Social Media

The Case Against Imposing Common Carrier Restrictions on Social Media Sites

The rationales for doing so are weak, and would create a dangerous slippery slope, if accepted.



In recent weeks, the case for imposing "common carrier" restrictions on major social media platforms such as Twitter and Facebook has gathered steam on the political right. Supreme Court Justice Clarence Thomas expressed sympathy for the idea in a recent concurring opinion. Co-blogger Eugene Volokh likewise gives it sympathetic treatment in an important new draft article on the subject (though he also expressed some reservations). A growing number of conservative politicians and activists had embraced the idea with a lot less nuance and reservation. If such proposals get enacted into law and survive First Amendment challenges (two big ifs!), they would set a very dangerous precedent.

Common carriers are businesses that have a legal obligation to serve all comers, so long as the latter pay for the service and obey some very minimal rules. Historically, most firms subject to common carrier regulation were involved in providing transportation or communications services. Standard examples include railroads and airlines. As applied to social media platforms, common carrier status would require them to serve all potential users, without discrimination as to the content the latter post, except perhaps in cases where that content is illegal (as in the case of disclosing classified information or organizing a criminal conspiracy, for example).

Let's start with first principles. Eugene Volokh asks "Whose rules should govern how Americans speak with other Americans?" He poses the question in a way intended to raise concerns about allowing social media firms to supposedly dictate those rules. But the right answer to this question actually cuts against his position.

That answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.

Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their  rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries' views.

Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm "no."

The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power. A classic example is a situation where there is only one railroad available to move freight from Point A to Point B, in an era where the only alternative modes of transportation (e.g.—horse-drawn wagons) were vastly slower and less efficient. It is often argued that "Big Tech" social media have some sort of monopoly over the distribution of political information, especially online.

The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news,  35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than from television and news websites.

What is true of news is also true of opinion and commentary about political and social issues in the news. Most TV news channels, media websites, and other similar information sources carry extensive commentary and opinion pieces. And, of course, they routinely print and broadcast statements by politicians, activists, and other public figures.

To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major players as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others.

In sum, social media sites have nothing approaching a monopoly over the market for political information generally, or even over its distribution online. To the contrary, they command a smaller audience than rivals such as TV stations and conventional media websites.

One measure of Big Tech social media's inability to control political discourse is their utter failure to prevent the rise of widespread attacks on Big Tech itself! Real monopolists worthy of the name should be able to at least suppress speech that directly threatens their own interests.

Moreover, as I explained in a January op ed in USA Today (itself one of the many alternatives to social media!), the big social media sites don't even command a true monopoly over social media, narrowly defined. Rival sites with different (and often much looser) moderation rules can and do compete with them. Parler is just one of a number of such initiatives. If they aren't as popular as Facebook and Twitter, it's not because of lack of competition, but because fewer consumers like them. Facebook and Twitter themselves challenged previous, supposedly dominant incumbents. If they annoy enough consumers, or if someone develops a more appealing competing platform, today's supposedly unassailable "giants" will suffer the same fate.

Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory. For example, Eugene Volokh and others cite analogies to telephone lines or mail carriers. Most people wouldn't want phone companies to bar calls by those whose ideologies they disapprove of.

But such analogies are misplaced. With rare exceptions, phone calls and letters only reach a small, specifically intended audience. Unless they are illegally tapping the line, the general public does not and should not have access to your phone conversations. Ditto for your mail. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints constraints that enable consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time.

For that reason, moderation rules and content restrictions are crucial for social media, in a way that is rarely, if ever, true for phone lines or mail delivery services. That is not to say that Facebook and Twitter's rules are always ideal. Far from it. I dislike many of them myself. In addition, enforcement of even the best social-media rules necessarily relies on algorithms and other crude mechanisms that often result in mistakes, including even ridiculous ones like confusing Holocaust education with Holocaust denial.

But even if social media platforms sometimes adopt flawed rules, the fact remains that such rules are often a valuable part of the product they provide. And it is far better for the quality (or lack thereof) of such rules to be determined by competition in the market than by one-size-fits-all government mandates—or by a common carrier mandate imposing a near-total ban on such rules. Among other things, such a mandate would forestall the evolution of new and potentially better rules.

In addition to banning content moderation rules that many consumers like, common carrier restrictions also create serious slippery slope risks. If the monopoly rationale for imposing common carrier rules on social media platforms is accepted, it could just as easily justify the imposition of similar requirements on many types of traditional media.

Even if Twitter and Facebook don't actually monopolize the market for political information, it's certainly true they reach various potential audiences that are difficult or impossible to reach in other ways. But, if that justifies forcing them to abjure restrictions on content, the same rationale would rationalize imposing the same requirements on other types of media. Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences that can't always be easily reached in other ways. By that rationale, they too can be forced to be common carriers!

Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg's views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does. And it's not clear that they are any more worthy of their influence than Zuckerberg is.

Giving government a free hand to impose common carrier restrictions on any website or media outlet that "monopolizes" a particular audience or otherwise has "too much" influence is a power that can and will be abused. Call it "common carrier creep!"

The party in power will have obvious incentives to use it to neuter media that oppose them. Even if conservatives are comfortable with giving such discretion to GOP politicians, are they equally at ease with giving it to Joe Biden, Kamala Harris, or Elizabeth Warren? How about the bureaucrats Democratic presidents are likely to appoint to federal regulatory agencies tasked with implementing such common carrier regulations (and deciding which firms should be subject to them)?

Liberal advocates of social media regulation (of whom Warren is a prominent example) should ask themselves whether they would be willing to entrust such regulatory authority to the likes Donald Trump or Josh Hawley. Given the chance, those guys would be happy to make social media great again—under their definition of greatness, of course.

Eugene Volokh worries that letting social media giants impose content moderation rules could lead to "censorship creep," as more and more groups demand the exclusion of speech they object to. It's a reasonable concern. But one mitigated by market forces. Big social media firms want as large a customer base as they can get, because that increases their profits. That makes it very unlikely that they would categorically suppress large swathes of the political spectrum, as doing so would chase away substantial parts of their audience. If they moved in that direction, nonetheless, it would only create bigger and more enticing opportunities for competitors. That's why, despite occasional unequal treatment, we still see very large amounts of right-wing speech—including pro-Trump speech—on both Facebook and Twitter. Trump may not Tweeting anymore. But a great many of his defenders and supporters are still there. The owners of those sites don't want to get rid of them all, because they don't want to lose so large a part of their customer base.

Such competitive dynamics are far less likely to stop government actors, who can impose the same restrictions on all social media firms (and other information providers, as well). If no one is allowed to post X (or at least no major site), competitive pressure is greatly diminished.

Those who worry about censorship creep would do well to focus their concerns on government regulation, rather than the behavior of private websites subject to competitive pressure. Here, there are many fewer constraints on slippery slope dynamics. Once flimsy monopoly arguments are allowed to justify imposing common carrier restrictions on social media, it will be all too easy to impose them on other major information sources, too. If conservatives succeed in imposing them on Twitter and Facebook, the left can use the same logic to impose them on Fox News and other conservative media. After all, many on the left have long argued that Fox has inordinate  and undeserved clout, and that it monopolize the attention of much of Red America.

In sum, turning social media sites into common carriers is a bad idea that rests on extremely weak rationales. Even worse, implementing this idea is likely to cause a great deal of harm, and create a dangerous precedent.

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  1. Open question for both Reason and Volokh individually: What percentage of your traffic is coming in via deeplink and/or social media, versus a hit to your home page?

    Big Tech, including the megascale social media platforms, has an oligopoly on the advertising and distribution mechanisms that make the current online economy viable. (Even more so when you consider GCP and AWS in their entirety.)

    While I’m sympathetic to the argument that a landline phone number is morally equivalent to a domain name (or even a raw IP address), that parallel is a reasonable economic equivalent in 1996, not 2011. And certainly not 2021.

    1. Ilya’s advocacy goes only in one direction. He is supporting the interests of the Chinese Commie Party and of their agents, the tech billionaires. Their interest is to undermine the US, weaken it, have it fight internally, as it moves forward.

      1. And cue Bircher Behar…

        This is the Right today folks.

        1. And cue the messenger attack once again. You know nothing else, which leads one to believe you have nothing upon which to attack the message.

          1. You really have a bizarre misunderstanding of this ‘attack the message’ view. Do you want to defend Behar’s bizarre bellowing that Ilya Somin’s ” advocacy goes only in one direction. He is supporting the interests of the Chinese Commie Party and of their agents, the tech billionaires?” To comment that such nonsense is a sad Birther-ite comment too indicative of the Right today is to make an *observation* not a counter-argument, ‘attacking the messenger’ doesn’t apply. It’s like you’ve called off-side at a basketball game.

            1. Pointing out that your usual M.O. is a personal attack rather than a substantive argument is not a defense of Behar. It’s only a criticism of your commenting habits, which often veer away from the “civil and on-topic” request just above the comment section.

              1. Here’s another not very self aware guy. And note the reeking tribalism. Bircher types like Behar stumble in and engage in substance-less (or just nuts) ad hominen attacks on Ilya (and others) regularly, I come in and point out that MO, and then people like Calahan, Michael P, etc., who don’t rush in on Behar types for that alleged same thing rush in to attack me. It’s pretty transparent and silly.

                1. I don’t engage with people I think are beyond redemption. The only reason I haven’t muted him is so that I know who posted a muted comment. (No points for guessing the one person I have muted.) Should I write you off the same way?

                  1. Do what you like, but there’s a difference between the ‘beyond redemption’ guy who comes here to shitpost and the person who mocks them or observes how crazy their shitpost is.

                    1. No, mocking a shitpost — or merely pointing it out, without explaining its errors in a sound way — contributes to an environment of poor discourse, which is the goal of the person making the lazy or otherwise “bad” comment. That’s why people recommend not feeding the troll.

                    2. Lol, yes if only the trolls errors are explained in a sound way! People don’t do that to trolls in regular discourse, if a nut comes into your conversation with friends at a bar with nonsense you laugh him away.

                2. When you follow the money, a tried and true analysis technique for politics, with a 47,482,992 to 0 success record, it’s not so clear.

                  It’s no secret a lot of online debate is stirred by state-sponsored organizational trolling as orgs try to plant ideas and stir things up.

                  Do I think he thinks they are literally knowing participants in Chinese expansion of censorship and control? No. Is concern over their tremendous leverage of economic access to their markets real? Yes.

                  Remember that whole Nike Betsy Ross gym shoes incident? Some wonder if it wasn’t a setup all along to stir dissent in the US. OH LOOK, this little idiot fringe neo nazi group takes her on as a symbol (perhaps prompted by trolls) let’s spend a few million whipping up a Betsy shoe, a few weeks later, “suggest” to people hey look, a beloved symbol of freedom is, and they are edumicating you, is a symbol of Nazis and hatred, shoe cancelled, outrage ensues.

                  Or maybe not. No matter. We are being played like a song in a thousand little ways.

          2. To paraphrase the kids on the ‘net, trolls gonna troll. Shitposters gonna shitpost. And those who can’t refute the argument engage in ad hominem. As it only engages in ad hominem and weak attempts to ‘own the conservatives,’ one can safely wager that it is intentional.

      2. Ilya has nothing to say about the terrorist acts enabled, the hate speech from the left promoted as scientific truth, and any policy that serves to enrich these oligarchs. He has nothing to say about the 100 million crimes on their platforms each year, million committed by the platforms themselves. He is a propagandist in the cheapass mold of the North Korea News Wire.

        1. You’re an authoritarian moron. Ilya’s family fled Communism to get here. Since then he’s tirelessly worked to fight too much government intervention, his only sin to persons like you is he is principled and works within a classical liberal framework, two things you clearly don’t know about as evidenced by your bizarre authoritarian rants here.

          1. Queen Amalthea,

            Why do you bother to engage with posters that anyone with an IQ above room temperature have put on mute? The posts are usually self-refuting – no need for further explication.

            Seems like a waste of time. Both yours and mine.

            1. She’s a shit poster without any credibility. Hope that helped.

              1. Again, notice the lack of self awareness and tribalism: it’s not the Bircher Behars that are the shitposters, it’s the person pointing out their shit posts (and to top it off, buckleup does it in a shitpost of his own!). You can’t make these people up!

            2. Queenie feels triggered. It cannot control itself.

            3. For any forum or discussion to thrive sans moderation it needs informal moderation, the trolls and shitposters must be mocked and shown to be what they are regularly.

              1. ….never seemed to work on you. Do not see why you’d assume it’d work any better on others.

          2. Queenie. Ilya escaped the Soviet state. Now, he supports the interests of the 100% surveillance state, the suppression of dissent, and the enrichment of a small number of oligarchs. He is saying, hands off a methodology that is 100 times more efficient, 100 times less tolerant of dissent, and 100 times all knowing compared to the KGB.

            Your personal attacks are copied from the KGB Handbook on the response to dissent. You probably found a smelly copy in the garbage. Its stale stench comes off your stinky, barely literate comments.

            1. “Now, he supports the interests of the 100% surveillance state, the suppression of dissent , and the enrichment of a small number of oligarchs.”

              Now here is a good example. This is some seriously unserious stuff. Ilya has a long, demonstrated history supporting civil liberties and is no fan of ‘oligarchs.’ He’s gone to bat for Hong Kong dissidents and small time property owners, criticized warrantless surveillance, etc., etc., etc. Behar’s Bircher-esque rants are full of basic misunderstandings and falsehoods fused with outrageous hyperbole (100 times worse than the Soviets) and proposed solutions (mass arrests, deportations, executions). It’s silly to try to ‘refute’ these, well, crazed rants. They deserve to be called out as how disturbing they are, mocked or ignored. That reaction is not ‘ad hominen’ or ‘shooting the messenger,’ which are concepts in formal deductive logic debate, which is not what’s going on when these Bircheritte posts come up.

          3. Look, there are plenty of authoritarians here — Jimmy the Dane, Bob from Ohio, Greg J — but Behar is more mentally ill than he is authoritarian.

            1. David, aren’t you a lawyer? You believe minds can be read, in forecasting, and that standards of conduct are to be set by a fictitious character. Why fictitious? So the standards may be objective, of course. Not only do you hold these beliefs, you expect to be paid for them. Cuckoo, cuckoo, cuckoo. Ding.

              These supernatural beliefs were plagiarized from the Catechism of 1275 AD. To its credit, they attributed these powers to God, in accordance with its faith. I have no criticism of the Church. The problem is the lawyer attributes them to man, and we live in a secular nation. You are out of your mind, dipshit.

              1. You can stop proving you’re mentally ill. It’s been firmly established.

                1. Stale KGB reply to dissent from your sicko, failed occupation. You have delusional supernatural beliefs, and may not call anyone insane. Your occupation tests people on the application of these wacko beliefs to get their licenses. You are 10 times more toxic than organized crime. You take our $trillion and return no value. Every year you breathe you destroy $5 million in economic value. You stink.

                  1. David. What is my mental illness? How did you make this diagnosis on someone you have never met, and across the internet? Did you use the same methods you do to ascertain intent?

                    1. Did you use the same methods you do to ascertain intent?

                      You mean, pay attention to what someone says and does? Yes, of course.

                    2. Where is the validation for that method outside of your feelings and biases, to which you are oblivious? I would love to review a study of any quality supporting your methodology.

          4. My main complaint of Ilya is that he got pulled into the lifeboat as a kid, so that now he thinks the lifeboat should admit as many people as want aboard, even if it sinks and we all drown.

            Mind, he doesn’t admit the lifeboat will sink, he thinks it has infinite capacity. But that’s only because he’s so determined to share the good he has found with everybody, that he can’t bring himself to admit it is a finite good.

            1. Brett. It is simpler. Ilya lives in the DC Beltway and cannot escape the gravitation of its degenerate, Democrat culture. He would change within 2 years of moving 50 miles inland.

            2. You think there are an infinite number of people on the planet?

              1. People who nitpick language are not correct. They are odious jerks who need an ass kicking, according to the average person in a diner.

      3. Ilya may be a victim of the dirty Commies. But, now he lives in the DC area. That degenerate, Democrat, tax sucking, rent seeking, homosexual, lawyer culture cannot be resisted for more than a short time. The white sections of DC are more homosexual than San Fran. I went to their parties. Now, he is defending the agents of the Democrat Party, the social media platforms. Both the platforms and the Democrat Party are owned by the tech billionaires. Their selfish interest is to get rich in China. They kowtow to the Chinese Commie Party, which drives a hard bargain. They are the servants of the Chinese Commie Party to use agency law terminology. This post amounts to the betrayal of the country that sheltered Ilya from Commie filth oppression.

      4. Do you honestly think this kind of comment is even worthy of posting? This is your entire rebuttal. Good god.

    2. Internet advertising embedded in web pages appears to be a duopoly of Google and Facebook right now. Certainly YouTube has financially destroyed many podcasts that used to be distributed on their system merely by demonetizing them, and it continues doing so.

      And wanting social media unmoderated is nothing but a strawman argument. Each social media channel (for instance, each podcast) is from an author who moderates it. His audience don’t want or need anyone else to step in and moderate what he says.

  2. Well said, but of course no amount of argument is going to get the Right to abandon it’s relentless victimization and cult of personality mode which is driving this whole push.

    1. Woke is Red Guard Commie methodology, and should not be tolerated.

      1. I mean look at this bizarre wording. This guy’s nuts.

        1. That is 4th grade rhetoric, which is pretty good for the education Queenie attended in his Democrat jurisdiction. It also refuses to acknowledge the reality of the chromosomal genome of every human cell of its body. If you can deny such a fundamental reality, what credibility is left?

  3. When the holocaust comes up as an analogy watch out…

    For the 19th time, big tech operates a digital bulletin such that is the service they offer and as such they should be governed by nondiscrimination laws…we decided in 1964 that sellers could not discriminate against buyers for certain reasons..expanding that to include political views would solve this issue…(and we should or we should get rid of sections 2 and 8 of that law). My personal view is they act as sovereign countries and float the Bill of Rights and as such they are a hostile power whose leaders should be deported and their policies change to allow all views no matter how non woke as long at these views are not threatening anyone physically. Their leaders act like Troytsky IMO…there should be zero tolerance for bolsheviks in America…zero.

    1. Wow, the Right is pretty full of John Bircher types these days. Looks like Buckley lost in the end.

      1. Do you ever have an actual argument that isn’t pure ad-hominem?

        1. She has “what the actual fuck”, which she deployed against me elsewhere on this thread. (I am still reeling.)

        2. You’re funny. When someone is suggesting the seizure of major companies and deportation of their executives I only give such authoritarian nuts an ‘ad hominem,’ yes. You might want to debate the fine points of nationalization with them.

          1. Btw, since you’re dying for some substance, a little logic lesson. The ‘ad-hominem’ refers to the informal logical fallacy in *deductive* logic. All it means is that an argument is not unsound or not valid because of the mere fact of something about who said it.

            In lived life, which is not run on the rules of deductive logic all the time (not should it!), when someone makes an outrageous claim such as ‘we should round up all the Tech bosses, take their property by force and deport them as traitors’ one can most certainly say ‘what the fuck is wrong with you?’ and they are not guilty of the ad-hominem fallacy.

            1. Did you learn this view of critical thinking in the school you attended in a Democrat jurisdiction, if you know what I mean?

              1. Oh look, Bircher engages in bigoted innuendo. Sun also comes up in East.

                (btw- I attended straight up Republican schools all the way to college I’d say, not that any of that matters of course).

        3. No she does not.

          1. Another person who doesn’t know how ad-hominen works.

            I tell you, Gen Ed critical thinking class level philosophy education is probably worse than none!

            1. Queenie, didn’t you attend a school in a Democrat jurisdiction, if you know what I mean? I am not even interested in talking to you, but to the lawyers. I do appreciate how you are the only one here stupid enough to actually reply to me. It is so lonely here.

              The lawyers understand me. You do not have to. You will feel better putting me on Mute User. You come across as a hysteric and a fool, in your comments. Their rhetoric is at the 4th grade level, which is a pretty good achievement, given the underperformance of your education.

              1. “I do appreciate how you are the only one here stupid enough to actually reply to me. ”

                This is a disturbing level of madness here.

                1. Alternate explanation: That is the gloating of a successful troll.

                  1. Queenie, did you not say, you worked in field of psychology? Please, tell the class how you make a diagnosis of mental illness of people across the internet. What is the diagnosis? How did you arrive at it?

                    For example, I claim the lawyer is stupid on purpose, for profit and power. I then provide intentional mistakes in the series on Today in Supreme Court History. I provide the reading level of the constitution, and its simple language, and show how the lawyer refuses to use the ordinary meanings of its words to its advantage, because it controls government.

                    I claim the lawyer claims to have supernatural powers prohibited by the constitution of this secular nation. I then provide examples of supernatural doctrines at the heart of the common law, and their plagiarism from the Catechism of 1275 AD. A national expert on the First Amendment knows every case about a cross in a city flag, even though it is just a tourist attraction. Yet, he refuses to discuss these supernatural functions borrowed from the Church, and attributed to God, not to man, in accordance with its face. I have no criticism for the Church. It abandoned Scholasticism in the 19th Century, after 6 centuries of rebuttals. Only the American lawyer is immersed in it on a daily basis. No one has addressed these facts. They have shunned me, send me nasty emails, and called me insane. I do not harbor supernatural beliefs, and certainly do not apply any to daily life, as the lawyer does.

                  2. That doesn’t make it any less crazy.

                    1. What is your diagnosis and how did you arrive at it?

  4. It takes a certain effrontery to cite the case of Parler here. Or to cite press entities entirely owned by or beholden to the largesse of Big Tech as alternative sources.

    A monopoly need not have 100% of the market to have too much power. Standard Oil had a smaller share of the oil and kerosene market than Google has of the search market. Google’s dominance matters even if it is the result of consumer choice, but it is also the result of patent enforcement.

    1. Standard Oil was brought to heel befor gasoline for cars was even a big thing yet. Note he turned into a philanthropist, inventing that as public defense against politicians gaining power overtly declaring him as evil. Pointing out how that is evil itself is a modern meme, though corruption underlying hurting corporations is blithely ignored.

      Here, we ignore what got us into this situation: politicians threatening hundreds of billions in stock losses by wiping section 230 protections and/or outright breakup as politicians fell all over themselves the past few years to wrench big tech arms to censor harrassment. This was an entire discussion unit during the Democratic debates.

      As soon as the companies knelt to this grotesque First Amendment violation, politicians start loudly “suggesting” this or that tweet of their political opponents is harrassing, and should be censored.

      And I mean censored, as in forced by the government. Later, they would add expanded, looser definitions of “dangerous” speech, trying to be squirrely in taking the cachet of dangerous speech, regularly talked about here as an exception to the First Amendment, but loosely overlay it to mere political opposition speech.

      To sit here and argue the propriety of common carrier issues in light of this monstrous First Amendment violation seems like tying your hands when fighting vicious animals with no morality for rules.

  5. “Google’s dominance matters even if it is the result of consumer choice”

    What the holy fuck? Remember the old joke “Would it not be easier for the government to dissolve the people and elect a new one?” Now it’s “Wouldn’t it be best to stop consumers from preferring the wrong thing?”

    1. I hadn’t considered argument by “what the holy fuck”.

      1. It’s almost like I wrote some other things!

        1. Actually, you don’t. Your arguments overwhelmingly consist of you spitting out words because your jerking knee can’t talk. For example, you’ve stated how Somin is speaking on principle here, but you’ve not backed that up, and you’ve made no other actual points other than knocking the commenters.

          1. Somin has an extensive body of work consistingly contesting government intervention by the left and the right. I’m not going to go through it all here, you can click on his name and look these up.

            But also, let’s look at your claim that I “made no other actual points other than knocking the commenters.” You may not get the Brecht reference but don’t therefore try to conclude I made no substantive point by it.

            1. You don’t make substantive comments. YOU attack the messengers, over and over, which is the way to convince people you have no grounds to attack the message.

              1. The lack of self awareness in this post as a reply to mine is really stunning. To spell it out I *reminded* you that I made a substantive comment and you ignored it to…just attack me!

              2. Since I have muted QA for thread hijacking I won’t respond to your comment.

                1. Don, you should unmute Queenie. It represents the intellectual ability and content of the woke in the US.

            2. Hence my point above of tying your hands to play by the rules when your opponents are into full-throated, full-bore censorship, proudly, loudly, and openly.

  6. Somin: “If conservatives succeed in imposing them on Twitter and Facebook, the left can use the same logic to impose them on Fox News and other conservative media.”

    If Fox News were a monopoly perhaps. Or if Fox presented it self as a public forum and claimed the protection of section 230 perhaps. But Fox News is nether a monopoly nor the kind of entity which claims section 230 protection.

    1. I can’t believe a law professor can miss this point by so much. It’s a grape to watermelon comparison at best.

      1. Did he miss the point? I think he was talking about the rationales for imposing common carrier status which isn’t the same thing as 203 reform, right?

      2. Somin has an IQ that is likely 40 points bigger than ours. His obvious mistake is from bias.

      3. The line about social media giants not having a monopoly on disseminating political information was kind of a red flag about how strained this whole argument is.

        1. The line is almost certainly correct.

          1. It’s also a “true, true and unrelated” kind of red herring. Standard Oil didn’t get busted for having a monopoly over sources of combustible goods.

            1. This is more of a goalpost swerve than a switch!

    2. Section 230 has nothing to do with this conversation. And Prof. Somin makes the case that in fact Facebook and Twitter are not monopolies. Since you make no case to the contrary, your comment is completely beside the point.

      1. Section 230 illustrates the grievous category error Somin made. Facebook differs from Fox News in many ways, two of which are pertinent to Somin’s argument. Facebook is a monopoly and Facebook denies it is a publisher, and does so when it invokes section 230.

        As to whether Facebook is a monopoly that s a factual matter. I am convinced by the evidence. Perhaps you have not considered any. I suggest you look into the House report.

        Further your claim I did not directly address Somin’s argument is false: look at my comment on Parler, and the citation of subvened sources as a deflection.

        1. Isn’t the category error yours in confusing a discussion on monopoly with section 203 reform?

        2. Facebook is not a monopoly. Full stop.

          There are thousands if not millions of places to interact with other users on the internet. Including this one

          1. “Facebook is not a monopoly. ” as defined in 1900.

            1. network effects were known in 1908!

          2. Facebook owns 90% of social media, and put MySpace out of business. It is a monopoly. You do not have to use the gasoline of Standard Oil. Why not use wood to fire up your steam engine? You will get to your destination just the same.

            1. Myspace isn’t out of business.

              1. Oh? Splinting hairs to the point of pedantry may seem like a good approach to arguments, but by no metric is Myspace a healthy social media platform. Behar may not be entirely correct, but you seem to be being pointlessly priggish.

        3. “It takes a certain effrontery to cite the case of Parler here. Or to cite press entities entirely owned by or beholden to the largesse of Big Tech as alternative sources.”

          That’s your comment that you feel addresses Prof. Somin’s assertion that Facebook isn’t a monopoly? And I’m not sure that historically you are correct about Standard Oil and Google. Primarily because it is still quite unclear just what percentage of the kerosene market Standard controlled. Many of their deals with other companies, and even their purchase of other companies, remain secret. I believe in Ron Chernow’s Rockefeller biography he estimates it at 90 percent, but admits that is just an educated guess.

    3. KHB, although Somin did not get around to saying it directly, at least part of the point is that the social media giants are publishers, as are the others you named. Given the near-identity of their activities and business models, all these publishers must be regulated alike, or else regulated individually and arbitrarily. The latter choice would obviously burden press freedoms protected by the 1A.

      1. I was told section 230 was irrelevant, but this is why I cited it. Facebook and the others have invoked section 230, and been upheld. This goes directly to the question of what kinds of entities they are and which could be subject to common carrier designation.

    4. Somin would get a D in issue spotting for those reasons on any law school exam. The rest of his analysis would crossed out.

      Fox News to Facebook analogy does not apply. Fox is the immunized Press. Facebook is a utility provider, like the water company. We cannot have the water company shut off service to people it disagrees with politically, about unsettled subjects and about ongoing controversies. The water company may not even shut off service to people who have sued it and stymied its efforts to grow.

    5. Or if Fox presented it self as a public forum and claimed the protection of section 230 perhaps. But Fox News is nether a monopoly nor the kind of entity which claims section 230 protection.

      Sigh. Where do the RWNJ come up with this stuff? There is no such thing as “claiming” the protection of 230a. Section 230 says that ICSs (as I’ve said, effectively all websites) are immune from suit for certain things. It’s not like applying for a driver’s license or registering to vote or buying a movie ticket — something one has to choose to do. It’s automatic if one fits within the statutory definition.

      And while Fox News the cable station does not fit within that definition, does, and gets the same protection as Twitter and Facebook and every other website.

      If Fox News were a monopoly perhaps.

      What does that have to do with the price of tea in China? Ilya was talking about a company’s ideological foes declaring a website to be a common carrier (and thus forcing it to host views it disapproves of). Being a common carrier has nothing to do with being a monopoly.

      And I have no idea what “presented itself as a public forum” means in your head. Twitter and Facebook present themselves as curated sites, not as anything goes anarchic message boards like 8chan.

      1. People probably get the idea that social media giants claim the protection of Section 230 from the cases where companies like Facebook claim the protection of Section 230. See, for example, their unsuccessful attempt in Texas: “In all three lawsuits, Facebook moved to dismiss all claims against it as barred by section
        230 of the federal ‘Communications Decency Act’ (‘CDA’)….”

        Twitter’s then-CEO, quoting the company’s general counsel, used to claim that the company represented “the free speech wing of the free speech party”. Now, of course, it is more convenient for them to kowtow to Democrat demands to silence the right, making them state agents of @jack-booted censorship. They want to “curate” conservative viewpoints out of the public conversation. (But, hey, at least Democrats are arguing “separate but equal” again!)

        1. David N’s point is that you don’t ‘claim’ Section 230 protection, it’s already been granted, you just remind the court that’s why you’re not liable.

          1. And my point is that is a distinction without a real difference, because it is inconsistent with both common usage and legal facts. It was empty rhetorical point-scoring, trying to shift the debate away from an indefensible point to an irrelevant one.

            1. You were arguing that Fox wasn’t a good analogy because they differently don’t ‘claim’ 230 protections (but as DN pointed out, their website ‘does’ [in the sense that they fit under the statute]).

  7. I am just wondering why there is any distinction between types of companies and how much First Amendment protection they get. The First Amendment makes no such distinction and that is where the debate should end. No class of companies should get increased free-speech protections over other companies, just as no person should get increased protections over another person.

    1. The First Amendment is a floor, not a ceiling, because it protects you from government action. The government has long given more protections to some than the First requires, it just can’t give anyone less.

      1. I am not a lawyer so may be misunderstanding. Better for me to leave it to people who know what they are talking about, I guess.

        1. You must be new around here ;). I’m not an expert either.
          Cool handle btw.

          1. Thanks. GOTG is the best.

            1. Suicide Squad is going to be good, same director.

      2. Facebook is a quasi-governmental organization, a concept reviewed in law school. The social media platforms are all partisan, Democrat Party propaganda outlets. They deserve no deference. The Democrat Party has made itself the representative of the interests of the Chinese Commie Party in our government. They never oppose its political or economic interests. It has adopted its Red Guard methodology in woke.

    2. The first amendment applies to persons. With companies the question arises whether the rights of the persons transfers to the business entity, and how. Persons and businesses are different after all. One amendment refers to your rights in the case of capital crimes; it makes no sense to insist companies can face capital punishment.

      1. I may not be correct, but didn’t Citizens United rule that corporations have the same First Amendment rights of people?

        1. No. Eugene Volokh wrote a good explanation a few years ago.
          If you disagree with the ruling then you agree that a politician should be able to censor a film critical of him or her if the film was produced by an incorporated entity, as many unions are. Because that is what the content of the case was.

        2. You’re not wrong that Citizens can be relevant, Volokh has devoted some considerable time to re-thinking Stevens dissent in that case this week in his pieces on social media.

          1. You are now claiming that Citizens United granted corporations identical first amendment rights to persons? That is a false claim.

            1. I’m claiming what I wrote to starlord, who are you talking about?

              1. Probably he was talking about the first three words of your earlier comment: “You’re not wrong”. Citizens United did not say what starlord wrote — he was wrong, as were you.

                1. Wow, how astonishingly (well, not so much I guess) dishonest of you to excerpt three of the two dozen words in that sentence and declare it wrong based on a reading of the three.

                  1. The main clause in that sentence was those three words. It was followed by a subordinate clause that was so vague as to be meaninglessly irrelevant, and that was followed by another subordinate clause that was essentially a snide personal attack.

                    If you don’t want people critiquing the core of what you say, make sure that core is factually correct.

                    1. There was no snide attack, it’s a statement of fact that Volokh has been using Stevens’ dissent in Citizens in his article excerpted this week as highly germane to this issue. And, again, to take three words from a 24 word sentence is of course to misrepresent.

      2. Granted, I do not agree with the decision.

    3. “I am just wondering why there is any distinction between types of companies and how much First Amendment protection they get.”

      For the same reason there’s any distinction between any companies at all — say, in the case of monopolies.

      I’m a rsther libertarian-leaning conservative, but I’m quite fine treating FAANG as qualitatively different when it comes to platform access compared to, say, Joe’s Carburetor phpBB Forum.

    4. No class of companies should get increased free-speech protections over other companies . . .

      starlord1988, you might have a point if the issue here were free speech. It is not free speech. It is freedom of the press—a separately enumerated category in the 1A. You may not approve of that distinction, but that will not make it any less a part of American constitutionalism.

      In fairness, you are in plentiful company when you conflate speech freedom and press freedom, treating the latter as a mere instance of the former. Eugene Volokh does it too, but he uses the conflation slyly, to advance slippery slope arguments which actually undermine press freedom. I don’t understand why he does that, but the pattern is unmistakable. It does go down well with a right wing audience which includes many folks who are actually hostile to press freedom, and say so vociferously.

      1. It is freedom of the press

        No. Just, stop. Facebook is not the press.

      2. Yes, the Founders *clearly* intended Internet social media services to be considered more like laboriously pressing ink onto paper than like spontaneously throwing one’s speech to the winds.

        1. Michael P, and Vinni, why not? The Boston Gazette at the time of the revolution was in the business of:

          1. Making expressive materials available to members of the public, who were free to read or not read those materials at pleasure;

          2. Using those expressive materials to assemble an audience;

          3. Curating that audience by choosing and editing the materials to appeal to audience members whose attention would be of interest to advertisers;

          4. Selling advertising to monetize the attention of that audience.

          In short, the activities of the Boston Gazette—among other colonial newspapers which acted alike—defined for the founders the business of publishing, which the founders referred to when they stipulated freedom for, “the press,” in the First Amendment.

          There can be no reasonable controversy about the truth of that. Several of the most-influential founders, including Ben Franklin—himself America’s (and perhaps the world’s) most prolific newspaper publisher during the founding era—were contributors to the Boston Gazette. Historians describe Samuel Adams as essentially living in the offices of the Boston Gazette, where he made so many contributions that historians remain uncertain whether they have identified them all. The patriots who conducted the Boston Tea Party raid to dump tea in Boston Harbor used the office of the Boston Gazette as their assembly point.

          More generally, among the founders were others, including at least John Adams, Alexander Hamilton, John Jay, Thomas Jefferson, James Madison, and James Wilson, who were accomplished men of letters, who used contributions to the institutional press of their day as a principal tool to accomplish the revolution, and thereafter to publicize the Constitution and get it ratified. As a matter of history, there can be no question at all that the activities of the institutional press at the time of the founding defined for the founders themselves the meaning of the term, “the press,” when they used it in the First Amendment.

          Now take a look at that list of defining characteristics of the founding era press above, and tell me which of them do not characterize the principal business activities of social media services today. They are a match, point for point. On that very sound basis, they are all unambiguously publishers.

          To that I would add that it is easy to see that the activities of today’s social media businesses create considerable competitive economic impacts, and that those fall almost exclusively on rivals who are publishers. In short, economic impacts show the market sector the social media services act in is the publishing market sector, far more than any other. It seems reasonable to insist that the market sector most affected by commercial activities a business practices is the market sector which defines what kind of business it is in. On that basis, too, social media services are all publishers.

          Finally, ask yourself what kinds of activities define the business practices of common carriers. I doubt you can find any of them which are much practiced by social media services. Common carriers charge fees for users of their services. Not so for social media services. Common carriers get little or none of their revenue from advertising sales. Not so for social media services. Common carriers do not put expressive offerings before the public to assemble an audience. The revenues derived from the competitive activities of common carriers are hardly ever subtracted from the revenues of social media services.

          Social media services are not common carriers.

          1. I don’t care about your personal definition of what it means to be a publisher.

            Facebook is not the press. The press is not Facebook.

            Facebook does not claim to be the press.

            Comment sections related to the press, such as here at Reason, are not Facebook.

            Regardless of anyone’s slippery slope arguments, I have no interest in regulating the press, and none of the proposed changes, even repeal of section 230, affects the ability of the press to continue to act as the press. I don’t want to regulate Facebook’s right to speech. I want Facebook, in regard to the public portion, Facebook’s “wall” which is purportedly my space, to leave the moderation of that space to myself.

            Funny though, you’re totally fine with Facebook stomping all over freedom of the press, “in the name of free speech”.

  8. “Social media services” is a broad term that encompasses a variety of kinds of services, some of which closely resemble traditional communications services of the sort historically subjected to common carrier regulation, and others of which do not.

    One difficulty in discussing the issue is that proponents and opponents puck different representative examples of “social media.” Those advocating common carrier status offer the most common carrier like “social media” services; those opposing emphasize completely non-common-carrier “social media” services.

    Professor Volokh has helpfully oropised unbundling the concept of “social media” into distinct services, and proposed that only some of these services receive common carrier regulation. Enabling users to send messages and post on billboards to self-selected friends and subscribers seems very common careier like, the platform is simply acting as a transmitter of users’ messages much like a telephone company or mail service. Recommending particular posts, on the other hand, is done in the platform’s own voice and involves the platform acting as a publisher – triggering both protection as a speaker, and responsibility for thr content.

    Using these as illustrative examples, the services of a social media platform company can, generally soeaking, be divided into services that transmit user messages, where I think common carrier regulation legitimately reflects that email, texting, and social media messaging are simply the technological successors to the telephone, telegraph, and mail and serve similar social functions; and services where the platform itself speaks, where the platform as a publisher and should get a publisher’s protections, but also liability for the things a publisher is liable for.

    1. The question is which services exhibit natural monopolistic characteristics.

    2. Using these as illustrative examples, the services of a social media platform company can, generally soeaking, be divided into services that transmit user messages, where I think common carrier regulation legitimately reflects that email, texting, and social media messaging are simply the technological successors to the telephone, telegraph, and mail and serve similar social functions; and services where the platform itself speaks, where the platform as a publisher and should get a publisher’s protections, but also liability for the things a publisher is liable for.

      Good summary.

  9. Natural monopolies don’t exist, say naive (and frankly ignorant) libertarian law professors.

    Social media has network effects and accrue network effects. Now that Facebook and Instgram have critical mass its nearly impossible to dislodge them with normal market forces.

    Network effects: People want to be where everyone else is.

    Youtube for example, no natural monopoly. Youtube is only dominant because of Google’s dominance.

    Discord and Facebook- natural monopolies due to network effects.

    Somin is a contrarian indicator, which means common carrier regulation is inevitable.

    1. This reminds me of the liberals who used to talk about Walmart monopoly becauuse pickle companies want to sell pickles there

      1. I don’t think Wal mart or Amazon are natural monopolies. They are big due to operational and financial leverage. not the same.

        1. How is Wal Mart and Amazon not but Twitter is?

          1. He explained the distinction. You don’t have to agree with it, but it’s dishonest to pretend he didn’t explain it.

            1. He asserted natural effects exist for Twitter or Facebook but not Amazon. I’m interested in how that’s so.

        2. Just you try competing head-to-head with Amazon. I’ll sell you bandages and ice packs

          1. Not online you won’t! ????

          2. Walmart and a lot of retailers can compete online.

            Amazon makes a lot of money on webservices, and other companies like Microsoft compete in that space too.

            1. Microsoft mostly seems to compete in that domain by losing money except in cases where the customer’s chief executive intervenes to disfavor Amazon (in which case courts might throw out the entire contact award).

    2. Network effects: People want to be where everyone else is.

      That’s wrong. People want to be where their friends are, not where “everyone” is. Facebook’s demographics are skewing older; millennials and (even more strongly) Gen Zers are not big fans.

      1. When I mention the idea that Facebook is a monopoly to my college age students they get a hearty laugh. The ones who do use Facebook use it at most to keep up with their parents and grand parents posts.

        1. I bet they use Insta though, which, wait for it, is part of Facebook. They’re even directly interactive.

          1. They use TikTok more than anything else it seems.

            1. Tik Tok reports everything you say, do and think to…? The Chinese Commie Party, of course, same as Facebook. Queenie has an excellent Social Desirability Score at the Chinese Commie Party.

  10. “First principles” begins with self-ownership, and even if the US Constitution were obeyed to the letter, it would be a long way from that. As it is, government has long since been in cahoots with the rich and powerful. Pretending that the US legal system provides a level playing field between Facebook, Twitter, and Google on one side, and individual customers on the other, is a joke.

    There are two ways to even begin leveling that playing field. One involves the government making it feasible for individual customers to hold the big companies to the terms of service they impose on customers. Those big companies reference their terms of service every time it’s in their favor; not so much when it works against them. Very few customers can afford to pay to get the fair treatment they deserve. Ask all the people Facebook deplatformed for speaking up about the mere possibility of a Wuhan lab leak, which now, a year later, has suddenly become respectable. Ask Parler, dumped in violation of AWS’s own terms of service. Ask all those people dumped without recourse to even the tech giants’ own terms of service.

    It ain’t gonna happen. Anyone expecting that to happen is high.

    The only plausibly possible alternative is this common carrier status. I don’t like it; it offends my “first principles” of the human right to own and control property. But when the better alternative has been shut down by crony politics as usual, one must choose something more likely, more possible.

    Of course, the most likely and most plausible alternative is stay the course, and that is the worst of the bunch. I’ll root for second best in violation of my principles over the worst choice and worst violation of my principles any day.

    1. What is so horrible that you would chuck your ‘first principles’ here? That the Wuhan leak theory was suppressed? By your own admission Facebook didn’t kneecap it…

      This is why objective observers can’t help but see in this yet another capitulation of conservatives to the orange cult of personality…

      1. Your lack of reading comprehension has been shown time and again. There is no point in repeating what you have already misunderstood.

        1. Oh no, a substanceless attack the messenger reply!

          Self-awareness, how does it work?

          1. Queenie is an excellent example of the product of its education. It does sound white, a cultural appropriation that betrays the blood, history, and culture of its people.

    2. What TOS were breached? Seriously, I’ve been wondering about that.

      1. A fair question, but IANAL, I don’t read their ToS any more than most people, and I can only answer from my lay point of view of what a justice system would say, mixed in with scraps I have picked up from real lawyers.

        I believe there is some kind of concept that a contract requires both sides to get something, and that the contract has to be freely negotiated. This rules out ToS as contracts, and leaves them as things you accept by clicking or creating an account. So goes the businesses’ theories.

        But you can’t agree to something which is so vague and poorly worded as to be meaningless or ambiguous. The few ToS I read basically say that the company can change the terms at any time, that they decide whether you have violated them, and it is entirely their decision. The few times I have tried to contact sites to even ask simple questions, not to complain, have been frustrating nothings. They either never responded, or ignored ny question and spit back canned pablum, or in other ways never did anything useful. The stories I have read of people trying to find out why they were banned have matched my experiences.

        In other words, their ToS, in any fair system, would be void for being incomprehensible, and if no one can understand their ToS, no one can follow them or obey them, and to be accused of disobeying them is nonsense. I do not believe any such ToS should have any legal weight, any more than pure gibberish in a made-up language would be.

        Yet there is no way to challenge these, because the US legal system, and every legal system I have heard of, is rigged against individuals in these cases. You’d have to hire expensive lawyers and wait several years, and in the end, all you’d have would be a huge bill, and a very small chance of having your several year old account restored, long after the loss had mattered.

        That is what I mean by a lousy choice, and if the better choice, of proper legal accountability, is not possible due to the nature of big companies’ and big government’s preferred choice, then I would shed no tears if they were saddled with the lousy second choice of being common carriers. It is still better than the lousier status quo.

        Facebook, Twitter, Google et al may own their property, and I do not like the idea of telling them what to do with their property. But having property comes with duties, just as the inalienable right to keep and bear arms comes with the duty of not shooting random people. One of those duties, in my mind, is not rigging the system against their customers; of treating customers consistently, and not relying on Big Brother’s sorry legal system to yank the rug out from under customers capriciously and arbitrarily. Just because something is legal doesn’t make it decent, any more than Stalin’s, Hitler’s, and Mao’s legal decrees made mass murder decent.

        1. “and I do not like the idea of telling them what to do with their property”

          Methinks he doth protest too much (especially when the impetus is ‘your rules for my using your property are really confusing!’).

          And the Staling, Hitler and Mao stuff at the end, chef’s kiss. No wonder he doesn’t see Bircherite nonsense posted here as such, can’t see the water you swim in.

        2. I believe there is some kind of concept that a contract requires both sides to get something, and that the contract has to be freely negotiated. This rules out ToS as contracts, and leaves them as things you accept by clicking or creating an account. So goes the businesses’ theories.

          Nope. You know, there’s nothing wrong with not knowing the law. But if one doesn’t know the law, why not just say, “I don’t know much about this topic” rather than making stuff up?

          “Things you accept by clicking or creating an account” are called “contracts.” The vast vast vast majority of contracts are not “freely negotiated” in the sense you’re using that term. (Both sides do get something. The user gets the right to post stuff on FB/Twitter/etc.; FB/Twitter/etc. gets the right to display that stuff.)

          But you can’t agree to something which is so vague and poorly worded as to be meaningless or ambiguous.

          I’m an optimist, so I’ll say that this glass is only half wrong. If a contract is ambiguous, that may mean that there is no meeting of the minds and no contract. But you don’t really mean that the TOS are ambiguous; you mean that they’re overbroad. But while that might create a due process issue in a governmental context, it’s not a problem in a contractual context. Almost every employment contract in existence is of the form, “You agree to work for me, and I agree to pay you in exchange, for as long as I am satisfied with your performance.” That’s incredibly broad — “You mean that I can be fired just because you say you’re not satisfied? You don’t have to tell me in advance what I need to do to satisfy you? At any time you can change your mind about what I need to do, so that something that was okay yesterday isn’t okay today? And even though my coworker Bob did something similar and you’re not firing him, you can fire me for it? You don’t even have to tell me when you’re firing me why my performance was unsatisfactory? You can just say ‘You’re fired’ without anything more or any right for me to appeal this?” Yes, yes, yes, yes, yes, and yes.

          Moreover, if you were right that the TOS were too ambiguous to constitute a contract, do you know what that would mean? That no contract was formed in the first place. And if so, you have no right to use the service, since the contract was the basis for your use. It’s not — as you seem to think — that you can keep using the service but without the TOS, but that you have no right to use the service at all.

          Yet there is no way to challenge these, because the US legal system, and every legal system I have heard of, is rigged against individuals in these cases. You’d have to hire expensive lawyers and wait several years, and in the end, all you’d have would be a huge bill, and a very small chance of having your several year old account restored, long after the loss had mattered.

          So you want to apply (what you think are) principles of contract law, but you… don’t want to use the legal system? Um, I have news for you, but every contract is enforced through the legal system. So is every law. That’s pretty much the definition of what the legal system exists for. If somehow FB could be declared a common carrier, and you thought they were behaving in a way inconsistent with that status, you would have to take them to court, and use the legal system.

          1. What do you think “IANAL” means?!?

            Thanks for responding, I suppose, but your response is mostly “YANAL”, berating me for not applying lawyerly “principles” to what I claim is a defective system. Maybe I need to shorten things up:

            The legal system is rigged against individuals. If the only way to rein in cronies who offend my principles is to offend my principles less by calling the cronies common carriers, so be it.

            1. This is what motivated reasoning looks like.

              1. Queenie. That sounds like white English. Stop being an Auntie Thomasina.

                1. This is the kind of comment that I think Eugene would say must be allowed on internet bulletin boards. Despite what seems to me like outright racism.

          2. ‘Why not just say, “I don’t know much about this topic” rather than making stuff up?’ This is good advice, which I strive to live by, and you may want to consider cleaving to a bit more closely, yourself. Most folks tend to have inflated opinions of themselves, or their abilities, unless they have been in situations where or when they have found that they were severely lacking, or under the control of another, or simply needed to rely on others.

          3. I suggest David revisit his books from 1L. Find the sections on contracts of adhesion, on procedural unconscionability, on substantive unconscionability, and on criminality. All void the Terms of Use. Nothing is stupider than the lawyer, even about the law.

            Aab is correct. Contract law is unenforceable under $million, because it will cost $50000 to hire a dipshit. Contract law is yet another area of utter lawyer failure. Compare to EBay. Your 1 cent bid wins my CD. It is really unprofitable to keep my promise. Yet, I do it, to avoid bad ratings and being kicked out of the Ebay market. Ebay is enforcing promises down to 1 cent, and no cost. The lawyer profession is enforcing shit.

            David is just too stupid and oblivious. No doubt, his family worked hard to raise an intelligent, ethical young man. Then he attended 1L, dashing their hopes and dreams, becoming a lawyer, and an amoral shithead. He does not even know his own field.

        3. There’s a fair point in there that companies like Facebook can seem really arbitrary and unduly powerful. That’s one issue. The other points seem to be that nonlawyers can’t understand the TOS, can’t negotiate, and so they’re not binding. But I don’t think the law necessarily cares, which plays into your point that you feel the system is unfairly rigged.

          Overall, though, we’d have to actually read and discuss the TOS. Only then can we begin to see if any of this is actually unlawful.

  11. Ilya,
    Let the shoe be on the other foot.
    Common carrier status or no indemnification from law suits.

    1. If there were no section 230 protection, you can be sure there would be no comment section on this blog.

      1. Drinkwater, you presume a certain answer to an interesting question. I do not know whether the VC makes money, or if so, how much. In my view as a former small newspaper publisher, the VC looks like a potential multi-million dollar business, and maybe it already is one. Or maybe not. It does not read like EV gives as much thought to profitability as he does to advocacy on behalf of the bloggers’ ideological preferences.

        Absent Section 230, I see no reason why a profitable blog exactly like the VC could not afford to edit all comments. Probably 4 or 5 poorly paid editors, plus a libel insurance policy, is all it would take.

        Editing to guard against liability is far simpler and less time consuming than than most folks suppose. One super-easy editing strategy is simply to green light the opinions, and screen out all uncertain factual assertions. That was the strategy the NYT used for years to edit its letters to the editor. The surest way to be certain your letter would never get published was to include any assertion of fact, however anodyne. Using that approach with regard to the commenters on the VC would scarcely change the character of the blog at all.

        1. One super-easy editing strategy is simply to green light the opinions, and screen out all uncertain factual assertions. That was the strategy the NYT used for years to edit its letters to the editor. The surest way to be certain your letter would never get published was to include any assertion of fact, however anodyne.

          I find this hard to believe. You mean a letter that said something like,

          “Since Eisenhower has been re-elected, the Republicans should…”

          was an automatic reject?

          (Note that under the rule you suggest your comment would be rejected.)

          1. Bernard, perhaps I should have put it differently. What got you screened out at the NYT was an assertion of uncertain fact, standing alone, as part of the point of the letter. In your example, “should,” marks the comment as pure opinion, and thus publishable, regardless of any consequential or chronological significance of Eisenhower’s election.

            By the way, you did notice that I mentioned, “uncertain,” factual assertions, right? I am confident that my comment would not have been rejected, because I got the asserted fact of their editing policy from an editor at the NYT.

    2. 1) You mean immunity, not indemnification.
      2) So you want to repeal § 230. Are you sure you’ve thought through the consequences of that?

  12. The social media companies are the 21st century version of the town square. and they resemble more broadcasters than newspapers. The latter have long had a tradition of holding partisan views. However, broadcasters have to comply with licenses. The FCC once required broadcasters to follow the Fairness Doctrine. I submit that much of the coarseness in public media flows from the removal of this rule. i think it would be good for social media to follow a similar model…

  13. Thanks, Prof. Somin. The best post so far in this thread.

    I would suggest anyone sufficiently interested in this topic to read Tim Miller’s recent article on gettr:

    The practical fact of the matter is that no internet forum that allows subscribers to post content can survive without some form of moderation. Remember usenet? It was a libertarian dream of unencumbered free expression that devolved into flame wars and shitposts (with a lot of good content until most users moved on to moderated fora)

    This isn’t a right or left thing. The essence of good communication is filtering out the shit posts. Since this is a libertarian blog I ask: who is better at filtering? The government, or free enterprise?

    I’ll take my response off the air.

    1. One might take a comment that assumed — contrary to considerable evidence — flames, trolls and shitposts are objectively identifiable, consistently labeled, and uniformly handled, to itself be at least one of those three things.

      The example of the Great Firewall of China shows that government can impose the most consistent and thorough kind of filtering. Without some other qualification of what is “better at filtering”, I think we need to take filtering qua filtering as the objective. Your question has an obvious answer, and an obvious bias.

      1. This argument is sort of like ‘one man’s pornography is another man’s art, therefore how can we filter DP incest porn?’

  14. Over the course of ten years i find more and more that i have to side with somin over volokh.

    The jeopardy that our republic is in is real and that social media has an outsized role i don’t doubt.

    But here is an area where the idea that simply changing who holds the reins will fix the problem is woefully naive. Rather than a free market to fix the problems, you would want a dictator to protect you. Only that dictator is the first amendment. And it is protected at all times in questionable ways by questionable people in the weakest branch.

    Never look to the government to shelter your opinion

    1. Jaypd, the only safe harbor for press freedom ever found has been a publishing marketplace marked by great diversity and profusion of private publishers.

      Your points are well made. Policy to restore to this nation that kind of publishing marketplace is sorely required. The biggest obstacle standing in the way of that is uncritical enthusiasm for Section 230 among internet commenters. I have been trying for years—so far without visible effect—to encourage commenters on this blog to look at the effects of Section 230 in terms of the well-being of the public life of this nation. They have yet to show themselves amenable to looking.

  15. To those wailing about private property, where were you when the government confiscated the property of landlords this last year? If the government can insist a property owner freely house squatters for over a year without compensation or legal recourse, I think asking big tech to serve all legal consumers is most fair.

      1. Here here. Congress should have paid them in some way, even a tax credit or something. Did they provide anything at all? I don’t know.

  16. A few points.

    “1. But each person should also be able to decide what kinds of speech are permitted on their property.”

    – nAnd yet, common carrier type laws are extremely common, and even accepted with phone, mail, and Internet Service providers. They all have to carry and permit the messages that are transmitted via their platforms, regardsless of message.

    2. “But Fox News and the New York Times”

    -These services provide editorial control, with limited space available. The so called “social media” organizations are merely methods of transmiting information that other individuals write, without any real editorial oversight.

    3. “Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights.”

    -Compare this to Comcast being forced to give space to content it would like to avoid, due to common carrier laws….Is it a violation of Comcast’s rights?

    4) “if the cost of doing so was being forced to give a platform to your adversaries’ views.”

    This falls under the presumption that the social media organzations only exist because they do not wish to give platforms to all comers. It’s actually the opposite case.

    5) “many more Americans get news by means other than social media than use the latter. ”

    This fails by encompassing too large a set. Again, reference the ISPs. ISPs clearly don’t have a monopoly because people can get information from TV and other areas… So, they shouldn’t be regulated.

    6) ” If they aren’t as popular as Facebook and Twitter, it’s not because of lack of competition, but because fewer consumers like them”

    -It’s actually due to network effects, and established market power, as well as the buying out and purchase of any true competitors. Facebook embodies this concept.

    7) “With rare exceptions, phone calls and letters only reach a small, specifically intended audience”

    That exception being large mailing campaigns or phone campaigns designed to reach as many people as possible in order to get out political viewpoints (Or solicit donations, or advertise). Which is exactly what they are often used for.

    8) “But even if social media platforms sometimes adopt flawed rules, the fact remains that such rules are often a valuable part of the product they provide.”

    Part of what makes America a free and open democracy is the free and open exchange of political ideas. In order to enforce this, many, many simular laws have been dropped on standard media and radio organizations, to prevent a single organization from dominating a local media market. Other rules have been put in place regarding fairness. These days, social media and the internet begin to dominate. A concept where the active censorship of a single major viewpoint begins to dominate is corrosive to the entire democracy as a whole.

    9) “Fox News, the New York Times, the Wall Street Journal, and a variety of other major broadcast and print media outlets also reach large audiences”

    -One of the points that needs to be emphasized is how easy you cite multiple old-school media organizations that aren’t social media. Social media really only has two….Facebook and Twitter…which occupy very different spheres. Almost akin to the difference between TV and radio. Youtube might be considered a third. Challenged, you could easily name 10 or 20 major “old school” media organizations. Do the same with Social media?

    1. Facebook, Instagram, WhatsApp, Messenger, YouTube, Twitter, TikTok, WeChat, SnapChat, Reddit. What do I win? What does Facebook win for having bought out almost half that list, except an increasingly certain “monopolist” title?

      1. Point 6. You’re just making it….

    2. Armchair Lawyer, no matter what some piece of legislation may have called them, Facebook and Twitter as a matter of fact remain publishers. That means they get 1A protection for their press freedom. You cannot impose common carrier status on them, and regulate them accordingly, without burdening their 1A protection, and also threatening to burden alike all the other publishers who practice business in essentially the same way.

      Of course that does not mean that many of their activities have not proved onerous or worse for the public life of the nation. Nothing in the 1A says social media platforms, or any other publishers, must have a special Section 230 privilege enabling them to publish without editing. Repeal Section 230 and you can ameliorate most of the complaints about social media without unconstitutional infringements.

      1. Publisher =/= press

        Facebook as social media =/= publisher

        The more you know.

      2. ” no matter what some piece of legislation may have called them, Facebook and Twitter as a matter of fact remain publishers.”

        Technically speaking, if they are legally defined not as publishers, than as a matter of legal fact….they aren’t publishers.

        Something to consider.

        1. Armchair, even if the technical legal fact rests on mere legislation, but the contrary reality is constitutionally cognizable?

  17. MeWe

    1. This was a reply to Armchair and I guess WhatsApp is part of Facebook.

      In other news, Pres. Biden announced executive order that has a new, “policy of greater scrutiny of mergers, especially by dominant internet platforms, with particular attention to the acquisition of nascent competitors, serial mergers, the accumulation of data, competition by ‘free’ products, and the effect on user privacy.”

    2. Your suggesting of 8chan alludes to your degeneracy.

      I don’t consider WeChat’s existence to be good evidence for a diverse social media market. WeChat is explicitly connected to the Chinese government due to Tencent’s relationship with the CCP. In many ways, it’s a platform propped up by the government through the exclusion of effective competitors (who might not participate in the data collection and censorship as eagerly). Normal Chinese simply can’t get many platforms without jumping through dangerous hoops, particularly now that the government is investigating smaller companies that operate outside of China.

      I wouldn’t consider Pinterest as very similar to the others, pretty much at all.

      A good addition would be Telegram. Possibly Discord as well.

  18. Texas Supreme Court rules Facebook can be held liable for sex traffickers who use its platform.

    So what is Facebook (and other social media platforms) supposed to do?

    Increase surveillance of their users’ posting and block undesirable postings? (Something cons don’t want.)

    Or let everybody post everything without reprecussion? (Something cons don’t want.)

  19. Concerning the GETTR site. . . .

    ETTR, the new social media platform launched by allies of former President Donald Trump, is facing problems with content moderation, illustrating the obstacles in front of conservatives eager for alternatives to Big Tech sites.

    The platform is billed as promoting free speech but has faced data breaches and pornographic spam in its infancy, suggesting it could struggle without significant content moderation.

    In the past year, Republicans, most prominently Trump, have alleged social media giants such as Facebook and Twitter engage in unfair bias and censorship. But conservatives say GETTR is an example of how challenging it is to create a platform that adheres to the First Amendment.

    Thanks to its emphasis on anti-censorship, GETTR has been flooded with misinformation, pornographic images, and fake accounts of prominent users since its launch last week. On Sunday, the website was briefly hacked.

    “I think anyone looking at GETTR will realize it won’t be a Twitter alternative anytime soon, even though that’s what they’re aiming to be,” said Matthew Feeney, director of emerging technologies research at the Cato Institute, a libertarian think tank.

    Feeney said he is particularly curious how often GETTR will invoke Section 230 of the Communications Decency Act of 1996, the controversial law that gives online platforms legal immunity for third-party content.

    “It’s funny how in GETTR’s terms of condition, they copy-pasted from Section 230 — their right to remove content that they think is obscene or otherwise objectionable — the same law conservatives and Trump spent the past year complaining about,” Feeney said.

    Cons are stupid.

    1. The clingers who have muted me — while sputtering about how the government should compel Twitter and Facebook to carry bigoted lies and delusional calls to violence, and excoriating Prof. Somin for daring to offer a genuinely libertarian response to Prof. Volokh’s authoritarian right-wing musings — are among my favorite culture war casualties.

      And, of course, the core of the Volokh Conspiracy’s carefully cultivated fan base.

  20. Somin 1, Volokh 0.

  21. If there is one thing the clingerverse refugees attracted to this blog can’t abide it is some genuinely libertarian content.

    Open wider, Republicans and conservatives. Your betters may be feeling less and less magnanimous these days.

    1. Always with the gay sex stuff. You need to spend more time at the bath house to get this out of your system

  22. My default position on such topics of government regulation is laissez faire.

    That said, I nevertheless hold some respect for the proposition that government, as representative of We the People, have a collective power to rein in abuses. And, we have conceptual vehicles such as fraud and monopolies to shape our thinking about how to approach such problems.

    Nevertheless, the world is constantly changing and so – with evolution of circumstances – our understanding of common law should remain an open cannon. Though “monopoly” or “common carrier” might not fit well-enough the perception of the problem of “Big Tech”, none-the-less, we should remain free to tailor an appropriate solution.

    My greatest fear is that the solution always has the potential to become worse than the disease. Monopolists are in the best position to co-opt legislatures to tailor-make their own “straight-jacket” to fit their interlopers rather than themselves. To be sure, great care will be taken to give the appearance that the straight-jacket is one-size-fits-all. Yet we can be sure that with Big Tech at the drafting table (with bundles of money) they will tailor the jacket to fit comfortably on their big frames while being a major barrier to success for interlopers. E.g., that the participant must have a robust scheme for content surveillance and moderation.

    Big tech is very good at content surveillance. They can easily detect and moderate some illegal activity (e.g., child porn). An interloper would have a hard time competing with their own competing content surveillance software. Even if the interloper successfully competed with surveillance software, it couldn’t compete effectively with moderation. No matter how much offensive material one hurled at the Big Tech giants they have the software and wetware to keep up. Interlopers couldn’t withstand a “DDoS” type attack of countless (foreign) agents paid to attack their sites with prohibited content so that they could be either brought to heel or successfully prosecuted for failure to moderate.

    I have no solution that I’m satisfied with. Yet, I will not be constrained by some abstract principle. As much as my default position is laissez faire I will not allow such a principled position become a national suicide pact. As much as I respect reasoned criticisms of applying common-carrier or monopoly solutions on Big Tech, nevertheless, I will remain open to the possibility of adapting our traditions to new challenges; even creating new solutions from scratch.

  23. ” Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.”

    Most definitely. Very good article.

    Now if you could convince other Reason writers that if they have an issue with the “monopoly” or whatever that big tech has and break them up to force yet more competition, that’d be great.

    If this truly is a problem, antitrust is the way to go about it.

  24. I have a question for Professor Somin.

    Suppose all private matters were decided by a single corporation the Corporation would decide if whether and where you went to school, what books you would be given to read, what your job will be, what you will eat, where you will live, what medical care if any you will receive, who you will communicate with, etc. If you disagree, then of course it’s a free country. you are of course perfectly free to be homeless and starve incommunicado. You are likewise free to go anywhere you like, as long of course as you don’t trespass on any property of the corporation, which owns everything.

    Would you consider such a country a free coumtry? It has no government oppression of any kind; it’s government may be so minimal as practically not to exist. It has maximum possible freedom for private actors. Private actors always operate through contracts that are nominally mutual agreements.

    And yet, I would think it clear that in such a country, nobody except the governance of the single corporation that owns everything would get to have any meaningful say in, let alone get to make any decision about, any aspect of how they conduct their lives. Any purported “freedom” would be a pure fiction. All offers made by the corporation would be offers that no individual could in practice refuse.

    So when a small oligarchy owns everything, there’s no real or meaningful difference between the oligarchs making a decision about their private property, and a government making decisions about the whole society.

    I think this is the flaw or at least a flaw, pure libertarianism doesn’t see. Pure libertarianism is so worried about the government oppressing people that it ignores the fact that powerful individuals are also quite capable of oppressing people. It imagines a fictiknal world where people have equal power, and ignores the fact that when people control things other people need to function in society, others have to do what they say whether they like it or not. They have no more freedom then they would if the government controlled things.

    Indeed, government has at times put things into noninally private hands specifically to avoid its obligations. Was the situation of black people really improved when the state of Virginia abolished its public school system and instead subsidized “private” schools not obligated to de-segregate? Did anybody but linertarians see this as anything other than a legal fiction? I suggest that at the extreme, beyond a certain threshold of power, there is simply no difference between powerful people telling you what to do based on tbeir own “private” power and powerful telling you what to do in the name of the government. The legal justification either way is just mumbo-jumbo justification for raw power, much the way Marxist theory was to Stalin. Is a Capitalist strongman who uses Capitalist mumbo-jumbo to accomplish the same thing really any different?

    At some point, you have to look at and judge things by the results, as they apprar to your eyes, and not as they appear in theory.

  25. The idea that Twitter and Facebook toppled their “insurmountable” competition when they started is stupid but widespread. Twitter didn’t really have competition: the idea and implementation was new.
    That’s part of how it grew so quickly. Only microblogging really “lost” to Twitter and practically by definition there wasn’t an “insurmountable competitor” involved. Facebook and MySpace continued gaining new users throughout Facebook’s ascendance. MySpace was utter trash as a platform and only idiots thought it was “insurmountable.” There were other alternatives for the teen clique interested in the music on the site and MySpace wasn’t making much of an effort to keep them.

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