Free Speech

"Social Media and Common Carriage: Lessons from the Litigation Over Florida's SB 7072"

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Corbin Barthold of TechFreedom has this article up at the Washington Legal Foundation site, which offers a different analysis from the one in my Treating Social Media Platforms as Common Carriers? article; I thought I'd pass along the link, together with the opening paragraphs:

In April, Justice Clarence Thomas, writing for himself in an otherwise unrelated case, speculated about whether large social media websites should be treated as common carriers. The following month, Florida Governor Ron DeSantis signed into law SB 7072, a sweeping set of restrictions on how the companies that run such websites shall moderate what is said on them. SB 7072 forces the likes of Facebook and Twitter to host various categories of speech against their will. Florida may do this, SB 7072 says, because "social media platforms" may "be treated similarly to common carriers."

SB 7072 was bound to get challenged in court, and that litigation, in turn, was bound to test the common carriage theory put forth by Justice Thomas. So it has come to pass. Two groups of internet companies promptly sued, a judge issued an order preliminarily enjoining most of the law, and Florida appealed. Both the judicial opinion, written by federal District Judge Robert Hinkle, and Florida's opening brief on appeal, filed earlier this month in the U.S. Court of Appeals for the Eleventh Circuit, address whether it makes sense to treat social media as common carriage.

What can be learned from these discussions of the common carrier theory? Judge Hinkle concludes that social media websites are somewhat like common carriers, but ultimately more like traditional speakers fully protected against government-compelled speech (hence the preliminary injunction). Florida, naturally, argues the common carrier theory to the hilt, relying heavily on Justice Thomas's work along the way. Neither the judge nor the state depicts common carriage in a way that's at once accurate, useful, and convincing. Identifying the holes in their thinking returns us to a conclusion that would, in a less anxious time, be obvious to all. Websites—even large ones that host the speech of others—are engaged in expressive conduct protected by the First Amendment.

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  1. As I commented earlier, we may have to wait for the equivalent of the Church Committee hearings to find out exactly how much coordination there is between government authorities (here and abroad) and the social-media giants.

    We already know about some of it. My hypothesis is that the real situation is even broader.

    I’m just brainstorming, but what would happen with a law providing common-carrier status but exempting companies which *don’t* coordinate with governments here or abroad? Would that be practicable or constitutional?

    1. The opinions of these judges are highly offensive. Turn off their garbage removal, water and electricity.

      Count on the lawyer profession to side with the servants of the Chinese Commie Party.

      Is the internet an essential utility product? It has been turned off for conservatives, including President Trump. Can Comcast turn off Trump’s internet at Mar-a-Lago? Can he do any work, including business transactions, without it? These judges are saying, yes. Do it to them, see how they like living utility free.

      1. YouTube blocked all channels saying, the origin of COVID was in a Chinese lab. After finding 80000 animals sample to be negative for COVID, the lab origin is a real possibility, with grants from Fauci, of course. Should Google be allowed to do that?

        1. Sure, why not? It’s not as if Google prevented you from learning the evidence against the Wuhan lab.

          Now, DeSantis’ law is also directed at TOS reform, and there I’m inclined to be with him.

          1. Real fans of the Constitution, you are (both of y’all).

            The good news is that when God finally gets around to punishing us for letting the gays get married, and makes the seas rise, Florida will be Atlantis’ problem.

    2. Hmm…interesting. My first take is: Clever idea. Large companies could then make a choice about coordinating with govts (fed, state, and local) or not. My second take is a bit different. According to your law, I think; if my company want full protection, it means I can no longer report to authorities when users post child pornography. I can take it down, of course. But anything close to reporting would of course be a form of coordination.

      I gave child porn as the example, but there are dozens of other ones. I’m not sure I’m convinced that, on balance, we’d be better off with media companies being forbidden (assuming they want that robust protection) from any coordination.

      1. Common carriers would have to carry child pornography? Are there other common carriers which have been so required?

        1. You misread. He said, “…if my company want[s] full protection, it means I can no longer report to authorities when users post child pornography. I can take it down, of course.”

          But he anyway doesn’t seem aware of the well established law that private actors are subjected to some of the restrictions ordinarily directed at government entities when they act at the direction of government entities.

          OT: Where is how this execrable Reason commenting software enables bolding, italics, etc., documented?

          1. Well, let’s see.
            If this is italics, <em> worked.
            If this is bold, <strong> worked.

            If this is a blockquote, <blockquote> worked.

            1. I wonder what tags all work…
              Abbr
              samp
              Small
              Del
              h1

              Summary
              Details

              1. I recognize some of that markup from Wikipedia (mostly forgotten), Disqus (most used by me), etc., and gather it is derived from html, but it seems rather random. Del instead of s, strong instead of b, em instead if i, …. But thanks, that helps. I’ll bookmark this.

        2. That obligation is presumably news to the USPS employees, FedEx workers, and others who work to interdict drugs, child pornography, and other contraband.

          1. “That obligation…”

            You comment is in response to who saying what?

            1. Cal Cetin asking whether common carriers have to carry child pornography. (They don’t, and never have, and are allowed to work with the government to catch child porn or drugs, with the goal of prosecuting senders and knowing intended recipients.)

              1. Common carriers are never required to be complicit in crimes if they are aware of them, but it seems a bit much to generalize this to a right to refuse to be complicit in legal uses of their services.

                Indeed, why would it ever occur to someone to analogize the sort of normal political speech Facebook and Twitter have lately been censoring to “drugs, child pornography, and other contraband”?

                1. The original analogy with child porn was an argument saying that if social media companies were regulated as common carriers, they would also be required to carry child porn. It was premised on either a deep misunderstanding of how common carrier laws work, or the kind of comparison that you criticize. Either way, it was not a compelling argument.

      2. OK, wise guy, coordination in suppressing 1st-Amendment-protected speech. I should have known I couldn’t get away with shorthand on this blog.

        1. Your comment is in response to who saying what?

      3. “According to your law, I think; if my company want full protection, it means I can no longer report to authorities when users post child pornography. I can take it down, of course. But anything close to reporting would of course be a form of coordination.”

        The way this would work is that the company will deploy a child-porn detection engine that scans all the files stored on their servers, and does not report them to law-enforcement. Rather, an automated email will be sent reminding you that storing child porn in their system violates the terms of service, and for a small additional fee, you can disable the child-porn detection engine on files you store on their service.

  2. I’m surprised that the court didn’t simply invalidate the law as regulating interstate commerce, since Twitter and Facebook don’t appear to even try to discriminate between customers in different states or even countries, and it would be hard to do if they tried.

    1. There is no indication in the district court´s opinion that any party made such a claim.

    2. The law does many things, and I assume contains the usual declaration of the separate validity of its parts. You’d have to be more specific as to how its provisions violate Federal supremacy before I could evaluate your suggestion.

  3. Big Tech has a level and type of dominance that would make the monopolies of yesteryear blush. Reining it in a bit should be one of the least controversial regulations among literally thousands of regulations that everyone from the bluest Bernie Sanders to the reddest Hayeks happily accept that are active everyday. Yet for some reason this and this alone when it comes to conservatives is somehow a line too far for suddenly pro jungle freemarket socialists. Who are only laissez faire on this one issue and turn around and utterly contradict themselves when they sue Big Tech for their own reasons.

    1. “pro jungle freemarket socialists”

      Welcome to the Internet jungle, we got fun and memes
      We censor anything we want that’s outside the mainstream
      We are the people that can find whatever you may need
      So long as it conforms to our rules, so take heed

      Welcome to the jungle, we monitory you every day
      Our moderation is for your own good, and it’s the price you pay
      To watch very sexy girls on you tube videos
      Confine your curiosity to what we let you know

      Welcome to the Internet jungle, it gets worse here everyday
      You must be a good consumer in the jungle where we play
      If at first you complain, you’ll take it eventually
      You can have anything you need, you just have to take it from me

    2. Net Neutrality should be less controversial than “reigning in Big Tech.” The former is well defined and clearly Constitutional. There’s no tested model to do the latter, and various proposed ideas risk violating the First Amendment.

      The politics is further confused by the fact that there are a bunch of conservatives (e.g. Steve Bannon) who opposed net neutrality but want to restrict social media companies. Presumably these folks, while opposed to regulating businesses in general, hope to craft regulations on social media sites in a way that tilts political discourse in their favor.

      1. Nope Net neutrality is pretty much the same as all the other versions of deplatforming/service denial prevention. The only difference is that libs support it because this deplatforming/service denial hurts them as well.

      2. “reigning in Big Tech”

        It’s a riding-a-horse analogy, nothing to do with kings and queens.

        1. Can I rain in big tech? Surely they’d be less powerful once they get water in their servers.

          1. It would be better if you reined it in, or rained on its parade.

    3. “Big Tech” isn’t a thing in the first place.

      1. In what way is Big Tech not a thing that all the other ‘Big’ industries everybody talks about are?

      2. “Facebook, Amazon, Apple, Netflix and Google (the FAANGs) are literally indistinguishable from the locally owned non-chain pet store down the street.” – some useful tool

        1. That would be a pretty silly statement!

          And yet that’s not what DMN said.

          1. Go dance on a pinhead somewhere that people care about your dancing.

          2. What DM[?]N said was largely nonsensical and Michael’s parodic interpretation of it a perfectly reasonable suggestion. If DN finds out about the response, despite Reason’s low-functionality comment software, DN can clarify why that was not a correct understanding of his meaning.

            1. FAANG are five independent, unrelated companies, not some collective Big Tech. (It doesn’t even make sense to discuss Netflix in this context; it’s a valuable stock, but it’s not particularly important.) Five independent companies in different sectors do not have dominance of anything.

              1. “FAANG are five independent, unrelated companies, not some collective Big Tech.”

                You’d like to think so, but they seem to act in concert occasionally. I suspect there may be something similar to Jounolist operating in the background.

                1. Yes, Brett, but you’ve never met a “they’re acting in bad faith” argument you didn’t embrace more quickly and wholeheartedly than Donald Trump embracing a gold course.

                  1. Er, golf course. Darn typos.

              2. The claim was…

                “Big Tech” isn’t a thing in the first place.

                My response, to which you are replying, dismissed that as nonsense but never mentioned FAANG or dominance, so your answer is not apropos. As to dominance, I had already dismissed that claim, too, as “Nonsense” (see below). That doesn’t mean that “Big Tech” isn’t a useful category.

              3. Big Pharma, Big Ag(riculture), and other “Big” industries are recognized as such because they have common ways of thinking, common incentives, and common opponents even if they are formally independent.

                FAANG also share a lot of trade groups, do a lot of business back and forth, trade a bunch of employees, occasionally illegally collude (about employment offers or whatever else), and absolutely coordinate on other actions. They’re not as independent or unrelated as you imply they are.

    4. Nonsense. Big Tech does not remotely possess the market control enjoyed at one time by railroads and, potentially, by gas and electric, etc., suppliers. E.g., that Twitter blocks the NY Post does not in the slightest prevent you from learning everything it had to say about the Biden laptop.

    5. Two things worth thinking about here:

      1) Does Big Tech have market power? The argument seems a lot stronger in some cases than others. Google’s search, Facebook’s social media platforms, maybe even Amazon’s retail store, certainly have large market shares, although Facebook is the only one that has significant switching costs that make it hard to move to a competitor. Importantly, though, I’ve never seen anyone make a compelling argument that Twitter has any sort of market dominance, and (once again with the exception of Facebook) the arguments about market power are generally outside the areas where conservatives want to try to regulate. The fact Amazon has a really successful retail business doesn’t have anything to do with whether or not they should have to host Parler or not.

      2) Assuming that you think the problem with Big Tech is market dominance, why not use antitrust mechanisms to try to fix that problem rather than problematic speech regulations? This is much less likely to have accidental side effects like regulating the Reason comments section or forcing a bible study web forum to carry “fan fiction” about Jesus’s sexcapades.

    6. “Big Tech has a level and type of dominance that would make the monopolies of yesteryear blush.”

      They have the type of dominance that can disappear almost immediately with market trends. People old enough to recall the 1990s can remember a time when “Nintendo” was synonomous with “videogame home console”. Depending on how much attention they were paying, they also remember the online land rush as everybody rushed out to secure domain names to build their Internet presence on. Then it turned out that to build a successful online business, you had to offer a service that people actually wanted. There was a time when America Online had a big enough market cap to absorb TIme-Warner. Those were the days!

      Today’s market dominators will be tomorrow’s “remember these guys?” Examples:
      Once upon a time, business desktop computer operating systems was a market absolutely owned by Digital Research. They misplayed their hand with IBM and got pushed aside. Then again, so did IBM. LAN management was a market dominated by Novell. Wanna get on the Internet? Get your free 1000 hours from the afore-mentioned America Online. Ready for the web? You’ll want to buy software from Netscape, whether you’re looking at the client end (Navigator) or the server end (Netscape Web Server). Just want to sit back and write a novel (or maybe just a bunch of business letters)? WordPerfect has a product to help you with that. Spreadsheet software was a category with several owners over the years. First there was VisiCalc, then there was Lotus 1-2-3, neither of which can you buy in a store today. Excel is king today. Microsoft found a way to get you to pay for Excel again every month. LibreOffice just isn’t cheap enough to pry people away from Excel.

  4. I think it’s relevant to this issue that these social media companies aren’t just censoring speech. Some people make money, even make their living off these platforms. When Twitter, Facebook, YouTube etc block someone from their platform, they also put a lot of people out of work.

    1. Not only that, they are opaque, arbitrary, error-prone, and dishonest (when they’re not being totally opaque). And they collude with others to deplatform their victims; remember what happened to Gab? More recently, computer criminals broke into the system of an anonymizing domain registrar and website host (Epik) and released private details of its customers. Rather than deplatforming the criminals, the MSM and big platforms have lauded them criminal act.

      1. Well, to be fair, they are legally incentivised to be opaque.
        Section 230 frees them from legal liability for removing “offensive” material, but if they say why they are subject to defamation, etc., claims. The lying “community standards” locutions are of course offensive.

        1. They’re intentionally opaque to the people they ban. Telling them why they got banned would not be defamation.

    2. By this logic, the church across the street should be required to host my friends’ drag queen cabaret performances because it’s how they make their living.

    3. “I think it’s relevant to this issue that these social media companies aren’t just censoring speech.”

      Right.

      ” Some people make money, even make their living off these platforms.”

      If your living is dependent on a platform, try not to piss off the owner(s) of that platform. Build your own platform and run it the way you like.

  5. Why bother to have a legislature if judges can just decide how things are?

    What social media platforms are is what the legislature says they are. They don’t have some sort of Platonic ideal existence that judges can see clearly but others see only like mgea on a cave.

    If the legislature creates a aeg of roles so that the content providers provide the content and social media platforms provide infrastructure, then judges can’t say that social media platforms are “really” content providers and therefore have first amendment rights.

    After all, we COULD have a society where phone companies make their money thrroughs and bringing people together, and ordinary people aren’t permitted to just call whoever they want, the phone companies control who we get to call. Can a judge really say that phone companies have a constitutional right to force us to have such a society because when they curate messages and audiences, it’s speech? And even if their free speech means they have total control over our speech?

    Because as I see it, thag’s exactly what this hudge is saying.

    1. I mean, this is entirely backwards. What social media companies are is what they are. Legislatures cannot simply point their wands at the companies and say Wingardium Leviosa — or Commonium Carrierosa — and transform them into something whose speech they can then control. The First Amendment isn’t something that legislatures can abrogate with labels.

      1. Twitter said it was a company honestly blocking “hacked materials” when it banned factual reporting on a legitimately possessed laptop last year. Its CEO then testified before Congress and lied about whether people were able to link to the newspaper story about that. They most certainly are not “what they say they are” — and you should know better than to be so credulous about huge monopolists.

        1. So, Twitter lied when it pretended that its only real concern about Biden’s laptop was that it was “hacked materials” rather than that the story was politically unhelpful. Putting aside the possible “Lying to Congress” bit (which has limited application to ordinary dishonesty), to you that implies what?

        2. Um, if you’re going to use quotes, the words inside the quotes should be something that someone said. I didn’t say “what they say they are.” I said “what they are.”

          Twitter did not “ban[] factual reporting” on anything. It banned hyperlinks to one particular story in one particular publication, and then a few days later admitted that it had made a mistake and that this was the wrong way to handle the situation. (And of course there’s still no proof about what this laptop was or that it was “legitimately possessed.”)

          1. (And of course there’s still no proof about what this laptop was or that it was “legitimately possessed.”)

            At this point there is no legitimate doubt about what the laptop is and that it was legitimately possessed. The owner is suing claiming that the claim that he “hacked” into anything is defamatory, so you might want to check that out to see if your determined ignorance on the point can be overcome. Or check Glen Greenwald’s recent video about this. https://www.youtube.com/watch?v=I31O5_X4P1Y

            1. You’re citing an already-dismissed lawsuit that said nothing more than, “I, the owner of this store, didn’t hack anything,” as proof that the laptop is genuine? Really? That’s all you’ve got?

          2. I’m sorry, I gave you too much credit for saying something defensible. I’ll try not to make that mistake again.

            Twitter did not just “ban[] hyperlinks to one particular story” for a few days. It locked the NY Post’s entire account for two weeks, demanding that it delete the tweet(s) to it: https://www.theguardian.com/technology/2020/oct/30/twitter-new-york-post-freeze-policy-reversal

            Stop lying.

            1. Sorry, I misposted this below when it was supposed to be a reply to this comment. Reposted:

              Twitter’s automatic procedure, not specific to this situation, is that if someone posts a tweet that violates its guidelines that the account is automatically locked until the offending tweet is deleted. The NYP didn’t delete, so the account remained frozen.

              But every other account holder on the planet was free to tweet about Hunter Biden’s laptop. They just couldn’t tweet a link to the NYP article.

                1. Stop using the word lying when the fact is that you just don’t understand what’s being discussed. Nothing in that link refutes what I said. Perhaps you missed this, and failed to understand that the discussion wasn’t about suspending accounts, but about freezing the ability to post:

                  Requiring Tweet removal: When we determine that a Tweet violated the Twitter Rules, we require the violator to remove it before they can Tweet again. We send an email notification to the violator identifying the Tweet(s) in violation and which policies have been violated. They will then need to go through the process of removing the violating Tweet or appealing our review if they believe we made an error.

      2. How about Section 230ious Maybeus Cancellarium and now they get the tech giants to censor their political opponents’ “harrassing” speech right before an election?

        We’re already chest deep in grotesque violations of the First Amendment. Is fighting fire with fire a solution?

        The correct answer is there should never have been such discussions to begin with.

        If only The People had realized how easily they can be pandered to.

        1. “…now they get the tech giants to censor their political opponents…”

          Dorsey (etc.) almost certainly censored the Biden laptop story because he (they) wanted Biden to win, not b/c (D) Congressvermin wanted him to.

          1. Dorsey did not censor the alleged [Hunter] Biden laptop story. He censored (using the term loosely) one particular article from one particular news outlet.

            Given how much of a nothingburger the story was (and is), it’s hard to see why he would feel the need to do it to help Biden win.

            1. I guess he just wasn’t as determinedly ignorant of the importance of the story as you are.

              And Twitter suspended the entirety of the NY Post‘s Twitter account. The degree of confidence with which you express your determined ignorance is quite remarkable.

              1. At this point I don’t think it’s ignorance, he’s deploying the Big Lie technique.

              2. I guess he just wasn’t as determinedly ignorant of the importance of the story as you are.

                The story was so important that once Twitter conceded that it should not have applied its hacking policy and reinstated the NYP, the Post stopped covering it, and other news outlets (including conservative ones) didn’t bother to, either.

                The only thing conservatives bothered to talk about was about the meta-story of twitter suppressing the story, for which they used the time honored trick of saying “scandal” repeatedly to make it sound as if there was one, despite the fact that it did not even purport to show any wrongdoing of any sort by Joe Biden.

                1. People are still covering the story. For example, Politico just (re-)confirmed that the laptop was real.

                  Stop lying.

                  1. Politico — like virtually everyone else talking about the story — has never seen the laptop, so they couldn’t possibly confirm that it was real. What Politico reported was that a book that had just been published said that several of the emails that have been purportedly leaked from the laptop were maybe genuine. (“This person recalled seeing both emails, but was not in a position to compare the leaked emails word-for-word to the originals.”) But of course that’s how any competent operative (whether a government or political dirty tricks) would do things: he or she would mix real information in with fake information.

                    But that’s the entirety of what Politico said in its morning newsletter. It didn’t say anything about any other supposedly scandalous emails. It didn’t say that this was a Biden scandal. It didn’t say there was some revelation of wrongdoing. It was just “Yeah, these couple of emails are probably genuine.”

              3. “And Twitter suspended the entirety of the NY Post‘s Twitter account. ”

                Is it possible to suspend a portion of a Twitter account?

          2. Their automatic procedure, not specific to this situation, is that if someone posts a tweet that violates their guidelines that the account is automatically locked until the offending tweet is deleted. The NYP didn’t delete, so the account remained frozen.

      3. Here Nieporent and I finally agree—but only to a point. If so-called platforms do not have Platonic identity, they necessarily must have some kind of essential identity before the law. You can’t afford a legal situation in which two businesses practice identical activities, but because of a different label misapplied, one of them gets more rights and privileges than the other.

        The law’s insistence on consistency can be counted on to inflict similar outcomes on businesses with similar practices. If, for instance, the so-called platforms are identifiable by their activities as publishers, but by the law as common carriers, and regulated accordingly, it will not be long before other publishers slide down that slope to regulation. Arguments by analogy will insure it happens.

        1. Section 230 largely exempts providers from having to prove that they are not publishers except when the material they provide is their own and they therefor are publishers.

          1. Gandydancer, many so-called platforms, like Facebook, are publishers, period. No matter what Section 230 may say, the question what they are in fact reports to a higher authority, the Constitution. If Facebook enjoys press freedom under the 1A, Section 230 cannot be used to take it away by calling Facebook something else.

            I should mention in case you have not noticed, I am a strong proponent of unconditional repeal of Section 230. If that goes hard on giantistic internet publishing companies, well, to me, that giantism is a big part of the problem so many complain about.

            1. ancer, many so-called platforms, like Facebook, are publishers, period.

              As always, wrong. Not even close to being right. They do something very very very very different than publishers do.

              If Facebook enjoys press freedom under the 1A, Section 230 cannot be used to take it away by calling Facebook something else.

              I mean, that’s true, but in fact Section 230 does not take anything away from Facebook.

              1. At least in widely-voiced opinion on this blog, Section 230 opens the door to calling them not-publishers of some kind, perhaps common carriers.

                1. Are you new to the Internet? There are all sorts of ignorant, often dumbass views that are widely-voiced. People think that covid is the flu, that Trump won the 2020 election, that mRNA vaccines are gene therapy, that Trump kept his campaign promises, that § 230 required websites to choose between liability and neutrality. What does that have to do with the legal issues about § 230?

                  1. Nieporent, did you forget that EV advocates making platforms common carriers?

                    1. Yes, Eugene advocates for making Facebook a common carrier, but his argument did not rely on Section 230 opening that door.

                2. Section 230 has nothing to do with whether “they” are common carriers. Full stop.

                  It operates precisely to remove the possibility that platforms (e.g., Reason) will have to prove they are not publishers of content provided by others (e.g., your posts, or mine), particularly if the accusation arises b/c they remove any for being in some way they think “objectionable” (thus allegedly becoming publishers of the remainder), but fail to remove material for which they would have legal liability were they the publisher.

                  1. Gandydancer, your comment seems completely self-refuting to me. But maybe you have to understand what a publisher is to get that. A problem is that the notion that Facebook is not the publisher of, “your posts or mine,” is contrary to fact. The tacit assumption that Congress can change that fact by calling Facebook a not-publisher is where Section 230 goes wrong. The question what a publisher is has 1A implications. Congress can’t just fool around with that at pleasure.

                    1. Congress can’t, of course, strip speech protections from a person or entity simply by labeling them one way or the other. It can, of course, increase protections on them.

                      Your problem — well, one of them — is that you don’t understand what a publisher is, and therefore you think that Facebook is a publisher of our posts rather than a distributor of them.

            2. The distinction between platform and publisher preceded Section 230. That it frees platforms of the obligation to prove that they are not publishers of material provided by others was in fact the main source of the juice to get it passed, with fears about obscenity amok merely being the cover story.

              I didn’t track whether you are for or against 230 as it did not concern me and was not relevant to my comment. I’m certainly for improving 230 (clarifying its application to intellectual property to excise the court-invented silliness about that is only the start) but it does address a real problem. I don’t want Reason to be on the hook if you say something defamatory here and they fail to hold it for review and therefor go ahead and “publish” it.

            3. “I should mention in case you have not noticed, I am a strong proponent of unconditional repeal of Section 230.”

              How is it possible that someone could have read anything you write and not get that you are badly misguided on Section 230?

      4. When deliverihg mail, I open the mail up, decide whether I like the message, deliver it only if I like, and insert my own messages inside. And I maintain a blacklist of people I don’t deliver to.

        And of course, the laws against this are unconstitutional. I am what I am and do what I do, and legislatures and laws just have to deal with it. Since what I do is a kind of speech, it’s protected by the First Amendment.

        If I simply declare any mail you deposit with me my property immediately upon deposit as a condition of carriage, the law can’t prohibit that and can’t say no, I can’t do that, it has to stay the sender’s property. The legislature has to deal with my scheme exactly as it finds it. And by prohibiting me from expropriating everyone wlse’s speech, the legislature is suppressing mine.

        This is your position?

        1. I am what I am and do what I do, and legislatures and laws just have to deal with it.

          Not quite. The legislature can assign you as a common carrier against your wishes. But, both your claim and the legislature’s is subject to judicial review. What’s not clear to me is who, if anyone, has the greater burden of establishing their claim.

        2. ReaderY, I would like to try to respond, but I literally cannot follow your argument. Would you like to try again in other words?

        3. 1) The mail is the government. The rules for the government are different than for private individuals and entities. So your continued attempt to reach for this analogy makes no sense.

          2) It makes even less sense because the mail and social media are very different activities.

          3) Again, “property” has nothing to do with the topic. I don’t know why you keep bringing it up. The issues do not turn on whose “property” a message is. Neither the USPS nor Twitter is “expropriating” anything under any scenario being discussed. The copyright in a social media post remains the user’s.

          1. FedEx, UPS…plenty of private mail carriers out there.

          2. It has everything to do with property.

            Social media companies are making First Amendment claims. Only speakers have standing to make such claims. In order to be a speaker, you have to show that a lae somehow affects your speech. If you have to own speech to have standing. So by claiming to have standing to make First Amendmnet claims, social media companies are asserting they own speech. That’s a property claim.

            Clarifying speech is the property of the poster, not the social media platform, defeats this claim. Social media companies can have no First Amendment interest in other people’s speech. Like telephone companies, mail carriers, wtc., which also don’t own the speech they carey, a duty to carry orhers’ speech in no ways interferes with their own.

            The key difference between newspapers and mail carriers is that newspapers own the soeech they carry, mail carriers do not. It is the property right – the ownership interest – that enables newspapers to claim that what the paper carries is their speech, and hence affects their first amendment rights. Mail carriers and telephone companies can’t make this claim.

            It’s all about property.

            1. Social media companies are making First Amendment claims. Only speakers have standing to make such claims. In order to be a speaker, you have to show that a lae somehow affects your speech. If you have to own speech to have standing. So by claiming to have standing to make First Amendmnet claims, social media companies are asserting they own speech. That’s a property claim.

              No. This is gibberish. You’re just randomly stringing words together. One does not need to “own speech” — a nonexistent English or legal concept — to have standing. (Again, copyright is the only context in which one could sort of be said to “own” speech, but copyright has nothing to do with the first amendment rights at issue here.)

              Clarifying speech is the property of the poster, not the social media platform, defeats this claim.

              It does not. Because speech isn’t the property of the poster, and it defeats nothing. What social media platforms own is… the social media platforms. The websites, the servers, etc.

              The key difference between newspapers and mail carriers is that newspapers own the soeech they carry,

              No. Nobody owns speech. (Again, except in the sense of copyright. But it’s irrelevant here. If I write a letter to the editor of the newspaper, I — not the newspaper — own the copyright to the contents of that letter. Which has literally zero bearing on whether the newspaper can be forced by the government to carry it.)

              A bookstore does not own the speech in the books that it sells. (It owns the physical copies of the books, but not the speech.) It has a first amendment right to decide what books to sell; it cannot be compelled by the government to carry it.

            2. This is totally wrongheaded. You don’t have to own any of the speech you publish in order to have a First Amendment right to choose to publish it or not.

            3. “Social media companies are making First Amendment claims. Only speakers have standing to make such claims.”

              Um, no. The 1A protects a number of rights. Next you’ll be arguing that because the 1A prohibits establishment of religion, only churches can bring 1A claims.

            4. ” In order to be a speaker, you have to show that a lae somehow affects your speech. If you have to own speech to have standing. So by claiming to have standing to make First Amendmnet claims, social media companies are asserting they own speech. That’s a property claim.”

              You have a 1A interest in speech you haven’t made yet.

          3. “The copyright in a social media post remains the user’s.”

            I wondered a bit, so looked up one version of a platform’s claim that I remembered seeing:

            “Submitted comments have been licensed to [xxx] and may be republished elsewhere at the sole discretion of the latter.”

            1. Yes. By tweeting something (or posting it on Facebook) you license Twitter or Facebook to use it. But you still own the copyright in it. (If you ever did, obviously.)

    2. Why bother to have a Constitution with a First Amendment if legislatures can just ignore it?

    3. “If the legislature creates a aeg of roles so that the content providers provide the content and social media platforms provide infrastructure,”

      If the legislature would like to dispossess the social media platforms from its owners, there’s a process for that, and it isn’t a statute. Rather, there is a free market, and the content providers are free to set up shop on whichever platform(s) will have them. If was Republicans who decided that we didn’t need the FCC to enforce anything called a “Fairness Doctrine”, now they suddenly wish they had such a tool in the toolbox.

  6. Imagine mail carriers open the letters, decide what they want to deliver what they don’t, and add inseet their own messages in as well.

    That’s exactly what social media companies do. The key difference is that people don’t think of the mail carrier as owning the mail. Since they don’t own the mail, they don’t have a right to control it. But when you post a message on a social media platform, the platform claims ownership and a right to control.

    Legislatures have every right to say that people own their own messages.

    A fundamental flaw in the analysis is the argument that social media platforms are a kind of web site and all web sites are really the same and should be in the same legal category. That’s a bit like arguing that because social media platforms transmit electricity, they are legally electricity transmitters and should be regulated the same as power companies. The social functIon is the basis of regulation. The underlying technology is irrelevant. And “web site” is a mere underlying technology in the same way electricity is.

    1. That’s exactly what social media companies do.

      No, it isn’t. Not even a little bit. Social media companies are not passive carriers of private speech. You are thinking of email providers, not social media companies.

      Your talk about “ownership” of messages is a nonsensical red herring. “Ownership” of the message only comes into play via copyright, and has nothing to do with this discussion. A social media company choosing not to allow one to use its platform at all, or choosing not to transmit a specific message, is not claiming ownership of the message in the first place. A legislature saying “people own their own messages” would have absolutely no effect on anything we are discussing.

      And, yes, all websites are really the same and should be in the same legal category. That category, of course, is speech, not electricity.

      1. When I post a message on a social media platform, the social media platform is carrying my speech.

        Yes, it isn’t a passive carrier. But the mail carrier who opens tbe letters up, delivers only the ones he agrees with, and replaces the pnes he disagrees with isn’t being a carrier either.

        The point here is that the law is within its rights to say that if you function as a carrier, you have to be a passive carrier. It can divide the functions of speaker and carrier and say an outfit has to pick one or the other at any one time and can’t do both simulteously. While carriying, you lose speaker rights. When speaking for yourself, your ability to act as a carrier for others is limited. That’s what conmon carrier laws for companies like telephone and mail carriers do. Both kinds of companies could intermingle their own speech with users’and use their carrier power to limit and alter users’ speech so far as technology is concerned. They don’t because the law doesn’t let them.

        1. Broadcasting is fundamentally different from direct communication. The mail carrier analogy may be one of the worst there is.

        2. The point here is that the law is within its rights to say that if you function as a carrier, you have to be a passive carrier.

          No, it isn’t. “If you print letters to the editor, you must print all letters to the editor.”

          It can divide the functions of speaker and carrier and say an outfit has to pick one or the other at any one time and can’t do both simulteously.

          It cannot. The first amendment gives me the right to decide both what messages I myself want to put forth and what messages of other people I want to distribute.

          That’s what conmon carrier laws for companies like telephone and mail carriers do.

          No, they don’t. Seriously. No. Where are you getting these imaginary “laws” from?

      2. “No, it isn’t. Not even a little bit. Social media companies are not passive carriers of private speech. You are thinking of email providers, not social media companies.”

        Generally, the platforms we are talking about started out as passive carriers of private speech, for all practical purposes.

        Sure, they’d push some content on you, which could be likened to telemarketer calls. But they weren’t actively looking for stuff to censor, they just enabled people to share content. That’s why they were so popular, they were almost universally useful

        It was only after they had enough market penetration to have monopolist like market power that they started significantly interfering with users decisions that they wanted to see particular content.

        1. Generally, the platforms we are talking about started out as passive carriers of private speech, for all practical purposes.

          You’re just making up (irrelevant) stuff. Facebook started out as a way for Harvard students to play hot or not with each other.

          It was never about “private speech,” and of course when it was mostly pictures of puppies it didn’t do much moderation.

          1. Yes, I’m aware of what Facebook was before it went public. And even then it was carrying private speech, and not messing with it.

            And I was on Facebook long enough to know damned well that it has been carrying speech and media on a very wide range of topics for a very long while, and that the current censorship regime is fairly recent, and was much more restrained before Trump.

            Really, it looks to me like they were corrupted by the compromises they made to expand into China and other authoritarian regimes, and started importing those values back into the US, instead of exporting our values abroad.

            1. Social media, virtually by definition, is about public speech, not private speech.

              Ah, I guess when I used “private speech” it was ambiguous above; I didn’t mean “speech by private citizens rather than the government,” but rather “speech not broadcast/published for general consumption.” Or to put it another way, Gmail is for private speech; Twitter is for public speech.

        2. It was only after they had enough market penetration to have monopolist like market power that they started significantly interfering with users decisions that they wanted to see particular content.

          Dunno what “significantly” means or why the users who wanted to publish the blocked or removed content don’t count, not to mention any others who would have liked to see it, but Stratton Oakmont, Inc. v. Prodigy Services Co. was decided in 1995, considerably before any “monopolist like market power” was an issue. Section 230 followed.

        3. “It was only after they had enough market penetration to have monopolist like market power that they started significantly interfering with users decisions that they wanted to see particular content.”

          This is completely incorrect. All of the major social media platforms have taken down content for a variety of reasons throughout their history. If you don’t believe me, show me all of the porn that YouTube or Facebook were hosting in their infancy.

          1. “All of the major social media platforms have taken down content for a variety of reasons throughout their history.”

            “for a variety of reasons”… How conveniently vague.

            Yes, the major platforms have always taken down content that was “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” for sane, politically neutral values of “objectionable”. As well as for being non-germane in dedicated topic forums, for violating IP rights, or due to court takedown orders.

            What’s new is their taking down content based on political ideology, or because it disagrees with some narrative that the platform is trying to enforce.

            1. So you concede that they were never passive carriers of private speech, though? That was your previous claim that is clearly wrong.

    2. The aptness of an analogy between Facebook and a government created monopoly (less complete as to mail than it used to be, but still…) eludes me.

    3. “Imagine mail carriers open the letters, decide what they want to deliver what they don’t, and add inseet their own messages in as well.”

      Are we imagining that these mail carriers are private businesses? Because if we are, the obvious question is why you decided to sign up for a service that lets them do that.

      BTW, the system you describe is how email has always worked. SMTP provides exactly zero mechanisms to keep people from reading your email, and making routing decisions based on the contents of what they read.

  7. Once again, there is an wnormous difference between a right to speak and a right to control others speech. Those who transmit others’ speech do NOT have the right to control it. Society has every right to limit their role to just being a transmitter. It has every right to prohibit transmitters from interfering when users are speaking.

    The fact that a certain set of transmitters started out by interfering and comingling their own speech does not give them a permanent right to control others’ speech forever. A legislature has the right to demand a clear separation of roles, just as it can demand separation of roles in economic cases.. it can demand that speakers not engage in mass transmission of others’ speech, and mass transmitters of others’speech not speak. There is no constitutional right whatsoever to do both simultaneously.

    1. Once again, there is an wnormous difference between a right to speak and a right to control others speech. Those who transmit others’ speech do NOT have the right to control it. Society has every right to limit their role to just being a transmitter. It has every right to prohibit transmitters from interfering when users are speaking.

      Setting aside that “society” doesn’t exist — you mean the government — and has no “rights,” both the first and fifth amendments say otherwise.

      1. By your argument, common carriers cannot ever exist.

        1. Not at all. By my argument, the government cannot control a private entity’s speech-related decisions by the mere dint of relabeling that entity as a “common carrier.” But if a company holds itself out as carrying all speech without restriction, then it could be a common carrier.

          (In fact, though, common carriers don’t really fit well with the speech concept at all. Common carriers were traditionally entities that carried goods or people, not speech.)

          1. I won’t carry black people’s mail.

            Since I’m not a common carrier, just a white people’s carrier, common carrier laws don’t apply to me, right?

            1. Right, but of course public accommodations laws do apply to you; they do not turn on how you hold yourself out. Just like a clothing store or auto parts store or lawn mowing service can’t deny service to black people, you can’t, either.

          2. This is a law-related blog, not a place for you to post your fiction.

            Phone companies, mail and parcel companies have never held themselves out as carrying all speech without restriction. They never have done so, either. There’s a long line of Supreme Court cases about exactly how far the USPS, for example, can go in inspecting or intercepting mail. Likewise for other common carriers with respect to what they traffic: they don’t say they will carry any person or any good without restriction.

            Again, your argument shows that you think common carriers cannot ever exist.

            1. Would people please stop talking about the USPS? It’s the government. Its conduct is bound by statutory delegation and constitutional restrictions on the government, not on “common carrier” status.

              As for common carriers not existing, nothing in anything I have written here applies to the vast majority of common carriers. What I have written applies only to communications. Not to the transportation of goods or people.

              1. Also, I don’t know what phone companies you’ve done business with, but I’ve never encountered one that says or implies that it is selective about what messages it will carry. As long as you pay your bill, you can call without the phone company interfering.

    2. A legislature has the right to demand a clear separation of roles, just as it can demand separation of roles in economic cases.. it can demand that speakers not engage in mass transmission of others’ speech, and mass transmitters of others’speech not speak. There is no constitutional right whatsoever to do both simultaneously.

      Yikes. So much for the press freedom clause.

      1. But the lress does not engage in MASS transmission of others speech. At some point, a change of scale creates a change of kind.

        This issue is common in the law. If a single bar in the country were whites only, nobody would notice. It wouldn’t really affect other people’s lives. It’s because large numbers of them were whites only that it became a societal issue.

        It’s very common for things not to be a problem when done individually or on a small scale, but to become a problem when done on a massive scale.

        A major social media platform like Facebook or Twitter operates at a much greater scale, and has a much greater influence on society than a mom-and-pop web site with a chat room and commons. It’s completely fallacious to treat them the same. Facebook or Twitter’s ability to control users’ messages has a much greater impact on users’ ability to speak at all then a newspapers’.

        Facebook, Twitter, etc. to day perform not just the finctions of newspapers, but also the functions of mail carriers and telephone companies.

        Prohibitting them from interfering with users’ messages would not prohibit them from posting their own.

        1. Facebook and Twitter, unlike mail and phone service, deliver the user’s message simultaneously to a vast audience. Perhaps that difference ought to inform some different treatment for social media platforms than traditional common carriers.

          1. What about how they advertised themselves?

            1. I’m not following your argument.

              1. It’s not an argument. I believe it’s an observation about things claimed by Facebook etc. that were arguably misrepresentation that could be penalized or enforced.

                1. Gandydancer, given a premise that Facebook is a publisher, protected by the 1A, it has no need to justify its content decisions to anyone. It can include content or reject it at pleasure. That is how press freedom works.

                  1. “It can include content or reject it at pleasure. That is how press freedom works.”

                    Not if it has created an obligation to do otherwise. The suggestion was that they have created such an obligation by “how they advertised themselves”. YouTube(Google) is a better example than Facebook, perhaps. What promises has it made that induce investment of time and money in “channel” creation and development? What reliance exists and how has it been induced? Are the TOS contracts of attachment?

        2. “This issue is common in the law. If a single bar in the country were whites only, nobody would notice. It wouldn’t really affect other people’s lives. It’s because large numbers of them were whites only that it became a societal issue.”

          This is backasswards. The problem with Jim Crow is that it was government-imposed. The “public accommodation” nonsense is nonsense. That way lies mandatory homo “marriage” cake decoration. (Which a certain egregious “Libertarian” Presidential candidate thought was just hunky-dory… but I will resist going further OT.)

          1. If you take the position that discrimination laws generally are unconstitutional, I can’t argue that this case is any different from the others, so you win.

            But if discrimination laws and common carrier laws are constitutional in general, then are constitutional here.

            And they are constitutional in general. The constitution doesn’t impose libertarianism.

            1. A law which declared the New York Times to be a common carrier would not be constitutional.

              1. A law which declared the New York Times to be a common carrier would not be constitutional.

                I would say that this is so obvious as to go without saying, but I’ve talked about the Tornillo case in which Florida did try to make a similar argument. (The term “common carrier” wasn’t used, but the concept that the newspaper could be compelled to distribute speech it did not agree with on public policy grounds was present.) But of course that law was rejected.

                The government can’t get around the first amendment just by labeling the speaker a certain way. Perhaps there exists some concept of a “common carrier” by which a company can be compelled to distribute speech — but even if so, it would have to be something that actually met a pre-established definition of common carrier. It can’t be just the government saying “Presto; we declare you’re now a common carrier so…”

    3. Newspapers don’t have a right to publish letters to the editor?

      1. I’ll take the bait. If a “newspaper” had such effective control over a society’s communications that the only way people could communicate with others at a distance was by writing a “letter to the editor” and having the “newspaper” publish it, then yes, government could indeed require the “newspaper” to publish all letters. Once you have effective control over everybody else’s ability to communicate, government can indeed limit your ability to control the communications in order to protect everybody else’s ability and right to communicate.

        That’s why scale matters, and monopoly power matters. If you operate at a sufficient scale that you effectively control a large swath of others’ speech, government can declare that you are functioning as a carrier of others’ speech and limit your ability to control what others say.

        But if you don’t have this level of scale or power, if you are primarily speaking for yourself and exercising only limited control over a relatively fee others’ speech, it can’t.

        1. If a “newspaper” had such effective control over a society’s communications that the only way people could communicate with others at a distance was by writing a “letter to the editor” and having the “newspaper” publish it, then yes, government could indeed require the “newspaper” to publish all letters.

          So in the completely-irrelevant-to-the-real-world hypothetical in which there was exactly one conveyor of communication on the planet, and this was a permanent state of affairs, that purveyor could be compelled by the government to convey communications. In your view.

          Even if I granted such a proposition, how is it useful to bring up? No company has anything remotely like such control. And if it did, it would seem that an antitrust remedy would make more sense than a compelled speech remedy.

          I should note that in Tornillo, the state of Florida tried an argument very much like that, claiming that there was monopoly control of the press that did not allow for contrary views to be expressed, and that this justified the state’s right of access law. The Supreme Court accepted the proposition that newspapers had effective monopolies in their markets, but still roundly rejected the idea that this justified compelled speech.

          1. SCOTUS was again an ass if it “accepted the proposition that newspapers had effective monopolies [on speech] in their markets”.

    4. “Once again, there is an wnormous difference between a right to speak and a right to control others speech.”

      Freedom of the press only applies to people who own a press. If you do not own a press, you should plan on buying or building one, rather than forcing someone who does own on to print whatever it is you want, whether that’s how they’d like to use their press.

  8. Sounds like Corbin Barthold and Judge Robert Hinkle are ignorant of the sovereign role of editors and why we need to repeal Section 230 to empower them again.

    1. benji, I don’t know why you regard editors as, “sovereign.” That makes no sense to me.

      But I join with anyone who says it would be wise of Congress to repeal Section 230. To do that would re-empower editors and publishers. Their role as non-government moderators of national discourse is sorely missed.

      So is their service to the legal system, which editors and publishers provide by diverting to the trash before they happen all kinds of scurrilous would-be publications. Too many of those now go uselessly to court. That so much of that happens is a new thing in the nation’s public life. The change was enabled by Section 230, as an unlooked for side-effect which Congress did not anticipate, and which it now lacks the judgment to face squarely and roll back.

      1. I don’t remotely miss gatekeepers.

        Anyway, do you really want to force Reason to review all your posts before posting them?

        1. Not just mine, everyone’s. All of them.

          In case you missed it, the no-gatekeepers publishing regime enabled by Section 230 has, unsurprisingly, given rise to multi-axis political pressure to use government to dictate what may, or may not, or must be published. That is a far worse than leaving decisions on what gets published in the hands of myriad of private editors running smaller publications. Public policy should be tailored to encourage diversity and profusion among private editors.

          I would encourage far more discussion than I have yet seen to explore ways to keep that kind of publishing regime maximally open to all comers. The expanded publishing opportunities made possible by internet cost savings should be shared as widely as possible.

          1. The idea that “multi-axis political pressure to use government to dictate what may, or may not, or must be published” is the creation of Section 230 is crazy.

            Were Reason obligated to gatekeep every comment on this thread it would lose most of its function. Or it would be dropped, as is so common elsewhere anyway. Your desire for this is also lunacy.

          2. In case you missed it, the no-gatekeepers publishing regime enabled by Section 230 has, unsurprisingly, given rise to multi-axis political pressure to use government to dictate what may, or may not, or must be published.

            “The lack of gatekeepers has given rise to the pressure for gatekeepers, so therefore we need to have gatekeepers to keep gatekeepers from existing.”

          3. “Not just mine, everyone’s. All of them.”

            Who should pay for this? Not you, obviously, but who? is “you should reject this comment, because possible liability” legal advice? Or can the work be offshored to some country where English isn’t even the dominant language? Is this a “service” we should get from a Chinese supplier?

  9. I can refuse to allow your speech to be seen on my web sight.

    I cannot refuse to allow your speech to be seen on my cake.

    1. Antidiscrimination regulations, as interpreted by executive-branch groups created by statute, trump the Constitution, of course.

    2. Local cake shoppes are clearly under interstate commerce, which allows overriding of the first amendment, but interstate commerce of facebook does not fall under interstate commerce so cannot wait what? I should have shook up my bag of phrases better before I stuck my hand in to pull some out.

    3. ” I can refuse to allow your speech to be seen on my web sight. ”

      Well, that’s the modern view . . . sometimes credited to Ted Stevens.

    4. Firstly, you can generally refuse to create speech on a cake. For example, the First Amendment protects your right to refuse to put “I hate white people” on a cake.

      Secondly, when it comes to serving a wedding of two men, the argument (advanced by Eugene) is the First Amendment does not categorically allow you to refuse to make a cake for that event because making cakes is not inherently expressive. It’s possible the First Amendment protects your right to refuse some messages on the cake. The exact contours of that protection have not been developed as of now.

      1. That’s not at all responsive to the contention that small bakers or photographers have the same kind of freedom of association and speech as people insist that social media web sites have.

        1. I think the observation that cake making isn’t speech is responsive. Photography is different because it has been treated as speech.

          1. Making a custom cake is absolutely a form of creative expression comparable to photography or picking headlines on a Sludge Report web site or the like.

            And federal law specifically says that social media companies like these must not be treated like the speaker or publisher of information that they publish that was provided by third parties.

            1. Making a custom cake is absolutely a form of creative expression comparable to photography.

              Or not.

      2. “It’s possible the First Amendment protects your right to refuse some messages on the cake. The exact contours of that protection have not been developed as of now.”

        You mean that the exact degree to which legislative and kritarchal vermin will succeed in intruding on our natural liberty has not yet been established, but that you’re not terribly opposed to it.

      3. “making cakes is not inherently expressive. It’s possible the First Amendment protects your right to refuse some messages on the cake. The exact contours of that protection have not been developed as of now.”

        The thing about creative expression is that it can be done “for hire”, in which case the message (if any) is the message of the commissioner of the work.

    5. That’s “site”. And, yes, you can censor it, assuming you have not made an enforceable promise otherwise.

      And the cake, once sold, can be decorated by the purchaser in any way he likes.

      1. The obvious solution is to place in your display case a “same-sex marriages aren’t real” cake that looks just like the cake you would sell for a hetero wedding. Now, if someone takes your cake to a same-sex wedding and serves it to the guests, you’ll know (and God will know) that your message is getting out there…

    6. “I can refuse to allow your speech to be seen on my web sight.

      I cannot refuse to allow your speech to be seen on my cake.”

      Sure you can. Eat the cake. That should take care of it. You can’t hae your cake and read it, too.

  10. I’m OK with the Facebooks of the world deciding to censor. I am not OK with them being protected against being sued.

    I am never OK with Amazon Web Services deciding to censor. AWS absolutely is a common carrier. Likewise, I am never OK with email services, ISPs, credit card processors or banks censoring. They are infrastructure businesses.

    Every one of these, however, must follow the law. If the LAW says something is illegal, then suppressing, reporting, and preventing that is permitted.

    1. DaveM, I largely agree with you. But do remember that the right of press freedom gets in way of a good deal of suppressing and preventing.

    2. I see no reason an “infrastructure business” without monopoly power (including that acquired by collusion) ought be prevented from censoring, assuming that that doesn’t violate contractual obligations. I am however generally open to regulating contracts of attachment, though I don’t have a firm detailed position as to when and how.

      1. The answer is the same as it always does, if you don’t like the way an Internet business does business, say, because they censor what messages you can distribute using their property, all you have to do is build your own competing Internet business and run it the way you wish the other company ran their business. This whole “let me use your stuff the way I want to, without trying to limit me.” was tired when it was the leftists who wanted to seize the means of production, and it didn’t get better when the right-wingers took over the call.

    3. I am never OK with Amazon Web Services deciding to censor. AWS absolutely is a common carrier.

      Can you explain how you’ve determined this? What non-circular definition of common carrier are you using to make this assessment?

      1. AWS is a common carrier because they don’t have contracts that establish their right to decline to carry… oh, they do? then maybe it’s because they operate in the United States. Oh, wait, I’ve got it this time. Amazon is a very large business, and very large businesses always support Conservative politics, specifically the Republican party. By failing to support Conservative politics, they’re in total breach of contract. Someone should grab whoever’s running that business and shoot him into space.

    4. “I’m OK with the Facebooks of the world deciding to censor. I am not OK with them being protected against being sued.”

      Sued for what? For not allowing you to use their free service to broadcast your message? You can probably sue them for that, but you’re going to have a hard time establishing damages.

      People proposing to repeal Section 230 aren’t making the case that you should be able to sue Facebook for censoring you, though. Their argument is that because Facebook censors you, Alice should be able to sue Facebook for what Bob said about her.

      “I am never OK with Amazon Web Services deciding to censor. AWS absolutely is a common carrier. Likewise, I am never OK with email services, ISPs, credit card processors or banks censoring. They are infrastructure businesses.”

      Hey, that’s the net neutrality argument right there.

      1. We don’t need no net neutrality, nor any Fairness Doctrine, because those are lazy leftist ideas for people who can’t compete in a fair market.

  11. Just to be clear, the real issue here is that social media companies are being accused of censoring “conservative” speakers, thus conservatives are now in favor of increased government regulation over these companies.

    That’s the quiet part underlying all of this, right?

    1. That is part of it. Another part is that many so-called conservatives—movement conservatives—have always opposed press freedom. When the internet came along they rejoiced. They supposed a new medium had arrived which would enable them to supplant the hated, “mainstream media.” It hasn’t worked out that way, so now they demand government to step in, to deliver the press suppression they always expected to get from the internet.

      1. That’s a really stupid take on it. They rejoiced at having a way to bypass the ‘mainstream media’ because they perceived that media as already somewhat censored to their disadvantage.

        1. Brett, until “mainstream media,” used as an epithet disappears from these threads, I’ll stick to my opinion. Hell, EV has been an out-and-out opponent of press freedom for years. No such thing as Constitutional protection for the press as an institution, my ass.

          Anyone who has been howling about the, “elite,” media, or crying about, “gatekeepers, likewise. Press freedom is not the same thing as speech freedom, and never was. It is a separate right. Movement conservatives seem to hate it.

          You seem to hate it. You are all scared to death that legacy media institutions which still deliver at second hand almost all the factual information the internet depends on, will somehow wake up tomorrow and deliver more of it. The horror.

          1. No such thing as Constitutional protection for the press as an institution, my ass.

            That is exactly where you’ve pulled your constitutional ideas from, yes.

          2. “No such thing as Constitutional protection for the press as an institution, my ass.”

            He’s exactly right about that: The 1st amendment guarantee of “freedom of the press” is a guarantee that everybody has the freedom to use printing presses, exactly the same way the guarantee of “freedom of speech” is a guarantee that everybody can speak freely.

            The fact that the newspaper industry took to calling themselves “the press” after the 1st amendment was ratified doesn’t do anything to change that: They only constitutional protections journalists have are the ones we all have.

            It actually threatens the 1st amendment to pretend otherwise, because it makes it look to the average person as though freedom of the press doesn’t have anything to do with them, it’s just a privilege accorded a widely despised industry.

            1. If your position is that the Constitution doesn’t protect people who frequently exercise rights protected by the Constitution, you’re going to have to turn in either your NRA card or your firearms

        2. Well, since conservative content is consistently the most popular on, e.g., Facebook it seems like they’re doing a pretty good job at bypassing the censor-y gatekeepers.

          1. This is the “You haven’t been beaten to death yet, so you can’t really claim to be assaulted.” line of argument.

            Sure, conservative content is the most popular on Facebook despite being censored. Absent the current media censorship, this would be a politically conservative nation.

            1. “Absent the current media censorship, this would be a politically conservative nation.”

              Absent the politically conservative tendency to wishful thinking, political conservatives would adhere more closely with reality.
              The Conservatives want to be told what to think, so they are the largest bloc of opinion journalism. This was true in the 1980s, when they discovered AM radio as a way to get the same tired arguments out to as many people as possible, and continued through the switch to cable “news” channels as the siren calling out to the faithful. People who don’t need or want to be told what to think don’t need AM radio opinion programming, or cable “news” opinion programming.
              If the opinion journalism industry thought there was a market for opinion journalism for people who think the world is flat, you can believe they would quickly develop programming for people who think the world is flat. It’s just our dumb luck that there actually WAS a market for people who wanted to be told that the coronavirus would go away by itself once the weather was warmer, that they didn’t need to get vaccinated against it because the vaccines do (insert wacky conspiracy theory here), and that there’s just no need to take any steps in schools to limit the spread of the virus because the handguns will take care of it.

        3. Self-published independent media often report things that certain other people would prefer not to be reported, just like those big corporate media do. Covfefe.

      2. Exactly no one ever expected “press suppression” from the Internet.

        1. Gandydancer, many commenters on these threads argue for exactly that, mostly heedlessly. EV, however, has been working assiduously to build a slippery legal slope under press freedom for years. Apparently, EV thinks he is working in service of what he seems to see as fundamentalist speech freedom—which is in tension with press freedom, apparently. The former is democratic and virtuous, the latter is elitist and bad.

          1. I was replying your assertion (“…so now they demand government to step in, to deliver the press suppression they always expected to get from the internet”), and am not seeing anything in your new reply to support the claim.

            1. …the “always expected” bit, not the “now they demand” bit.

          2. Gandydancer, many commenters on these threads argue for exactly that, mostly heedlessly.

            False, of course. Almost everyone here who isn’t a lawyer is a right wing Trumpkin arguing the exact opposite: that there should be no suppression allowed on the Internet.

            1. ” Almost everyone here who isn’t a lawyer is a right wing Trumpkin arguing the exact opposite: that there should be no suppression allowed on the Internet.”

              The Trumpkin position is that there should be no suppression of TRUMPKIN on the Internet. They’d be just fine with suppressing things that they don’t like, if they had the power. They were chortling with glee imagining their “billionaire” leader buying Facebook or Twitter and throwing Trump critics off. When that didn’t pan out the way they’d imagined, they moved on to “let’s just seize the property of these companies that are so hostile to us. We’ll just make is so that they aren’t allowed to point out where the Conservative voices are at odds with reality.”

        2. “Exactly no one ever expected “press suppression” from the Internet.”

          There were some hopes at disintermediation, though.

  12. One aspect of the discussion of common carriers that I think has not been explored, is that “common carrier” is an abbreviation of the more precise phrase “common carrier for hire“. Facebook is certainly engaged in commerce, but not commercial carriage since it doesn’t charge the provider or the audience for the service it provides them. Rather, its business is the curation of an audience, and it sells access to that audience to advertisers. Does it have the same quasi-public utility status that a common carrier for hire would have, and should it be subject to the same restrictions a common carrier would be as a condition on the privilege of charging the public for a service? I don’t have a clear answer, but I find the question interesting.

    1. I’m all for TOS reform, but see no basis whatsoever for treating Facebook, etc., as utilities.

      1. The TOS are,” we (Facebook) own this and let you use it at our discretion. If you piss us off, we can kick you off for any reason or for not reason, and if you don’t like it, go away.”

        Your choices are
        1) use Facebook’s services as they see fit, or
        2) don’t use Facebook’s services.
        3) there is no 3.

        It’s not unlike how radio works. If you don’t like the programming on your local radio station, your choices are to either listen anyway, or to get yourself an FCC license, buy or build a transmitter, and set up your own station that is programmed exactly the way you want (as limited by the FCC regulations that govern your broadcast license).

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