My "Treating Social Media Platforms Like Common Carriers?"

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 here, but here's the abstract:

The rise of massively influential social media platforms—and their growing willingness to exclude certain material that can be central to political debates—raises, more powerfully than ever, the concerns about economic power being leveraged into political power. There is a plausible (though far from open-and-shut) argument that these concerns can justify requiring the platforms not to discriminate based on viewpoint in choosing what material they host, much as telephone companies and package delivery services are barred from such viewpoint discrimination. PruneYard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rums­feld v. FAIR suggest such common-carrier-like mandates would be constitutional. On the other hand, platforms do have the First Amendment right to choose what to affirmatively and selectively recommend to their users.

Comments

[Jimmy the Dane]

Liberals in the 2020's = Corporations are EVIL and should have no rights! Democracy is by the people not companies!

Liberals in 2021 = Private companies are free to police as much speech as they want. We absolutely don't mind that most democracy these days takes place on a handful of social media platforms and is subjected to viewpoint censorship because we convinced those companies that our "side" was right. (Our position will change if those nasty Republicans ever win the censorship wars though and start canceling us.)

[Bubba Jones]

Conservatives are the reciprocal.

Which makes me think it says more about political party than political philosophy.

[Sarcastr0]

You think liberals like and trust silicon valley?

Not buying your dumbass cries of being silenced is not the same as getting into bed with Bezos.

[James Pollock]

Not that it matters, but Amazon isn't from/in Silicon Valley.

[TwelveInchPianist]

"Not buying your dumbass cries of being silenced is not the same as getting into bed with Bezos."

Dumbass cries? The former president is not allowed on social media. Like him or not, some folks might want to hear what he has to say.

Heck, I'm so old that I remember you cheerleading the silencing of the New York Post because you claimed, without evidence, that the story was a Russian op.

[James Pollock]

"Dumbass cries? The former president is not allowed on social media"

The "billionaire" former President launched his own social media site, which he is not allowed on because he chose to shut it down. Boo Hoo.

[James Pollock]

"Like him or not, some folks might want to hear what he has to say."

Not enough wanted to pay for it to keep his interest, apparently.

[Brett Bellmore]

"Liberals in 2021 = Private companies are free to police as much speech as they want. "

LOL! Not if they want to refrain from policing speech, so far as I can see.

[James Pollock]

If you don't like the fact that a social media business censors things, stop using that social media. Duh.

[Aktenberg78]

If you don't like the fact that a baker won't bake a cake for a man whose idea of "marital love" is ejaculating into another man's colon and playing house, then stop patronizing that bakery.

[James Pollock]

Done. Any other fantasizing about ejaculating into another man's colon you'd like to indulge in, or have you finished already?

[James Pollock]

Here is the deal. The Internet is an interconnected network of networks and anyone can set up a network and offer services on it. Whether or not anyone cares that you have done so depends on how useful the service or services that you offer turn out to be. Sometimes, whole services have fallen into disuse because someone, somewhere developed something better and millions of people made an independent decision to switch. If you don't like the way current services are operated by their owners, build something better and steal all the market share.

[Rev. Arthur L. Kirkland]

Earn all the market share?

[James Pollock]

No, I said "steal" because I meant "steal".

In the alternative, you could build one that doesn't already exist.

[Brett Bellmore]

"and anyone can set up a network and offer services on it."

Sure. They may find that credit card companies stop processing their payments, that their legal firm drops them in the middle of litigation, that their IT security service opens a window for attack and lets a hacker group know, they may even find that DNS services refuse to resolve their url to an IP address, but, yes, you can set up a network and offer services.

[James Pollock]

Right, the conspiracy ideation is precious, but meanwhile, in the real world...

If your lawyer drops you in the middle of litigation, your new lawyer will be happy to file both the malpractice lawsuit AND the bar complaint.
If their DNS services refuse to resolve their url to an IP address, they should set up their DNS server correctly the next time.
If they are dissatisified with their "IT security service", they should take the time to learn how IT security works.

[Aktenberg78]

It's happened you fucking moron.

[James Pollock]

I'm 100% sure that people who didn't know WTF they were talking about complained about mistakes they made while blaming it on shadowy, unseen forces.
But it's still people who didn't know WTF they were doing and/or didn' t know WTF they were talking about. Feel free to become someone who knows what they're doing, and/or someone who knows what TF they're talking about, and watch all those shadowy, unseen forces disperse into mist. Nah, that won't happen.

[David Nieporent]

that their IT security service opens a window for attack and lets a hacker group know,

Why do you keep repeating this fabrication?

[James Pollock]

Because, like most people, he doesn't actually understand how IT security works.

[James Pollock]

Notice the angry denial accompanied by evidence that I guessed wrong. Oh, wait, no he just slinked away.

[ah....Clem]

Reading through most of the articles in issue #1, a recurring theme is that any social media site that doesn't curate, moderate, or otherwise process whether and how prominently user provided content is displayed is basically useless. And as a corollary, almost all proposed solutions would do more harm than good.

Rozenshtein 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.”

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. In particular, any must-carry requirement as part of the "common carrier" designation would effectively end the business model of these companies.

Would government mandated common carrier status pass the strict or intermediate scrutiny test? Perhaps, but it would be an exceedingly poor choice for public policy.

I'm surprised to see Prof Volokh so solidly on the side of government regulation, seemingly much more so than the other authors in the first issue of the Journal.

[James Pollock]

Ah. in other words, if you actually know how things work, the Conservative position becomes untenable. Shame that keeps happening.

[ah....Clem]

Unfortunately, it's not just "conservatives" who are clamoring for more regulation of social media.

[James Pollock]

It's the Cons what are suddenly strident about their right to use other peoples' stuff without their (the owners') permission to use it. These are the same people who can simultaneously clamor for an end to the eviction moratorium and for a beginning of an abortion moratorium, without noticing any similarities between what they're for and what they're against.