Free Speech

Social Media Platforms' Recommendation and Conversation Functions

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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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[A.] The General Unconstitutionality of Compelled Recommendations

Social media platforms, of course, provide more than just a way for readers to read speakers whom they choose to read (whether by going to a page or subscribing to a feed). They also, in effect, recommend new material to readers, for instance under "What's happening" or "Who to follow" in the right sidebar on Twitter; under "People You May Know" in Facebook; on the front page of YouTube; and much more. This is even more clear for Facebook's news feed or Google News.[255]

Now this, I think, is indeed the platforms' own speech, and the government may not tell the platforms how to compose it.[256] If they want to recommend "Who to follow" based on who express views that the platforms like, they have to be free to do that—just as the shopping malls in PruneYard, the cable operators in Turner, and the universities in Rumsfeld remained free to choose which speakers or cable channels or recruiters to specially promote. (Likewise, the publishers' own speech in yellow pages directories is protected by the First Amendment, even if the directories are printed under contract with common-carrier phone companies.[257]) And that remains so even if the decisions are made in part by algorithms; I have made that argument as to search engine search results, and I think the same is true for social media platform recommendations.[258]

[B.] The Conversation Function

The closest call, when it comes to the compelled speech doctrine, has to do with platforms' decisions involved in managing conversations, for instance Facebook's, Twitter's, or YouTube's choices about which comments to allow on other people's posts or pages.

This sort of management is often protected by the First Amendment. In Hurley, the parade case, the Court noted that,

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day.[259]

The same is true for many offline conversations. Teachers shape conversations not just through the questions they ask, but through the rules they set for student participation, and through occasionally declining to call on a student who had violated the rules (or had just talked too much). Conference moderators shape Q & A exchanges by cutting off questioners who are rude or who go on too long or who orate instead of asking questions. They may not be trying to promote particular messages of their own, but "a narrow, succinctly articulable message is not a condition of constitutional protection."[260]

My Twitter feed or my Facebook page are pretty much "individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience."[261] But my comments on your Twitter feed or Facebook page don't just "happen to be transmitted together" with others' comments on the same material; they are consumed by readers (including both you and your other readers) together, as part of a conversation. Platform editorial judgments can help influence whether it's a polite conversation or a rude one—and if the conversation is polite, that will usually encourage more people to participate in it.

Barring platforms from editing will thus "interfere[] with [the platform's] desired message," by "alter[ing] the expressive content" of the conversations that they are seeking to create.[262] A curated conversation will no longer be a form of speech that the platform can legally provide.

Now of course some degree of conservation can and does take place even among separate feeds—just as the speech in PruneYard or Rumsfeld could have created a conversation. Passersby who receive a leaflet or who are asked to sign a petition could start a discussion or an argument with the speaker, and others could join in. Indeed, such speech could lead to organized counterspeech.

Likewise, as noted above, military recruiting on university campuses led to plenty of "responsive speech":

[S]peech with which the law schools disagree [has] resulted in, according to the record, hundreds (if not thousands) of instances of responsive speech by members of the law school communities (administrators, faculty, and students), including various broadcast e-mails by law school administrators to their communities, posters in protest of military recruiter visits, and open fora held to "ameliorate" the effects of forced on-campus speech by military recruiters.[263]

Nonetheless, the Court has sharply distinguished the hosting cases, such as PruneYard and Rumsfeld, from the coherent speech product cases, such as Hurley. Platforms' decisions not to host speech strike me as quite close to the decisions not to host in PruneYard and Rumsfeld. Platforms' decisions about what to allow in a comment thread seem closer to parade organizers' decisions about what to allow in a parade.

[255] See Langvardt, supra note 23, at 7.

[256] See supra Part II.F. 1. This is one of the reasons a federal court struck down Florida's social media access mandates:‌ "[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites. This is a far greater burden on the platforms' own speech than was involved in FAIR or PruneYard." No. 4:‌21CV220-RH-MAF, 2021 WL 2690876, *9 (N.D. Fla. June 30, 2021).

[257] Dex Media West, Inc. v. City of Seattle, 696 F.3d 952, 957 (9th Cir. 2012).

[258] Eugene Volokh & Donald M. Falk, First Amendment Protection for Search Engine Results, 8 J.L. Econ. & Pol. 883 (2012). I cowrote that article as a paper commissioned by Google, but I endorse those views wearing my academic hat and not just wearing my lawyer hat. But see Langvardt, supra note 23, at 6 (suggesting that even the recommendation function might be properly regulated); James Grimmelmann, Speech Engines, 98 Minn. L. Rev. 868, 950 (2014) (arguing for a model that focuses on whether the search engines is loyally advising its users).

[259] Hurley, 515 U.S. at 574.

[260] Id. at 569; see generally Volokh, Freedom of Speech in Cyberspace from the Listener's Perspective, supra note 89, at 385–98.

[261] Hurley, 515 U.S. at 576.

[262] Rumsfeld, 547 U.S. at 63–64.

[263] 390 F.3d 219, 239 (3d Cir. 2004), rev'd, 547 U.S. 47 (2006).

NEXT: Today in Supreme Court History: July 14, 1913

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  1. Much lawyer bullshit in support of the tech billionaires betrayal of our nation and of its values. This is coming from the degenerate culture of Los Angeles and from the more degenerate culture of the Beltway, where the Supreme Court is located.

    Of course, the suppression of dissent is constitutional under this vile lawyer defense of these oligarchs.

  2. I’ve asked this before and still hope to get a response from Eugene: do retweets, tags and links fall within the conversation function?

    1. Well, as EV has let you down, you may have to settle for me. Not being (to the best of my knowledge) a user of these Big Tech social things, I don’t know what a tag is. But a retweet sounds a bit like the “forward” function on an email, and I presume a “link” in Facebook context is the same as a link that I might append in this comment. Based on those, possibly erroneous assumptions :

      1. user B forwarding a communication by user A, to a gang of user B’s pals, doesn’t seem to involve anything different, in principle, from an original comment by user B to those same pals. Other than it might save user B some time, as against recreating user A’s comment in reported speech and commenting in favor, against, or not at all.

      So it’s hard to see why a “retweet” would involve any new principle in addition to those relevant to user B’s original thoughts.

      2. ditto links, unless the technical side of links, whatever their content, might have a tendency to consume bandwidth or otherwise technically disrupt the conversational flow

  3. Facebook has a lot more to fear from Ms Khan than from Professor Volokh.

    1. Perhaps why she got a lot of Republican votes!

  4. Why aren’t billboards also treated as common carriers?

    1. They are not monopoly owned

      1. There are high traffic prime locations.

      2. So common carrier status can only apply to monopolies?

        1. I’m not and expert and can’t tell you that.
          But I will note that the number of high traffic locations is extremely large and it just takes money and sometimes influence with the zoning board to buy a place.

        2. At least, read the wikipedia posting

  5. Should dating sites be treated as common carriers?

    1. Depends on what the people on them are carrying.

    2. A known rapist would have the right to keep using the dating site?

      1. What are you trying to prove with these questions with are facially absurd?

        1. What I’m saying is using a website is a privilege not a right. The phone analogy doesn’t work well, because the phone is required to function in the modern world. Social media is not required to function, and may even contribute to the dysfunction of society.

    3. EHarmony was sued for refusing to provide matches for gay people. That seems like more of a compelled expression problem than the common carrier claims at issue here.

  6. If they’re “shaping the conversation” by, among other things, banning recommendations of undesirable paths because certain politicians are threatening uncounted billions in stock losses via crushg their business model if they don’t, well, at this point we are arguing how many angels dance on the head of a pin.

  7. Trump is not allowed to ban replies to his tweets, but Twitter can?

    1. Trump can now that he isn’t President.

  8. “Libertarian”

    “Often libertarian”

    “Libertarianish”

    Movement conservatives masquerading about in unconvincing libertarian drag are among my favorite culture war casualties.

  9. Congratulations, United States! You officially have less freedom of speech than Germany, who has literally outlawed Nazi symbology.

    Haw haw haw!

    Fight fire with fire. I guess lovers of free speech are reduced to this, when in fact government should keep it’s stinkfingers out of it on all sides.

    Who will win? Outlook not so good 🙁

    $118,000 <<<< $100,000,000,000 stock value loss from section 230 threatened wreckage or breakup, if they don't censor harrassment or dwngerous thoughts, oh look, our political opponents' words are harrassing or dangerous.

    Hint: one of those is ~15s interest at 2% of the other's.

    1. Pardon me. I did the math wrong. That’s about 15 minutes’ interest on $100,000,000,000 at 2%.

      This would make an excellent ongoing increasing fine progress rate to apply to politicians with the temerity to so brazenly attack the First Amendment, and, in the words of Sean Connery in The Man Who Would Be King, “and thinking they could get away with it.”

  10. I received a Facebook jail sentence for spreading dangerous misinformation that would endanger people who followed it. I posted a meme that said “Getting drunk and dancing naked in the yard prevents covid. So if you see me dancing naked in the yard don’t call the police, I’m just watching out for my health.”

    No opportunity for appeal- THEY have RULED! I mean, can’t you just see hundreds of thousands of people getting drunk and dancing naked in their yards because that meme spread? Why, our entire social structure would collapse!

    Yep, they should be treated as common carriers.

      1. It’s just a website.

        … but one full of prigs who disapprove of dancing drunk and naked in your yard. They are clearly discriminating against libertarians !

      2. It has replaced letter writing and phone calling as a way for geographically separated family members to keep in touch. And- allows you reach them all with one post- that they can read when they are browsing.

        It has replaced letter writing and phone calling as a way for geographically separated friends to keep in touch. And- allows you reach them all with one post- that they can read when they are browsing.

        In many areas- I assume in many because I live in ruralville and it’s the way villages and schools are doing it here, and according to our brilliant VP we’re backwards late adopters without technology access- it’s the way the school board, the mayor, the town supervisor, the road department, and other public officials announce meetings and get feedback.

        Yes- it’s just a website- that functions as a common carrier and has replaced other forms of communication. Think of it as just a website? Need I remind you of Sir William Preece? “The Americans have need of the telephone, but we do not. We have plenty of messenger boys.

        1. I’ll support Ms Khan in her mission to break FB up.

          1. Ma Bell couldn’t be broken up effectively until the technology existed for all other carriers to smoothly interact with Ma Bell- and- EVERY OTHER CARRIER! You really want everyone to be able to easily connect with everyone else. Phones are perfect for direct 2 way communication between 2 people. Group calls are a pain.

            Facebook is the easiest to use gathering place for the masses- but not the first. Remember Myspace? It’s still around- I have an account, but people on Facebook can’t see anything I post on Myspace. Or MeWe, where I also have a presence. And- they cannot see anything I post here- but this is more of a private forum.

            In order to be broken up and still be useful- all the daughter companies must have smooth interface between them and Facebook. Or- treat Facebook- and Twitter- and MeWe- and any other platform where you can post whatever you want (as long as it’s not unlawful) as common carriers. Let the groups within Facebook, MeWe, Twitter- (I don’t even know if twitter has groups) enforce their own rules. If you’re on a cat forum and keep posting dogs- the admins are going to boot you. At least two of the Facebook groups I’m on ban politics- that’s not why they were formed. Others require an affiliation- like my HS and college alumni groups. But Facebook- anyone can join, anyone can post, and, anyone can by themselves without the heavy hand of centralized censorship, block people or groups they don’t want to hear from. And- people can limit who can see their own posts. No one needs the humorless scolds of Facebook doing it for them.

        2. It has replaced letter writing and phone calling as a way for geographically separated family members to keep in touch.

          No; you have replaced letter writing and phone calling with Facebook. This isn’t like the Pony Express; letter writing and phone calling still exist. You just choose not to use those things (or, apparently, email).

  11. I agree that recommendation are the platform’s own speech, not the speech of users. But when platforms recommend speech, they should be treated like a publisher and be liable for it.

    Even under current law, I don’t think immunity from liability applies, at all, to platforms’ own speech.

    1. What liability would there be for a recommendation? The only content to a recommendation is, “We think you should read this.” But there’s no liability attached to that statement.

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