Free Speech

Conclusion: Social Media as Common Carriers?

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Finally, here's the Conclusion to my Social Media as Common Carriers? article (see also this thread); many thanks to all of you for your comments on my posts—I'll be reviewing them closely as I put the finishing touches on the piece in the next several days.

[* * *]

How should the law deal with large tech companies using their power to block certain viewpoints, as a means of influence public debates throughout the nation? (By large, I mean companies such as Facebook, Google, and Amazon, the 5th, 4th, and 3rd largest American corporations by market capitalization, with valuations from $800 billion to $1.5 trillion.[280])

One solution would be to leave this to market forces and private property rights, allowing those companies to decide what user speech to allow on their platforms, disciplined only by their own judgment and the fear of loss of users. This may well be the right approach, which after all is how we predominantly ensure product quality and customer service in other areas. Absence of governmental regulation must always be one of the choices that we seriously consider.

A second possible solution would be to focus on structural changes, such as antitrust law.[281] Perhaps it's not good to have corporations as large as Amazon, which have yearly revenue that's greater than the yearly GNP of most countries ($280 billion for Amazon in 2019,[282] comparable to the GNP of Bangladesh, Egypt, Chile, or, to cite a rich Western country, Finland[283]). Or perhaps it's specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do. Maybe they should be required to provide interoperable access, to diminish the monopoly-producing advantages of network effects.[284]

A third possible solution would be to treat social media conduits—at least as to their hosting functions—much like we treat some other conduits, such as phone companies and mail and package delivery services. Those conduits are often not even monopolies, in part because phone and mail services already provide interoperable access. But we limit their ability to pick and choose among customers, including based on customer viewpoint.

I'm not sure what the right answer is, but in this article I've tried to lay out some of the strongest arguments in favor of the third solution—both of its wisdom and its constitutionality—so that we can better consider all our options.

[280] Largest American Companies by Market Capitalization (as of July 1, 2021), https:‌‌//‌perma.cc/‌CHX9-KRSQ. I set aside here the important question whether, if there is to be any regulation, it should be imposed only on particularly large platforms—cf. City of Chicago v. Mayer, 124 N.E. 842, 844 (Ill. 1919) (interpreting state common carrier statute as limited to those "carrying on a large and extensive business")—or on platforms more generally. See Eric Goldman & Jess Miers, Regulating Internet Services By Size (working paper).

[281] See, e.g., Balkin, supra note 91, at __.

[282] Amazon, Fortune:‌ Fortune 500 (as of June 2, 2021), https:‌‌//‌perma.cc/‌KVE2-8Z6B.

[283] These countries have populations of roughly 160, 100, 20, and 5 million, respectively.

[284] See supra note 89 and accompanying text.

NEXT: Today in Supreme Court History: July 16, 2019

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  1. Throughout reading this, I still don’t see where you address the fact that hosting services are fundamentally not conduits. They’re storage and organization, they don’t actually move anything from one customer to another, even if it seems that it does to an end user. It makes absolutely no sense to argue for treating them as common carriers when the actual operators of the conduits at issue, the access ISPs, are not treated this way. It would be like calling an answering service a common carrier but not the telephone company. The hosting service providers carry nothing over the rights of way that are obtained and allocated by the government, they must hire another to carry the messages, just as their customers do.

    1. I think you’re right that common carrier treatment may have to extend several layers deep.

      The Parler experience shows that hosting services can deny a platform friendly to the wrong viewpoints. ISPs could cut off their Internet. The power company could cut of their power (I’m not sure if that’s true.). Manufacturers could refuse to sell them servers. Labor unions might cut off their access to critical skills.

      In other words, policing respect for free speech may be just as difficult and as bottomless as suppressing racism.

      1. Volokh reviewed the fine points of Supreme Court decisions by know nothing, elite, bookworm, lawyer dumbasses. Nothing is stupider than a Supreme Court Justice.

        Volokh did not address the real world consequences of the common carrier status. Massive criminality on these platforms, with depictions of sex with animals, depictions of people like Queenie, seduction of children by child rapists, massive drug sales, terrorist planning and organizing. Billions of not just federal crimes but also state crimes will be added to our crime rate.

        This predicted consequence has 100% certainty. But, it is not just a prediction. See what Craig’s List turned into.

    2. I think that while FB and companies with vast externalities have some aspects of conduits, that description oversimplifies their structure. They are certainly information purveyors; they also actively stimulate exchanges in a non-content neutral way.
      The purest conduits are the myriad ISPs and owners of fibre and satellite links and major traffic hubs.

    3. Calling hosting companies “storage and organization” is equivalent to reducing UPS to a bunch of trucks and airplanes. Or a railroad to some rails, ties, and freight cars.

      Hosting companies are conduits for information

      As the Parler experience demonstrates, with significant market power, they can change the landscape of speech. What if FedEx and UPS stopped shipping guns/ammo, because they hate guns?

      The essential principle is that monopolies 1) do exist because of natural economies of scale, network externalities, or other reasons; 2) can be as much of a threat to liberty as the government,; 3) especially when the government is tempted (as they will be) to pressure monopolies to maintain its own power (for example pressuring Facebook to remove “untruths.”)

      1. UPS doesn’t ship certain guns. But let’s use your analogy. If all hosting companies must host all speech, Stormfront is entitled to post anywhere. Including on any website you create.

      2. It’s like you didn’t actually read what I wrote.

    4. They’re storage and organization, they don’t actually move anything from one customer to another, even if it seems that it does to an end user.

      Phone companies don’t move anything either.

      1. Weird how you think that but presumably have used a phone to talk to someone not in your immediate presence.

        1. Weird how you think your sentence makes any sense, or contradicts anything I said.

          1. Information is a thing, and phone networks move it.

      2. The move electrons and information.

        1. So do Facebook and Twitter.

      3. Phone companies actually move information from one place to another across rights of way allocated to them by the government, whether its their wires on utility easements taken by the government and given to them or through spectrum allocated to them. How does Facebook do that?

  2. Prof Volokh: Thanks for putting this series together. I learned a lot.

    For better or worse, your case for treating social media companies as common carriers is extremely good.

    The only thing I would be careful about is that not all “social media companies” are created equal. I think that we need to be careful to discriminate against companies which have true network externalities* (like Facebook & Twitter), vs those which do not (Amazon). Companies without Bona Fide network externalities ot economies of scale do not need to be regulated as common carriers.

    * https://en.wikipedia.org/wiki/Network_effect

    1. I think that we need to be careful to discriminate against companies which have true network externalities* (like Facebook & Twitter), vs those which do not (Amazon).

      You need to distinguish Amazon the goods seller and Amazon Web Services the hosting company.

      1. Sure… Just as one should distinguish the various sub-services of Google. I was going to differentiate Amazon retail from Amazon Web Services, but then deleted it. Are there externalities or economies of scale in Web Services? Microsoft, Oracle, Google, and IBM are all big competitors in that space. I am not convinced there is a natural monopoly, or economics that would lead to one, so I deleted that portion of my comment.

  3. “. . . using their power to block certain viewpoints, as a means of influence public debates throughout the nation?”

    Prof. Volokh, why do you assume – without any evidence – that these companies are trying to influence public debate?

    It’s more plausible they’re responding to feedback from stock holders, vendors, advertisers, customers, users, special interest groups, etc, and make these decisions based on the best route to profitability, and NOT, “as a means of influence public debates.”

    1. They are the oligarchs who own the media, and the Democrat Party. They are our enemy. They kowtow to the Chinese Commie Party to access its market, bigger than ours. That enrichment makes them servants of the CCP in the agency law sense. Their assets must be seized in civil forfeiture to save our nation.

      1. Yeah, I dunno….

        It’s hard to categorize a company with a market capitalization valued at $800 billion to $1.5 trillion as “commie.”

        1. you don’t actually take Behar seriously, do you?

          1. Hi, Donnie. You are not a lawyer. Have a peaceful day.

          2. Poor Behar,
            I don’t know what he is saying but the constant noise of his posts is like the buzzing of a mosquito around your ear.

            1. Hi, Donnie. You are also a denier.

              1. Donnie and Bernie have been muted. They are wasting my time.

            2. The bizarre thing is that I have him muted, but he posts so much that even the “comment hidden…” messages are frequent enough to be annoying.

              1. Same here and with just the same reaction, especially when QA aids and abets him in thread hijacking.

        2. The Chinese Commie Party is itself an oligarchic operation, except they have nuclear weapons. If our oligarchs got enriched by $1.7 trillion from the lockdown they stampeded, the Chinese ones made $2 trillion from the fraudulent lockdown.

          This is why I want to end warfare as we know it. Instead of killing millions of peasants and working people, target the causes of conflict, the oligarchs. Those peasants just want to go home and take care of their families. They do not want to harm us.

        3. If a Marxist BLM leader buys a ritzy** LA mansion for $1.4 million, is she still a Marxist?

          ** With bamboo floors, vaulted ceilings, and a 15 min drive to Malibu beach.

          Seems like selling Marxism is a pretty good business!

          1. I don’t know the answer, but I don’t think you can buy a “ritzy LA mansion” for $1.4 million. Maybe a livable small condo.

            1. Except that she did! It has three bedrooms and three bathrooms, is nestled in Topanga Canyon and has a separate guesthouse. It features bamboo floors, vaulted ceilings, and a 15 min drive from Malibu beach.

              I grant you, “mansion” is relative. She would have got a lot more house somewhere else, or if she sold her 3 other properties lol.

            2. Maybe a 2-car garage.

          2. The nomenklatura in Communist countries have always lived large.

    2. I guess that you forgot that Facebook and Twitter blocked all references to Hunter Biden’s laptop last October. It was a legitimate topic for debate – but they shut it down.

      And what about those same platforms banning any posts regarding the COVID origins back in 2020? It is now mainstream thought – no thanks to Facebook and Twitter.

      Finally, the news that the White House is identifying any information regarding vaccine reluctance as “misinformation” and asking Facebook and Twitter to flag and/or ban posts on these topics.

      If that is not trying to influence public debate, thank I don’t know what is.

      1. So your example of a repeated pattern of behavior is one instance?

        1. Repeated pattern of behavior on 2 different topics. At the behest of the Democrat party/Biden Administration. These companies are acting as agents of the state.

          Whatever happened to “False in one, false in all”?

          1. I’m not aware of the Democratic Party/Biden Administration making such a request and I’m happy to read anything that would actually substantiate such a claim.

            “Whatever happened to “False in one, false in all”?” Hard to square that with the allegations you make in your own post.

              1. Thanks for telling us where you get your information. Newsmax and OAN also, I guess.

        2. I could also cite any references to claims of election shenanigans. There’s a third one for you.

          Or questioning the classification of BLM “mostly peaceful protests” with pictures of buildings burning in the background? That’s four.

          Or questioning the policy of no masks at BLM “mostly peaceful protests is OK, but a riot of people opposed to masks is NG. That’s 5.

          1. DC, You could cite those references, but what would the point be? I’m not sure the question here pertains to your own particular feelings and obsessions rather than a larger and more objective analysis of what’s actually going on in the platforms. The allegation isn’t that Facebook doesn’t moderate, it’s that it moderates an in impermissibly political fashion. While there’s a lot to unpack within that, at minimum you’d have to demonstrate more than just that they moderated a few particular things you feel very strongly about.

        3. IPL,
          If you look at FB’s recent pronouncement on what it will block, one envisions many instances. vaccine reluctance as “misinformation” is only the most grievous example. (and actually you know that).

          1. The mosquito continues to buzz. Where is the insecticide?

          2. I do know that, what is your point exactly? As far as I can tell that seems entirely legitimate and within their own discretion and not inherently political. Though I can see how your opposition to whatever moderation would occur as being something that you frame as political due to your own disagreement with it. I’m not sure that amounts to what’s actually at debate here, though. Has EV even suggested that Facebook not be allowed to ban what would be harmful public health misinformation being spread on its platform? As far as I’ve noticed, this article pertains to what he believes is some sort of impermissible political censorship.

            1. my point is that FB acts as a de facto arbiter of discussion and as such should either be subject to the full liability of a publisher or be treated as a common carrier.
              I do not use FB. I find that these mega social media sites do more public harm that public good world wide. And that They should be regulated consistent with their de facto characteristics.
              All that has zip to do with my opinions about the Orange Clown, neo-, psuedo-, or anti-racism or anything to do with Mr Biden’s relatives.
              I do find certain alleged censoring of information regarding SARS-CoV-2 to be anti-scientific and acting merely under the pressure of the US government. The CDC has made many incorrect guesses about the virus early in the pandemic. Those guesses have been found false in peer-reviewed medical literature. And FB censorship of criticism is a public disservice.
              And that is the whole truth as I see it.
              I’ll be happy to see Ms Khan break them up, if common carrier status does save them from that fate.

        4. IP, they deplatformed the President. They took away the servers of Parler. They are our enemy. We allow them to get away with their kowtowing to the Chinese Commie Party.

          As a lawyer, you are also a mortal enemy to this nation. As a Democrat, you are a collaborator with the interests of the Chinese Commie Party. Every year you breathe, you suffocate innovation. You steal a $trillion in rent returning nothing of value, and you personally destroy $millins in economic value. And I have never met you. Imagine, the damages I could come up with in reviewing your real world traitor activity.

      2. I guess that you forgot that Facebook and Twitter blocked all references to Hunter Biden’s laptop last October. It was a legitimate topic for debate – but they shut it down.

        Completely false. They blocked links to one particular “news” story.

        1. It appears you conveniently forgot that ALL discussion on this topic was blocked – even so far as to silence those who linked to other websites that linked to the original article.

          Not to mention that both Twitter and Facebook suspended the NYP from posting anything for about a week, whether it was related to Hunter’s Laptop or not.

          1. It appears you conveniently forgot that ALL discussion on this topic was blocked – even so far as to silence those who linked to other websites that linked to the original article.

            Because “all discussion” wasn’t blocked. Only links to the NYP story.

            Not to mention that both Twitter and Facebook suspended the NYP from posting anything for about a week, whether it was related to Hunter’s Laptop or not.

            I don’t recall the specifics of what Facebook did and would have to look them up. But Twitter did what it always does when it decides users have run afoul of its rules: took away the user’s posting privileges until the offending tweet was deleted. The NYP refused to take down the tweet, so it couldn’t continue to tweet.

    3. A reminder just today- Facebook an Twitter banned any mention of Hunter’s laptop as Russian disinformation. They took the word of 100 or more former intelligence officials- oddly every one of them a Democrat- who declared it Russian disinformation without ever having looked at it.

      That single item, reported honestly, would have turned the election. It was, to mangle a quote from a math textbook I once had, it was intuitively obvious to the most casual observer the laptop that was said to belong to Hunter Biden and was full of incriminating information did in fact belong to Hunter Biden and is full of incriminating information.

      Instead, all public discussion was blocked.

      1. A reminder just today- Facebook an Twitter banned any mention of Hunter’s laptop as Russian disinformation.

        Nope. Didn’t happen.

        That single item, reported honestly, would have turned the election. It was, to mangle a quote from a math textbook I once had, it was intuitively obvious to the most casual observer the laptop that was said to belong to Hunter Biden and was full of incriminating information did in fact belong to Hunter Biden and is full of incriminating information.

        Weird how even after Twitter said that it shouldn’t have blocked the one story it blocked, and unblocked it, nobody has reported any “incriminating information” from it.

    4. “why do you assume – without any evidence – that these companies are trying to influence public debate?”
      By their fruits you will know them.
      Because de facto, they do have a strong influence. Given the research and marketing arms of these companies, it is naive to think that they are ignorant of such ignorance even as they double down on their restrictions.

      I find the argument that they are driven by stockholders – other than the founders and close associates – highly implausible.
      If you meant to say that the company responds to Zuckerberg’s interests, then I have no argument with you.

      1. I guess you don’t live in the US.

        Here, profits are HUGE factors in business decisions.

        1. Apedad,
          You did not answer my objection at all. You completely sidestepped my principal contention which is bolstered every time Zuckerberg and top cronies puts on their act in front of Congress

          Of course Zuckerberg is driven by his self interest. But the small shareholder does not care a whit.

          1. The SMALL shareholder?!?

            – Vanguard’s funds hold approximately 184.0 million shares of Facebook with a combined market value of about $37.7 billion.
            – BlackRock’s funds hold about 158.2 million shares of Facebook with a combined market value of $32.3 billion.
            – FMR’s funds hold approximately 123.6 million shares of Facebook with a combined market value of $26.1 billion.
            – T. Rowe Price’s funds hold about 107.8 million shares of Facebook totaling a combined market value of $22.1 billion.

            1. And none of them care.
              And still you evade my principal comment. What do you fear?

              1. It’s absurd that you just spout nonsense as fact that should be taken for granted and yet demand things of others. Muting you.

                1. Poor IPL,
                  He is so sensitive about a couple of posts criticizing him.
                  Too bad

              2. I very much doubt they don’t care.

                If you have tens of billions invested in a company you care very much if the founder is catering to his own political views at the expense of the business.

        2. By caving to political pressure from one party, Zuckerberg has made his bed. Let him lie in it.

          1. You experience in Democratic Party circles may differ, but the Democrats with whom I associate are quite skeptical about Zuckerberg’s (and Facebook’s) political leanings. It has been a few years since I remember seeing reliable information, but I believe Facebook traditionally skews Republicans with respect to political contributions.

          2. I’d like to see the evidence – not Gospace level rants – that they “caved.”

            And I’ll add something, just to throw some fat in the fire. If conservatives got blocked disproportionately it may be because they lie disproportionately.

            1. I don’t know and actually I don’t care.
              Except that the claim of consciously lying is usually false and an exaggeration.
              Otherwise I’d say that I see lies from many politicians of both parties every day.
              People see things with different eyes and hear the same things with different ears. Calling them liars only deepens political distrust and contributes nothing.

              Notice the tack of IPL: He completely and willfully ignores that my comment
              “Because de facto, they do have a strong influence. Given the research and marketing arms of these companies, it is naive to think that they are ignorant of such ignorance even as they double down on their restrictions.”
              was never answered and then he goes off in a huff.

              I’d say that the usual behavior here is frequent evidence of the strong negative influences of social media. I’d be happy to be convinced, yet I seldom see clear arguments that are convincing. But ad homenem attacks and egotistical blah-blah abound.
              (Just to be clear, I am not referring to you, bernard.)

          3. Hi Don. To which party was FB caving when it adopted policies reducing the exposure of posts from Mother Jones and chose to use the Daily Caller as one of their fact checkers?

      2. Why did Apple, not just now but in Steeve Jobs’ time, make a huge fuss about opposing government censorship in the US, but comply with it in China, if not concern about profits?

        1. Of course they are concerned about profits and so they cave in China and they cave in the US. That does not change their status os influencers of public discourse of unmatched magnitude.
          You have to discard your oversimplified view of the world (uncless you mean to be deliberately dishonest).

  4. This is self evident. Likely more people have them than phones or electricity or running water. They own 90% of their markets. No content liability, same as a robbery planned on the phone.

    The resulting zoophilia porn, terrorism planning, child sex recruitment can be controlled by the user or by the police, as crimes on the phone are.

    The lawyer enacted anti-robocall law has resulted in a doubling in robocalls. I told my Congressional lawyer nitwit her garbage law would fail, do not vote for it. This lawyer dumbass does not listen. She should enact a 10 cent tax on each call to raise the expense of these criminal gangs. She did not listen, and now robocalls are even more out of hand.

    You lawyers are the worst. You stink. You are idiots. You are stubborn. You do not listen. All you care about is collecting your rent.

  5. Professor Volokh,

    Your note 284 refers to note 89 “and accompanying text.” But note 89 simply cites a case page number. Looks like you have a typo.

    I think the issue of network effects and the fact that they can make a monopoly more efficient is an important feature here, because it explains why there is a greater basis for regulation. People who compare major social networking platforms to a mom-and-pop website that allows comments typically ignore this issue, although both indeed meet the definition of “social media platform.”

    I am wondering if mandating standards, which is an alternative way of dealing with network effects’ monopolizing tendencies, might deserve more exploration, understanding it’s outside the scope of the paper. After all, this was the approach used for the internet itself, which in an alternate history might have arisen as the intellectual property of a proprietary provider.

    I think the main problem with requiring standards is that social media platforms are too new for such standards to be workable. Some maturity is needed, and/or a committee that updates them periodically. The internet illustrates this problem. Standards were put in place before issues like security and criminal use became big problems, making use by criminals once easier. And once they are in place and used worldwide, updating standards becomes a Herculean task. An advantage of a monopoly is that, as a single source, it can update standards much more easily and with much less social disruption than when diffuse operators have standards regulated by a governing body. This may make regulated quasi-monopolies a better option in this situation.

    There are many practical issues in these matters, which tend to get obscured by ideology.

    1. “I think the issue of network effects and the fact that they can make a monopoly more efficient is an important feature here, because it explains why there is a greater basis for regulation.”

      The opposite should be true. If network effects improve efficiency, that’s a benefit to the consumer. Antitrust should protect consumers, not interfere with market conditions that benefit consumers.

      That should also put up a red flag to anyone complaining about what Facebook and Twitter are purportedly doing. If Facebook and Twitter shed users, they decrease their own network effects, making competitors more attractive. There wouldn’t be a GETTR or GAB or Parler without customers leaving Twitter and Facebook. And if customers can still leave to competitors, then it doesn’t matter whether Twitter and Facebook are engaged in viewpoint discrimination. Viewpoint discrimination either increases or decreases network effects. If it increases network effects, then it has a pro-user benefit. If it decreases network effects, then competition can (and demonstrably has) take advantage of it.

      “An advantage of a monopoly is that, as a single source, it can update standards much more easily and with much less social disruption than when diffuse operators have standards regulated by a governing body.”

      This argument is that we should regulate private businesses to decrease the barriers to entry created… by regulation?

  6. I would also add, you never actually supported this position:

    “Or perhaps it’s specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do.”

    Your cited support for the proposition that they have “near-monopoly status” was just a bald assertion from some article that wasn’t even directly on point. You never really define their “communications niches”, probably because any definition more broad than “communication on (Facebook’s/Twitter’s) specific platform” would yield a competitive market. Ignoring these flaws in your argument wont make them go away.

    1. I would also add, you never actually supported this position:

      “Or perhaps it’s specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do.”

      This seems somewhere between the challenge of defining obscenity and the challenge of proving water is wet.

    2. ““near-monopoly status” was just a bald assertion ”
      C’mon whey, Just looking at the number of FB subscribers world wide as compared with an other such site used world wide supports the near monopoly description.
      Why are you afraid of it? Do you seriously contend that FB does NOT have JUMBO influence on American public opinion? Really?
      I don’y use FB but from news story after story, I see that. Why deny a fact?
      If you have legal objections to EV arguments. Lay them out, but don’t try to hide behind a worm-eaten fig leaf.

      1. Conservatives complaining about Facebook having undue influence in elections sound like Democrats complaining about the Koch brothers.

        1. And does that make either wrong? and if so why.
          Clever retorts are in fact no argument at all, but are merely running from the total collection of facts.

      2. C’mon whey, Just looking at the number of FB subscribers world wide as compared with an other such site used world wide supports the near monopoly description.

        Having a lot of users does not make one a monopoly. For one thing, nothing says that these users are exclusive to Facebook.

      3. Repeating the bald assertion doesn’t make it true.

    3. If all the people you communicate with are on Facebook, you can theoretically just ditch them and join a new platform that doesn’t have anyone you know on it because you don’t like Facebook’s policies or features. But can you realistically do so?

      Network effects, and their monopolistic tendencies, are real. Networks have value based not on the networks’ policies or services, but based on the network of people they can connect you with. In the presence of entrenched dominant networks, start-up networks can face insurmountable barriers to entry, even if their featurees, policies, and prices are better.

      Yes, networks are only monopolies within their network. But the network is the product. That means they really are true monopolies, just as much so as any other monopoly is only a monopoly within its own product.

      1. “If all the people you communicate with are on Facebook, you can theoretically just ditch them and join a new platform that doesn’t have anyone you know on it because you don’t like Facebook’s policies or features. But can you realistically do so?”

        I do not communicate using Facebook (other than by occasionally being directed to a Facebook page, maybe once or twice a month) and do not use a Facebook account. I nevertheless communicate with a large number of people in many ways.

      2. Then FB has nothing to fear from common carrier status, and its subscribers have nothing to lose.
        In fact they will gain by seeing a wider universe of discourse.

        1. So the existence of choice for the Reverend is a justification for common carrier status because Facebook has nothing to fear?
          You apply CC status because it is required, not because it won’t hurt that much.

      3. Not sure why you think those problems sound in speech law as opposed to anti-trust or any of the other ways we regulate businesses?

  7. Although I disagree with your conclusions, and see no legal, moral, ethical or equitable reason to compel hosting, I think this passage from the Post may well be the best thinking I have seen this year, and maybe this century.

    “I’m not sure what the right answer is, but in this article I’ve tried to lay out some of the strongest arguments in favor of the third solution—both of its wisdom and its constitutionality—so that we can better consider all our options.”

    If I was in favor of compelled speech the above sentence is what I would compel. Kudos.

    1. ” I’m not sure what the right answer is, ”

      I predict a different stance in testimony or argument — not too long from now — supporting government intervention to control expression and association.

  8. Eugene, thanks for the informative and provocative series.

    You didn’t mention a variant of the third solution in this summary: condition common-carrier-like liability protection on providers being viewpoint neutral in their hosting, recommendations and commenting functions. Am I correct that condition could be constitutionally applied to the Volokh Conspiracy even though the Conspiracy is like a traditional publisher in that it has a coherent speech product. If so, are you willing to either 1) not censor comments based on viewpoint to keep broad liability protection, or 2) go through every comment to make sure the libelous ones are censored?

    1. ” If so, are you willing to either 1) not censor comments based on viewpoint to keep broad liability protection, ”

      The return of Artie Ray Lee Wayne Jim-Bob Kirkland?

      The return of the Words That Must Not Be Used (to describe or needle conservatives) At The Volokh Conspiracy?

      1. Artie really got his feelings hurt!

        1. Artie is unavailable for comment.

          Arthur sometimes evokes Artie to remind readers of vivid right-wing hypocrisy and partisan, viewpoint-driven censorship.

          1. THE VOLOKH CONSPIRACY

            This White, male, movement
            conservative blog has operated for
            FOUR (4) DAYS
            without publishing a vile racial slur
            and has operated for
            TWO (2) YEARS
            without imposing hypocritical,
            partisan, viewpoint-driven censorship.

    2. Josh R: I discuss that sort of conditional immunity approach in this post. I do think it’s constitutional; if it were implemented, I’d take immunity from lawsuits based on commenter comments and in exchange give up any power to block based on viewpoint. My sense is that the Mute User feature is probably adequate to maintain the conversation at a reasonable level of quality, even without moderation by me (whether viewpoint-based or otherwise).

  9. While you make a good case for why Turner, Pruneyard and Rumsfeld support the constitutionality of treating social media providers like common carriers, none of those cases involved the very, very, broad reach of social media. Perhaps that factor should lead courts to not rely on the analogies.

    1. I repeat that I find the reliance on analogy here unhelpful.

      Sometimes you have to start at the beginning.

      1. Bernard,
        I apologize for the rant, but the bloated ego of IP Lawyer pissed me off.

    2. Josh R: Rightly or wrongly, relying on analogies is what our legal system does, when it comes to developing and applying constitutional rules (as well as common-law rules and rules under relatively vague statutes). That’s pretty much what “applying precedent” means, when the precedent isn’t entirely on point.

  10. One solution would be to leave this to market forces and private property rights, allowing those companies to decide what user speech to allow on their platforms, disciplined only by their own judgment and the fear of loss of users.

    That ship sailed a long time ago with threats to alter or abolish section 230 if they don’t censor harrassment, and being called in to testify before Congress why they were dragging ass on it, you know, you have too much power in this area, maybe breakup is a good idea…

    (Shivering) I wonder what our lords and masters will want? Better pre-censor to their political desires.

    To kibitzers: When they fight against this, as when facebook refused to block “harrassing” voices of politicians because of the primacy of importance of political speech they caught hell for it.

    We are under dangerous assault of speech, and as usual, it’s government censorship.

    Stop playing this silly facetious game the companies are operating under their own free will.

    Ask politician threatening kilobillion$ in harm: No, that’s not what we’re doing!

    Fools: See?

  11. Sorry I haven’t read the article yet, professor, but have you incorporated this into your analysis?

    https://reason.com/2021/07/15/covid-19-vaccines-misinformation-jen-psaki-white-house-biden/

    1. It’s an interesting point – after how much “asking” from the US government, and compliance from Facebook, does Facebook become an “agent” of the US government for 1A purposes ?

      And related – how much “asking” from a foreign government or entity, and compliance from Facebook, gives Facebook a FARA problem ?

  12. “Or perhaps it’s specifically bad for such companies to have near-monopoly status in various important communications niches, as Facebook and Twitter do.”

    Why is this claim unsourced? It seems to be the central thesis of the antitrust approach. But what’s the authority for the proposition that “Facebook and Twitter” have “near-monopoly status in various important communications niches”? Footnotes elsewhere in the paper are at war with this proposition.

  13. Given Psaki’s latest revelations, this argument seems entirely moot.

    The big social media companies are actually state actors, working hand-in-glove with the government to do what the latter cannot do by law.

  14. Astoundingly, erstwhile 1A maven EV summarizes without even considering a 4th possible solution—that 1A guarantees of press freedom forbid compelling platform-style publishers from being compelled to host opinions they disfavor. Is that really so far outside the realm of legal possibility that it deserves no mention at all in this lengthy series, which otherwise freely considers upending all the legal infrastructure for online publishing?

    1. Er, that’s pretty much what the first few articles considered in depth, and the conclusion was that the 1A precedents did not forbid that.

      1. Lathrop’s problem — well, one of many — is that he has some idiosyncratic notion that speech and press are entirely different legal concepts, and therefore arguments that address free speech issues do not actually register with him.

  15. I’ve now had a chance to read Prof Volokh’s entire paper [cf my comment to the July 5 blog post]. I accept that there are many good arguments in favor of common-carrier status for social-media providers.

    But all social-media providers have rules in place about user conduct. And if some users are able to gain an exemption from these rules, then the platforms will have to answer other users asking “If that person can say stuff like that, why can’t I?”

    I do not see a way around this central dilemma. If common-carrier status applies to *every* user, then content-moderation is out the window entirely, and I do not see how the sites can survive at scale, or maybe even at all. Facebook and Twitter’s conduct policies are generally understood as “criticality-one” components of their respective business models; if they lose these policies, they start down the steep slope of reduced user engagement due to unpleasant user experience. [While I have not done much research, my understanding is that there are several examples out there, eg 4chan, and individual Usenet groups where most users decamped to a new group to avoid excessive noise. More broadly, Facebook beat out Myspace due to what was ultimately a better user experience.]

    In other words, most users do not want unmoderated content.

    If, on the other hand, common-carrier status is applied to speakers more selectively, then there needs to be a clear answer to the “why-can’t-I” set. Maybe an answer is possible, but I do not see it.

    While Facebook is widely believed to try to use user anger to increase engagement, at least in some situations, they also have made a huge investment in improving user engagement by shielding users from content they may find unpleasant.

    Arguably, Section 230 was created by Congress to support Prodigy’s implementation of this same business model: uncomfortable users rapidly become non-users (or, in Prodigy’s case, the hope was that users who left Compuserve over offensive content would become Prodigy subscribers).

    It doesn’t help any that the Facebook one-to-many communications model proposed is that of writing on one’s page [p 34, the hosting function includes “the contents of posts on one’s own facebook page”]. This is **exactly** where Facebook cannot afford to lose their ability to regulate offensive content. Friending someone, and so being exposed to their content on ones newsfeed, is not the same as subscribing. Twitter’s subscription model is a better fit for common-carrier status, but Twitter too has a strong business interest in not allowing an overall environment that drives away users. [Facebook supposedly has a true subscriber model [Fan Subscriptions?], but I have never encountered it.]

    I don’t think _Turner_ and _Rumsfeld_ speak particularly to the common-carriage proposal; _Turner_ because at the time there was no alternative to cable while now anyone can create a website, and _Rumsfeld_ because it is just too specific.

    I distinguish _Pruneyard_ from the social-media situation because most mall visitors have little or no interest in protesters: they are there to buy stuff. *Every* visitor to Facebook or Twitter is there to read content or to create it, and Facebook and Twitter have an enormous business interest in their good behavior. Also, the malls in _Pruneyard_ inherit their responsibilities to host protesters from the days when stores were all on public streets; by comparison, social-media sites have essentially always either implemented content policies or contemplated it. [Yes, even Usenet.]

    There are several options for improving marginalized access that would be less economically intrusive. First, email sent to a list of subscribers (that is, non-spam) should receive common-carrier protections.

    Web hosting might also receive common-carrier status, because web-hosting providers have a much more limited need for content policies. If this were implemented, Amazon would not be able to veto parler.com. But note that web-hosting providers do have *some* business interest in content moderation: the technical and infrastructure costs of protecting severely unpopular sites from traffic-flooding attacks are *enormous*. AWS and Cloudflare cannot be required to ignore the heckler’s Tbps+ veto.

    More-vigorous antitrust enforcement would help too. We need more social-media options. Facebook is **not** a natural monopoly, precisely because Facebook brings to the table certain content policies, and we need to be able to choose providers based in part on those policies.

    Finally, more social-media open-access rules might help. For an example, see https://www.eff.org/deeplinks/2021/07/right-or-left-you-should-be-worried-about-big-tech-censorship, though I am not advocating the Access Act in particular. But open distributed or federated models of social media are definitely worth considering.

    Peter Dordal
    Loyola University Chicago CS Dept

    1. Peter Dordal: I agree that platform moderation of comments on other users’ posts may be necessary for the platforms to remain useful to users (that’s the Conversation Function I discuss here

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