Alan Rozenshtein, "Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment"

Still more from the free speech and social media platforms symposium in the first issue of our Journal of Free Speech Law; you can read the whole article (by Alan Rozenshtein, Minnesota) here, but here's the abstract:

The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed "First Amendment Lochnerism." Because technology companies' core busi­ness activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment.

To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley's speech.

Comments

[ah....Clem]

Another good article in the series. While I haven’t read all of them yet, I’d highly recommend the ones I have, even the ones I disagree with.

Rozenshtein is simply being realistic when he says “.. a blanket ban on any sort of moderation would quickly turn platforms into cesspools of misinformation, harassment, and obscenity. Thus, as the court notes, “[i]n the absence [of] curation, a social-media site would soon become unacceptable—and indeed useless—to most users.”

And ‘..there is no such thing as a “neutral” platform; as Tarleton Gillespie notes, “moderation is central to what platforms do, not peripheral,” and “is, in many ways, the commodity that platforms offer.”’

This should be kept front and center when discussing possible remedies for whatever complaint one might have about social media sites.

[wreckinball]

Lots of writing but it would seem to boil down to two issues IMO.

1) Platform vs publisher – if you label yourself as a publisher and thus are afforded protection against lawsuits you can’t censor in general with the exclusion of actual criminal activity, e.g. child porn.

Very much like a public utility can’t deny service to a customer because of their political beliefs

2) Anti-trust- not much discussed on this but these companies are obviously acting as a trust. They in lock stop ban and cancel folks. They are not acting independently.

[wreckinball]

Correction if you label yourself a Platform!

[David Nieporent]

Sigh. Section 230 has nothing to do with how you “label” yourself. There is no “platform vs. publisher.” (Indeed, the word “platform” is not anywhere in the law.) Section 230 simply says that no interactive computer service (basically, a website, though it’s broader than that) is liable for content generated by anyone other than itself.

[ah....Clem]

That’s a lot of words to say “I didn’t bother to read the article.”

[wreckinball]

Wow mind reader. So your comment is basically not a comment. Have a counter point?

[ah....Clem]

1) The article makes no mention of the “platform vs publisher” distinction.

2) As so clearly explained here (https://www.eff.org/deeplinks/2020/12/publisher-or-platform-it-doesnt-matter) the “platform vs publisher” distinction is utter nonsense.

[wreckinball]

Don’t GAF that it doesn’t mention it. It is the issue. Still is the issue reading the stupid link you posted,