"A Social Media Platform May Not Intentionally Fact Check" a User's "Religious or Political Speech"

That's what Alaska bill SB 214, sponsored by state senators Lora Reinbold and Mia Costello would do in part.

I think some restrictions on platforms' deleting posts might be constitutional (see my Social Media Platforms as Common Carriers? article, or these posts excerpted from that article): To quote Justice Breyer (from a dissenting opinion, but on a point which with the majority didn't disagree with, and which other majority opinions endorsed),

Requiring someone to host another person's speech is often a perfectly legitimate thing for the Government to do.

But banning fact checking doesn't just require platforms to host speech on their property—it expressly bars them from engaging in their own speech, since "fact checking" simply means "speech that expresses the platform's view, or the view of someone selected by the platform, about whether some statement is accurate." That violates the platforms' First Amendment rights.

To be sure, some fact checking might be libelous and actionable on those grounds; but the bill would ban all fact checking of "the religious or political speech of a platform user," regardless of whether it's constitutionally protected speech (such as opinion or true statements of fact) or constitutionally unprotected libel.

Thanks to Mike Masnick (Techdirt) for the pointer.

UPDATE: For why I think some properly crafted state statutes (not this one) barring viewpoint discrimination by social media may be consistent with 47 U.S.C. § 230, see this article; I'm also writing an article about when such state statutes may be consistent with the Dormant Commerce Clause, which is a separate question.

Comments

[Longtobefree]

Based on 230, any social media platform should be able to file a criminal complaint against anyone restricted on their platform.
If they can't, they are editorializing.

[Eugene Volokh]

???

[Brett Bellmore]

I think he's suggesting that, based on section 230, nobody should be restricted except on the basis of something you could file a criminal complaint over?

Which would be wrong, of course: Section 230 doesn't limit the basis for moderation, it just limits the basis for moderation that doesn't lose you its safe harbor.

[benji]

Section 230 does not do this, it's two sentences, please read it.

[Noscitur a sociis]

While a requirement to not delete might be constitutional, isn't it currently preempted by § 230?

[SimonP]

I think some restrictions on platforms' deleting posts might be constitutional...

This is, indeed, what you've argued, though as I recall the strength of your constitutional argument depends on the specific function of the platform in question. It is strongest (and I do not think it is in any event that strong) when a platform is simply allowing someone to upload content to be distributed to others actively seeking it out. It is weakest when it comes to controlling or compelling platforms to distribute content in a particular way based on its content or the speaker in question. Because, it is in that capacity where we find platforms engaged in bona fide speech of their own, and not merely acting as "common carriers." The ambiguity in what Breyer meant when speaking of "hosting" speech and how it applies to online platforms is doing far too much work in your argument here.

It is extremely disappointing to me that you continue to push this line of argument. No one really cares about regulating platforms in the capacity where you've made the strongest case for treatment as a "common carrier," for First Amendment purposes. No one really cares, in other words, about Facebook allowing Ben Shapiro to post updates so that he can come back and reflect on his thoughts later. No one even really cares about Facebook allowing Ben Shapiro to use its service in order to distribute messages to those of his "followers," who have specifically asked Facebook to distribute his messages to them.

What people care about is how Facebook takes Ben Shapiro's messages and where/how it places them on his follower's feeds (or if it shows them at all). They want Facebook to allow Ben Shapiro to take full advantage of Facebook's algorithms to draw engagement and thereby get his messages promoted to other people who have not asked for his messages but get them because they are flagged by the algorithm as potentially interested. They want Facebook to present Ben Shapiro's messages on Facebook's platform, for users subject to Facebook's own TOS, unfiltered, unqualified, and at the top of the list, especially if he chooses to pay for further promotion. That's why they want to ban content flags like this.

But that's where your constitutional argument is weakest and least supportable by actual caselaw. You rely excessively, in the argument at this point, on hand-waving and analogies. So when you say, "Maybe you can limit Facebook in some ways, but you can't do that," you're being kind of dishonest. The way in which Facebook "speaks" when it flags content as disreputable is continuous with the way it "speaks" when it typically "hosts" speech. But you are drawing what is really an arbitrary line, based on a constitutional argument that proves (if it proves anything) something irrelevant to the matter at hand. There is little meaningful difference between Facebook flagging a "bad" comment as likely false and opting not to distribute it to people who have not requested to receive it, or opting to de-prioritize it on their feeds. They are two ways of "saying" the same thing, "expressed" in different ways.

[A nerdy Fred]

"Requiring someone to host another person's speech is often a perfectly legitimate thing for the Government to do."

I don't get many opportunities to ask questions of a distinguished professor of law so I will seize this one.

What precedent is there for this idea? Has it ever been put into law? How is it reconciled with property rights, one of the most fundamental of which is the right to exclude others?

I have a vague memory of laws requiring newspapers to run ads with government announcements. If my memory is sound, would those be examples?

[David Nieporent]

What precedent is there for this idea? Has it ever been put into law? How is it reconciled with property rights, one of the most fundamental of which is the right to exclude others?

It basically relies on two cases, one of which was terrible — Pruneyard — and one which is only barely a speech case — FAIR.

Pruneyard involved a California requirement that shopping malls allow people to speak on their property. It's a terrible decision that is basically one off; people keep trying to expand it to other situations and the courts keep rejecting that invitation. I'm quite certain that if it were litigated with today's court it would at the very least be deemed a Taking, if not an unconstitutional compelled speech case.

FAIR involved the federal law that required schools that were recipients of federal funds to allow military recruiters. It's also a bad decision, but it's overdetermined. But although people cite it as a compelled hosting case, SCOTUS treated it more as a compelled conduct case.

[Krayt]

"If you want our money, ya gotta do it!"

It works in their favor in so many other places!

[Brett Bellmore]

Is it maybe that he's appealing to the common carrier precedents?

[David Nieporent]

No.

[James Pollock]

""Requiring someone to host another person's speech is often a perfectly legitimate thing for the Government to do.""

One of the things Congress is expressly allowed to do is regulate interstate commerce. So someone whose business is to provide communications over the Internet can be regulated by Congress.

[David Nieporent]

Not if that regulation violates the first amendment.

[Stephen Lathrop]

Once again, over and over, abject confusion from the get-go. The problem is, "platform." No such things exists. It is a made-up construct, invented with an eye to bypassing the 1A press freedom rights of publishers, while at the same time encouraging world-wide, cost-free, anonymous publishing without prior editing, and without any practical remedy for libel.

For those of you who feel free to make and remake the internet as if it is a new thing in the world, without precedent, and thus mere clay to be molded to suit whichever personal preferences muster the most persuasive congressional donations, you are mistaken. A great deal of internet activity—most of the activity currently so controversial—is of a type which is centuries old. It is publishing-type activity.

Publishing is a subject of the 1A press freedom clause. Publishing is recognizable as a distinctive set of activities. Those are already activities which a long-standing body of laws and precedents purport to govern. Agitation to ignore that is unwise.

What do you see most, "platforms," doing? They assemble an audience. That is a publishing activity—authors/contributors do not do that. They curate the audience, with an eye to the needs of would-be advertisers. That is a publishing activity—authors/contributors do not do that. They monetize the audience, by selling access to it to would-be advertisers. That is a publishing activity—authors/contributors do not do that.

Those activities taken together are field-marks useful to identify a publishing business, and hence to identify an area of special concern in the law—an area of constitutional protection which is not subject to modification at will by legislation or by policy, not even if you call it a, "platform."

[SimonP]

In Eugene's evolving theory of the First Amendment, it's beginning to appear that a contracted web designer, who exercises no control or authorship over the message conveyed in a page they design, has greater First Amendment protections than a social media company that makes every decision about what messages are conveyed, and how, on a page they also design.

[Krayt]

Long before addressing differences between publishing paradigms, we need to clear up de facto threatened fines of hundreds of billions of dollars against each Internet giant, for not censoring harrassment, oh, start with the harrassing tweets of our political opponents right before an election.

Do it, or section 230 might get broken. Things break, you know...

[James Pollock]

Back when giant corporations toed the political line and all supported Republicans, no matter what, we never used to have this kind of problem. Those big tech companies brought it upon themselves.

[Brett Bellmore]

So, we've finally confirmed you're an immigrant from some alternate timeline? Because there was never a time that was remotely true in THIS timeline.

[Stephen Lathrop]

Krayt, all you really do with that is make the case that repeal of Section 230 must be complete and unconditional. It is partial repeal, or conditional repeal, which opens the door to coercive abuse. Complete, unconditional repeal leaves every internet giant in unchallenged possession of every nickel it has already earned. And all of them will remain equally protected under the law.

Internet giants are in no way entitled to an endless continuation of a rent-seeking future on the same basis. What the internet giants have is a windfall, courtesy of Congress. Nothing about that creates any constraint on what Congress can do in the future.

[David Nieporent]

§ 230, of course, applies to every website, not to "Internet giants" specifically. And that's of course not what "rent seeking" means.

[benji]

I suppose you're technically correct that the First Amendment was created by Congress and that Congress can start the process for another amendment to undo it.

[James Pollock]

One the weaknesses of your analysis is that it is based on a faulty analogy.. In the 18th century, a "publisher" needed to secure a source of paper (a tangible medium) on which to "publish".
Instead, consider a "broadcaster", who does not "publish" to tangible media. Beginning in the early 20th century, broadcasters could (and did) broadcast far and wide to anyone willing to invest in the technology to capture the broadcasts. that is, to buy a radio receiver and listen in.
What's the difference? Who is the "customer" A newspaper publisher sells individual copies of the newspaper to people who pay their money for their own copy. A broadcaster's customer, on the other hand, is the advertiser who pays them for access to the attention of the listeners.

Social media, for the most part, is provided as a free service to account holders, and the money comes from people who pay for access to the attention of large numbers of people, whether the purpose is to convince them to buy and consume shiny new automobiles, fizzy sugar water, or brand X politicians.

[David Nieporent]

A newspaper publisher sells individual copies of the newspaper to people who pay their money for their own copy.

Except, of course, for the free ad supported newspapers.

[Stephen Lathrop]

James Pollock, what you say will strike many as plausible, but it is mistaken. Newspapers of all sorts have long-since counted advertisers (not copy purchasers) as their principal customers—just like media platforms do. In that respect, there is no notable difference. In both cases, content consumers are the product being sold to the customers (again, the customers are the advertisers). It has been that way in the newspaper business for more than a century.

A principal reason why newspapers ever charged for copies was because advertisers demanded it. Shrewd advertisers recognized early on that without a record of paid copy sales, they lacked reliable sources to confirm publishers' claims about how much circulation their ads were getting. So to convenience the advertisers, newspaper publishers put on a nominal price per copy, and then cooperated with advertisers to set up what became known as Audit Bureaus of Circulation (ABCs), to serve as disinterested third parties to track the copy sales numbers. Schemes of that sort tended to tamp down over-optimistic circulation claims from upstart competitors, and appealed especially to dominant media players. Circulation bureaus serve the same purpose as rating bureaus for broadcast media.

Likewise, many smaller newspapers long enjoyed income they got from being made the local newspapers of record, the official organs in which legal notices of all kinds were required to be published. Often, local government bodies designated which newspaper among competitors would receive that free-money privilege. For the same reason as the advertisers, the governments usually made it a requirement that an official newspaper of record had to be a newspaper with paid circulation.

[James Pollock]

""A Social Media Platform May Not Intentionally Fact Check" a User's "Religious or Political Speech""

IF that's actually what it says, it's incredibly poorly drafted. Unless states have some recently developed ability to exempt themselves from 14th-amendment incorporation of the Bill of Rights.
How does the state of Alaska claim to have any power to tell a "social media platform" that it can't speak truth some someone's counterfactual claim made by a user? Particularly if the truth-speaking happens elsewhere from Alaska? If someone spouts off that all Christians practice ritual cannibalism, or that all Republicans are craven racists, even if that is their honest, deeply-held religious belief, how does the state of Alaska claim to have the power to keep anyone from saying "actually, these claims are false." or anything similar?

[David Nieporent]

IF that's actually what it says, it's incredibly poorly drafted.

That's like arguing that the amateur exterminator's attempted use of a flamethrower to get rid of the termites in your attic poorly aimed his attempt. Of course it's poorly drafted; it's designed by stupid people to do stupid things.

[korioliam]

I see the latest trends in tightening the policy of social communication in large and well-known social networks. But this is what often becomes the reason for refusing to communicate there. I have a few friends who are completely gone to together2night. It's a dating site but they use it more to communicate than to find a partner. There is a much more tolerant atmosphere.