Free Speech

Net Neutrality and the Social Media Regulation Debate


A lot of the comments on the Social Media as Common Carriers? thread mentioned the "net neutrality" debate from some years ago. And I do think it offers an interesting analog and an interesting contrast.

Now I didn't have a strong opinion on that debate back then (I don't think I posted at all about it, and, if I did, I doubt it was to express an opinion), and I think that was mostly because it seemed to be about technocratic and economic matters. To quote a Wired summary of the issue,

Net Neutrality the idea that internet service providers like Comcast and Verizon should treat all content flowing through their cables and cell towers equally. That means they shouldn't be able to slide some data into "fast lanes" while blocking or otherwise discriminating against other material. In other words, these companies shouldn't be able to block you from accessing a service like Skype, or slow down Netflix or Hulu, in order to encourage you to keep your cable package or buy a different video-streaming service.

Now that may well be an important issue related to consumer welfare and to innovation—so many technocratic and economic matters are—but it didn't feel to be within my academic wheelhouse, which has to do with free speech. It seemed to be the sort of technocratic and economic question that I could leave to technocrats and economists. True, there was an obvious potential implication for political debate:

Other advocates highlight the importance of net neutrality to free expression: a handful of large telecommunications companies dominate the broadband market, which puts an enormous amount of power into their hands to suppress particular views or limit online speech to those who can pay the most.

But it seemed purely hypothetical, at least when I first heard about the net neutrality debate, likely somewhere around 2005-10.

Social media platform decisions, on the other hand, aren't about companies fighting over shares of the economic pie, and possible implications for our streaming service costs. They are about "Whose Rules Should Govern How Americans Speak with Other Americans?" They're not just about potential to "suppress particular views"; they're about the current reality (coupled, of course, with the potential that the zone of suppression is getting even broader, and will likely get broader still).

Facebook and Twitter aren't trying to charge premium prices for entertainment; they're trying to control what viewpoints can and can't be expressed in "the modern public square." Unsurprisingly, that's disturbing even to people who never cared enough about net neutrality to acquire an informed opinion about that debate.

Of course, now that we've seen how some Big Tech companies are willing to use their "enormous amounts of power … to suppress particular views," in a way that I would definitely not have predicted in 2005-10 or even more recently than that, perhaps those of us who sat out the Net Neutrality debates should reconsider. Perhaps we should worry that the Comcasts and Verizons of the world will indeed decide to leverage their economic power into political power, by deciding which viewpoints to block. Live and learn! (Or, to quote the more pessimistic Russian proverb, "live a lifetime, learn a lifetime, you'll still die a fool.")

Still, I think that explains why many of us who left net neutrality to the telecom experts have gotten much more fired up about the social media deplatforming debates. To quote Justice Scalia in Morrison v. Olson (the independent counsel case):

Frequently an issue of this sort will come before [us] clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

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  1. “Net Neutrality the idea that internet service providers like Comcast and Verizon should treat all content flowing through their cables and cell towers equally. That means they shouldn’t be able to slide some data into ‘fast lanes’ while blocking or otherwise discriminating against other material.”

    Except that’s not what the FCC’s “net neutrality” order implemented.

    What it implemented was similar but with an important exception. It didn’t refer to “content.” It referred to “legal content.”

    Which would have effectively put the FCC, as the promulgator/enforcer of the rule, in charge of deciding what content was “legal” and what content was “illegal.”

    It was, in other words, an Internet censorship enabling rule.

  2. I’ve talked with quite a few people who are simultaneously passionately for Net Neutrality while being against the stopping same filtering/censorship by the upstream Big Tech platforms. Still trying to figure out how that logically works.

    1. How that works is that they’re morally wretched scum (which is to say: Leftists) who supported “Net Neutrality” because they don’t want their video streaming slowed down / have to pay more for all the bandwidth they use.

      But they support Big Tech censorship because they’re fascists who know their views are so crappy that they lose in open debate, and they’re stupid enough to think that “Big Tech would never censor me!”

      1. I pretty much agree. My instinct is that this is exactly the wrong corner of the argument. The problem which needs some sort of rules and regulations is not how to package bytes per second of transmission. That is a technical and economic problem, as EV suggests, and we can defer to the market to work out the price structure.
        If it turns out that pornographic video runs slowly and the user has to pay more to get the action factor, that’s still a matter of the cost of infrastructure, and of supply and demand.
        But when the service providers (and government?) conspire so that some content is not available at any price, that’s a different proposition.

        1. “Conspire” is a bunch of guys meeting in an empty room with a single hanging light bulb planning a bank heist.

          Government openly threatening to cause hundreds of billions in stock losses via section 230 changes (see Democratic debates) or breakup unless they censor harrassment, then point out how their political opponents are being harrassing, wink, except they didn’t wink is not a conspiracy.

          It isn’t a voluntary partnership nor hidden.

          I don’t know if there is even a word for it. Fascist Hitlerian Early Stages, maybe, given one of the primary prongs of the definition of fascism is nominal private ownership of business with strong government “partnership”. This explains the quotes.

    2. I can explain it… sort of. (This has always been the flaw at the center of Net Neutrality… and I count myself as a proponent!)

      Net Neutrality seeks neutrality only at the ISP level, not the content level. The idea is that when someone purchases “The Internet” from Comcast, it’s the same Internet as the one purchased from Verizon. We don’t want something where it’s like, “You can’t get Disney± on Comcast because it competes with Universal (which Comcast owns).” Or even, you can get Disney+ but it’s crappy and slow.

      The place where it breaks down is that the content providers themselves also negotiate deals for Internet access. Disney has to pay to get Disney+ on the Internet, and it generally works better to build as short of a path through the Internet as you can, so Disney ends up wanting to push Disney+ to Comcast directly rather than through intermediaries. To what extent does the FCC / Net Neutrality end up regulating all those interconnectivity deals? I don’t think the Net Neutrality guys have ever really answered that question satisfactorily (or at least I don’t know).

      Similarly, Net Neutrality applies to Twitter, but not Twitter users, in theory. I think it’s a little bit easier to draw the lines between a Twitter poster and Twitter than between Disney-as-Internet-customer and Disney-as-content-provider, but the problems are still there. Giving it my best shot…:

      A Twitter poster isn’t “really” a content provider. Twitter is the content provider. How do you know? The poster provides the content to Twitter, not to the Internet directly. Twitter doesn’t claim to (and doesn’t actually) provide Internet service to Twitter users. The user passes a post to Twitter, and Twitter incorporates it into its content offering. It doesn’t make each post independently available on the Internet. It’s like the difference between a Letter to the Editor (Twitter post) and a self-published pamphlet (web site).

      So… pretty weak. But like the Disney-as-content-provider / Disney-as-Internet-customer problem, the policy distinction makes more sense that the technical one. What I as Net Neutrality proponent would say is, the purpose of Net Neutrality is to make sure all content providers have access to the Internet to publish whatever they want. Including, Twitter can do what they want. Facebook can do what they want. You can do what you want. Worst case, if you don’t like how any of the existing content providers do business, you can publish to the Internet directly yourself… because of Net Neutrality. (It’s actually pretty easy to set up your own website these days.)

      Sorry this is a little rambly, it comes with the territory. Tech is hard to pin down because it’s so malleable. All attempts are circular because tech invents the categories to begin with… a content provider has editorial control because having editorial control makes you a content provider. The best you can do is agree or disagree that the given categories should exist… should anyone get to have editorial control? Should anyone not get to? If you generally agree that there should be both categories of thing, that’s Net Neutrality. After that it’s just figuring out who is in which category. But you’ll always be able to make the argument you’re making, because the categories are basically arbitrary.

      1. I believe Randall’s is an accurate summary.

        I have effectively one choice of ISP, so I am at their mercy. If that ISP chooses to prioritize certain websites or services over others, that determines which ones will be competitive or successful or even available to me and all their other subscribers. If I don’t like it, I’m free to switch to … well, sorry, there isn’t another ISP serving my address.

        And with that power to choose who can access their customers comes a terrific opportunity for profit with no effort beyond turning a knob. Oh, sorry Hulu/Netflix/whatever, we provide our subsidiary’s streaming service on the fast lane for free. That’ll cost you $20/month per customer. You can pass that cost along to your subscribers, if you can get any, haha.

        The big ISPs also see net neutrality as the slippery slope to turning them into basic utilities and/or common carriers, which in reality they should be – because they’re effectively monopolies, thanks to years of lobbying and regulatory capture. Most larger US cities have one high-speed ISP covering any particular address. Rural areas can get dial-up speeds at best. Yet Congress continues to hand out billions in subsidies every year to “better reach under-served areas”, despite that never actually happening.

        The platform/speech/editorial debate is (or should be) completely separate from net neutrality.

        1. Where the heck are you living? I’ve got three high speed internet options here, in a suburb of Greenville.

          The truth is, you only get these monopolies if the local governments conspire with the service providers. Granted, there IS a lot of that going on. But it’s not a technical issue, it’s a local government being bribed issue.

          1. AT&T’s website offers DSL to my new home, but when I called they said the wires are too rusty, even though my neighbor as AT&T, as did the person I bought the house from. Suddenlink (aka Altice) says they can give me 1GB cable, but when the installer showed up he said it was too far away (it’s 800 feet). I’ve called every week for two months trying to get them to tell me how much I’d have to pay them to pull it. T-Mobile says they can’t cover my address. Those are my options. This is in a Texas city of over 100,000 people.

    3. 1) Due to the cost of the “last mile,” internet service providers tend to be natural monopolies. True, many locations are serviced by more than one ISP, but many are not. Now, you can argue that social media companies also have monopoly power due to network effects, but that seems to me to be a weaker argument. On June 28 the FTC’s case against Facebook was dismissed because the FTC failed to allege sufficient facts to establish that Facebook had monopoly power. That may not be the end of the story, but it show that claims of monopoly power is not a slam dunk.

      2) ISP’s are an obvious fit for the common carrier model. Eugene Volokh has presented the argument that common carrier status is also applicable to some of the functions performed by social media platforms, but again that’s a much tougher case to make.

      3) Closely related to point 2 is that attempts to control social media companies raises freedom of speech issues. Internet service providers are paid to transport data. Social media platforms are dependent on providing users with material that users want to view. Content regulation has the potential to destroy their business model.

      In short, there is plenty of room to support Net Neutrality while wanting to stop short of regulating social media companies.

      1. This seems right. In fact the takeaway is, it’s more reasonable to be pro Net Neutrality and against social-media regulation than vice versa, since social-media regulation is the more extreme policy. If you’re pro social-media-regulation, you kind of have to be pro Net Neutrality, otherwise what’s the point?

    4. Common carriers shouldn’t be able to throttle services, but services themselves have no obligation to publish anyone in particular’s opinion… how is that hard to imagine?

  3. A little late. 5G will replace internet services. Many young people stopped their cable service. Wait until you get a hold of 6G. Norway has 7G going. NASA has 10G going, 13000 times faster than the crap the lawyer is arguing over.

    As is true in every instance, technology is the solution, not the stinking lawyer profession.

    Get with it, Eugene. Wake up.

  4. now that we’ve seen how some Big Tech companies are willing to use their “enormous amounts of power … to suppress particular views,”

    Of course they contend they are suppressing misinformation, and misinformation is not a “view”. Have you concluded otherwise?

    1. Voize of Reazon: (1) The platforms proudly announce that they are suppressing certain viewpoints, under the rubric of “hate speech.” Facebook has just extended that to certain supposedly potentially harmful “[c]ontent attacking concepts, institutions, ideas, practices, or beliefs associated with protected characteristics.”

      2. Much of the suppression of misinformation is indeed the suppression of opinions about what might happen in the future — e.g., what the effects of this or that approach to masking or vaccination might be. That strikes me as suppression of particular views. But in any event, if you’d place it in a different bucket, category 1 indubitably involves suppression of views.

      1. Professor Volokh, do you suppose, “suppression,” is a government capability, or a private capability? Or that it can apply equally to either?” If the latter, can you imagine what you might say to make the case that private editing and government suppression are comparable evils?

        1. “can you imagine what you might say to make the case that private editing and government suppression are comparable evils?”
          Why would he bother to address such a patently false concern?

          1. Don Nico, Volokh just did address that concern. It was the subject of his comment above. Perhaps you did not get that.

            Of course he, and perhaps you, object to the notion that the activity which Facebook practices when it omits to publish hate speech is private editing. Your opinion may be to the contrary, but calling it a false concern does nothing to dignify the question begging you practice by saying so. Volokh will practice the same vice tacitly if he does not answer. I have put that question to him repeatedly in various forms—for instance after he solicited objections to his scheme to turn internet platforms into common carriers. I have yet to get a reply.

            I assume Volokh dodges the question because it embarrasses his advocacy. Perhaps he thinks anything to do with premising that Facebook practices publishing—and enjoys the 1A press freedom privileges and immunities which protect the rights of publishers—is better left undiscussed.

            Perhaps you think that too. I can see why, if you don’t have convincing answers to a challenge which prestigious legal authorities—Lawrence Tribe, for instance—have also made, you might prefer evasion to embarrassment.

            In these threads about the near-magical legal transformation of internet publishers into common carriers, I have tried repeatedly to stimulate discussion of what that would do to the rights of publishers. In exchange I got back nothing better than ad hominems, empty legal formalism, or ipse dixit style denials. Unless the question of the constitutional rights of publishers plays no part in your peculiarly dismissive answer to my comment, why don’t you take up my, “patently false,” concern and show why it is without foundation?

            1. SL,
              Perhaps EV typed his answer after I did. Have you not figured out that comments do not appear in strictly chronological order?

              Of course no one not even you know the real definitions of hare speech beyond it being speech that you don’t want to hear. When Top executives get beat up in Congressional hearing that is Government having a heavy hand.

              A cheap appeal to authority: Lawrence Tribe is a highly respected academic; he is not the Pope and I don’t fall on my knees to kiss his ring.

              Let’s face it. You have a one track mind on this topic and that track is invariably closed in every on of your posts. Facebook is a publisher in some instances but not in most. Look who’s begging the question.

              By the way you brag about having been a publisher. Tell us the truth, one a many in a giant company. Publisher of a neighborhood newspaper. Tell us about your real level of experience in publishing instead of chest beating

    2. Did any censor anywhere ever publicly admit to suppressing the truth?

    3. “they contend they are suppressing misinformation”

      That’s nice.

      Since it’s objectively the case that they’re not in fact doing that (unless you define “misinformation” as “anything that makes the Left look bad”), I guess that next you’re going to ask us if we’ve “concluded otherwise” that the Chinese Gov’t Ulghar concentration camps aren’t really happy fun summer camps?

  5. Ostensibly about social media platform practices, the conversation is turning into a parade of right wing talking points, punctuated with whines. Dismaying to see EV leading the way.

    You guys are getting what you demand, and deciding you don’t like it. None of your complaints about viewpoint suppression ought to be taken seriously, so long as they come couched in ambition to suppress press freedom, and to use government to force outsized publishers to promote right wing ideology.

    There are free market solutions to those problems—solutions based on cherishing press freedom, and on government policy to foster profusion and diversity among private publishers. Right wingers don’t want those. They instead expected the internet would put a tool in their hands to scourge the hated, “mainstream media”—an outcome they would greatly prefer to press freedom. They continue to demand that outcome, even though the tool they sought is delivering a different result than expected. So they want government to adjust that result to favor them, to give them what they expected.

    EV, please try at least to notice that the results your followers wanted all along included, right at the very top, wrecking the nation’s institutional press. Is that you too? Nothing in your recent advocacy seems to suggest otherwise.

    1. I do not read the intent that way. The goal of whomever it is was not to get the Main Stream Media out of the way. The MSM are not and never have been the problem for, let us hypothesize, the Deep State interests which seek to rule. The MSM are useful idiots, who have long been purchased fore the right price. Check out Matt Taibbi on substack. He has long been analyzing how news coverage is for sale, and how creating controversy serves the news business.

    2. “You guys are getting what you demand, and deciding you don’t like it. None of your complaints about viewpoint suppression ought to be taken seriously, so long as they come couched in ambition to suppress press freedom, and to use government to force outsized publishers to promote right wing ideology. ”

      You are so completely full of it

      Our “demand” is that companies not be able to act like publishers, while not facing the liability of publishers for what they publish.

      We’re not the ones trying to get Fox News, OANN, etc. driving off the internet, that’s your President, and your side.

      You leftists would be far less disgusting piles of garbage if you’d just stop projecting on us all of your sins.

      Was the blacklisting of communists wrong? Was what McCarthy was doing wrong?

      Then stop defending the Left for doing the exact same things. But instead of doing them to willing tools of America’s enemy, the mass murdering butcher Stalin, the Left is going after those Americans who actual love America.

      I’d ask if you had no decency, but the answer is so clear the question need not be asked

      1. The idea that facebook et al would opt for allowing porn, blatantly racist content and the like and devalue their product with the advertisers seems difficult to o believe. They’ll sooner forego section 230 protection and implement some automatic takedown procedure like they do for copyright claims.

        1. “The idea that facebook et al would opt for allowing porn, blatantly racist content and the like”

          Twitter allows porn.

          All the social media companies allow “blatantly racist content”, like CRT. “Racist” means “treating people differently because of their skin color”. “Sexist” means “treating people differently because of their sex.”

          Do let us know when the social media companies start deleting all posts attacking “white males”, or “cis white heterosexual males”, or “whiteness”.

          Allowing the Iranian mullahs who call for genocide against Israel on their platforms most certainly counts are “and the like”, and the social media companies do that, too.

          So, anything else you want to claim those companies “won’t do”?

      2. Greg J, thanks for the Q.E.D.

        I have repeatedly joined the harshest critics of the mainstream media, when they deserved it, as they often do. I began calling for repeal of Section 230 literally years ago, long before practically anyone else anywhere. I have called for that so often that other commenters here are heartily sick of it.

        But more pointedly, I have also insisted again and again on a corrective which would not only leave press freedom in place, but do so without dangerous reliance on government censorship or compulsion. The remedy, of course, is policy to promote diversity and profusion among private publishers, with Section 230 repealed. And that is apparently where right wingers draw the line. They don’t like the sound of protection for private publishing. They actually do like the out-of-control giantism of internet platform publishing. They want to use it themselves. They want government to compel that result.

        That is what all this control-the-platforms advocacy has been about. It is what your spewing is about. It is why you give the lie to your own advocacy by ignoring a better solution—diversity and profusion among private publishers—which would more securely protect what you say you want—in favor of a “solution” which is just a continuation of the same problem, but with more government compulsion behind it. What you want is the kind of press compulsion right wingers enjoy.

        1. “The remedy, of course, is policy to promote diversity and profusion among private publishers, with Section 230 repealed. And that is apparently where right wingers draw the line. They don’t like the sound of protection for private publishing.”

          This is utter garbage.

          I’ve argued repeatedly here for the complete elimination of Section 230.

          I also understand that you can’t have anything like FB, Twitter, etc, without the Section 230 protections.

          Which is why I’ve said that once the current social media companies have all gone bankrupt from lawsuits after Section 230 is gone (just like Napster went away after it’s protection from copyright law went away), we need a new version of Section 230, that only protects those who don’t engage in political bias in their “filtering”.

          Which is nothing at all like the straw man you keep on beating up.

          “They don’t like the sound of protection for private publishing”? If by that you mean “they think that private publishers should be subject to libel laws”, you might have a point. Beyond that, you have none. Which is why you provide no actual examples of this horrid behavior

        2. “That is what all this control-the-platforms advocacy has been about. It is what your spewing is about. It is why you give the lie to your own advocacy by ignoring a better solution—diversity and profusion among private publishers”

          I also don’t propose that we feed the word by giving them unicorns who poop magic skittles that provide a complete daily diet.

          We HAD “diversity and profusion among private publishers”. It got crushed out of existence. And will always get crushed out of existence so long as any large social media companies exist, and so long as left wing billionaires exist that are willing to fund the destruction of any viewpoint they don’t like.

          Barring ongoing government intervention FAR more intrusive and powerful than anything proposed by “the right” here.

          It is not “government censorship” or even “government control” to say that “if you want Section 230, you can’t censor based on politics”. You’ve provided no evidence of any other “right wing programs” to back your delusional claims

    3. “so long as they come couched in ambition to suppress press freedom”
      There you go again.

  6. “wrecking the nation’s institutional press”
    That has been going on for at least three decades. The Internet has come close to driving in the last knife.
    Yours is the same old whining as if you are the guardian of press freedom.

    1. Don Nico, the nation has plenty of guardians of press freedom, mostly beleaguered, confused, and full of ill-advised advocacy about solutions. That does not make my advocacy like theirs.

      By the way, while you are being dismissive, what is your suggestion for how the nation’s public life will get along without the professional news gathering—once it is all gone—which internet publishing is so conspicuously diminishing. Please describe for me what the internet business model to support news gathering looks like.

      1. The fellows in the former are fighting a losing battle. WaPo is a case in point. I am not in the newspaper business nor in the network news business.
        I am not the expert to tell them how to save a dying species like the dinosaur. Network news has a far better chance because people can be more passive consumers.
        Your “internet business” model is a fake one. A grubber after personal information to sell to advertisers is hardly a great newspaper. That is what FB started as and still is. And every time that Zuckerberg and friends get hauled in front of Congress they announce that they will censor more of what they consider false information.
        Let’s forget the questionable hate speech and look at commentary related to the pandemic. There is scant scientific based to remove material contrary to CDC pronouncements or Administration preferences. What we see is pandering to power.
        If that is what you see as a great free press, we are better off without it.

  7. The part about the right-wing whining that I don’t understand is this. There are tons of right-leaning social media platforms out there. Let’s take Parler as the example du jour. How would this proposed common carrier / anti-censorship / neutrality policy affect it? Would it be required to carry left wingers too? (Before you say that Parler doesn’t editorialize by blocking comments, I have been kicked off many a site for being too liberal, so it happens.)

    If it’s just a matter of announcing your editorial policy in advance… well as EV pointed out in a comment above, Facebook has done that. They say they’re going to delete what they consider to be hate speech, and then they do. Could Parler announce a similar, conservative-friendly editorial policy under this new regime or not?

    In other words, let’s just imagine you’re right and that Facebook and Twitter are left-leaning. Ok…? Why is that not allowed? Or do you agree that Parler has to go too?

    1. Randal: I believe Parler’s stated policy was that they’d be delighted to host liberals, and I don’t believe that they ever publicly stated they would ban left-wing users (or even left-wing commenters). Perhaps they did in some situations, but I don’t think their doing so was necessary to their viability.

      1. I admit to not knowing much about Parler so it may not be a great example. But you answered my question I think: no, you could not have a right-leaning site (that blocked liberal trolls). Every site that’s open to user content (no matter how small or niche) must be open to all comers (up to legality). Is that the idea?

      2. Parler’s TOS includes language that says they may remove content and ban users “at any time and for any reason or no reason”, and there’s ample evidence of them banning left-leaning users. (

        As with so many other public figures, pay attention to what they do, not what they say.

        Meanwhile, over at Gettr, Stephen Miller has bragged about identifying “left-of-center people” to “catch them and delete some of that content”.

        And in both cases, that’s their right as the owners of that site. But don’t buy the BS that either is a bastion of free speech.

  8. The issue with social media moderation is that if you don’t have it, your site can quickly become a cesspool. Facebook and twitter have had moderation for almost their entire existence. It’s only become an issue when Covid-19 became a political issue. Gettr tried running without moderation, and it’s quickly become a home for furry Sonic porn. Usenet’s mostly unmoderated, and consequently almost completely irrelevant.
    Also, if you get kicked off of Facebook, twitter, gettr, Parlor, and instagram, there’s nothing stopping you from creating your own web site. An awful lot of popular left and right wing web sites were created by people with no more resources than Josh Blackman (who’s hosting darn near everything he wrote on his own web site).
    One of the fears of people behind net neutrality isn’t ISPs having fast and slow lanes so much as them blocking content completely. Right now, there’s nothing preventing Comcast from blocking Reason access to all of its subscribers. (There are ways around that using VPNs, but ISPs don’t like them either.) Heck, ISPs have occasionally been caught altering web traffic. (Https helps, but there are tricks you can use to try to force https to use breakable protocols for compatibility.)
    It’s definitely something to worry about.

    1. “net neutrality isn’t ISPs having fast and slow lanes ”
      You can get from NOVA to DC using the “surface” streets or the toll road. What exactly is wrong with that?
      Unlike the foolishness of Amtrak in which you can pay double and get there more slowly, in Japan I can take the Shinkansen, pay double and get there twice as fast. What really is wrong with that beyond the American dream of a free lunch?

  9. It’s true that the end-to-end chain has been neglected in Professor Volokh’s analysis. Pointing out the net neutrality link is evidence that there is a chain. I could argue that the power company that enables the social media sites and the ISP facilities is another link. My Internet comes from a local WIFI provider who provides the last few hundred feet. Creative thinking may reveal more links in that chain.

    My point is that the whole topic of viewpoint suppression and common carrier status makes no sense one chain link at a time. Only end-to-end analysis including all providers makes sense.

    1. Agree that one needs to include the entire chain for a complete analysis. Where we may differ (and I’m not sure we do) is that my view is that common carrier status is appropriate for some links in the chain and not appropriate for others.

      For instance, if the electric company (and nearly everywhere in the US has *one* electric company) decides to cut off service based upon the content being served, that’s problematic. There’s also typically *one* high speed internet provider (although that may change in the future) so applying common carrier rules there makes sense.

      As for social media sites, there are literally hundreds of thousands of ways to communicate in a many-to-many manner via the internet, so unlike the electric company or the ISP there’s plenty of other places to go to get your message out. The big players (facebook, YouTube, Reddit, Twitter) may be monopolies in their particular niche, but they are hardly monopolies overall. We are living in a golden age of free speech in terms of how easy it is to post something and have it seen by many others. The comments section here is merely one of a myriad of options for getting your message out.

      1. An example from personal experience. I visited a MacDonalds restaurant once to use my computer. I could reach every web site I tried except Foxnews. Clearly, that local link was blocking.

        There’s no reason why the last link couldn’t be the smart device I’m holding in my hand, or my smart hearing aids. Either of those could conceivably block content selectively.

        Social media are big, wealthy, and national or global in scope. That makes them low hanging fruit for regulation. But regulating them might not solve the problem of broken chains.

        1. An example from personal experience. I visited a MacDonalds restaurant once to use my computer. I could reach every web site I tried except Foxnews. Clearly, that local link was blocking.

          Or, you know, Fox’s website was down at the time?

      2. The big players (facebook, YouTube, Reddit, Twitter) may be monopolies in their particular niche, but they are hardly monopolies overall.

        I don’t see that is necessary to confine this discussion to monopolies. We are not talking antitrust. I might argue that content blocking it is more like wedding cakes for gay weddings.

        If we expanded the civil rights laws to prohibit discrimination on the basis of viewpoint, I expect that it would apply to everyone, regardless of size or market power.

  10. Professor Volokh,

    Realizing it’s a bit off topic, perhaps you might want to post about the 2nd Circuit’s refusal to revisit its decision that Section 230 conveys an essentially unlimited authority on social media providers to censor for anything they don’t like without fear of liability, and the the list of specific examples doesn’t serve as a limitation on the types of things they can censor for while remaining exempt.

  11. On average and world wide, Netflix takes up 15-20% of internet total bandwidth. Why shouldn’t such bandwidth hogs pay a little extra to support infrastructure maintenance and expansion, since they are slowing down response times for us “little guys.”

    1. What makes you think that they don’t?

      1. Yet “net neutrality” would make that “illegal.”

        1. Netflix does pay extra. They pay to get all that data onto the Internet in the first place. It’s not like they have a free hook-up.

          The question is whether each ISP in the chain — especially the end user’s ISP — can charge content providers AGAIN to carry that content.

          It would be like if you sent something FedEx, but then if your package happened to end up on a truck driven by Hank, he would hold it hostage unless you paid him $50 personally to deliver it. And Hank didn’t charge everyone, just people he didn’t like. (If he really doesn’t like you he’ll just destroy your package.)

          Net Neutrality says no to that. Or at least it tries to. In practice it’s hard to distinguish Hank from FedEx, and between paying more for overnight service and paying more because Hank doesn’t like you. But it’s the basic idea anyway.

          1. Randal,
            The extra cost of a hook-up is obvious. The issue is the bandwidth required for transmission.
            You cannot really believe that governments will not establish their own limited access superhighways as streaming services and gamsters gobble up more and more bandwidth. The present model is heading for collapse.

            1. Uh… sure, the idea of a limited access high-speed network comes up all the time. There probably are a lot of them already… research networks, military networks, private networks, emergency networks, medical networks, etc. But none of those are the Internet, so Net Neutrality doesn’t apply.

              1. For years there have been plans to consolidate into an Internet 2.0 which would be a “toll road.”
                But what really is the excuse for major streaming services to pay the same per transmission (excluding front end costs) as those of us who traffic is slowed by the major users.
                Already Netfilx and gamers often clog local networks.

                1. I don’t understand what that means. If this was a public resource I would get it. Like, I can see being frustrated sitting in traffic, if you’re just trying to drive to the store once a week, and you’re stuck behind these daily commuters, Amazon trucks, etc., even though everybody’s paying the same taxes.

                  But the Internet isn’t like that. You pay for usage. It’s not like Netflix just has the same Comcast 100 Megabit plan that you have. They pay for all that bandwidth. So…?

                  Maybe your problem is that your ISP has oversold themselves, like an airline. If you paid for 100 MB but you’re not getting it because of all the Netflix streamers, that’s not Netflix’s fault, that’s your ISP. That’s like saying retirees should have to pay more for airline tickets, because you’re always getting bumped off your oversold Delta flights that are full of grandmas going to visit their grandkids. Blame Delta, not the grandmas.

                  Net Neutrality, if anything, is in your favor here. It prevents ISPs from favoring Netflix just as much as it prevents them from disfavoring it. (ISPs have some incentive to prioritize other people’s Netflix over whatever you’re doing, since people with bad Netflix reception are likely to be unhappy, and video is very sensitive to network conditions. Net Neutrality ensures they treat your traffic as well as everyone else’s. For the most part.)

  12. It cracks me up a little bit that the right has latched on to misinformation and hate speech as the two movement-defining modes of speech that they can’t live without.

    How far out to sea will they get before they sink, really, is the question.

  13. … and it occurs to me that the fear on the right isn’t really about social media at all but about social acceptance generally. That is, even if Facebook and Twitter were forced to carry right-wing hate and lies, that speech still wouldn’t get any respect. So the right would keep feeling persecuted.

    I worry about the concentration of power in the big social media companies, but I don’t worry about Parler and the VC comment section. In fact I like Parler and the VC comment section. I think, all in all, it’s good to have a diversity of public forums that cater to specific viewpoints, and it’s important to be able to keep the trolls at bay in keeping those forums vibrant.

    The concentration of power in Facebook was a problem for the left in 2016, when outside influences figured out how to take advantage of its algorithms. The more active moderation we see today can be traced in part but directly to the blowback from 2016 (in the context of both Brexit and the US presidential election).

    So I would be very happy to see limitations on the size of the big platforms, whether that’s in the form of antitrust or something more akin to the ownership limits that newspaper and TV station owners face (or at least used to).

    But the right doesn’t want to go there, and I think it’s because they know what would happen: none of the baby Facebooks or baby Twitters would want to host misinformation and hate speech! It wouldn’t accomplish anything from their perspective.

    And fundamentally, that’s because misinformation and hate speech will never command the respect of the American public. The right will never get what it really wants.

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