisers, they are not going to throughly enjoy the immense amount of data they will be able to compile and therefore generate tons of advertising revenue from corporations who are happy to capitalize on all that data?

    1. Less speech should equal less material (and insight) into their users which means less information (and less detailed information) they can offer for sale or use to direct people to advertisements.

      1. Mo’ info means mo’ money and you can’t tell me for a second any generic corporation cares that much about “woke” crap that it would abandon a big stack of money because AOC is complaining. They pretend to care because that is what makes them the money right now. That incentive will change in a heartbeat for a bigger pile of cash.

        1. “They pretend to care because that is what makes them the money right now.”

          Sort of: I think they pretend to care partly out of some sense of guilt for doing so well, and partly as an olive branch to the left to attempt to appease them and avoid regulation.

        2. Or perhaps they are just decent people, at least sometimes, who dislike racists, delusional conspiracy theorists, gay-bashers, xenophobes, White nationalists, mean-spirited liars, and other conservatives, and do not wish to associate with or support them.

          1. That is where I am actually surprised you think corporations have some sort of “soul” AK. Back in the 90’s they would do whatever it took to placate the religious right because the “moral majority” had the purse strings. Now that the regressive “woke” left has them, major corporations have changed their tune. All of it comes back to the almighty dollar.

            If the KKK were spending $10 billion dollars on a cloud computing system you can bet your bottom dollar Microsoft and Amazon would be lining up to take their cash…

            1. Did I say they had a soul? I don’t think I said or even implied that. I am still not sure I see your point. They dont, so what?

              1. You should read and comment thread before responding. My post was to AK, not you. So does that answer your inquiry….

                1. ahhh. I have AK muted. So I thought you were responding to me. lol

    2. I am not sure what your point is. Social media platforms already capitalize on immense amounts of data, monetizing ad revenue. So do tv networks. Live sports generate billions in ad revenue. Superbowl commercials have become their own form if entertainment, its necessary to cut through all the advertising noise. There is a lot of competition for consumer eyeballs, its a big business. That’s the way it always will be, unless you think living in a one party communist state that produces only one type of car, one type of house, and one type of toothpaste is good idea.

  8. I’ve got a modest content neutral consumer protection law to propose. First I will roughly define social media as media that allows users to create their own account and put their own content on their own pages.

    I then propose that social media companies can not hide, throttle, or post warnings about on anyone’s page without their permission. If I post something on my page, then people going to my page can see what I post, as long as it meets the permissions I set.

    I don’t see anything in the first amendment that says states can’t set simple terms of contract to protect consumers, in fact they do that all the time for contracts with gyms, dry cleaners, etc, all of which are regulated in terms of what protections consumers have. For example see CALIFORNIA’S
    HEALTH STUDIO SERVICES CONTRACT LAW.

    Then I also don’t see any first amendment problems with setting the terms of who’s business social media companies can refuse, as long as the regulations are content neutral.

    1. Ok but who pays to house the servers and who pays for those servers? if advertisers they are not going to want porn and bullying and beastiality on those pages, right? Back to square one.

    2. “I’ve got a modest content neutral consumer protection law to propose. First I will roughly define social media as media that allows users to create their own account and put their own content on their own pages.”

      Let me stop you there because your rule applies to zero companies. Social media platforms never cede the content to the users. It belongs to the social media platform.

    3. “If I post something on my page, then people going to my page can see what I post, as long as it meets the permissions I set.”

      Yes, we usually call these websites. If you want to host one you can. That’s not what any social media platform does.

    4. I don’t see anything in the first amendment that says states can’t set simple terms of contract to protect consumers, in fact they do that all the time for contracts with gyms, dry cleaners, etc, all of which are regulated in terms of what protections consumers have. For example see CALIFORNIA’S
      HEALTH STUDIO SERVICES CONTRACT LAW.

      Then I also don’t see any first amendment problems with setting the terms of who’s business social media companies can refuse, as long as the regulations are content neutral

      The government (at least under current doctrine) can regulate who can become a veteranarian or auto mechanic or barber. None of that violates the 1A. Does that mean that the government can, consistent with the 1A, regulate who can be a tour guide? No, it does not. The mere fact that a regulation is content neutral does not mean it is acceptable; the government generally can’t regulate who can speak, even in a content-neutral way.

    5. I then propose that social media companies can not hide, throttle, or post warnings about on anyone’s page without their permission

      Even Eugene believes the First Amendment forbids outlawing social media providers from posting warnings because it silences their speech.

      1. It is discouraging and worrisome to me that in determining how expansive the First Amendment should be interpreted, I would read a sentence that began with “Even Eugene [Volokh] believes the First Amendment forbids…”

  9. If Facebook and Twitter have 1st Amendment obligations to post anything and everything posters want posted, how is that not a “taking” of their personal property/business? For instance they also prohibit bullying and posting pornographic materials. Neither is particularly illegal but they prohibit it because they deem it bad for their business model. Likewise, here it is not just “conservative ideology” that is being banned from Facebook – its one particular person’s ideology who has used social media including largely Twitter and Facebook to roil up crowds resulting in the crescendo of of the January 6th insurrection. Facebook and Twitter both gave DJT plenty of warnings that his behavior was crossing the line and that continued violation their community standards would result in his being kicked off the site. He is free to create his own version of Twitter and/or Facebook – in fact he tried and nobody signed up for it. Many would stop using Facebook and/or Twitter if they allowed someone like him to continue posting. It is not conservative ideology being banned, it is one guy who repeatedly broke all the rules flagrantly. Respond to that argument if you will – rather than the strawman that DJT is just a guy who has some unpopular thought processes. Should Facebook and Twitter be forced to shut down their websites if they remain unwilling to host DJT? That is essentially what you are arguing.

    1. If Facebook and Twitter have extra-Constitutional mandates to offer goods and services to the public in a way that does not discriminate against protected groups, how is that not a “taking” of their personal property/business? (yadda yadda) That is essentially what you are arguing.

    2. That is not ‘essentially’ what is being argued, that is what you believe, because you appear to be fixated on Trump.

  10. “Twitter and Facebook, on the other hand, can host all viewpoints. When they exclude certain viewpoints—a tiny fraction of all the items that are posted on their services—they are certainly not doing it to save disk space.”

    This is an overly simplistic analysis of newspapers’ and social platform’s resources and decision making. Disk space is one concern, and despite your cavalier attitude social media platform do have to pay for disk space. That space is paid for by selling something, and if by permitting speech X a social media platform risks losing users Y, that can start cutting in to their bottom line. Moreover not every editorial decision that a newspaper makes is based on a lack of space. There is speech a newspaper would refuse to host even if it had unlimited space. (“Oh man we missed a deadline for the editorial, better just post a chapter from Mein Kampf.”)

  11. “Twitter and Facebook, on the other hand, even when they delete some views, likely distribute 99% of all the viewpoints submitted to their services.”

    And how do you know that distributing 99% of information is the correct way to “avoid information overload, as well as to exclude material that readers and viewers might find offensive or useless”? Why or how could a government committee decide better than a market about whether the line is drawn at 99% versus 50% versus 10%? Why isn’t the concept of “information overload” wholly subjective and therefore merely subject to the whims of consumer preference?

  12. If the 1.4 billion Han Chinese joined Facebook, I would want Facebook to have the ability to restrict the one party CCP ideology on the platform.

  13. “Facebook and Twitter have no major rivals in their media niches.”

    You mean besides each other, right?

    1. Yeah. That’s like saying Subaru has no major rivals in its automobile niche, defined as the all-wheel-drive station wagon with higher-than-normal ground clearance niche.

    2. No, because FB and Twitter are in different media niches.

      No, because, were they in the same media niche, Twitter could only wistfully dream of being FB’s rival.

      1. No, you’re just making shit up. You’re creating a fake “niche” that only Facebook fits in and then saying Facebook has a monopoly over it. Which it does, in the same way that the Coca-Cola Company has a monopoly over the Coca-Cola market niche, and Apple has a monopoly over the iPhone niche, and Disney has a monopoly on the Disney niche.

        1. Compare Facebook and MeWe, and then look at Twitter, and see if you can claim that Twitter is selling the same product as FB and MeWe with a straight face. Cars and bicycles both are transportation, but they’re not the same product.

  14. These Socials are not newspapers but rather they sell a digital bulletin board nothing more. As such the question that is relevant is can they discriminate by allowing some customer’s content to post but not others. You sell a service…this service is allowing the buyer to share their views/pictures/businesses. Can you discriminate against your customers based on their content? CRA seems to say political views are ok for sellers to discriminate but is that a pro liberty position? And what about a monopoly that discriminates?

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