Free Speech

A Cautionary Note on Treating Social Media Platforms as Common Carriers

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

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I've tried, then, to lay out what I think is a plausible case for treating platforms as common carriers, at least as to their hosting function. [That's as a policy matter; my First Amendment analysis on this is coming starting with the next post. -EV] But I should stress that this is just a tentative case.

[1.] I appreciate the value of private property rights. Though the government may sometimes requires property owners to serve people they'd prefer not to serve—indeed, as it does for common carriers—this should be the rare exception and not the general rule. The problems laid out above, for instance, may not be serious enough to justify such interference. Perhaps people are just so concerned by a few incidents over a few years that they lose a sense of perspective about what might ultimately be a minor problem.

[2.] One value of private property rights is that sometimes private property owners can enforce valuable norms that the government can't; protect us from violence and other harms that stem from violation of those norms; or at least create diverse and competing norms, which might itself provide valuable choice to users. We probably profit greatly, for instance, from the fact that our friends can eject rude people from their parties, and that most businesses can eject rude speakers from their property. Such ejections might be rare, but perhaps their very availability makes them less necessary.

Likewise, perhaps there was value to an earlier, much more constrained media environment in which extremists (by the standards of the time) found it hard to reach a large audience. And perhaps it's better to trust Big Tech companies to regulate public debate—subject to what market pressure may be placed on them—than to trust an unregulated public debate.[108]

[3.] Government regulation can easily make problems worse.[109] Some regulations may actually help entrench incumbents (for instance, by imposing costs that are too expensive for upstarts), and diminish future competition.[110] Other regulations may create new governmental bureaucracies that could be indirectly used to suppress certain viewpoints, for instance if the common carrier rules are enforced by some Executive Branch agencies. Or if the rules are enforced in court, they may practically be too costly for most speakers to litigate (though the hope is that platforms might voluntarily comply, perhaps because they would rather not make content moderation decisions, so long as they can blame the unmoderated content on government mandate).

For all these reasons, the best solution might well be to stay the course, and to expect market competition to resolve what problems there might be. Or perhaps the law should operate on deeper levels of the communications infrastructure, for instance imposing common carrier obligations only on pure hosting companies, such as Amazon Web Services, or requiring platforms to make their services interoperable with rivals and thus diminishing monopoly-producing network effects.[111] Again, though, I want to suggest that the phone company analogy is something that we should seriously consider, even if we ultimately come to reject it.

[108] Cf. Cass Sunstein, Liars: Falsehoods and Free Speech in an Age of Deception 8–9 (2021) (urging social networks to "do more than they are now doing to control the spread of falsehoods"); Samples, supra note 38, text following n.131 ("Private content moderators permit false speech. However, they manage such speech much more efficiently than the government."); Jack M. Balkin, How to Regulate (and Not Regulate) Social Media (forthcoming 2021) ("Generally speaking, the free speech principle allows the state to impose only a very limited set of civility, safety, and behavioral norms on public discourse, leaving intermediate institutions free to impose stricter norms in accord with their values… . [But i]f private actors are going to impose norms that are stricter than what governments can impose, it is important that there be many different private actors imposing these norms, reflecting different cultures and subcultures, and not just two or three big companies.").

[109] See Samples, supra note 38, text accompanying nn.42–48.

[110] See, e.g., Huddleston, supra note 31.

[111] See, e.g., Przemysław Pałka, The World of Fifty (Interoperable) Facebooks, 51 Seton Hall L. Rev. 1193 (2021); Samuel Hammond, The Impoverished Debate Over Section 230, Commons (American Compass) (July 13, 2020), https://perma.cc/WYW2-R4UH; Balkin, supra note 91, at __.

NEXT: Two Upcoming Events at Heritage: Scholars and Scribes and Holocaust and the 1st Amendment

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  1. The argument for a walled garden with properly credentialed gatekeepers falls on its face when one considers how awful the media has become. The national media seems to be run by kids without any sort of guidance from seasoned editors. We might as well let the Twitter mob completely control the boundaries of social discourse. No thank you.

    1. The solution to ‘awful media” is to offer (or consume) different media. Nobody is forcing anyone to read the New York Times, nor the New York Post; and the boundaries of social discourse are exactly what we should _not_ want controlled by government.

      1. Is crime within the realm of government regulation? 100 million internet crimes are committed on these platforms. Crime has updated, the scumbag lawyer profession refuses to do that.

        1. Support freedom for these platform. Enjoy the crime rate. The lawyer always sides with the criminals, and wants nothing done to them.

          https://www.msn.com/en-us/news/technology/hackers-were-stealing-money-from-my-followers-and-instagram-didn-60t-do-anything/ar-AALVJwV

    2. Lawyer scumbag lives in LA, and is promoting the sick, degenerate values of that city. This is total, false bullshit. He is ignoring the massive criminality going on at these platforms, by others, and by the platforms. This pro-criminal, unAmerican lawyer loves things the way they are. His sponsors added $1.7 trillion to their wealth, in 2020. Why risk change? Why? Because, you stink, you scumbag lawyers, the most toxic occupation in the nation, 10 times more toxic than organized crime, and in utter failure in every law subject.

      See the Podcast on Dred Scott. See how Taney justified his wrong decision with legal jargon. Same thing here.

    3. Schu, the antidote for your angst is also the best public policy to deal with the uproar over social media platforms. The only safe haven yet found for press freedom is a publishing marketplace composed of a myriad of private publishers, catering to the full range of opinions on diverse issues, and free to operate without government interference. In short, it is the kind of publishing infrastructure this nation enjoyed prior to Section 230, and its disruptive special privileges for internet publishing.

      The challenge now is to reimagine that formerly diverse and multitudinous publishing scene, to better fit it to take advantage of the economic efficiency the internet inherently affords. To do that, the first step ought to be repeal of Section 230. That enabled internet publishing giantism in the first place. Until repealed, Section 230 will block access to the publishing market by too many would-be upstarts. Section 230 enabled concentrated advertising power with which newcomers cannot reasonably be expected to compete—hence the giantism, and all the other complicated issues which came with it.

  2. We are entering a time where just about all media act as gate keepers of information. Remember that is was taken as a given that Trump would be removed from office as a Russian stooge. Any argument opposing this was either ignored or derided. I’m not just saying this about MSNBC and CNN, but also ABC, CBS, NBC, and almost every major newspaper. Facebook and Twitter, the only national outlets open to dissent decided to shut it down.
    The media lined up against the idea that COVID could have come from a lab accident, that Hunter Biden’s laptop was a Russian disinformation plot, and that there were NO irregularities in the recent election. Discussion about these topics was one-sided only.
    Something has to change or we will have a small group heard only among themselves, shut out of national debate. This is how you get extremists.

    1. I hope that is the case and we do get extremists.

    2. What is the word “entering” doing there? I defy you to find a time when media didn’t act as gatekeepers.

  3. I want to suggest that the phone company analogy is something that we should seriously consider, even if we ultimately come to reject it.

    Why the assumption that we need an analogy at all?

    1. I am an experimenatlist by training and practice. Given the increasingly polemical and disingenuous discussion of the issue of censorship by dominant social media and the increasing propensity of FB and others to shut down discourse as seen in the most recent FB announcement of its changing terms of use suggests that we just adopt an alternative approach.
      Set a specification of size and usage as a demarcation of the transition from the present regulatory regime to that of common carriers and observe what happens for a couple of years.

      1. Yeah, because the Wickard v. Filburn experiment was easy to reverse after it proved a failure. Our agricultural industry is uncorrupted by subsidies, political payback, and related onerous regulation of what they grow and when. /sarc

        This “problem” of “censorship” on Facebook is relatively recent (unless it isn’t, in which case those with the resources to start a news/speech distribution system have always been able to advantage speech they like over speech they don’t like). Wouldn’t the better experimental approach be to wait a reasonable period of time to see if and how the free market adapts? Parler is in its infancy. Fox News is there to “set the record straight”. Let’s not invite in government regulators at the first hint that the free market isn’t giving you the result you want.

        You are incredibly naive if you believe once invited in, government regulators will stop where you want them to stop.

    2. Why the assumption that we need an analogy at all?

      Because EV is trying, almost desperately, to suppress the notion that social media giants are publishers, entitled to 1A protection of press freedom. I expect shortly to hear from EV that social media giants are not publishers, or at least some attempt to confuse the issue, and leave the door open to burden their 1A rights anyway.

      1. Eugene has been a major disappointment. He has spent more time and energy on who should be able to say the N-word than on these larger and more menacing issues. He seems to have bought into the idea that the problem is private parties saying what they want, not saying what they want, or refusing to support (with business, etc.) those with whom they disagree. Whether right or wrong in any particular situation, refusing to do business with those promoting odious ideas is not the prerogative of those in a free society. It is the exercise of freedom, not the restriction of it.

  4. A city or other jurisdiction grants permits for parades. As they are the sole owner of the right to issue permits, they must take all comers. Facebook and Twitter are parades. They don’t issue permits. The infrastructure entities represent different cities but it seems that they should take all comers even though parades could take place in other cities.

    1. “Facebook and Twitter are parades.”

      So what infrastructure entity granted their permit, and denied someone else’s permit?

      1. The Parler situation is public knowledge. However, they are back up and running. Seems that there is no monopoly after all. What concerns me is when these infrastructure providers start colluding to eliminate points of view that are contrary to their own way of thinking. Antitrust law can deal with that behavior without breaking up these companies.

        1. “Seems that there is no monopoly after all. ”
          Not reaally. Study the present usage of the term “monopoly power.” It does nt mean that there is a unique offeror of goods or services.

  5. It’s not even remotely a “rare exception” anymore. The left has become tyrannical about forcing all private businesses to do everything to avoid hurting some poor whittle homosexual’s feewings.

  6. Likewise, perhaps there was value to an earlier, much more constrained media environment in which extremists (by the standards of the time) found it hard to reach a large audience. And perhaps it’s better to trust Big Tech companies to regulate public debate—subject to what market pressure may be placed on them—than to trust an unregulated public debate.[108]

    1: Please let me know when Big Tech eliminates the pro-CRT extremists from public speaking

    2: Please let me know when Big Tech removes the open borders extremists from public speaking

    3: Please let me know when Big Tech removes the trans extremists from public speaking (as epitomized by the people who removed the word “mother” and replaced it with “birthing person”, or the people who say “if you don’t want your daughter to see men’s penises, don’t bring her to your women’s only spa / changing room / locker room”

    Until then? Big Tech is amplifying the extremists, not damping them down

    1. Your defense of bigots and bigotry apparently knows no limit.

      Was it childhood indoctrination (religious schooling), racist or homophobic parents, a backwater home town? Is this adult-onset superstition, rebel-against-parents racism, xenophobia precipitated by economic insecurity?

      1. So says the extremist bigot, projecting on the rest of us his own problems

        Supporting science over feelings is what all sane people do, nutcase

      2. I will congratulate you, Rev, on not being stupid enough to actually try to challenge any of the cases I brought up. it’s nice to know that even you aren’t dumb enough to believe that any of those people are actually in the right

        1. Greg J,

          I assume he didn’t challenge the specific cases because, in a free country, private parties get to decide what they think is extremist and what they think isn’t extremist. If you don’t realize that’s the issue, then you don’t even understand the conversation.

          Your idiosyncratic definition of what counts as extremist isn’t what counts. Facebook’s is. Twitter’s is. Parler’s is. But, ever secretly longing for the nanny state to protect you, you want some bureaucrat to determine what is “extremist” and what isn’t. Where are the small government conservatives these days? One almost suspects they never existed in the first place.

          1. Where are the small government conservatives? They objected when big business and BIG government got together to quash the free speech of small government conservatives.

            1. Where is government in this?

              1. “I see no evil”, said the blind man.

                1. Answer the question.

                  1. They can’t. “We’re being censored” is just an empty mantra they chant with no understanding of the big word in that sentence. They want big government to step in because, apparently, all the Koch money buying speech is not enough. They were fine with an “even” playing field when they thought rich people were on their side (Citizens United, Koch brothers, Fox News, etc.), but when they find out their political opponents have money too, then they want the nanny state to pacify them.

                    “Small government” conservatives battling for “freedom” is the most grotesque fairy tale ever told.

                    1. Left wingers were fine with “freedom of speech” when they were in the minority, and lacked the power to suppress others

                      Now that they have the power, we see that the only principle they actually have is “all power to us”

                      ” They were fine with an “even” playing field when they thought rich people were on their side (Citizens United, Koch brothers, Fox News, etc.),”

                      Jesus Christ, you are one stupid loser.

                      “Citizens United” was about keeping the Federal Government form censoring movies with a political message. because we all know Hollywood is so right wing!

                      Oh, the horror! “Fox News” sometimes publishes stories that CNN, ABC, NBC, CBS, MSNBC, WaPo, NYT, and AP might not want to cover! Oh, the horror!

                      What’s it like to KNOW that your views are such complete and utter shit that they simply can not survive open discussion? Do you every feel dirty about being so eagerly evil?

              2. Section 230 is a government subsidy for social media companies, and they couldn’t exist without it.

                That’s where the government is in this

                1. Section 230 is not about “social media companies.” And the government not imposing liability on a company is not a subsidy. Your argument is the same “logic” that leftists use when they want to argue for government interference in churches: their tax exempt status is a “subsidy.”

          2. NOVA Lawyer,

            Wow, your stupidity really never ends, does it?

            1: “In a free country, private parties get to decide what they think is extremist and what they think isn’t extremist”, which is why no one gets to censor anyone else, and justify it on the grounds that “they’re extremists”!

            2: He claimed that attacking those extreme left-wing statements made me a “bigot”. But didn’t try to pick any one to say “you’re wrong to attack this”, because even he knows all those positions are insane, extremest, crap

            3: Facebook’s, Twitter’s, and Parler’s opinion on what’s “extremist” only counts if they’re publishers.

            And publishers are responsible for every word they publish. Which means every post on their sites

            4: It takes no nanny state bureaucrats to say “if you censor views you don’t like on your social media platform, you’re a publisher, and responsible for everything you do publish”. But, you’ve received your talking point, and like the good mind numbed robot that you are, you spew it out

            Sad

          3. “Your idiosyncratic definition of what counts as extremist”

            Which ones are those?
            1: CRT is the belief that everything is about “race”, and that people are defined by their skin color. Combine that with their beliefs abotu what things are inherent to each “race”, and you’ve got a philosophy that any 1950s KKKer would embrace with joy.

            Now, they’d oppose the “solutions” that CRT wants to impose. But the philosophy they have no problem with, other than the places where even a KKKer might so “dude, you’re going too far with that one. Not ALL blacks are lazy and shiftless”

            2: Open borders is an extremist position by any meaningful definition of the term:
            Harvard/Harris http://harvardharrispoll.com/wp-content/uploads/2018/02/January-Report_full_MJP.pptx found 81 percent of those surveyed favored less immigration than the current rate.

            If the 19% who didn’t want it to decrease, we’ve go those who want it to stay the same, those who want it to increase, and those who want no limits. You’re going to have a hard time finding an honest study that puts that last group at more than 5%

            3: So you’re claiming that the people who removed the word “mother” and replaced it with “birthing person” aren’t extremists? That the people who say “if you don’t want your daughter to see men’s penises, don’t bring her to your women’s only spa / changing room / locker room” aren’t extremists?

            Do tell

  7. I have a private property right not to be libeled. I have a private property right not to have my copyright violated, my copywritten works stolen and distributed

    Social Media companies have been given protection from being punished for publishing those libels, those copyright violations.

    The cost for that protection is that they lose the right to decide who can speak on their platforms.

    Unlike in the real world, in the digital world you yourself can mute / block anyone who’s being obnoxious, you don’t need the host to do it for you

    The only reason to give social media that power is so that they can block people you don’t like from talking to other people you don’t like, spreading ideas that you don’t like, but can’t defeat in honest debate

    IOW, there’s no legitimate reason at all

    1. I’ve got to point out that copyright is NOT a natural right, it is a consequence of a power of government, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

      As a power, it did NOT have to be exercise, and could be exercised in a partial or much lesser degree.

      So if Congress up and decides that your copyright won’t protect you from some kinds of use by third parties? No constitutional right is being violated.

      1. If Congress gives a company the right to violate your copyright, then they’re being given a special privilege / subsidy.

        Which they can and should “pay” for by not being able to censor views they don’t like

        1. Oh, I agree that Congress could condition an exception to copyright that way. I’m just saying that copyright isn’t a normal sort of property right, it’s a privilege the Constitution permits Congress to extend to you, but in no way requires them to. It’s a sort of pseudo-right, in that respect.

          Having done so, you have property rights in the copyright, but they’re not the sort of rights that a general change to the terms of copyright law could violate. Taking away YOUR copyright in a particular work, rather than making a generally applicable change, could be a taking.

          1. The Social Media company that chose to publish the post violating my copyright is violating my copyright.

            The fact that Congress may have given them the subsidy of allowing them to violate my copyright doesn’t change what they did, it just means they may be able to get away with it.

            Look, either they are publishing everything that’s on their site, or they aren’t.

            If they are, then of course they have the right to decide what should / shouldn’t go up there. But rights and powers come with responsibilities. The right to “speak” comes with the responsibility not to libel, not to violate others copyright, etc.

            It would be illegitimate for them to be given an exception from those legal responsibilities that every other publisher has to bear.

            If they’re not publishing the things that appear on their site, then they have no right to censor, ban, etc. Because their voice is not being hijacked by those who are speaking there.

    2. Setting aside your mistaken understanding of property rights, you also misunderstand the law in multiple ways. Social media companies are not immunized for hosting copyright violations. § 230 (e)(2) expressly exempts intellectual property laws from the scope of § 230 immunity.

      The cost for that protection is that they lose the right to decide who can speak on their platforms.

      No. That’s not the law. There is no “cost for that protection.” No tradeoff. They aren’t liable for other people’s content.

      1. If it’s “other people’s content” then they have no “free speech” right to suppress / censor it. So glad you’re in agreement that all their actions on that front have been wrong, and need to be stopped BAMN

        1. Greg J,

          They, like a newspaper, can distribute/host the speech they want to distribute/host and they can decline to distribute/host speech they don’t want to host. I would be interested to hear why you don’t like freedom. Is it just because in a free society, your side sometimes loses?

          China and Iran have models where the government tells social media companies what they should publish and what they may not publish. Why do you like their models better?

          1. The stupidity never ends, does it?

            When a newspaper “hosts” libelous speech, the person being libeled can sue the newspaper for the libel the newspaper published.

            When FB “hosts” libelous speech, the person being libeled can NOT sue FB for the libel FB published.

            This is a massive, entirely illegitimate, subsidy for FB, Twitter, etc.

        2. If it’s “other people’s content” then they have no “free speech” right to suppress / censor it. So glad you’re in agreement that all their actions on that front have been wrong, and need to be stopped BAMN

          You’re really bad at this. Of course they have a free speech right — not to “suppress” or “censor” it, because those words are a category error — but to refuse to distribute it.

          Just like Barnes & Noble has a free speech right not to carry the book you wrote. Just like the print NYT has a free speech right not to print your letter to the editor.

          1. This. A thousand times.

          2. 1: If the print NYT publishes a “letter to the editor” that is libelous, the NYT can be sued. https://firstamendmentcoalition.org/2015/08/aa-can-a-newspaper-be-sued-for-the-content-of-a-letter-to-the-editor/. You’re really bad at this, aren’t you?

            2: Barnes and Nobel is in the business of selling books, and has a limited number of books they can sell. FB is not in the business of “selling” your posts, and does not face any practical limit on the number that they can carry. So there’s no real similarity between the two. Which is why the PruneYard couldn’t keep out pamphleteers whose positions they did not like.

            But even so, I’m pretty sure that if B&N carried a book with child pornography they would face legal problems. Not so Twitter

            1. Greg J,

              1. Facebook/Twitter’s exemption from liability for libel is a creation of statute. Statutes cannot take away constitutional rights. You’re bad at this.

              2. If Barnes and Noble or Amazon could, say, create an online platform where they could sell virtually every book published (hard to imagine, right?), that wouldn’t change their liability. They wouldn’t be more liable or less liable for selling illegal products. In PruneYard, the space was open to the public without limitation (Facebook has a user agreement and, I think, everyone agrees they can limit posts based on content, even legal content, which they find offensive). I think that is an important distinction. No one is physically present on the internet and there are almost limitless means of communicating directly with other people on the internet, including, unless I am mistaken, by DMs on Facebook which Facebook does not “censor”. In other words, you can still “approach” people on Facebook and ask them to sign a petition. You can’t put up a billboard and stand in the middle of the PruneYard mall and solicit signatures. I think that is the best way of balancing the highly questionable PruneYard (involving public physical space which is limited and on which people are physically present) with the realities of online communities where people are not physically present. Nothing stops you from direct face-to-face solicitations on Facebook in real-time, but what you shouldn’t be able to do is put up a permanent billboard, placard, etc. in their space if they don’t want you to. I find that highly questionable on First Amendment and property rights grounds.

      2. ” Social media companies are not immunized for hosting copyright violations. § 230 (e)(2) expressly exempts intellectual property laws from the scope of § 230 immunity”

        Really? So I can go post copyrighted material on Facebook, and watch the owners sue them and collect in court, the same way they’d be able to sue the NYT if they chose to publish someone’s copyrighted material without paying for it?

        Want to try that one again?

        1. No, I don’t. As I said, they’re not immune. The owners can indeed sue Facebook, if they notify Facebook that the copyrighted material is there and Facebook refuses to remove it. Facebook can’t say (as it can with defamatory speech) “We didn’t post this, so you can’t sue us.”

          1. And if the NYT posts someone’s deliberately stolen work on their website, does the owner of said work have to ask them to take it down before a lawsuit can go forth?

            1. And if the NYT posts someone’s deliberately stolen work on their website, does the owner of said work have to ask them to take it down before a lawsuit can go forth?

              Do you mean if the NYT posts it on its website, or if a member of the public who uses the website posts it? If the former, then no takedown notice is required. Same as with FB/Twitter. If the latter, then a takedown notice is required. Same as with FB/Twitter.

              You don’t seem to grasp that § 230 is not about “social media companies.” It gives no special treatment to them. All websites, from the NYT down to Facebook down to your grandmother’s quilting blog, are treated the same.

              No, the rules are not the same for the print edition of the NYT as for Facebook, but they are the same for the online edition of the NYT and Facebook.

  8. We don’t need to add any government regulations, we just need to remove one: Section 230

    One would expect a libertarian to favor that

    Social media companies can run their platforms however they want. but they’re responsible for everything they publish on their platform. Which is to say, every single thing they allow to be on their platform.

    After they all go bankrupt from the lawsuits for the things they publish, we can try again:
    You can either censor based upon viewpoint (i.e. be a publisher), OR you can have Section 230 protections.

    With a private right of enforcement: $1 million for any person who was muted / blocked / whatever when a person on the political other side got away with doing the same thing

    No regulators needed

    1. “With a private right of enforcement: $1 million for any person who was muted / blocked / whatever when a person on the political other side got away with doing the same thing”

      Artie Ray Lee Wayne Jim-Bob Kirkland loves this idea! Who doesn’t like a clinger-on-clinger crossfire?

    2. We don’t need to add any government regulations, we just need to remove one: Section 230

      One would expect a libertarian to favor that

      § 230 is not a “regulation.” It is an immunity from regulation.

      Social media companies can run their platforms however they want. but they’re responsible for everything they publish on their platform. Which is to say, every single thing they allow to be on their platform.

      Nope. Allowing something to be on a platform is not publishing it.

      After they all go bankrupt from the lawsuits for the things they publish, we can try again:
      You can either censor based upon viewpoint (i.e. be a publisher), OR you can have Section 230 protections.

      So you want viewpoint-based liability. Uh, no.

      1. >> § 230 is not a “regulation.” It is an immunity from regulation.

        Bzzt. It’s a regulation / law that protects social media companies from having to follow the laws that all other publishers have to follow.

        >> Nope. Allowing something to be on a platform is not publishing it.

        Awesome. So there is no legitimate reason why they can keep opinions off their platform. because what’s on their platform is not their “speech”.

        >> So you want viewpoint-based liability. Uh, no.

        You can’t really be that stupid. Prohibiting viewpoint-based discrimination is not “viewpoint-based liability”. If they want to kick dog discussion out of cat forums, and vice versa, there’s no problem with that

        If they want to impose rules on conservatives that they don’t impose on leftists, then they can be a publisher without any special subsidies, or they can’t be run out of business for abusing the subsidies

        1. I think DMN’s point was that it isn’t a regulation in the sense that it restricts what an “interactive computer service provider” can do, it frees them from restrictions that would otherwise have applied. So, more of an anti-regulation.

          1. A regulation that allows you to ignore / violate laws that others are bound by is still a regulation

            1. I don’t disagree actually, setting the rules for an activity is regulation of that activity. Otherwise, §230 wouldn’t be a valid exercise by Congress of its power to regulate commerce.

        2. Bzzt. It’s a regulation / law that protects social media companies from having to follow the laws that all other publishers have to follow.

          Completely wrong. § 230 does not require social media companies¹ to do anything, nor does it permit them to do anything that they could not do in the absence of § 230. Nor does it forbid them from doing anything. In short, it does not ‘regulate’ them in any way.

          Awesome. So there is no legitimate reason why they can keep opinions off their platform. because what’s on their platform is not their “speech”.

          Again, that’s just wrong. As I just mentioned above: the books Barnes & Noble sells are not “their” speech; they’re the speech of the authors and publishing houses. But of course Barnes & Noble has a first amendment right to decide what books to sell, based on the message of those books.

          You can’t really be that stupid. Prohibiting viewpoint-based discrimination is not “viewpoint-based liability”. If they want to kick dog discussion out of cat forums, and vice versa, there’s no problem with that

          A preference for dogs over cats is a viewpoint, no different than a preference for Democrats over Republicans.

          ¹Indeed, § 230 has nothing to do with “social media companies” per se. It applies to interactive computer services, which is (in effect) all websites. (As well as BBSs, if any still exist.)

          1. A preference for dogs over cats is a viewpoint, no different than a preference for Democrats over Republicans.

            Moreover, Greg J seems to think that viewpoints are “conservatives” vs. “leftists.” But Naziism is a viewpoint. So’s pedophilia (the preference, not the act). So’s ISIS. Greg J. wants to force National Review to publish pro-pedophilia propaganda, and Breitbart to publish pro-ISIS stuff, and The Federalist to publish pro-Nazi stuff (well, wait, they don’t need to be forced to do that).

            All of this because an orange sociopath that Greg worships had a temper tantrum.

            1. Comments on Facebook are not analogous to books in Barnes and Noble. Keep trying.

              1. Sure they are. Because the actual best analog analogy for social media is not publishers, but distributors.

                1. Distributors sell the product they distribute.
                  And have limits as to what the can carry.
                  And aren’t allowed to be in a monopoly position.

                  None of which are true WRT Social media companies

            2. “But Naziism is a viewpoint.” Yes, David. So is Communism / Marxism. So is Islamofascism, and a desire to murder all the Jews in Israel. But, unlike Nazis, there’s actually a lot of those evil people infesting America today, and showing up on social media today.

              Because the Left sure does love them some Jew hatred

              “So’s pedophilia (the preference, not the act).” Yes. And the Left likes defending that, too

            3. National Review can be sued for libel / defamation for anything they publish. If you stop trying to protect FB from losing that huge subsidy / benefit, the argument would end

              1. Same mistake you made above with the NYT. National Review can be sued for defamation for what they publish. They cannot be sued for defamation for what other people publish on their website. Just like Facebook: Facebook can be sued for the things it publishes: its own content. It cannot be sued for the things other people publish on its website.

                1. You really do love being dishonest, don’t you?

                  Is Twitter a publisher?
                  Is every single tweet something that Twitter publishes, and is therefore “in their voice”?

                  If the answer is “no”, then they have no right, at all, to censor those tweets for political content.

                  If the answer is “yes”, then every single tweet the publish is functionally equivalent to an article posted by NRO on NRO.

                  Pick one

          2. “nor does it permit them to do anything that they could not do in the absence of § 230.”

            It permits them to publish libel and not get taken to court for it

            “A preference for dogs over cats is a viewpoint”

            Which has nothing to do with what I said. So good of you to beat up a straw man

            What I said was that you could set up a forum to talk about cats, or dogs, or knitting, or any other subject, and freely exclude any posts that are NOT on the subject of the forum. That would not be “viewpoint discrimination”.

            Now, you want to talk about what I said, or do you just want to beat up straw men?

    3. Greg J, please back off. I have been trying literally for years to help people understand why Section 230 ought to be repealed. You are giving Section 230 repeal a bad name.

      Nieporent will be along any minute to say you show why Section 230 repeal is a notion which only cranks can support. Nieporent is a ruthless operator, capable of anything—even capable of insisting you and I are just peas in a pod.

  9. Does Cedar Point Nursery have an impact on PrunyYard?

    1. PruneYard, not PrunyYard.

  10. As a hard-core almost anarchist, I naturally fall on the private property side of things. But as a pragmatist who sees how stacked the deck is against individuals and for the government and the big crony businesses, I am sympathetic to the common carrier argument. What I would rather is that customers could enforce their rights as far as terms of service go; all the horror stories I have heard and read show how stacked that deck is — of having accounts suspended or deleted with no recourse short of an expensive lawsuit. Parler is a fine example. I have the impression AWS just dumped them without warning, without any chance to appeal, or to recover their data. Users were left with even less chance of recovering their data. Surely a just legal system would hold AWS accountable for breaking their own terms of service.

    This lack of accountability isn’t an explicit goal of the US legal system, but it is an obvious defect which no one seems interested in fixing. If the only practical alternative is making these tech giants common carrier, so be it. I won’t weep for cronies hoisted by their own petard.

    1. It was somewhat worse for Parler than you describe. Very shortly before Amazon dumped them, their internet security provider, Twilio, cut off their protection, and publicly announced certain details of Parler’s setup, which enabled a hacker group to download everything. Somewhat similar to your alarm company shutting off the alarm system and publicly mentioning that the access code for your front door was four sequential digits.

      Then Amazon shut them down AFTER the hacker was done.

      If Amazon had shut them down quicker, or Twilio hadn’t first removed their security and announced confidential information, the hackers wouldn’t have had a window in which to get away with all the information.

      It seriously looks like Twilio, Amazon, and the hacker were coordinating their timing.

      1. It was somewhat worse for Parler than you describe. Very shortly before Amazon dumped them, their internet security provider, Twilio, cut off their protection, and publicly announced certain details of Parler’s setup, which enabled a hacker group to download everything. Somewhat similar to your alarm company shutting off the alarm system and publicly mentioning that the access code for your front door was four sequential digits.

        None of this happened, of course. It’s just more conspiracy theorizing by Brett.

    2. “What I would rather is that customers could enforce their rights as far as terms of service go.”

      I suspect you’ll find that most websites have language in their terms of service that not only allow them to be the final arbiter on interpreting their terms of service, but also reserves the right to determine whether or not to allow any posting of any nature for any reason whatsoever, in their sole and absolute discretion.

      It’s hard to pinpoint exactly what rights someone would have against a company to which (s)he has paid no money at all for the privilege of using their platform after clicking through a contract of adhesion that gives total discretion to the owner.

  11. Those who bring the most value to society, for example via platform technologies, are also likely the best positioned to make decisions on how the product is best utilized by society. Regulating social media will only work to disempower the virtuous.

    1. For example, should Wikipedia also be regulated as a common carrier? Wikipedia is not fabulously wealthy, like Facebook, but has just as much impact on society.

  12. The problem with EV’s argument is that that is what our expectation would be in a perfect world. That does not exist here.
    If you say no to common carrier, then the next logical step is the power of destruction of private entities that is quite easy given what happened with Sebelius.

    You could easily see a future in which the taxing power of the US government could be brought to bear to destroy private companies.

    One simple paragraph law

    In order to raise additional revenue for the US to improve access to the internet in rural and under-served urban areas, Congress hereby implements a tax on social media platforms to collect a tax on usage of the platform from each individual that uses the platform in the amount of $1,000 per use (for example, for each tweet). The tax shall only be applied to companies who’s platforms have cancelled the account of a past or current president of the united states.

    1. I mean, you could pass a law saying that the CEO of any company that has a name rhyming with SpaceCook (the company, not the CEO) shall be executed. It would be equally as plausible and equally as legal.

  13. In the early days of industrial capitalism in the US, some reformers thought that the best way to stop what were seen as abuses was for the government to regulate the conduct of the capitalist enterprises; others thought that (except for natural monopolies) competition between enterprises would do the job better and favored antitrust laws to break up monopolies into competing companies. A famous case involved Alcoa, which had obtained a monopoly in the production of aluminum through patents, but maintained that monopoly after the patents expired by a policy of innovation and cost-cutting (as well as participation in foreign cartels), which discouraged the establishment of competitors . A special federal court ruled that the existence of the Alcoa monopoly was itself a violation of the Sherman Act, even without proof of abusive misconduct. The obvious remedy was to break Alcoa up into competing companies.

    Shouldn’t the same principle apply to the tech monopolies folks are griping about? If they have a monoply in a (properly-defined) market, isn’t that enough to justify breaking them up?

    By the way, in the Aloa case, by the time the Court got to the remedy stage, two competing companies had come into existence through US Govt assistance during WW2, so Alcoa no longer had a monopoly, and no remedy was required. I don’t see that kind of thing happening with the tech giants today, do you?

    1. Define that market.

      1. Facebook has one market. Twitter has another market. The trial on market definition could go on for months. Economists love this stuff. What’s your point?

        1. You didn’t define the market that they monopolize.
          The only thing Facebook and Twitter are monopolizing is access to their customer base via their platforms. Do other means of access exist? Yes. Is there an unreasonable cost for that access? No. Are Facebook and Twitter customers complaining about the diminished access to other points of view from people they do not know? No. Do these customers have means to seek out and find those points of view? Yes.
          So then what are we talking about?

          1. As I said, jst1, if a monopoly case were brought against Facebook or Twitter, a big first issue would be market definition. Your arguments (and presumably others) would be made by the defendants, and their experts would advance evidence in support of them. The prosecution would present evidence and arguments to the contrary. Ultimately, the court would rule — and eventually appeals would follow. If you assume that YOUR arguments will always prevail, before you have even seen the evidence on both sides, I hope that you are not in the business of advising clients.

            1. Thanks for checking back. I understand your point. Yet I wait for someone to define the market in a specific way that lends itself to a definition of a monopoly.

              There has been so much talk about the harm of being shut down on one forum versus another. My needs are simple. What market are people excluded from and how does it fit into antitrust law?

              1. That’s a good and fair question, jst1, but I’m not claiming to have the answer to it. I simply wanted to point out another possible cause of action for those who think the tech giants are abusing their “monopoly” position.

    2. Alcoa is generally understood today to have been a wrong turn in antitrust law.

      1. I personally think/hope so, too, but it was decided by brilliant judges and has never (to my knowledge) been overruled.

  14. It would be enjoyable to read all the whiny “I like private property rights and free speech, but this time the big companies aren’t doing what I want, so I am for an exception this one time” if it weren’t so pathetic.

    The problem is when government regulates speech. The whole point is to ensure non-government actors can speak truth to power (whether directly or by using their private business to amplify the voices they like and to not to amplify the voices they don’t like).

    1. I’m even more amused by those who think that allowing people to sue online platforms like Facebook for libelous postings they permit from their users will usher in some form of conservative utopia.

      If there’s one thing that team Dominion-Hugo-Chavezed-Presidentimus-Trump-out-of-his-victory should _not_ want more of, it’s a lower bar for libel lawsuits.

      1. At this point, they really must be embarrassed by their support for he should never be named. They compromised all of their principles for what? The biggest expansion of government in history, the erosion of democracy, and the promotion of extremism on both the right and left. This cluster is what they wrought.

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