Free Speech

Viewpoint-Neutrality Mandates Must Themselves Be Viewpoint-Neutral

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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.

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[1.] Forbidden: Viewpoint discrimination against or in favor of particular speakers

Of course, there are limits to what the government can do here. First, any right of access for the public has to be viewpoint-neutral (though, as in Rumsfeld, a right of access can prefer governmental speakers over other speakers). In PruneYard, for instance, the Court stressed that "no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message."[229] The plurality opinion in Pacific Gas & Electric Co. v. Public Utilities Commission echoed this.[230] Thus, for instance, if the government requires platforms to allow all speakers, it can't exclude from that protection pro-terrorist speakers or racist speakers or anti-police speakers.[231]

To be sure, this might prove to be a poison pill that would keep some legislators from supporting common carrier mandates. Better to leave platforms free to pick and choose what to include, the legislators might think, than to create a law that benefits Nazis or ISIS supporters. Yet again this is a familiar feature of common carrier status: The price of requiring phone companies or delivery companies to serve all customers is that they will have to serve even those customers who seek to spread evil ideas. Legislators have accepted that as to other common carriage obligations; they might be willing to accept it here as well.

It's possible, though, that the government may impose some compelled hosting requirements that are viewpoint-neutral but content-based. The Massachusetts and Washington high courts, for instance, have held that private shopping malls must allow people to solicit signatures for initiatives, referenda,[232] and candidate nominating petitions[233]—yet the Washington court held that they need not equally allow other speakers or even other signature gatherers, and the Massachusetts court left open that question.[234] Though the courts didn't discuss the content discrimination issue expressly, they appeared to be open to the view that some broad categories of speech can be more protected than others.

Likewise, federal law protects labor-related speech (for or against) in private workplaces, without protecting other speech.[235] The California Supreme Court concluded that a similar California statute allowing labor-related picketing on private property (but not other picketing) was constitutional,[236] though the D.C. Circuit had taken the opposite view.[237] Federal broadcasting regulations (which, to be sure, are subject to the more relaxed First Amendment scrutiny applicable to broadcasting) require broadcasters to sell space to candidates for office;[238] this speaker-based restriction is properly treated as content-based, because it is justified by a desire to promote speech of a certain content—candidates' explanations of why they should be elected.[239]

And these content-based but viewpoint-neutral protections against ejection from private property are a special case of a broader range of content-based but viewpoint-neutral protections against private action. Various state statutes, for instance, ban employers from punishing their employees for "political activity,"[240] which protect only political speech. (Some protect "espousal of a candidate or a cause" but not speech unrelated to some social or political cause,[241] and some protect only speech related to elections.[242]) Other statutes protect whistleblowers reporting violations of various laws, but not other speakers.[243]

[2.] Not forbidden: Legislators' concern about supposed discrimination against particular viewpoints

To be sure, many calls for common carrier treatment arise from concerns that the platforms are suppressing particular views. Today, the concern is mostly about conservative views, though some Socialists and others on the Left have also argued that their views are being disproportionately suppressed,[244] and some have claimed that certain anti-racist messages are routinely blocked, too.[245] As a result, it is often conservative legislators who promote such proposals, though so have some prominent liberal legal scholars.[246]

But of course that's true of many sorts of regulations. The ban on residential picketing upheld in Frisby v. Schultz, for instance, was enacted in response to anti-abortion protesters picketing the home of a doctor who performed abortions.[247] Human nature being what it is, it seems likely that at least some who supported the ban did so in part because they disapproved of the anti-abortion position, or at least of the militant branches of the anti-abortion movement.[248]

Of course, others may have supported the ban because they disapproved of residential picketing regardless of the message. And for many, the motivations were likely a mix: People often most easily notice the non-viewpoint-related harms of speech (such as its intrusion on residential privacy, regardless of its message) in the speech of their political adversaries, and often subconsciously downplay such harms in the speech of their friends. Yet the Court upheld the law as a content-neutral restrictions, despite its having been prompted by speech of a particular sort.

The Court confronted this directly in Hill v. Colorado, where it treated as content-neutral a restriction on approaching people within eight feet outside medical facilities, which also stemmed from speech by anti-abortion advocates:

[T]he contention that a statute is "viewpoint based" simply because its enactment was motivated by the conduct of the partisans on one side of a debate is without support. The antipicketing ordinance upheld in Frisby v. Schultz … was obviously enacted in response to the activities of antiabortion protesters who wanted to protest at the home of a particular doctor to persuade him and others that they viewed his practice of performing abortions to be murder. We nonetheless summarily concluded that the statute was content neutral.[249]

Likewise, in McCullen v. Coakley, the Court held that an ordinance didn't become viewpoint-based even when it restricted only speech outside abortion clinics, and thus obviously affected one viewpoint more than others:

It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the "inevitable effect" of restricting abortion-related speech more than speech on other subjects. But a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others."[250]

And this makes sense. Law professors can talk dispassionately and abstractly about what sorts of content-neutral speech restrictions are needed to protect residential privacy, the ability to use health care facilities without undue difficulty, or the rights of citizens not to have their speech unduly trammeled by powerful corporations. Indeed it's good practice for us law professors to consider how these restrictions would affect the wide range of viewpoints to which they would likely be applied in the decades to come, and to try as best we can to step behind the "veil of ignorance" in evaluating their merits.

But in the real political world, many such proposals are not enacted just with an eye towards the hypothetical future. They are often prompted by particular actions performed by actors with a particular ideological perspective—anti-abortion protesters, Westboro Baptist Church funeral picketers,[251] corporate contributors to election campaigns,[252] anti-globalization protesters,[253] and more. Yet so long as the restriction is facially neutral and seems focused on the noncommunicative effects of the speech (such as its intrusion on privacy, danger of quid pro quo corruption, or potential for violence), it is treated as content-neutral.

The same applies to laws limiting viewpoint discrimination by social media. Today, such laws might end up predominantly benefiting conservative speakers; but even today, they may also benefit Socialist or other left-radical speakers—and in the future, they may benefit other speakers who may run afoul of whatever restrictions social media corporations may impose in the future. (Wealthy business corporations, after all, are hardly certain to always take the side of the Left; one can certainly imagine them using their power in the future against speakers who are anti-capitalist or for that matter just anti-Big-Tech.)[254]

The laws target a particular harm, though we can debate how much of a harm it is: large social media corporations' use of their economic power to unduly influence political debate. They do so by equally protecting all speakers' viewpoints. That is true even if some of those viewpoints may be seen as practically needing less protection right now (though they might need such protection in the future), and even if the laws' supporters were motivated by the common political desire to protect their political friends.

 

[229] PruneYard, 447 U.S. at 87.

[230] 475 U.S. 1, 28 (1986).

[231] See, e.g., Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong., sec. 2(1)(b)(II) (2020) (exempting from the common-carrier-like requirement speech "promoting self-harm" or "promoting terrorism"); Online Content Policy Modernization Act, S. 4632, 116th Cong., sec. 201(B)(i)(II) (same).

Of course, Rumsfeld v. FAIR held that the law may compel universities to selectively allow access to military recruiters, without compelling them to allow access to critics of military recruitment. For a discussion of how this fits with the Court's generally viewpoint-neutrality mandate for compelled access, see Volokh, supra note 114, at 373–75.

[232] Batchelder v. Allied Stores Int'l, Inc., 445 N.E.2d 590 (Mass. 1983); Waremart, Inc. v. Progressive Campaigns, Inc., 989 P.2d 524, 528 (Wash. 1999).

[233] Glovsky v. Roche Bros. Supermarkets, 17 N.E.3d 1026 (Mass. 2014).

[234] Waremart, 989 P.2d at 528 (citing Southcenter Joint Venture v. Nat'l Democratic Pol'y Comm., 780 P.2d 1282, 1290 (Wash. 1989)); Glovsky, 17 N.E.3d at 1030 n.4.

[235] 29 U.S.C. §§ 157, 158(a)(1), 158(a)(3), 158(b)(1)(A), 158(b)(2); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 204 (1978).

[236] Ralphs Grocery Co. v. United Food & Com. Workers Union Loc. 8, 290 P.3d 1116 (Cal. 2012).

[237] Waremart Foods v. NLRB, 354 F.3d 870, 874-75 (D.C. Cir. 2004).

[238] 47 U.S.C. §§ 312(a)(7), 315(b).

[239] Cf. Reed v. Town of Gilbert, 576 U.S. 155, 157 (2015) ("laws favoring some speakers over others" are treated as content-based "when the legislature's speaker preference reflects a content preference" (citation and internal quotation marks omitted)).

[240] See Eugene Volokh, Private Employees' Speech and Political Activity:‌ Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295 (2012).

[241] Id. at 313.

[242] Id. at 326.

[243] See, e.g., 29 U.S.C. § 660(c) (OSHA violations); 18 U.S.C. § 1514A(a) (securities law violations); 42 U.S.C. § 2000e-3(a) (employment discrimination law violations).

[244] See supra Part I.B.

[245] See, e.g., Jessica Guynn, Facebook While Black: Users Call It Getting 'Zucked,' Say Talking About Racism Is Censored As Hate Speech, USA Today, May 1, 2019, at 1B.

[246] See id.

[247] 487 U.S. 474, 476 (1988).

[248] Even if you think the council members and their constituents in Brookfield, Wisconsin (the Milwaukee suburb from which Frisby came) were likely not deeply hostile to the viewpoint of the picketers, and only objected to their mode of expression, similar ordinances may of course be enacted in strongly pro-abortion-rights towns as well. See, e.g., Tony Perry, Lawmakers Target Anti-Abortion Tactic, L.A. Times, May 10, 1993 (discussing similar ordinances enacted in various California towns).

[249] 530 U.S. 703, 724–25 (2000) (citations omitted). I think the ordinance in Hill might well be properly seen as content-based for other reasons, see id. at 742–44 (Scalia, J., dissenting), but I think the Court was right to conclude that it wasn't content-based "simply because its enactment was motivated by the conduct of the partisans on one side of a debate."

[250] McCullen v. Coakley, 573 U.S. 464, 480 (2014).

[251] See Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc) (upholding a restriction on such picketing); Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008) (same). "[T]he 'plain meaning of the text controls, and the legislature's specific motivation for passing a law is not relevant, so long as the provision is neutral on its face.'" 697 F.3d at 688 (quoting Phelps-Roper v. Nixon, 545 F.3d 685, 691 (8th Cir.2008)).

[252] FEC v. Beaumont, 539 U.S. 146, 152 (2003) (upholding ban on direct contributions by corporations to candidate campaigns). Citizens United v. FEC struck down a ban on independent corporate expenditures, but didn't reconsider the constitutionality of the ban on direct corporate contributions. 558 U.S. 310, 358–59 (2010).

[253] Menotti v. City of Seattle, 409 F.3d 1113, 1128–29(9th Cir. 2005).

[254] I thus disagree with NetChoice, LLC v. Moody, No. 4:‌21CV220-RH-MAF, 2021 WL 2690876, *10 (N.D. Fla. June 30, 2021), which reasoned that:‌

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms' perceived liberal viewpoint. Thus, for example, the Governor's signing statement quoted the bill's sponsor in the House of Representatives:‌ "Day in and day out, our freedom of speech as conservatives is under attack by the 'big tech' oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated." Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, "What we've been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations… . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative." This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch.

See also Szóka & Barthold, supra note 10 (making a similar argument).

A law banning residential picketing wouldn't be rendered viewpoint-based simply because its backers were especially incensed by anti-abortion residential picketers, or talked about how "day in and day out, our residential privacy is under attack by anti-abortion fanatics." That the legislators' worries about residential privacy, which lead to a general residential picketing ban, may have been prompted by anti-abortion picketers doesn't render that general residential picketing ban viewpoint-based. Likewise, that the legislators' worries about platforms' "censor[ing]" and "silenc[ing]" users are prompted by perceived anti-conservative restrictions doesn't render a general restriction on such platform "censorship" viewpoint-based.

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  1. Professor Volokh, in your view, could a ban on viewpoint-based editing be used to overturn corporate speech freedom otherwise protected under Citizens United? Could you imagine a legal regime in which it was constitutional to require corporate political speakers to also host contrary views? Or is corporate speech an exception to your general principle that a private publisher can be deprived by government of viewpoint-based editorial discretion over what goes on its own web platform? If your principle were applied universally, and included corporate sponsored political platforms, what do you suppose that would do to the chances to see your proposal enacted in congress? Would the US Chamber of Commerce, or the NRA, back no-editing access for the public to their own websites?

    More generally, how would your proposals distinguish commentary from advertising? What constitutional principle could be cited to support viewpoint neutrality for opinion, but protect viewpoint discrimination in advertising. In a world of paid-for, “influencers,” how exactly is the law to distinguish between opinion and advertising? If the law cannot make the distinction, on what principle could they be treated differently?

    1. Much unnecessary and ineffective complexity to generate lawyer fees. Seizing these platforms in civil forfeiture and auctioning them off would be far more effective, cheaper, and would deter their misconduct better. Forfeiture is justified by the billions of federal crimes committed on their platforms, with millions committed by the platforms.

      1. Add three parts authoritarian to one part crazy to get these kinds of comments.

        1. Your credibility is nil, Hon, your being a denier.

          1. Queenie, you are ridiculous and dismissed. It is far more disturbing that Volokh is refusing to acknowledge the billions of federal crimes being committed on these platforms. These not only justify, they require, their being seized. All those partisans politicians who encouraged the platforms to expel the President should be viewed as accomplices in these crimes. The refusal to face this reality is more evidence of the failure of the lawyer profession. Billions of federal crimes, and they do nothing about it.

            1. This is a thing with Volokh. Expert in cases of cross depictions in city flags. Refuses to acknowledge the word for word plagiarism of the church catechism by the common law. We are a secular nation. You may not have supernatural doctrines in the law, such as mind reading, forecasting, and fictitious standard makers of conduct. The Church attributed these powers to God. The lawyer says, man has them. Even the Medieval church knew better.

              1. It’s not supernatural to take intent seriously you pyscho.

                1. Intent is the judgment of your soul by God after your death. It is supernatural. It is the faith of the Catholic Church. I have no criticism of faith.

            2. “the billions of federal crimes being committed on these platforms.”

              Insane ramblings.

              1. Queenie, not a lawyer. Have a blessed day.

          2. Suggesting that tech companies with thousands of employees and shareholders be seized by the government is what an authoritarian lunatic says.

    2. Facebook, in its capacity as a publisher of its own speech, enjoys the same protections as any other corporate speech.

      Facebook, in its capacity as a place where I can publish my own speech, does not enjoy the same protections.

      Stop conflating the two. This is why no one bothers to engage your crap. You’re here declaring 2+2=22, and arguing from this falsity.

      1. Vinni, you are incapable of publishing your own speech on Facebook. Except for an owner of Facebook, no one can publish his own speech on Facebook.

        Publishing is almost always (the publisher himself excepted) a collaborative activity. The publisher assembles and curates the audience. The publisher pays the bills for circulating content—whether expressive content, useful content, entertaining content, whatever—however broadly it chooses to do so.

        Vinni, you provide content according to your interests and abilities. Which you would not even bother to do if Facebook had not paid to circulate it, and assembled and curated an audience to receive it.

        That is why Facebook is a publisher, and you are not. It is also why Facebook as a publisher is entitled to press freedom, full strength, just as you are, as an author. Or, if, “author,” over-dignifies your status, as a content provider, or, if that over-dignifies your activity, as a content relay.

        Lucky for you, if you can find a publisher and arrange to make it happen, even the shabbiest of those activities gets protection from government interference because, (1) press freedom protects your activities, and, (2) the government can’t interfere with publishers. You should thank your lucky stars for press freedom, and extol it above even speech freedom, and your precious 2A gun rights. Of the rights protected for citizens’ exercise, press freedom has historically been, by far, the most efficacious to influence government.

        I get that many right wingers hate press freedom, because they think too many media organizations oppose their politics. They may be right about media prejudices, but the hatred is nonsense anyway. Right wingers, along with almost everyone in the nation, depend critically on the media they hate for almost all the information they think they have. It comes from a continuously diminishing body of news-gathering publishers. Then it gets poached by others, to be delivered mostly online, sometimes by broadcast or cable, turned around and distorted, to folks like Vinni—who soak it up, while supposing their own effort online was the process which brought the information to light.

        Those rarely even notice how little they would know except for the work of media organizations they revile. They are folks, like Vinni, who too often overlook a simple, but admittedly demanding question, which is, “How do I know that?” Leaving that question perpetually unaddressed, they then go on to presume, also like Vinnie, that they themselves could be publishers, or even are publishers, because they, “publish,” on Facebook.

        Could be publishers? Yes, press freedom encourages that; in this nation, anyone could be. Are publishers? No, Vinni, you are not. You have neither assembled an audience, paid to transmit what you write, nor, alas, even been alert enough to know where most of your stuff—including your own prejudices—comes from.

        It takes more effort than that to be a publisher. Maybe you ought to take what I tell you seriously, and aspire to be a publisher, and put in the effort necessary to accomplish it. It is a path available to anyone in the nation. You don’t even need to be a member of an elite to do it—although you might discover willy-nilly that success—if you achieve a measure of it—might somewhat improve your social status. Don’t be ashamed if it does. It would show you respect for putting in the effort.

  2. More generally still, Professor Volokh, why is a government requirement for viewpoint neutrality in internet publishing not in effect a ban on purposeful publishing?

    Is there some escape hatch in your scheme, to let some class of internet publishers pursue purposeful applications of their press freedom, while others—perhaps those less successful in their government liaisons—get saddled with viewpoint neutrality? What do you suppose the result will be of encouraging a contest in politics to determine who may publish purposefully, and who must remain viewpoint neutral?

    1. Where do you read the professor arguing for “viewpoint neutrality in internet publishing” in general? Considering the extent he has gone to limit the reach of his proposed mandate to specific functions and platform-like services of social media, where do you see it reaching any organizations with “purposeful publishing” interests in the first place?

      1. . . . where do you see it reaching any organizations with “purposeful publishing” interests in the first place?

        I see Facebook as an organization with “purposeful publishing interests.” So there is that.

        More generally, EV has proposed a novel power of government, to impose common carrier status on erstwhile publishers. How that novelty was eventually expressed in the public life of the nation I would expect to be partly a matter of politics, and partly a matter of happenstance.

        EV’s specifics are for the present at the farthest possible remove from the kind of constitutional terms which would be necessary to cage his novel power within his objectives for it. Perhaps the first political manifestation to look for would be an attack on corporate speech rights—which, depending on how it was limited, I might support, by the way. But I would far rather see EV’s attack on press freedom abandoned than to experiment with what it might bring.

  3. Would the US Chamber of Commerce, or the NRA, back no-editing access for the public to their own websites?

    I wasn’t aware that the US Chamber of Commerce or the NRA were platforms soliciting user content.

    1. They might on certain pages. Those web sites certainly do not operate on the model of being general-purpose social media platforms.

      1. What’s a ‘general purpose social media platform?’

    2. Oh, Artifex, do you think it unwise for government to use against every publisher its power to compel publishers to display viewpoint neutrality? Perhaps you are right. But if the power is there, on what principle do you confine it? By what process do you assure that it will be used only against those publishers you think appropriate?

      As for me, I think it would be unwise, folly even, to give government power to require viewpoint neutrality on a web site I might create, but not apply that requirement alike to all classes of web site creators. How about you and I fight over it politically?

      Or would it be simpler and wiser to insist that press freedom means the owners of web sites get to decide without government interference what can appear on them?

      1. By what process do you assure that it will be used only against those publishers you think appropriate?

        Funny, I had assumed you have been following Eugene’s fine series of articles. After all, you are posting here. The fact that you wish to ignore and disregard his points because they are inconvenient to your ideology does not mean those points don’t exist. It simply implies you are being disingenuous.

        Or would it be simpler and wiser to insist that press freedom means the owners of web sites get to decide without government interference what can appear on them?

        Sure. I’m in. It is not the idea that draws derision, it is your embrace of it. Why do I suspect that your love of laissez faire will disappear as fast as a pornstars clothing as soon as it doesn’t bring political advantage ? While we are at it, maybe it would just be simpler and wiser that the owners of businesses get to decide who they service and how they do business without government interference to freedom of association and commerce as well.

        If you disagree with that, it is probably easier just to take your objections and go argue with yourself about the first statement.

        1. Why do I suspect that your love of laissez faire will disappear as fast as a pornstars clothing as soon as it doesn’t bring political advantage ?

          Who knows why you believe that? You have no evidence for it.

          1. You are a long time poster. There is this thing called the internet. Believe it or not, your internet history is forever. Being a “sometimes libertarian site”, the possibilities for advancing laissez faire solutions are abundant. Not seeing much of that from you in anything other than this issue. Funny how that works out isn’t it ?

            1. Artifex, I could have saved you the trouble. I try not to dissemble. I like to be forthright. I don’t even use a pseudonym.

              I am pro-small-capitalist free enterprise. I oppose laissez faire for per-share voting businesses large enough to influence politics.

              I am also anti-libertarian, by the way, because it isn’t even a theory of government. I suspect libertarian advocates who do not notice that tend to be cranks.

  4. If viewpoint neutrality is the rule, does that make threadjacks the practical standard? Professor Volokh, under your proposed principles for internet platforms, why should you or anyone else have power to say what threads show up on The Volokh Conspiracy? Will every day—and every thread—become available by government compulsion for whatever topics your various commenters would prefer to introduce?

    My own view is that you have edited this blog selectively, in support of topics and occurrences which interest you, and to exclude especially occurrences which might embarrass your own ideology. Perhaps you do that unconsciously. But I could certainly help you correct that bias, if I were empowered by government to participate on a basis of equality with you, to determine what topics could be introduced every day, and not just on open thread days.

    I don’t want to see that, because I value press freedom both as a principle, and as a practical means to improve what gets published. How about you? Will it be an improvement to see a VC blog over which you have no more control than the worst of your commenters?

    1. There’s a difference you yourself repeatedly raised. Professor Volookh is a content creator. He publishes something that resembles a newsletter.

      Commercial speakers have fewer rights. They may get to pick their speech, but they don’t get to pick their audience. Nightclub bouncers curate audiences for nightclubs. If a legislature passed a law requiring nightclubs to accept first come first served with minimal rules, nightclubs would have to attract people by the quality of their acts, not the quality of the crowd people can be seen with. And it would be perfectly constitutional.

      Similarly, legislators could prohibit curating social media audiences, either by requiring advertisers to advertise to everybody, or by the equivalent of wiretap laws prohibiting listening in on, analyzing, and selling advertissers user information or the contents of messages.

      If social media advertising became like television advertising, broadcast generally rather than curated, the services of social media companies (like nightclub bouncers) would be less valuable and they would make less money. But nothing unconstituional would happen, and the world wouldn’t end. Same if social media companies made their money from paid subscriptions rather than advertising.

      1. so I would pay to go on facebook and not be able to read anything on there because it’s be an unmoderated jumble of filth?

        1. The internet is currently an unmoderated jumble of filth. How did you get to post this comment of you didn’t pay to get on it?

          1. Well it’s a pretty specifically moderated stream of filth being presented on the volokh conspiracy, but I don’t think I’d pay for it. Also, my point was ‘would’ not ‘could’. Yes, that could be how things could work. My point is that it WOULD NOT.

      2. ReaderY, you may suppose some legislative body may deal as you wish with all the dilemmas attending this proposed monumental change in 1A interpretation. But it would be pure politics which determines what would actually happen.

        I think even EV would concede that he is not explicating the way the law is interpreted now, but trying instead to show a new way to interpret it which might prove consistent with his choice of precedents. That means to me that the actual laws and policies which would follow would be contested politically, and very much up for grabs.

        And by the way, when making points about publishing, I mostly try to avoid distinctions between content creators and others. That stuff strikes me as bogus reasoning from Section 230 defenders.

        Prior to Section 230, the customary arrangement in publishing was liability shared alike between publishers and content creators. I wish that had remained the rule online. Whether or not publishers choose to read what they publish beforehand (law aside, as a purely practical matter, publishers are negligent if they do not) there is no reason publishers should not be liable. Publishers are the ones making most of the money, and it is their agency which inflicts the damages.

        Also, society benefits greatly by putting publishers’ judgment about what to publish somewhat in opposition to that of content creators. The former act as a check on excesses among the latter—to the benefit of the nation’s public life—while eliminating most the pressure which would otherwise follow to have government intervene with actual censorship.

    2. Stephan,
      You commit the same sin of which you criticize EV (but in the opposite direction). You reduce all internet outlets to publishers and all issues related thereto as issues of freedom of the press.
      Consequently, the remedy for viewpoint bias is litigation that is presently precluded under Section 230.

      “I don’t want to see that, because I value press freedom both as a principle, and as a practical means to improve what gets published.”
      Applying your extreme reductionism to low volume websites, is just your way of denying free “speech” doctrine. ANd you come to the absurd conclusions that you write about here.

      Meanwhile you hide your true agenda, that you have spoken about earlier: eliminating 230. That is not being exctly honest; is it?

      1. Consequently, the remedy for viewpoint bias is litigation that is presently precluded under Section 230.

        What? Where do you see that in Section 230? Where do you see that at all? Are remedies for viewpoint bias a thing?

        Applying your extreme reductionism to low volume websites, is just your way of denying free “speech” doctrine.

        I haven’t even been talking about free speech doctrine, whatever you think that is. I have been talking about the separately enumerated right of press freedom. Which is about publishing, not about speech. I will have more to say about that distinction on Thursday.

        Meanwhile you hide your true agenda, that you have spoken about earlier: eliminating 230. That is not being exctly honest; is it?

        Except for you, almost everyone who reads this blog must be laughing. They all keep demanding that I stop bringing up repeal of Section 230. I have done it so often they have become heartily sick of it. And here you are, to accuse me of hiding my advocacy for Section 230 repeal.

        But there actually is a reasonable question in reply to you. Why in heaven’s name would you think I would be motivated by a desire to repeal Section 230? You think I have some free floating animus, something irrational that I want to keep under wraps? Wrong. I insist (constantly, again and again) that Section 230 is a menace to press freedom. That is not a secret motivation. That is a reasoned objection, which I re-explain often, whenever I see Section 230 fans renew their unwise advocacy, and I have time to try to reply. Of course I understand I am mostly preaching to hammerheads, but I always hold out hopes for unseen bystanders with more discernment.

        1. I’ll bite. Why is Section 230 a menace to press freedom?

          1. Josh R, thanks for asking. We can convenience Don Nico.

            1. Section 230 unleashed publishing giantism. As I have said repeatedly, the only safe haven ever found for press freedom is public policy to support diversity and profusion among private publishers. Section 230 undermined that. That in turn cost the nation a notable fraction of its news gathering capacity. Meanwhile, the giantism concentrated publishing power in too few hands, and set the stage for myriad complaints about inappropriate and outsized political influence.

            2. Section 230 brought press freedom into disrepute with the public, because it abolished joint liability shared by publishers and contributors. That predictably became a practical license to commit libel with impunity, turning every libel victim into a spreading center for public revulsion about tangible private damages inflicted by publishing.

            3. The ability to publish unlimited material without any requirement to read it beforehand unleashed a flood of swill which went far beyond the damage done by libel. People began losing relatives to QAnon. Big lies about elections accumulated followers. Racist advocacy took off. Made-up outrages became standard clickbait. Prior to Section 230, private editors would have prevented publication of those kinds of damaging falsehoods, and many others.

            4. Public intolerance of such disruptive changes in publishing practice was readily predictable, as was the backlash which would follow. In fact, I began more than 5 years ago predicting that Section 230 would lead to a widespread groundswell of political pressure to demand that government take control of publishing, and use censorship to force corrections.

            And here we are. One of the nation’s leading 1A advocates, Eugene Volokh, is now calling for laws to restrict publishers’ freedom to decide which content they will publish. That would be censorship full strength.

            The least troublesome way to tamp down all of those malign tendencies would be to repeal Section 230.

            I will take up some of this in more detail in a future post intended to address questions such as yours. I am particularly interested in calling attention to growing tension which Section 230 has exacerbated between the separate rights of speech freedom and press freedom.

            1. I am not buying the “giantism” argument because if we repeal Section 230, we won’t have social media on anything but the smallest of scales (only they can read everything that is posted). Repeal would of course cut down on the conspiracy crap, but at the cost of losing social media. Wouldn’t it be better to let social media providers delete the crap as they see fit?

              I continue to be unpersuaded by your claim that social media providers are categorically publishers.

              1. I am not buying the “giantism” argument because if we repeal Section 230, we won’t have social media on anything but the smallest of scales (only they can read everything that is posted). Repeal would of course cut down on the conspiracy crap, but at the cost of losing social media.

                That does not sound like a not buying the giantism argument. That sounds more like a buying the giantism argument, and deciding you prefer giantism.

                I disagree that less giantism would lead to less media. It would inconvenience network effects. But a gain would come in a vastly increased quantity of private publishers, with almost unlimited diversity of opinion.

                I think internet publishing economics are so favorable that they can support massive posting with customary editing, if the load is distributed among enough separate publishers.

                Wouldn’t it be better to let social media providers delete the crap as they see fit?

                Preventing that seems to be what EV’s common carrier scheme is about.

                I continue to be unpersuaded by your claim that social media providers are categorically publishers.

                They sure as hell are not common carriers. I insist they are closer to publishers than anything else you can name. I have enumerated key points identifying publishing activity, and distinguishing it from other kinds of business activity. Have you seen that list and still disagree? If so, it would be helpful if you could tell me specifically why you don’t find it persuasive.

                And by the way, it would be helpful if you could also tell me what motivates you to want social media providers not to be publishers.

            2. 3. The ability to publish unlimited material without any requirement to read it beforehand unleashed a flood of swill which went far beyond the damage done by libel. People began losing relatives to QAnon. Big lies about elections accumulated followers. Racist advocacy took off. Made-up outrages became standard clickbait. Prior to Section 230, private editors would have prevented publication of those kinds of damaging falsehoods, and many others.

              The careful reader will note that what Lathrop means by a threat to press freedom is that there’s too much speech. (Or too much press, because he pretends that they’re different.)

              1. Then you must be the careless reader, Nieporent. Because I say again and again—so often you could not have missed it—that public policy to support diversity and profusion among private publishers is the safest policy to protect press freedom. That means boundless capacity for diversity of opinion, with me encouraging more of it all the time, from every conceivable point of view.

                1. Do you even read what you write?

                  private editors would have prevented publication of those kinds of damaging falsehoods, and many others.

                  You. Want. Less. Speech.

        2. “And here you are, to accuse me of hiding my advocacy for Section 230 repeal. ”
          You nicely avoided the topic today. Honesty means being honest all the time.

          1. Don Nico, they’re still laughing.

            1. Yes, SL, because you continue to present laughable arguments.

  5. Trump’s recent suit against big tech has been widely panned, but this WSJ opinion piece makes a decent case for it:

    https://www.wsj.com/articles/trump-can-win-his-case-against-tech-giants-11626025357?mod=djemalertNEWS

    1. No it doesn’t. Trump’s LOLSuit won’t make it to summary judgment.

      It’s a tweet with a filing fee, not a lawsuit.

      1. How many tweets are filed by an attorney whose specialties are criminal defense and “water damage?”

  6. Perhaps somewhat tangential but related is the issue of how social media becomes weaponized by those organizing to put pressure on parties to influence them…I think this can be OK when it’s to support or oppose *general* policies, but I would like to see it be illegal to FIRE somebody in response to public pressure. (I would think this could be done by simply adding “on the basis of public or social pressure” as a protected class to existing discimination laws). That way, companies could just shrug and say, “Sorry – now that you’ve tried to cancel this person with all your Twitter-hate, our hands are tied…”

    The current widespread chilling effect of people being terrified to speak out – even for MAINSTREAM positions – is simply untenable in a democracy.

    Along similar lines, political *viewpoint* needs to be a protected class as well, for both employment and public accommodation (customers). There could be limits to this (in non-1A contexts), for views that there’s truly a consensus against, but that should be a high bar with a high burden…

    1. It’s mostly predictable but still a little amazing how truly skin deep the Right’s commitment to business freedom, property/association rights and small government is since Trump.

      1. Time was, not firing people for their political viewpoint was a thing for the liberal left.

        But you found power in it once you saw you could use it to grind the opposition underfoot, instead of the other side.

        Tbe high value judgements you switched from one principle to the other, as power shifted, are noted. And for the othed side as well.

        Both should stay well away from power, instead of being the parasites plaguing freedom.

  7. Prof. Volokh, I think you lean too heavy on the real-world scenarios (anti-abortion protesters, Westboro Baptist Church funeral picketers, mall signature solicitors, etc.), as precedents.

    The virtual world doesn’t have the physical elements, e.g., blocking an abortion clinic’s entrance, a beggar at an intersection, the in-your-face interactions, etc., and therefore the rules can be looser in the virtual world.

  8. Professor Volokh has suggested a government power to compel viewpoint neutrality for web sites. Of course, his audience here sees that, and fans of doing it imagine the power will be applied only against web sites which favor opinions and viewpoints they dislike. They cheer it on. But what happens when it works against the views they favor? What if Reason, and the VC have to submit? What if liberal, anti-libertarian advocates win unlimited power to introduce threads on Reason, for instance, and flood the site with them?

    That is a problem, I guess.

    What would be a far bigger problem would be figuring out a way to achieve the new principles. What process does anyone imagine affords practical ability to make EV’s scheme for viewpoint neutrality an enforceable reality? Each violation gets adjudicated? Government sets up some department of web oversight, with power to license, investigate, deliver due process, and punish? How is this going to happen?

    1. “fans of doing it imagine the power will be applied only against web sites which favor opinions and viewpoints they dislike”

      Binding others with laws you think will never apply to you is the most conservative thing in the world these days.

    2. I am certain Eugene would argue The Volokh Conspiracy could not constitutionally be treated as a common carrier because it producers a coherent speech product (i.e., it’s an editorial website).

      1. That’s right. It’s also not used for people to send general messages to their friends or select people like Facebook is. Posts are on limited topics by small group of posters. Comment topics are generally limited to the main post.

        The Volokh Conspiracy is a social media site, bit not a social media platform. It is merely a platform user.

    3. Stephen,
      You fall on your own sword. If you believe that freedom of the press is different to freedom of speech, how about informing the readers how to distinguish each. Your comments about Reason are nonsense as Reason clearly acts as a publisher with a discernible viewpoint. Why do you think that legislators are ipso facto incapable from making distinctions in publications?
      Where are the myriad lawsuits that you fear against existing common carriers.
      You seem like a mapmaker of the Middle Ages that writes in the seas surrounding known land, “There be dragons.”

      1. Why do you think that legislators are ipso facto incapable from making distinctions in publications?

        Holy crap! Read that again, and try to notice how far down the government-control-of-the-press rabbit hole it takes you.

    4. You are advocating that face book and twitter are publishers. I view them more as conduits (or platforms if you wish) for individual speech.

      Section 230 allows the conduit moderation while providing protection from liability for the speech of users. Recent moves by some of the companies definitely seem to be moving toward distinct viewpoint. The imminent possibility of automated heavy handed viewpoint centered moderation is more than a little concerning to me.

      I view the VC and other similar sites more as a publisher of articles of interest that allows comments. In doing that I might suggest that the VC or another similar site might forgo the protection of Section 230 if it chooses to moderate some viewpoints while a conduit open to all could maintain that protection with content neutral moderation. That needle might be a little difficult to thread but most people seem to be able to but a few people seem incapable of being either rational or respectful of others.

    5. compel viewpoint neutrality for web sites.

      Nice lie to open up with. Seems lies and bullshit are all you are really capable of.

  9. It’s interesting that this turn-on-a-dime ideological about face on the Right is happening at the same time as a moral panic about BLM and CRT happening there. I don’t think it’s a coincidence. Minorities and women have historically been all too aware that social and business pressure can fall on them if they don’t watch what they say, and, of course, there were no protections offered for them from the Right. But recently white men have been hearing that *they* might have to watch what they say, and we can’t have that, so all the property/association/business rights rhetoric which permeated the Right goes right and quickly out the window when it fails to serve the one truly animating idea of the modern American Right: protecting the privilege of white straight males.

    1. “It’s interesting that this turn-on-a-dime ideological about face on the Right is happening at the same time as a moral panic about BLM and CRT happening there.”

      1. You’ve got it a little wrong. CRT is the moral panic. In case you didn’t know, those clowns think that the US is fundamentally racist and they want to disrupt “power structures” like student testing and all sorts of other things. All we’re doing is trying to keep that crap out of our schools.

      2. You seem to imply that “the right” has historically been committed to free speech. That’s not a claim I’d make.

      Of course, the right has recently been much better on the issue than the left, although there’s certainly plenty to criticize on both sides.

      1. CRT is just this year’s ‘post-modernism,’ ‘cultural relativism,’ etc., an academic framework that is seen as scary and tempting of the young. It’s classic moral panic.

        1. Perhaps…but one big difference now is that this time, conservatives aren’t free to engage/debate/rant/etc. like everyone else is, but rather are bullied/shamed/fired/doxxed/etc.

          I understand you feel that this is no worse than what has happened to historically-marginalized groups, and that now the Right is only upset because it’s happening to conservatives (and it happens to conservatives of *all* races, BTW, so it’s really more ideological than racial). But let’s say you’re correct on that. Where does that get us? Isn’t it wrong now just as it was wrong then? It seems there are two general possibilities for the Left here: 1) you say “now it’s [Group X]’s turn to oppress, ha-ha,” or 2) you say, “hey, glad you finally see why tolerance is important; now let’s make it mutual for everyone…”

        2. CRT is not really an academic framework, and it claims America is fundamentally a white supremacist country and we all have to constantly “do the work” to struggle against our privilege, but will ultimately fail.

          It’s a classic moral panic.

          1. Dude, we went over this. Yes it is. I posted a description in the Open Thread.

            Did you forget? Or do you think that’s a lie and you know the REAL CRT?

        3. Sure, just ignore the NEA explicitly endorsing the use of CRT as part of curriculum in K-12 education.

          1. the NEA explicitly endorsing the use of CRT as part of curriculum in K-12 education.

            Do tell.

  10. Marci Rubio has introduced a bill which would modify 47 U.S. Code § 230(c)(2) to read (changes noted in bold):

    No provider or user of an interactive computer service shall be held liable on account of—
    (A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, promoting terrorism or, violent extremism, harassing, promoting self-harm, or unlawful, whether or not such material is constitutionally protected

    Am I correct Eugene, that at least the portion on liability protection for restricting access to material promoting terrorism unconstitutionally discriminates on the basis of viewpoint?

    1. Promoting terrorism is itself illegal.

    2. So each user can unilaterally restrict access/availability of any & all in-scope material (presumably only via said info service, though the text fails to mention this constraint), and remain liability-free. Isn’t that an invitation to chaos?

  11. I’ve now read the entire paper, and it is the most pro- government regulation screed I’ve ever encountered coming from a libertarian.

    Perhaps this massive intrusion into compelled expression would pass constitutional muster (with the current supreme court, all bets are off), but is it really a good idea to, as David N put it to

    …advocate for anarchy on the internet, nobody gets to control anything. (Or alternatively or quasi-simultaneously, government controls everything.)

    I note that the conclusion is very light on what, specifically, the proposed legislative remedy might be. So far, for every one I’ve encountered elsewhere the “cure” is worse than the “disease”.

    1. “…advocate for anarchy on the internet, nobody gets to control anything. (Or alternatively or quasi-simultaneously, government controls everything.”
      You could have written that 100 years ago about the phone service.

      “screed ” = something I disagree with.

      1. There are many screeds that I agree with.

        1. Then you have a very strange definition of screed that includes more than 250 footnotes.

    2. ” the most pro- government regulation screed I’ve ever encountered coming from a libertarian ”

      It did not come from a libertarian. Not nearly.

    3. Eugene mentioned this legislation in his final section:

      Be common carriers like phone companies, immune from liability but also required to host all viewpoints, or (2) be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis).

      1. Yes. As I said, it was “light” on specific legislation.

        And I fail to see how making facebook, twitter, et. al. “be distributors like bookstores, free to pick and choose what to host but subject to liability (at least on a notice-and-takedown basis)” addresses the purported “censorship” of certain ideas.

        I seriously doubt that those advocating a must-carry rule would be satisfied with this approach.

        1. The argument is social media providers would choose not to be distributors because the potential liability is too onerous.

          1. But that — as I keep telling Brett — is loony. It is not a viable business model for a social media company to be a common carrier.

            What they will instead be is much heavier-handed moderators than they are at present. Any time someone complains about someone else’s speech, they’re going to take it down in order to be safe.

            1. Wouldn’t such heavy-handed moderation be poisonous to the business model because many users will be turned off?

              1. Not as turned off as they will be by unlimited Nazis, spam, and advocacy for legalizing pedophilia.

  12. OK. But do articles about the requirement that viewpoint-neutrality mandates be viewpoint-neutral also have to be viewpoint-neutral? If yes, then Eugene may be in a little trouble…..

    1. Witty, but only half-witty.

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