Free Speech

Compelled Hosting Isn't Rendered Unconstitutional by Mistaken Public Assumptions of Endorsement


Another excerpt from the First Amendment section of my Social Media as Common Carriers? article (see also this thread); recall that the key First Amendment arguments are  in this post, which relies on the PruneYardTurner, and Rumsfeld precedents, and in this one, which explains why Miami Herald, Hurley, and the various other "common theme" precedents don't apply.

[* * *]

Of course, whenever visitor V speaks on host H's property, there is always some possibility that some observers will assume that H at least views V's speech as acceptable (even if H didn't choose the speech and doesn't expressly endorse it). After all, property owners are usually allowed to decide what behavior, including speech, is allowed on their property, and a decision not to expel a speaker may be seen as in some measure approving of the speaker.

But say the law requires H—such as a shopping mall owner, a cable system, a university, a phone company, or a shipper such as FedEx or UPS—to let certain speakers use its property. Once people know this is the law, they can no longer reasonably assume any such endorsement. And H can generally explain to the public that it's hosting such speakers as a matter of legal command, not of voluntary decision.

Such an ability by property owners to "expressly disavow any connection with the message" (a message that is itself clearly written by others), and to point out that the message is only allowed "by virtue of [the] law,"[166] suffices to prevent any First Amendment violation. Observers can be expected to "appreciate the difference between speech [the property owner] sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy," especially when nothing "restricts what the [property owner] may say about" the third party's speech.[167] And the same is true for platforms, which can easily inform readers that they aren't endorsing particular writers, or more generally that they aren't endorsing speech on their sites as a whole.[168]

Of course, there's always the risk that some people wouldn't understand that a social media platform that hosts, say, a Nazi or Communist page is merely following the law—or that they would understand, but would still be upset at the platform, or even threaten to boycott it. But the same risk was present in Rumsfeld; indeed, it was greater in Rumsfeld, because the Solomon Amendment merely threatened universities with loss of federal funds if they exclude military recruiters, so universities weren't exactly "legally required" to include them. "[S]tudents will in fact perceive their schools as endorsing the military's discriminatory policies" if they hosted military recruiters, reasoned the amicus of brief of various law student associations, "particularly if schools provide the type of affirmative assistance demanded under the Solomon Amendment."[169] Yet the Court viewed this possible inaccurate perception as irrelevant.

This risk of mistaken perception of endorsement was likewise present in PruneYard. Yet the property owner's opportunity to "expressly disavow any connection with the message" was seen as sufficient to preclude any First Amendment challenge to the common-carrier-like requirement. The same should apply to social media platforms. A passage from Board of Ed. of Westside Community Schools v. Mergens,[170] which Rumsfeld expressly quoted in rejecting the risk of misperception,[171] is particularly apt here:

[P]etitioners' fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students. To the extent a school makes clear that its recognition of respondents' proposed club is not an endorsement of the views of the club's participants, students will reasonably understand that the school's official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.[172]

The school's control over students' perceptions is of course imperfect, but it is substantial enough to make the "mistaken inference of endorsement" irrelevant. And the same is true for social media networks, which likewise have many tools to influence readers' perceptions, and to "make[] clear" that their hosting various views "is not an endorsement of the views." As the Court later put it, there can be no "modified heckler's veto," in which speech could be barred based on what some "members of the audience might misperceive."[173]

To be sure, a social media platform might not want to have to disclaim any connection with offensive speech by its users, and might prefer just to block such speech so as to avoid giving such a disclaimer. Yet Rumsfeld and PruneYard show that such a preference does not make the mandated hosting unconstitutional. The lower court decision in Rumsfeld, for instance, struck down the law in part because it pressured universities into responding to the recruiters:

[S]peech with which the law schools disagree [has] resulted in, according to the record, hundreds (if not thousands) of instances of responsive speech by members of the law school communities (administrators, faculty, and students), including various broadcast e-mails by law school administrators to their communities, posters in protest of military recruiter visits, and open fora held to "ameliorate" the effects of forced on-campus speech by military recruiters. All of these represent instances in which the schools were "force[d] … to respond to a hostile message when they would prefer to remain silent."[174]

But the Court was unmoved by this concern, and instead noted the university's ability to respond (whether or not it would have "prefer[red] to remain silent") as a basis for upholding the hosting requirement.[175] (While the plurality in Pacific Gas & Electric Co. v. Public Utilities Comm'n seemed to take the view that such pressure to respond made a hosting compulsion unconstitutional,[176] that plurality has not carried the day,[177] and in any event seemed to limit its analysis to exclude cases where, as in PruneYard, the government "simply award[s] access to the public at large."[178] And Rumsfeld seemed to have limited the Pacific Gas plurality to situations where the speech that someone is compelled to host "tak[es] up space"—presumably referring to scarce space—that the host would otherwise use "to communicate its own message."[179])

[166] 447 U.S. at 87. The Court suggested that "[t]he views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner," because the mall is generally "open to the public to come and go as they please." Id. But even for those observers who make the "not likely" assumption that the speech is endorsed by the mall, "appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law." Id.

Compare Hurley, where the Court held that disclaimers would be insufficient, because "Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow 'any identity of viewpoint' between themselves and the selected participants. Practice follows practicability here, for such disclaimers would be quite curious in a moving parade." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 576–77 (1995). For reasons discussed in Part II.F. 1 below, that analysis doesn't apply to social media posts. And Hurley of course expressly declined to "decid[e] on the precise significance of the likelihood of misattribution," because it found it "clear that in the context of an expressive parade, … the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole." Id. at 577.

[167] Rumsfeld, 547 U.S. at 65 (emphasis added); see also Turner Broad. Sys., 512 U.S. at 655–56 (noting that "there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator," especially since "it is a common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility").

[168] Nor would the platforms need to put up such disclaimers every time an item from the platform is seen (for instance, every time a Tweet is embedded in some post). If a law does require the platforms to host various materials, all it would take is for the platforms to sufficiently inform the public about that law—something the Facebooks and Twitters of the world have ample communicative resources to do, for instance using a clickthrough warning that they can show once or a few times to their users.

[169] Brief Amici Curiae of the National Lesbian and Gay Law Association, Law Student Associations, et al., Rumsfeld v. FAIR, 2005 WL 2347167, *7.

[170] 496 U.S. 226 (1990).

[171] 547 U.S. at 65 (quoting Mergens, 496 U.S. at 250 (plurality opin.) and a similar passage in id. at 268 (Marshall, J., concurring in the judgment)). Mergens upheld a statute that required public schools to allow religious or ideological clubs on the same terms as other clubs. Marshall's separate opinion expressed the concern that students might not get the message if all they see are religious clubs:‌ "If a school has a variety of ideological clubs, … I agree with the plurality that a student is likely to understand that 'a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis.' When a school has a religion club but no other political or ideological organizations, however, that relatively fine distinction may be lost." Id. at 268. But of course a massive social media platform notoriously contains "a variety of ideological" messages.

[172] Id. at 251. The argument begins on p. 250 of Mergens ("we note that Congress specifically rejected the argument that high school students are likely to confuse an equal access policy with state sponsorship of religion") and continues onto p. 251.

[173] Good News Club v. Milford Central School, 533 U.S. 98, 119 (2001). As with Mergens, Good News Club involved the question when student groups' religious speech could or should be restricted in public schools, based on a concern that other students will misperceive the speech as being endorsed by the school. But this Establishment Clause question is closely analogous to the Free Speech Clause of when compelled access rules violate the compelled speech doctrine, based on a concern that other visitors will misperceive the speech as being endorsed by the property owner—as the Court recognized in relying on Mergens in Rumsfeld.

[174] FAIR v. Rumsfeld, 390 F.3d 219, 239 (3d Cir. 2004), rev'd, 547 U.S. 47 (2006).

[175] 547 U.S. at 65.

[176] 475 U.S. at 1, 15–16 (1986).

[177] For more on PG&E and its tension with the other cases I discuss here, see Volokh, The Law of Compelled Speech, supra note 114, at 383–86. "The result in Pacific Gas may have been justifiable on the grounds that the law offered access only to certain speakers, or offered access that was in part triggered by Pacific Gas's speech, or otherwise interfered with Pacific Gas's speech (for instance, by decreasing the amount of space that Pacific Gas could use for its own messages). But the 'pressure to respond' argument does not seem adequate as an independent basis to strike down speech restrictions, and indeed PruneYard, Turner, and FAIR appear inconsistent with it." Id. at 386.

[178] 475 U.S. at 12.

[179] 547 U.S. at 64 (internal quotation marks omitted).

NEXT: Today in Supreme Court History: July 10, 1832

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  1. All these silly, nitpicky, bullshit lawyer hemming and hawing problems go away upon the seizure of these platforms, which are vast criminal enterprises, in civil forfeiture. The platforms are owned by the government and are auctioned off like the Ferrari of a drug dealer. That income can be used to compensate the victims of their billions of violations of federal law.

    Stop the idiotic lawyer complexity. It is rent seeking bullshit, to generate billable hours.

  2. The more FB, Twitter and others explicitly rule out broad categories of speech, the more likely that readers will assume that the published materials are at least minimally endorsed by the website. And the less defensible the claim of the hosting service that it should not be indemnified from law suits under section 230

    1. Not simple. End Section 230 moderation, the platform goes all zoophilic porn, terrorists, drug dealers dealing, serial killers seeking dates. Seizing them is better. Let the new owners do a better job of political balance, the aim of this movement.

      If they fail to be fair, seize again in 10 years.

      1. Nonsense. NO ONE will be balanced and fair, because everyone has a different opinion of what is balanced and fair. The aim of this movement is to stop companies forcing their version of fake news on everyone else.

        1. A possibly useful standard could be, if a speech is not a crime, it stays.

        2. I was going to write, the fair and balanced part could be covered in ToS or defined in law, then realized what I was saying. Major Social Credit Demerit for me for sheer even considering such silly bullshit to be viable. The former don’t matter as they are set in Jell-O dependent on the ‘offending’ party’s sociopolitical affiliation, the latter don’t matter because facts are ignored by those who read what they want in and out of any material.

      2. Please tell me that first paragraph was sarcasm.

  3. Any confusion over the platform itself endorsing the message can be laid to rest by comparison with phone companies and ISPs. Everyone hates telemarketers and scam calls for auto warranties and police charity funds, and junk mail from Nigerian princes. No one I know blames the phone company or ISP. People might wish the phone company or ISP or *someone* would stop them, but that’s the limit, in my experience. To apply this same common knowledge to Facebook, Twitter, etc, is no stretch.

  4. If you believe in antimonopoly or corporate regulation at all Big Tech is the poster child for it. If not now than when would we every have need for these sort of laws? We might as well scrap them completely.

    Its not even a hypothetical fear. What with Big Tech predeciding what the ‘truth’ would be for Covid’s origin, the veracity of the Hunter story, countless other instances having massive effect on downstream policy and public behavior. They only backed off on a few instances when enough counterpressure built up. Whats going to happen when they gain enough power that they simply decide to double down on whatever they don’t like being misinformation/conspiracy theory? And lets not even get into the violent riots directly traced to the narratives they encourage on their platforms while they hypocritically suppress other narratives for the sake of ‘antiextremism’ as well as the spike in general political divisiveness.

    1. The relentless Hate America propaganda and criticism are the ralking ppints of theChinese Commie Party. Theyare fake by their selectivity and by their lack of balance. The bigger profits the Commies allow in their markets make them servants of the Chinese Commie Party. That is treason. Their leaders should be arrested along withall other woke people.

  5. Such an ability by property owners to “expressly disavow any connection with the message” (a message that is itself clearly written by others), and to point out that the message is only allowed “by virtue of [the] law,”[166] suffices to prevent any First Amendment violation.

    The New York Times can expressly disavow any connection to a hosted message. So too could Elane’s photography. So, I am not seeing how such a disavowal suffices to prevent a First Amendment violation.

    1. So can the law compel a baker to create a wedding cake that says “Congratulations Adam and Steve“ as long as they put a disclaimer card on the serving tray? How does so-called “compelled speech” differ from compelled hosting? Serious question.

      1. With compelled hosting, it’s pretty obvious that the message is somebody else’s. A cake designer or event photographer is fundamentally different because their choices and creative efforts are bound up in what they are doing; they are not simply offering a server that regurgitates someone else’s message.

        1. A more apt analogy would start with the federal government threatening loss of a significant chunk of the bakery’s value unless it banned gay wedding cakes.

          Then it does so.

          Then people stand around facetiously claiming the baker is exercising his free speech rights to do so.

          1. That’s not exactly apt — at least Jack Phillips has said he would happily make cakes for the same customers that do not celebrate the things he has moral objections to. Facebook and Twitter and Google outright ban the people that Democrats in Congress want suppressed, and threaten to do the same for people who quote the suppressed persons; they do not not reject only specific speech or only cakes for same-sex weddings.

      2. Eugene argued in Elane Photography, that the First Amendment protected Elane’s from being compelled to take photos of a wedding. That’s why I mentioned it, because his current argument on disclaimers might be at odds with his prior position (I suspect I have misunderstood his current argument).

        By the way, Eugene took the other side in Masterpiece Cakeshop because he argued that cake decorating, unlike photography, isn’t inherently speech. Jack Phillips categorically refused to make any custom cake for the wedding, so it’s possible he would conclude otherwise for a cake that specifically said, “Congratulations Adam and Steve.”

        1. No, there’s a significant difference. Wedding photographs are the expressive efforts of the photographer, not the wedding party. This is clear when you consider copyright of the photographs. The photographer owns the copyright, not the couple getting married.

          In 1A terms, the photographer is being compelled to speak a particular message directly, not being compelled to host someone else’s message.

          1. I always felt that the argument in Elaine should have been that she was a wedding photographer and as such was free to reject an offer of employment to photograph something that wasn’t a wedding because the couple was legally forbidden from getting married in the state at the time. If the NM Human Rights Commission (or whatever they’re called) wanted to go after someone it should have gone after the state of NM itself.

            Of course, the response would have been “*You* can’t discriminate, but *we* can.”

          2. Good point, which Eugene hinted at when he said the disclaimer applied to “a message that is itself clearly written by others.” So, the photographer can be distinguished as helping to create the message. But, what about the New York Times? Disavowing a message clearly written by others can’t be sufficient to protect the Times’ First Amendment rights.

            1. Josh R: I think that neither the rights of the wedding photographer (see Telescope Media Group v. Lucero (8th Cir. 2019)) nor of the New York Times stem from the possibility of public misperception as to whether they endorse the speech.

              1. The wedding photographer is being asked to actually personally create speech that she disapproves of. This is similar to Wooley v. Maynard, where drivers were held to have a right not to display speech (“Live Free or Die”) that they disapproved of on their car; there too it was clear that people wouldn’t think all New Hampshire drivers were endorsing the speech on their license plate, but the compulsion was still held to be unconstitutional. Yet Rumsfeld didn’t apply that to universities being compelled to host recruiters, and that logic also applies to social media platforms — here’s what I wrote about it in an earlier post:

              The Rumsfeld Court appeared to treat the Wooley mandate as involving a “situation in which an individual must personally speak the government’s message,” and not just a requirement that a “speaker … host or accommodate another speaker’s message.”[139] “Speak” is often used in First Amendment cases to refer not just to oral statements but to writing or to display of material: For instance, the Court in Cohen v. California viewed Cohen’s display of “Fuck the Draft” on his jacket as “speech”;[140] City of Ladue v. Gilleo described posting a sign in one’s window as speaking;[141] and Wooley itself described Maynard’s claim as involving “the right to refrain from speaking.”[142] Likewise, the Rumsfeld Court seemed to distinguishing between (1) forbidden compulsion to display a message on one’s car, which is closely associated with the “personal” speech of the “individual” motorist, and (2) permissible compulsion to host speakers in rooms within an institution’s building, however obviously those rooms may be associated with the institution.

              2. As to newspaper editorial decision, I think that’s all about the distinction between entities that produce what I call a “coherent speech product” and ones that contain “individual, unrelated segments that happen to be [hosted] together for individual selection by members of the audience”; see this post for more on that.

              1. That makes sense.

                What through me was the apparent categorical statement that, “expressly disavow[ing] any connection with the message […] suffices to prevent any First Amendment violation.” Your response above clarified it isn’t a categorical claim, but applies only to the subset of entities that don’t have some other reason (e.g., created the speech or have a coherent speech product) for being protected by the First Amendment.

                1. Good point — I’ll revise this in the next draft to make clear that I mean it suffices to prevent any First Amendment violation on a mistaken-public-assumption-of-endorsement theory.

              2. What became of the Telescope Media Group case? Did Minnesota seek cert by SCOTUS? It seems we now have a split between the Eight Circuit and both the New Mexico (Elane Photography) and Washington (Arlene’s Flowers) supreme courts that is ripe for SCOTUS to weigh in. And yet, SCOTUS just denied cert in Arlene’s, perhaps because floral arrangements, like cake creation, aren’t clearly speech.

                1. Because it wasn’t convenient to save Arlene from having her life ruined. That’s all, there wasn’t any fancy legal reason, it just wasn’t convenient at this time to take the case, and people’s lives being ruined is barely a momentary consideration when the Court decides its docket.

              3. The wedding photographer is being asked to actually personally create speech that she disapproves of. This is similar to Wooley v. Maynard, where drivers were held to have a right not to display speech (“Live Free or Die”) that they disapproved of on their car; there too it was clear that people wouldn’t think all New Hampshire drivers were endorsing the speech on their license plate, but the compulsion was still held to be unconstitutional.

                I’m sorry, but how is this at all correct? How is it similar to Wooley? The Maynards were not asked to create speech. All they were asked to do was host it, in a context in which nobody could possibly think it was their own speech.

                1. To be precise, this is at least as objectionable from a compelled speech perspective as Wooley. Given that the requirement of displaying speech on one’s car in Wooley was unconstitutional, the requirement to actually personally create speech would be unconstitutional as well.

        2. And Eugene’s mistake in both cases, is that neither case was a 1st amendment case. They were both 13th amendment cases, involuntary servitude.

          So many things get shoehorned into the 1st amendment, and why?

          Because it’s the only right in the Bill of Rights that the Supreme court thinks twice about permitting violations of. Even for the 1st amendment they don’t get to the point of thinking three times, but nothing else gets more than once.

          1. Brett: I’m working with the legal system as it is. If you think the Thirteenth Amendment prohibits compelling businesses to serve people they don’t want to serve (something many businesses that generally served the public were required to do in 1866, under the then-existing common carrier rules), you can go ahead and make the argument. But given that the Court has never interpreted the Thirteenth Amendment this way, I’ll set that argument aside for my purposes.

            1. I often think constitutional jurisprudence has wandered far from what the Constitution should be read to mean. That’s hardly the same thing as believing the courts will agree with me. If anything, it’s the categorical opposite.

              There’s a time for sucking up to the Emperor, and a time for noticing that he’s naked. As little chance as there is that he’ll grow ashamed of his nudity, there’s still less chance if everybody gives up and praises his robes.

      3. 1/100000000000000000000000000000000000 cake shops isn’t an important monopoly with control of a resource that has dire ramifications on society. Big Tech colluding with Big Payment (aka Visa Mastercard etc) to go after and destroy political opponents openly is.

  6. Nobody on the planet could have thought that a motto printed by the state on all license plates represented the speech of an individual driver, but that did not mean that George Maynard could be prevented from covering it up.

    1. Ironic given the other case about the state selling billboard space on license plates, as on sides of busses, could ban cancellable opinions (confederate flag symbols) because the state can control its message. Whereas on busses it could not.

      If one little chunk of the plate can be covered because the driver has a right not to be seen endorsing the state’s message, how come another cannot select his own message in a little rental area of that same plate specifically created for the driver to have a speech spot separate from the state’s?

      Wait, I have to study the messages in each case before I decide on what principles I find important. Or, better yet, find out what my echo chamber masters want me to think so I can receive my positive strokes I am a good person, so they can get elected, so their families’ incomes can go up at multiples of their state or federal salaries.

      1. Both the motto and specialty design are government speech. They are treated the same in at least two ways: 1) an individual can cover them up (perhaps one spouse ordered a specialty plate that the other spouse hates), and 2) an individual cannot insist on their presence.

  7. If private commercial properties can be forced to allow speech to occur….then wouldn’t that make the recent ruling against union speech at a private commercial property wrong?

    Does this mean that abortion clinics could be forced to allow anti-abortion protestors on their property to protest, after all, they are open to the public.

    1. That’s not ISO-834923-compliant process standard for political analysis, dude. According to process, one first decides on whether the speech is good-o for one’s side or not, and only then do you pick principles to value highly or lowly in support of or defense against the speech.

    2. In the case of the Union Speech bit, I think that the distinction there is that those places, while commercial property, were not generally open to the public.

      And while the distinction is much finer, I suspect that the difference between PruneYard and the abortion clinics is that PruneYard was a diverse collection of businesses, whereas the abortion clinic has just a single purpose. Also possibly the fact that it’s a medical facility has an impact, as well as the actual size of the facility. But I’m a lot less confident of that second analysis. Which isn’t to say that I’m particularly confident in the first one. 😉

    3. It’s not about commercial vs non-commercial property.

      The constitutionality of legally mandated hosting is about property open to the general public vs property not open to the general public.

      A shopping mall is open to the general public.

      The agricultural operation at issue in the union access case was not open to the general public.

  8. Professor Volokh, what are you doing? At first glance, your advocacy seems to write press freedom out of the First Amendment altogether. What among the precedents your argument relies upon speaks in favor of the activity of publishing, and it’s separately enumerated constitutional protection?

    It is astonishing, and dismaying, to see a bedrock, fundamentalist 1A defender apparently stampeding along with the crowd, toward an unprincipled, opportunistic, government intervention against a publisher’s freedom to control its message.

    Astonishing and dismaying, as I said, but maybe not surprising. In my comments here, I have long predicted this moment. It has always seemed inevitable, since Section 230. Check my record. Years ago, I began predicting that Section 230 and the consequences it inflicted on American publishing would lead to widespread calls for government censorship of the press. I have been at those predictions continuously, and continuously got catcalls, and especially denials, from Section 230 fans. I am tempted to say that with even Eugene Volokh switching sides, it is time to take at least the denials out of the argument.

    But I wonder if that would be fair, or accurate. It has never been clear to me that EV was really a defender of press freedom. No one doubts his commitment to speech freedom, and that is not in question now. Even his advocacy for common carrier status for online publishers can be seen as in line with free speech advocacy. Also, EV’s pet doctrine that only access to a physical printing press is implicated in the press freedom part of the 1A has made support for the activity of publishing seem weak and equivocal.

    It raises a question. Professor Volokh, do you suppose that the activity of private publishing is somehow at odds with free speech—perhaps because it seems undemocratic, or elitist? Is that what your arguments are about? You have many fans who endorse that view vociferously. Are you, after all, numbering yourself among them?

    Please make it clear now. Do you think the First Amendment protects the activity of publishing, and its customary methods and practices, or is that all just irrelevant? Are you evaluating speech freedom against press freedom, and discounting the latter in the balance? Is the activity of publishing subordinate to speech freedom, less protected by the First Amendment, or maybe unprotected altogether, so long as everyone is free to use a printing press?

    1. The activity of the tech giants publishing has already been compromized by threatw to alter or abolish section 230, or break them up as too big, or as monopolies, if they don’t censor harrassment, ohn by the by, our political opponents’ speech is harrassment, thanks for banning it or attaching scary, opinionated disclaimers.

      I wish we were in the state you presume, but we are not. The companies are not expressing speech of their own free will.

    2. So, I’ll state up front that I’m not a lawyer, and have only a very layman’s understanding of all of this. I also don’t know enough to have an opinion on your point regarding “freedom of the press” in the way you have spoken of it over the last several of these articles. Feel free to stop reading now if you like. 😉

      But I’ve seen quite a few other people staying that it’s incorrect to call Facebook, etc. “publishers” explicitly due to S.230, because they are instead “distributors”. That because S.230 removes their liability for printing something, they can’t properly be described as the publisher of such things.

      I’ll admit that this seems to have resulted in a situation where they get to have their cake and eat it too, with the result that I lean towards the “repeal or amend S.230” side of things. But I’ve also seen moderately compelling arguments that would be a worse remedy than the disease. And while I find the, ah, somewhat condescending tone of some of those arguments off-putting, I can’t in good conscience use that as evidence that those arguments are therefore incorrect.

      As a libertarian, I’m also positively disposed towards the “private property” argument.

      I’m not sure how to resolve these competing views.

      Obviously I’m not Prof. Volokh, but I think that the line he’s going down is something like “IF a entity is X large AND has these liability protections, THEN they might qualify as a common carrier, THEREFORE they can be compelled to carry messages they disagree with”.

      It’s also entirely possible that I have completely misunderstood this entire series of articles, and don’t even really grasp the underlying problem or principles involved.

      If you’re willing to respond to this mush of a comment, I’d appreciate that. 😀

      1. perlhaqr, looks to me like you are doing a pretty good job of comprehension. Of course, I’m not a lawyer either.

        I do suggest you might review your second paragraph for vaguely circular arguments. Or maybe that was you making a point about justifications offered for Section 230.

        Are you familiar with the customs and legal justifications typically offered for joint liability—shared among publishers and contributors—in traditional publishing activity? It does help to understand that history. But be aware that most discussions will focus narrowly on issues to do with libel, but implications for content quality of other kinds are probably even more important. Once publishers have been accustomed to read contributions before publishing them, that opens the door to competition on the basis of content quality across the board. Editing prior to publication prevents more than libel. It also tends to screen out things like frauds, baseless conspiracy theories, private animus, election scams, racist advocacy, stock tampering, elder exploitation, and a host of other social ills which are readily furthered by cost-free irresponsible publishing.

        I suggest that historically and in the aggregate, the benefits for the nation’s public life of that editing prior to publication were far greater than mere libel prevention alone. Of course, elimination of the practical requirement to edit before publishing has been the most transformative change consequent to Section 230. Shouldn’t it be obvious to everyone that the flood of swill which Section 230 released was harmful to the nation’s public life? I say it has also contributed considerably to pressures for government to involve itself in publishing regulation, at the expense of press freedom.

        By the way, have you seen my enumerated list of characteristics defining what publishers typically do? If so, try it out against your own list (or anyone’s) of what, “distributers,” typically do, or “common carriers.” Be sure you put at least some emphasis on business models and revenue sources in each case.

        Also, what do you think about my suggestion that competitive results can help define what kind of business activity a company practices? I argue that if your platform’s revenue success comes at the expense of rival publishers, for instance, that tends to show you are a publisher. I do not see much evidence that Facebook’s revenue has been subtracted from the budgets of package shippers, telephone companies, or other common carriers. There is massive evidence that Facebook and other platforms have hurt the budgets of newspaper publishers. Hence, Facebook is not in the common carrier marketplace, and it is in the publishing marketplace. I suggest that attempted regulations which mis-predicate the kinds of activities which platforms practice in the economy are doomed to do more harm than good.

        1. Editing prior to publication prevents more than libel. It also tends to screen out things like frauds, baseless conspiracy theories, private animus, election scams, racist advocacy, stock tampering, elder exploitation, and a host of other social ills which are readily furthered by cost-free irresponsible publishing.

          Yes, but as CJ Roberts explained on behalf of eight justices in Stevens:

          “The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: ‘Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.’ Brief for United States 8; see also id., at 12.

          As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document ‘prescribing limits, and declaring that those limits may be passed at pleasure.’ Marbury v. Madison, 1 Cranch 137, 178 (1803).”

          Shouldn’t it be obvious to everyone that the flood of swill which Section 230 released was harmful to the nation’s public life?

          No. In fact, that’s “obvious” only to people who used to be gatekeepers and wish they still could be, and want the government to put its thumb on the scales to make them such.

          1. Nieporent, stop muddling my message, or at least try to think straight while answering. Every syllable of my advocacy has been against any government thumb on the scales.

            Only you have the creativity and audacity to call enumerated constitutional guarantees, “a government thumb on the scales.” As we know, you advocate a world where even private publishers get no privilege to put a private thumb on the scales, and now, apparently, you demand that government compel that outcome. That is muddled indeed.

            Also, the notion that private editors are or were an onerous class of, “gatekeepers,” is nothing more than vulgar anti-elitism. It makes no sense at all, given that every single American is empowered to turn himself into a private editor of his own publication. And my advocacy has consistently been that as many of them as possible be encouraged by public policy to do so.

            Try to keep in mind that the sentence you call, “startling and dangerous,” is not mine, and is not even an approximate summary of the quote of mine which you seem to be trying to use it to criticize.

            1. Every syllable of my advocacy has been against any government thumb on the scales.

              Bullshit. You want the government to put your thumb on the scale because you couldn’t hack it on your own, yet suffer delusions that you are one of the “top men” who should be deciding what the plebs can read.

        2. I have not seen your list of points regarding what constitutes a publisher versus distributor. I don’t come over to this side of the site often.

          “I do not see much evidence that Facebook’s revenue has been subtracted from the budgets of package shippers, telephone companies, or other common carriers. There is massive evidence that Facebook and other platforms have hurt the budgets of newspaper publishers.”

          I agree there is correlation between the rise of Facebook etc., and the decline of newspaper revenue, but I’m not sure that constitutes causation. Newspaper circulation was dropping well before social media kicked off. I suspect it has more to do with things like CNN and more traditional internet based publications.

          I’m also not convinced that is an especially relevant test. New technologies are going to do new things. Before the telephone had been invented, it wouldn’t have made any sense to declare it a common carrier, and I don’t think its invention cut into the revenue of, say, the railroads or mail system. But once it developed I to a new service, it formed its own new realm of common carrier space. So too do I see the rise of massively distributed social media. It’s a new thing, and needs to be judged by its own merits.

          For better or worse (and I do generally think worse) it’s become an important method of communication. Being shut out from it has real world effects.

          “Shouldn’t it be obvious to everyone that the flood of swill which Section 230 released was harmful to the nation’s public life?”

          I don’t see that as actually relevant to the question. Sure, it’s gross, but whether I like it or not has no bearing on whether it’s protected speech.

          I think that ultimately my preference would be for S.230 to remain, with clarification about the terms under which companies can claim its protections. If they act as neutral distributors, they can claim its protections from liability. If they start curating content, they become publishers, and are liable for what they allow to appear on the site.

          It’s also possible that there needs to be even more nuance to the law (which, no, I don’t actually expect Congress to get right) I’m terms of the size of the service, and declared specificity of content. A single site dedicated to cats or cars or candlemaking could limit user-published content to the topic of the site, without losing S.230 protections, which solves the “Nazis have taken over your kitten discussion forum and you’re not allowed to do anything about it” problem. Likewise, smaller sites without the mass of activity that Facebook has in their segment aren’t capable of shaping the whole of public discourse at the control of such a small number of people. With reduced influence comes lesser oversight.

    3. While I can’t speak for Eugene, I suspect he would argue you have begged the question by assuming Facebook and Twitter are publishers, and he supports publishing as part of the freedom of speech.

      1. Section 230 explicitly says that these platforms are not to be considered speakers or publishers of this kind of information. Lathrop has been reminded of this before, but he thinks it’s irrelevant because his ideas of what makes one a publisher are more important than Congress’s.

        1. While it might be of some import, I don’t think Congress’s statutory designation comes close to determining the constitutional status of social media providers.

          1. Neither does some Internet crank’s opinion. Prof. Volokh pointed out many of the distinctions between what social media sites do and what traditional publishers do. These sites are not picking and choosing what writings to publish, or applying a priori filtering of writers; their role as social media platform is much closer to any public accommodation that one might choose.

    4. SL, it’s time to get a new schtick.

      You failed as a publisher. You fail every time you trot out “freedom of the press”. You fail every time you try to pigeon hole social media as publishers. Just quit already. Retire somewhere warm (or cold, if that’s your thing) and leave the internet to people who aren’t pining for the early 1900s.

      1. Vinni, you are full of beans. I was successful enough as a small newspaper publisher in a remote location that in the mid-1970s Rupert Murdoch sought me out and offered me a job. I told him I already had my dream job, and turned him down. The newspaper I founded (with others; I was managing editor and acting publisher) is still going strong. An article from it about Covid was quoted this spring on the front page of the Guardian.

        I will stop talking about press freedom when fools like you stop attacking it. I am in plentiful company, by the way, just not on this benighted blog. I noticed a little bit ago that my advocacy on press freedom tracks pretty much point for point with Lawrence Tribe’s. He and I could both be wrong, of course, but even that would be better than the empty, failure-to-engage crap you rely upon. Try to aspire to something more than ankle biting.

        1. That’s quite the delusion you’ve built for yourself.

          An article from it about Covid was quoted this spring on the front page of the Guardian.

          Random Twitter idiots are quoted more often. So, congrats I suppose.

          Your crap has been engaged with too much as it is. Your schtick is bad. It’s so full of shit, it could be a Trump speech.

  9. Prof. Volokh, while I read the post which addressed Hurley, I am curious as to whether Facebook could avoid your analysis that they don’t have a coherent message by, well, explicitly declaring that they have a coherent message.

    “We support left wing causes and left wing causes only” or words to that effect. Basically, to curate their website as if it were a parade. Or is it too late in the game for that? Or have I missed some other nuance which would be glaringly obvious to an actual lawyer?

    1. This approach would have the secondary advantage of resolving any question of their being a monopoly, by causing their user numbers to plummet.

  10. All the case history in the past has been undermined in the last Term. Compelled hosting is now a taking, per Cedar Point Nursery. If Congress wants to force Jack and Mark to host the Donald, they can buy them out. You can make compelled hosting a condition on licensing (broadcast, cable systems using the public right-of-way) or receipt of Federal funds (student aid, research grants), but you can’t create a free speech zone on private property, nor can you force the owner to allow regular access to a third party for the purpose of working against the owner’s interests.

    The decision of Professor Volokh is vacated and remanded for reconsideration in light of Cedar Point Nursery v. Hassid.

    1. As I noted in an earlier post,

      PruneYard also held that the California rule, under which shopping malls had to allow speech by members of the public, didn’t implicate the Takings Clause. Later cases made clear that this was because “[l]imitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021). In this respect, social media platforms are again much like shopping malls.

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