Free Speech

Compelled Hosting Isn't Rendered Unconstitutional by the Property Owner's Ideological Beliefs or Economic Interests


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 HeraldHurley, and the various other "common theme" precedents don't apply.

[* * *]

These principles apply even when the property owner disapproves of the third party's message, or when the property owner's other visitors do the same.

In Rumsfeld, for instance, the universities seriously objected to military recruiters (in particular, to the military's "Don't Ask, Don't Tell" policy), arguing that "the Solomon Amendment requires law schools to collaborate with military recruiters in an effort—discriminatory recruiting—that the schools consider fundamentally unjust."[183] Many students were also upset at the presence of military recruiters on campus.[184]

Yet the Court held that "[a] military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message,"[185] and that the recruiter's presence doesn't violate the law school's right to be free from compelled speech. Likewise, California courts have followed up on PruneYard by making clear that shopping malls can't block even speech they, their business partners, or many of their visitors might disapprove of, such as speech urging listeners to boycott the mall's tenants, or speech displaying gruesome images of aborted fetuses.[186]

In PruneYard, Justices Powell and White did note that the mall owners "have not alleged that they object to the ideas contained in the appellees' petitions," and that the owners didn't claim that some likely future speakers "will express views that are so objectionable as to require a response even when listeners will not mistake their source."[187] But the majority didn't rely on this, and thought that the possibility that PruneYard would have to respond (by "disavow[ing] any connection with the message") was perfectly acceptable.[188]

Of course, sometimes compelled hosting can undermine the property owner's economic interests. Cable systems, for instance, would usually choose to carry those channels that are most profitable for them to include. The must-carry rule, by requiring them to drop some of their preferred channels to make room for others, would likely harm the systems financially, at least in some measure. Yet Turner upheld the must-carry rule.

Likewise, allowing leafleters and signature gatherers at a shopping mall, as in PruneYard, might impose some costs on the shopping center. Any such speakers might offend some patrons, and offended patrons are less likely to be in a shopping mood. Indeed, the California rule upheld in PruneYard protected even speech that urged boycotting stores in that very shopping center,[189] yet this didn't stop the Court from rejecting the shopping mall's First Amendment claim.[190]

The Ninth Circuit likewise interpreted the California PruneYard principle as invalidating a mall rule that banned handbills "naming a [mall] tenant," "speech that may adversely affect [the mall owners'] business."[191] "In restricting such critical speech about their tenants, owners, or managers, Petitioners' rule contravenes the purpose of California free speech protections: the preservation of discussion of issues even when they are contrary to a regulating party's belief or interest."[192] And the California Supreme Court later reaffirmed that "a privately owned shopping center must permit peaceful picketing of businesses in shopping centers, even though such picketing may harm the shopping center's business interests."[193]

This, I think, responds to the argument that requiring platforms to host offensive material violates the First Amendment because it might cost the platforms some money, for instance through lost advertising.[194] To begin with, if advertisers just don't want to have their material placed alongside a page that contains certain material, platforms can likely simply block advertising on that page instead of deleting the page outright. (Some platforms already do that in some situations.[195]) That would mean that the platforms would have to host certain material without getting financial benefit from such hosting. But that sort of modest "harm [to] the [platform's] business interests" doesn't create a First Amendment right on the platform's part to remove the offensive material.

Now in theory it's possible that an advertiser would go further, and demand that a platform purge all material of some sort, or else the advertiser would stop advertising.[196] But, first, that seems unlikely in a world where platforms are treated as common carriers, precisely because the platform can reasonably explain that it's just complying with its legal obligation (and because social media platforms are seen as important, valuable places to advertise[197]).

And, second, this sort of advertiser threat just can't suffice to create a First Amendment objection to common carrier obligations. If a massive phone user tells Verizon, "Stop handling phone service for this unpatriotic advocacy group, or we'll switch our millions of dollars of phone service to T-Mobile instead," I doubt that would justify Verizon's canceling the unpatriotic group's phone lines.

Likewise, say Robinsons-May (the boycotted business in Fashion Valley Mall, LLC v. NLRB[198]) had told a mall owner,

We're your anchor tenant, and we demand that you stop leafleters from urging a boycott of our store, or else we won't open any more stores in malls owned by your company; instead, we'll just open stores that aren't in the large shopping malls that are governed by the PruneYard right of public access.

That can't have given the mall owner a get-out-of-the-PruneYard-doctrine-free card. The First Amendment viewpoint-neutrality rules often require the government to incur some costs and to lose some revenue because of public reaction to speech.[199] Similarly, common-carrier rules may permissibly require common carriers (or their analogs, like shopping malls) to incur some costs and to lose some revenue because of public hostility to offensive speech.

[183] See, e.g., Brief for Respondents, Rumsfeld v. FAIR, 547 U.S. 47, No. 04-1152, 2005 WL 2347176, *17.

[184] See supra note 123 and accompanying text.

[185] Rumsfeld, 547 U.S. at 70.

[186] See supra p. 42 & notes 141–142. Similarly, it is doubtless true that content moderation policies "express[] the company's view that [certain] content is 'objectionable,'" and "express to users, and to the entire world, that the company maintains a certain viewpoint about an idea or topic—or even a single word." Lily A. Coad, Note, Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation, 106 Cornell L. Rev. 457, 485 (2021). Yet the universities in Rumsfeld likewise argued that their policy of excluding military recruiters expressed their views that the military's discrimination against gays and lesbians was "objectionable," and "express[ed] to [students], and to the entire world, that the [university] maintains a certain viewpoint about an idea or topic"; that did not make the Solomon Amendment, the Court held, into a violation of the universities' First Amendment rights.

[187] Id. at 101 (Powell, J., concurring in part and concurring in the judgment).

[188] Id. at 87 (majority opin.).

[189] Robins v. Pruneyard Shopping Center, 592 P.2d 341, 346 (Cal. 1979) (quoting and describing Schwartz-Torrance Investment Corp. v. Bakery & Confectionery Workers' Union, 394 P.2d 921 (1964)).

[190] The Takings Clause analysis in the U.S. Supreme Court's PruneYard decision did note that the California rule wouldn't "unreasonably impair the value or use of their property as a shopping center." 447 U.S. at 83 (emphasis added). But some impairment would be tolerable, so long as it isn't "so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a 'taking.'" Id. at 84.

[191] Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1153–58 (9th Cir. 2003); see also United Bhd. of Carpenters & Joiners of Am. Local 586 v. NLRB, 540 F.3d 957, 965 (9th Cir. 2008).

[192] Id. at 1158.

[193] Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 750 (Cal. 2007).

[194] [Add citation.]

Note that common carriers have historically been given some flexibility to impose "just" and "reasonable" regulations of their services. See, e.g., 47 U.S.C. § 201(a); W. Union Tel. Co. v. Bolling, 91 S.E. 154, 156 (1917). Likewise, for instance, a social media hosting mandate might except, for instance, spam pages, which the platform may define in certain content-based ways. But the legislature could well conclude that viewpoint-based exclusions are not permitted.

[195] See, e.g., YouTube Help, Advertiser-Friendly Content Guidelines, https:‌‌//‌‌KNG2-WFE5.

[196] See Szóka & Barthold, supra note 10 (making this argument)

[197] "[S]ocial media advertising revenues reached $41.5 billion in 2020. That 16.3% year-over-year growth attributes social media with nearly 30% of all internet advertising revenue … ." Interactive Advertising Bureau, IAB Releases Internet Advertising Revenue Report for 2020, https:‌‌//‌‌H9HY-RHNF.

[198] 172 P.3d at 744.

[199] See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 136–37 (1992) (striking down requirements that organizers of offensive parades pay for the city's security costs).

NEXT: Compelled Hosting Isn't Rendered Unconstitutional by the Host's Being a Speaking Organization

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Why’d you delete my comments brah?

    1. Did you disparage backwater conservatives? Did you try a ribald pun (while posting as a liberal, or as a libertarian)? Did you make fun of conservatives?

      Those are the most likely reasons.

    2. If you’re referring to your comments on the previous post — which has a very similar title, so perhaps you mistook this one for the earlier one — Prof. Volokh not only did not delete them, he answered them.

  2. Could a common carrier, consistent with its obligations, give a user two options: free service with advertising, if an advertiser wants to advertise on your content, or paid service with no advertising? This would move decision-making to the advertisers. If nobody wanted to advertise on your post, you would be stuck paying.

    Under such a regime, could a common carrier set the charges at whatever it wants, say a million dollars a post? In the past the regulatory package that came with common carrier status cane with price controls to prevent this sort of thing, but that seems to have gone with deregulation beginning in the 1980s.

    Could it offer only the advertising option, and not take your post unless someone was willing to sponser it? This might be the equivalent, as common carrier rules as applied to advertisers would probably let you advertise on your own page, and while bulk discounts might get around it, its unlikely a major social media platform would stop taking small business’ money just to make it prohibitively costly to individuals. And of course controversial posters with major financial resources, like Trump and friends, would doubtless gladly do bulk advertising and qualify for bulk rates.

    1. Here’s a novel social media platform that gives it’s users digital currency (convertible to dollars) spendable to ‘sponsor’ on other users posts, thus boosting the post’s visibility. By sponsoring a post, a user has bought an ownership share of the post. The money from any additional sponsorships gets distributed to the set of prior sponsors. The last person to sponsor a post is entitled to ad placement above the post. The basic idea was to monetize the marketplace of ideas on a more granular level, I believe.

  3. Of course, sometimes compelled hosting can undermine the property owner’s economic interests.

    To the extent of constituting a “taking ” ?

    1. Potentially yes — but, rightly or wrongly, under modern Takings Clause doctrine such regulations only become “regulatory takings” (and thus trigger the duty to compensate) if the burden they impose is very great indeed. See, e.g., Penn Central Transp. Co. v. New York City (1978), which held that a city landmark ordinance didn’t trigger a duty to compensate even though it sharply limited a property owner’s ability to develop its property, and in effect caused a very substantial financial loss to the owner.

      Here’s my footnote briefly touching on this:

      The Takings Clause analysis in the U.S. Supreme Court’s PruneYard decision did note that the California rule wouldn’t “unreasonably impair the value or use of their property as a shopping center.” 447 U.S. at 83 (emphasis added). But some impairment would be tolerable, so long as it isn’t “so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking.'”

  4. This argument wins (unless the competition involves weighing them).

  5. But some impairment would be tolerable, so long as it isn’t “so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a ‘taking.'”

    The good professor is clueless about the tendencies of major commercial advertisers. This isn’t a problem, which might come up from time to time, with this particular advertiser or that one. This is a prescription, which every major advertiser will judge a deal breaker, all the time. They will not let their brands risk world-wide exposure in conjunction with pro-communist advocacy, or racist Nazi rants.

    If a platform is compelled to be a common carrier, there will be no way to predict in advance of an advertising buy what content will show up, or to guard adequately against content programmed against the company itself. It will not even matter if the offensive material is somehow routed to appear selectively opposite someone else’s advertising (and why should would-be advertisers with less clout accept that sacrificial role, by the way). The platform itself will become known for what happens when you buy ads on it, and major advertisers will steer clear. If they had to, major corporations would set up their own platforms to get around the common carrier rule, arguing that because theirs are explicitly branded and proprietary, they can’t be expropriated by government. Does EV think government can tell Apple what it must allow on the, “Apple’s Forum,” platform, where every page presentation appears alongside the Apple logo?

    Which raises the larger question, whether platforms themselves have branding rights, and an ability to compete on the basis of content quality, judged by their own lights. Whichever platforms are forced to accept common carrier status will be able to compete on such anodyne questions as whether the service is reliably there, but not at all on the basis of, for instance, credibility, moral integrity, ideological leadership, patriotism—or the quality of their own branded merchandise.

    No one will be able to discern any brand-worthy characteristics in a platform where content is controlled by user happenstance, or worse, by the vicious aggressive impulses of cranks. EV’s prescription is folly, pointing directly to further quality degradation in the published materials affecting the nation’s public life.

    I am reminded of the old aviation movies. The hero has just made his appearance, only to witness his about-to-be-predecessor descending in an uncontrollable spin, while all around other helpless spectators moan, “Pull out! Pull out!” The guy piloting that incipient crash is you, Professor Volokh. Pull out!

    1. You should spend much less time ranting and at least a little bit of time addressing the pre-buttals of your claims. See, for example, every single one of the previous “Compelled Hosting Isn’t Rendered Unconstitutional by XYZ” posts.

      1. Michael P, come off it. I doubt you understand Volokh’s arguments. I know you don’t understand mine. At least I have a bit of successful career experience in publishing. What have you got? Want to take me on point for point? Let’s see how you do.

        Just to help you out about the mini-point you attempted above. There are millions of Xs, Ys, and Zs which do not render compelled hosting unconstitutional. Even horticulture and model railroading do not render compelled hosting unconstitutional. Problem is, the First Amendment’s press freedom clause does render compelled hosting unconstitutional.

        Why don’t you start by reviewing Volokh’s XYZ stuff, and see how much direct reference to the press freedom clause he offered. Plenty there about speech freedom and real estate-based speech venues. What can you find about publishing? Quote it for me, and let’s talk about it.

        1. You have been on this “freedom of the press” and “publisher” false distinction for days. I don’t think you have convinced anyone that you are making a relevant point. Which court cases do you think help your argument?

          As to your specific claims, what advertisers want is irrelevant to this topic. It’s also an example of a moron in a hurry being confused about the identity of a speaker or about who endorses a particular message — but it’s at one remove (or, in today’s Internet advertising marketplace, often considerably more) further than the website hosting the content. You also get how Internet advertising works backwards: Google, to pick one advertising-based company, has extensive rules and guidance for participants on both sides of that market. Most web advertising is hard for the content creator to control because advertisers have software that bids on placement; the advertisers and ad networks have abundant control over which ads go where. To tie that to the question at hand, the desire to sell advertising using some particular ad-sales model is yet another thing that doesn’t render compelled hosting unconstitutional.

          Your claims about branding of social media platforms (of they are treated as common carriers) are also both wrong and irrelevant. FedEx and UPS compete against each other as common carriers and distinguish themselves without much effort. Facebook and TikTok distinguish themselves primarily on the functions they provide and ease of use, rather than some sense of community or curation. Social media brands have almost nothing to do with the messages of what people are posting, but instead are about the platform’s inherent features and the size of the user base. Things like Facebook’s news feed, or Twitter’s trending/what’s happening sections are examples of curation, but even there, it’s abundantly clear that the content is a mix of what users created with whatever rules the provider uses to place things there.

          1. Michael P, okay. How do you suppose Facebook will keep the doors open if it gets saddled with a common carrier obligation to host every craptastic election hoax right wingers serve up as bait to leverage political contributions—while other nice folks deluge the platform with racist attempts to mobilize a white rebellion, and militia nutcases decide to use the platform as a real-time communications center for organizing violent attacks on the federal government?

            You think multi-million dollar advertising accounts are going to stick around to present their products alongside that stuff? If so, you’re talking about activities you are clueless about, or maybe you are just crazy.

            Here is your problem. Platforms don’t become publishers just because someone sticks that label on them. They are publishers because publishing is the activity they practice to make money, and they don’t have a choice, except to keep doing publishing, or go out of business. If the government compels them to do things that would put a typical publisher out of business, nothing about calling them a, “common carrier,” or any other labeling gimmick, will keep them in business under a miscast legal regime that works against the activities they must practice to stay viable.

            To help you understand what a whacked-out proposal this common carrier thing is, turn it around. What happens if the government tells Fedex that henceforth it is not a common carrier, but has to continue its business as an internet search engine. Calling Facebook a common carrier is literally that crazy. Most folks—obviously including you—don’t see that right away only because they have no notion what it means to be a publisher.

            I suppose some people enjoy the freedom they get from boundless legal rumination, but at some point you have to notice that the point of a law is to govern some kind of real world activity. If you do not understand how that real world activity works, and tailor the law to fit that reality, you get crazy results. Section 230 has proved itself an excellent example of that kind of failure. More of the same is not the right prescription.

            Now, to show good faith, try to answer the question I put to you, and that you avoided. Where in Professor Volokh’s several threads does he take up the question whether the First Amendment’s press freedom clause would make compelled hosting by internet platforms unconstitutional?

            If you try to dismiss that again, by again insisting that internet platforms are not publishers, then I demand your point-by-point refutation of my list of factors which identify publishing as an activity. I have supplied that again and again in these threads. I will consolidate it now, and offer it to you once more:

            1. A publisher puts before the public at large expressive or useful content which members of the public are free to consume or not, at their pleasure.

            2. The publisher curates that content to assemble an audience, with an eye to creating an audience featuring characteristics which would-be advertisers value.

            3. The publisher monetizes that audience by selling ads to would-be advertisers who want to communicate with the publisher’s distinctive audience.

            That compresses a previous 4-item list to just 3, because I have here generalized the notion of curation, to apply to both the content and the audience—it is an interactive process. As always, I note that this list is not exhaustive. Not every legitimate publisher works exactly that way. It is however, both practical and selective. Almost every business which does work that way is legitimately classed a publisher. Note that internet platforms typically check all the items.

            Finally, there is a 4th test to identify whether a business is a publisher. Determine its competitive place in the marketplace. Whatever businesses compete directly for the same revenue, those will be of a class with the business in question.

            So what about internet platforms? Does their income come at the expense of Fed Ex, or a telephone company, or any other common carrier. Hardly. None of those tries to use advertising sales as a principal income source. How about newspaper publishers? Bingo. There is massive evidence that internet platforms have grown their income at the expense of other publishers, and particularly at the expense of newspaper publishers. Hence, if internet platforms compete primarily with publishers, they must be publishers themselves.

            If you want to continue to insist that internet platforms are not publishers, please explain why the 4-factor test above does not show otherwise.

            1. Again, no matter how much you wish it were so, Facebook does not have a constitutional right to the business model they might wish to use. Just like PruneYard didn’t have a constitutional right to do what they wanted to do.

              It’s nice that you think you have a consistent definition of what a publisher is, but what bearing does your definition have on constitutional questions? Has any court endorsed either the three- or four-factor test you propose? How do you deal with the fact that Facebook doesn’t curate users’ messages in a way like any publisher historically has? You are ignoring the very differences that EV pointed out early and often in this series of posts!

              By your last argument, electric companies must be lamplighters because they drove lamplighters out of business.

              1. Michael P, so you assert that it doesn’t matter whether a business is entitled to press freedom, because press freedom doesn’t guarantee much of anything?

                Why do you do that? Why do you want government to compel publishers to publish your speech? What do you suppose will happen when politicians compete to determine who gets to publish what? Do you understand that your argument opens the door for left wingers to outlaw corporate speech, and for right wingers to muzzle newspapers they don’t like?

                Don’t bother to try to answer any of that with your repeated evasions. Even famed free-speech advocate Eugene Volokh is evading these issues, apparently for the same reasons you are—because right wingers mostly oppose press freedom, and when the chips are down, they side with right wing power, and discount American constitutionalism.

                1. That’s a nice straw man you built there. You have totally misunderstood and misrepresented my position and arguments.

                  You still have not answered my repeated questions about which court cases support any of your specific claims. Don’t wrongly accuse me of evading things as a way of deflecting from your inability to answer.

                2. so you assert that it doesn’t matter whether a business is entitled to press freedom, because press freedom doesn’t guarantee much of anything?

                  What kind of absurdity goes through your mind to suggest that Facebook is entitled to press freedom? Dude, you’re high as a kite.

    2. So what? Nobody advertises on other telephone conversations or letters.

      We might all be better off if platforms found they had to charge subscription fres rather than provide their services free to advertisers.

      For anyone who doesn’t like advertisers and thinks marketing has too much control over our culture, the idea that advertisers wouldn’t like such a law is a plus, not a minus.

      That said, even in a common carrier regime, advertisers moght still be able to pick which content they want to advertise on. As Professor Volokh pointed out, this might simply mean some content would go out free. I pointed out above that social media platforms might be able to charge some small fee for posts meeting all advertisers’ rejection criteria, or an equivalent approach of letting people advertise on their oen posts for some small fee.

    3. I’ll go further than I did before.

      If you’re right, then the business of social media companies resembles that of noghtclub bouncers, curates audiences for others speech. Unlike noghtclubs’ speech, advertisers speech is purely commercial.

      Seen this way, any claim to first amendment protection canishes. Advertisers may get to choose what they say. But they have no first anendment tight whatsoever to pick whom to say it to. Even night owners’ right to exclude comes solely from their status as property owners, not speakers.

      Just as bouncers’ right to exclude is derivative of the nightclub’s, advertiser’s menials (servants and technicians)’ right to exclude is derviative of the adverisers. And there is no such right!

      If advertisers don’t have a right to pick their own audience, then would-be audience pickers fon’t have a right to do so for them either.

      If your business model is correct, it follows a fortiiari that social media companies don’t have any relevant rights at all.

  6. For the sake of argument, let’s say that it would be constitutional to compel hosting and limit excessive moderation. Would it also be constitutional to compel the platform to allow all accounts to be monetized and appear in search results?

    I can see a compromise that requires a platform to allow legal content to be hosted on it while not requiring the same platform to provide opportunities to monetize what the platform owners believe is objectionable content. In other words, you can use my property to communicate your ideas with others, but I am under no obligation to go into business with you. For that is exactly what search results and monetization are about. It’s a business relationship between the person who uploaded the content and the platform hosting it.

    Let’s use the same analogy as those who are in favor of regulating companies like Facebook as common carriers (even though many of the same people are not interested in regulating other common carriers like Internet service providers in the same way, but let’s not digress). The analogy is often made, erroneous as it is, to bell telephone before the breakup. For this thought experiment, let’s also stipulate that this is a reasonable analogy.

    It is fair to say that bell telephone was reasonably required to allow everyone other than those actively committing crimes to purchase and use a phone line for whatever purpose (and conveyance of whatever information) they saw fit. Would it also have been reasonable to say that bell telephone should have been required to actively engage in business with users of their platform whose behavior and activities the ownership and management of the company objected to? I think my analogy is fair, especially given how far you had to stretch the definition of a monopoly to get to this point in the thought experiment in the first place.

    1. I think there is already in our culture to limit excessive moderation.

  7. It saddens me to see so much time, effort and bytes wasted discussing the legality of such an absurd policy. If Facebook were allowed to remove only illegal content, it would be even more of a cesspit than it already is. We would need to add porn, jailbait, massive amounts of spam, animal crush videos, etc. etc. And if Facebook just “hosts” this content but doesn’t show it to anyone who doesn’t explicitly opt in, then what’s the point? Then it’s not a public forum anymore where you can reach the general public, it’s a set of private clubs like WhatsApp groups. In the mall analogy it would be the mall administration being forced to allow a guy to distribute leaflets on a corner on the last level to the parking lot to those who go there for the purpose of getting a leaflet.

    1. Yes, but what in the world makes you think the Facebooks of the world are showing posts “to the general public”? You are a captive audience on these sites, and like in the city zoo, you get what they decide to give you. The opting in exercise properly understood is you tweaking their algorithms for them.

      The analogy to a shopping mall with directed paths, adverts, frontage, etc. Is actually fairly close to what happens on a social media site.

      1. The direct paths, adverts etc. don’t lead you to random people distributing leaflets, whereas Facebook recommends point to user submitted content that facebook deems will increase your engagement.

        My main point is that forcing Facebook not to discriminate between legal content would lead to disastrous results and merely hosting content but not disseminating it would not give the discriminated users any visibility. They might as well create a Blog with a comments section or a geocities page with a guestbook.

  8. To sharpen a couple of points I made previously, note that sale of advertising—a publishing-type way to get money—is the principal means of support for all internet platforms.

    Professor Volokh’s arguments are confused. He builds legal analogies on the basis of precedents which have little or nothing to do with internet business models—such as compelled speech hosting in shopping malls, universal service access via common carrier rules, or military recruiters on college campuses. Because none of those rely on advertising sales, they fail as analogies to internet platforms.

    If EV’s proposed new regulations take no account of advertising sales, they will likely end up disrupting the platforms willy-nilly, and not in a small way. To make sense, Professor Volokh must adjust his advocacy, and confine it to analogies involving other businesses which practice advertising sales as a principal means of support. Otherwise, he is not really talking about ways to regulate platform activity. He is instead demanding that platforms abandon their characteristic activities and business models, and move into different lines of business altogether.

    Disruption for giant internet platforms may be justified, and even necessary. But if done at all, it must be done with an eye to the business the platforms actually practice. That business is publishing. That complicates the regulatory picture, because publishing business regulation must not burden the press freedom afforded to publishers under the First Amendment.

    1. Contrary to your assumption, social media platforms are not constitutionally entitled to a particular business model. Even if you were right about how that business model works.

      1. That completely misrepresents his argument and ignores all of his points and even goes as far as to pretend as if Volokh solved those problems when he hasn’t.

        1. As far as I can tell, his argument in this case is that compelled hosting would violate freedom of the press because advertisers would be unhappy if social media platforms ran the advertisers’ paid content on pages with content that was somehow unsavory.

          It’s an incoherent yet conclusory argument. Nobody is arguing that social media platforms should be required to run ads on these pages. Nobody is arguing that the platforms would be unable to make decisions like they currently do about pages that can host ads or not. Lathrop is imagining distinctions that “must” constrain the arguments, without providing a single authority to support those constraints, even while constructing straw men that he argues against.

          1. As far as I can tell, his argument in this case is that compelled hosting would violate freedom of the press because advertisers would be unhappy if social media platforms ran the advertisers’ paid content on pages with content that was somehow unsavory.

            Nope. I am arguing that Professor Volokh’s preferred solution would not work for those reasons.

            It would be unconstitutional for the reason that it burdens publishers’ power under the press freedom clause to decide what goes in their own publications—and to make those decisions for economic reasons, for uneconomic reasons, for principled reasons, for ideological reasons, for reasons about keeping government off their back, for the reason to satisfy an anonymous donor, for the reason to win favor with a love interest, or for no reasons at all.

            1. Writing that when regulation of social media platforms is done, “it must be done with an eye to the business the platforms actually practice” (emphasis added), is a rather odd way of saying that regulation SHOULD be done with consideration of their business models, but that ultimately that issue is a red herring to the constitutional question.

    2. I’m also not so sure that the business model will be as useful to the discussion. If Facebook offered to charge a small fee to suppress advertising, it would probably be welcomed. They could make money both coming and going: money from users to suppress adverts, and money from businesses to share profile and usage patterns.

    3. Again, there’s no reason why advertising has to be the business odel for internet platform. Not only is teh public under no obligation to make life convenient to advertisers, Congress could pass laws that have the effect of flat-out banning the model.

      Congress did this for, for example, telephone conversations. It banned wiretapping. This is why there is no phone company out there that offers you free phone service in exchange to listening to your calls, analyzing them, and selling their contents to advertisers who would then call you. Such a model is as technologically feasible as social media platforms’. The reason it’s not done is because it’s illegal.

      Congress could do the same for social media. It could pass the equivalent of a wire tapping law for social media, at least any social media post not directed to the public. I think it could very likely ban the business model entirely.

      1. And the idea that this is somehow the essential feature of social media is complete hogwash.

        If a railroad offered passengers free passage in exchange listening to sales pitches while on board and got its money from the advertisers, one could see the same clever argument you’re making that it’s not a railroad company at all, it’s business is solely curating audiences to advertisers, and hence it is completely protected by the First Amendment from being regulated as a railroad company including common carrier status.

        it’s understandable that a business in these times would see the essence of what it does as the thing that brings its money in. Any time a business gets paid by a third party, it can see its business as solely serving that party. Movie studios might see their business solely as merchandising product placement. Doctors might see themselves as the servants of insurance companies. Child psychologists might see the parents as their sole client. Indigent defense lawyers might see themselves as obligated solely to the state.

        There are many many cases in modern society where the bill is paid by one party, but the law completely rejects the idea that this party is their client and instead imposes obligations to serve and protect the rights of a different party.

        Social media companies are simply no different. The fact that advertisers pay the bills no more more makes serving advertisers a social media company’s sole legal job than the fact that the state pays a defense lawyer’s bill makes it the defense lawyer’s job to persuade the defendent into plead guilty on the state’s behalf. Nor does a doctor work for the insurance company to ensure the least and cheapest possible services are provided regardless of risk to the patient.

        The ubiquity of third party billing completely belies the idea that social media is ssomehow unique and special in this respect. The ubiquity of heavy regulation when there is third party billing to insure the payers’ interests aren’t the only ones served also belies the idea that law must regard the party that pays the bills as the one being served.

        So this idea you’ve been expoinding — that the law must regard the party that pays the bills as the one being served, and a business paid by a third party is a fundamentally different kind of business from the one paid for directly — is just nonsense.

        A doctor is a doctor and a lawyer is a lawyer whether paid for by the state, an insurance company, or in cash. The client and patient remain the same regardless of who pays. The business they are in is regarded as the same regardless of who pays. Their obligatikns remain the same regardless of who pays.

        Same with social media companies.

        1. Some good points, but you can’t push the teeter totter so far in the other direction either: at SOME level the parties who exchange value are the parties who are the subjects of the law.

        2. ReaderY, you seem to want to refute my claim that because social media platforms are publishers, they enjoy under the press freedom clause a constitutional power to decide what to publish. Like Professor Volokh, you cannot make headway with that argument by compiling lists of precedents—or of thoughtfully created analogies—which show constraint of expressive freedom in particular circumstances which have little or nothing to do with publishing.

          The press freedom clause is about publishing. Internet platforms enjoy protection for their owners’ decisions about what to publish, or what not to publish, because they are using the internet to do publishing—even if others may use the internet otherwise. It is the activity of publishing which gets the protection.

          Questions about advertising as a source of revenue are relevant only insofar as they tend to show the activity in question actually is publishing. If in exceptional circumstances there are ad sales in connection with some other kind of activity—one which lacks enumerated constitutional protection—then, yes, those ad sales might not be relevant to my argument.

          But I sense your aim goes beyond all that, and extends to finding some way to let government impose regulations specifying which comments must be hosted by internet platforms, even if the platforms are engaged in publishing. Not being a lawyer, I cannot speak with authority about the law, or whether there are precedents to support that—except to say that I haven’t seen any cited by EV which seem to accomplish that. I do think if the policy you and EV seem to call for actually happens, it will turn out to be awful, terrible, no good policy, which will cost the nation far too much of its tradition of press freedom.

          As I have said repeatedly, I do not believe any safe haven for press freedom has ever been found, except for policy which encourages maximal profusion and diversity among private publishers. Custom and law long decreed that those private publishers were responsible to avoid libel, and subject to private damages if they failed in that responsibility. Other than that, private publishers were largely left alone to compete, and try to distinguish themselves among a myriad of competitors, each striving to advance itself based on the quality of its offerings—or at least their suitability to answer market demand.

          Mostly, government had nothing to say about what any of them chose to publish. History shows that worked spectacularly well, with a vast range of opinions, facts, and dubious assertions constantly in play before the public eye. In terms of serving the nation’s public life, no system has yet done better.

          Please explain why a system of publishing based on government-compelled hosting can be expected to do better. Try to take into account the downside that would follow from any breach of the formerly sacrosanct principal of press freedom—that private publishers, not government, get to decide what to publish. What do you expect to happen if you release into political life a competition to control what government requires publishers to say?

          1. “. . . sacrosanct principle of press freedom,” of course, not “principal of press freedom . . .”

          2. you seem to want to refute my claim that because social media platforms are publishers, they enjoy under the press freedom clause a constitutional power to decide what to publish.

            Publisher =/= press.
            Facebook =/= publisher.
            SL =/= rational

Please to post comments