The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

"Like, Share or Cancel: Social Media & The First Amendment"


I much enjoyed this Florida Bar Media & Communications Law CLE conversation with Prof. Eric Goldman, Chris Marchese, and Pamela Marsh, moderated by David Karp; it's mostly about the Florida social media access law, but we discussed the broader First Amendment questions as well.

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  1. These are now utilities, like water and electricity. The latter may not be turned off to political opponents. They should have a profit margin of 2%, and require a justification hearing prior to any rate increase. I am not even listening to these lawyer deniers. They are out of touch with reality.

    The phone company involves speech in its service. It has immunity for any transmitted illegal speech, as these media companies do already. There is no difference.

    1. The oligarch owners of these companies also own the media. They hyped a weak, ordinary virus, and caused the shutdown of the economy. That dropped the world GDP $4 trillion and killed millions by starvation. If they continue their service to the Chinese Commie Party to enrich themselves by access to that market, they should be arrested, tried and executed for treason. Their assets should be seized in civil forfeiture.

      1. I did begin to listen to this lawyer discussion. It was overly biased in favor of the billionaire owners. Reason is the Koch Brothers so that is not surprising. Dismissed. Pro-oligarch garbage, masking ideology. The denier Volokh did not disappoint, defending private property rights of these oligarchs, instead of the reality of their being utilities.

        1. As a Litmus test, each panelist should have disclosed their vote for President in 2020. If there was not a balance of 2 vs 2, the panel is just propaganda, and does not reflect the viewpoints of the voting population of the US. I am betting all voted for Biden, and may be dismised as Democrat Party propaganda disguised as a scholarly discussion. Partisan garbage.

      2. Neurodivergent nutjob's nattering.

        1. Hi, Queenie. What is your preferred pronoun, Hon?

          1. As can be seen, the neurodivergent like David have trouble understanding social cues the rest of us pick up on quickly and clearly so they often say awkward and/or creepy things.

            1. Hi, Queenie. Very informative review of a serious handicap. Thank you. I always learn from you. I am putting that in the letter of support I am writing to help you find the job you so well deserve. I hope to see you thrive, not just survive. 'Preciate your diversity. Diversity is the strength of our nation.

              1. As can be seen, the neurodivergent like David have trouble understanding social cues the rest of us pick up on quickly and clearly so they often say awkward and/or creepy things.

          2. I think its "it". Or at least it should be

            1. You are saying, use the gender neutral, it, when referring to Queenie. Good idea. That choice avoids offense and awkward, unwoke gaffes in civility.

    2. They are not, in fact, utilities. HTH.

      1. David. Do you have anything other than an ipse dixit? Perhaps, you are too duperior for any other type of utterance. Quite the opposite is true. You may have been an intelligent and ethical lad. After passing 1L you became one of the stupidest prople in the country. You are only good at collecting the rent for worthless make work paper shuffling.

        In fact, they are. They are natural and real monopolies. They are ubiquitous. They are essential. What are they missing from the definition of a utility?

        1. They aren't monopolies. They are not essential. That's two.

          1. David. They each have 90% of the market. Competitors failed to enter the market. A billion people communicate with others and get their news from them. They are monopolies. They are essential like the telephone.

            1. 180% of the market! Wow!

  2. I haven't watched it, yet, as I am dog proofing the house today to dog sit for a week, but I hope they addressed the joke that is "freedom of speech", wherein politicians threaten tens to hundreds of billions in stock losses by destroying section 230, unless, you know, you guys censor harrassment, oh, look, right before an election, here are harrassing tweets of our political opponents, censor their harrassing twe...thank you. Their ideas are dangerous if not harrassing!

    1. "You need to stop talking with that neighbor, or your property tax break might...get broken."

    2. Half the accounts of those platforms are not human, yet advertisers are charged as if they were. There is massive fraud going on. It fully justifies seizures of these platforms in civil forfeitures. They are just organized crime enterprises.

      1. "Half the accounts of those platforms are not human"

        David speaks from experience here!

        1. Depends on the person and platform. Hillary's followers on twitter are only 44% fake, for example.

  3. I watched it. Good discussion.

    It seems that none of the others would address EV's town square analogy. They clung only to the publisher analogy.

    I'm surprised that contemporary news didn't come in. "Consider this slightly farfetched hypothetical. A multi billionaire buys all the social media outlets, broadcast outlets, cable outlets, satellite networks, and print media outlets. He personally gets to moderate nearly all online communications. Does that change your position? Remember, we are debating free speech, not antitrust."

    1. Why waste time with a 'farfetched hypothetical?'

      1. They can lead to ideas that are not so far-fetched. For example, one far-fetched hypothetical (a/k/a thought experiment) became the Special Theory of Relativity.

    2. The free speech implications in the hypothetical are only interesting because of the antitrust angle.

    3. Tuttle — It doesn't change my position, except maybe to get me going. Whatever opinion niche the guy leaves open while exercising his presumably biased discretion, I can jump in to fill. He can't buy media companies any faster than would-be competitors can make them. That is the take on it from the content side.

      The limitation, of course, is that he may be able to monopolize ad sales opportunities, precluding competition, and frustrating my free market remedy. On that basis, and only on that basis, government should step in and break him up.

      Thereafter, government should pursue policies to foster profusion and diversity among private media companies. That would mean repealing Section 230, with its proven baleful consequences for media competition in the ad sales arena.

  4. There are sure a heck of lot of people these days that wish their Biden vote came with a "cancel" button (or at least an "edit" button....maybe Musk can do something about that.....heheh).

    1. But Biden got 81 million votes....and he was the most popular presidential candidate in history. How is it possible for Biden to get more votes than any person in American history ever but be the most unpopular president since the invention of modern polling?

      1. Trump also had a majority (plus minus a few points). So did every elected official in history.

        1. Hillary got more popular votes than Trump in 2016.

      2. Geez, could it be the case that lots of people voted more against someone than for someone else?

        1. That is one possible explanation.

          1. A rather obvious one I should think. Sorry it doesn't lend itself to your conspiracy innuendo.

          2. That is one possible explanation.

            Your skepticism of this super common explanation (that also explains Trump's approval numbers) is not really doing you any favors.

            Are you a 2020 truther?

      3. I guess the same people who wheeled in suitcases full of "mail in ballots" to big city election offices once it looked like Trump might again carry PA, WI, and MI haven't figured out how to make those "voters" also respond to public opinion polls. I'm sure they will fix that bug in the system though soon enough....

        1. Election fraud nonsense from Jimmy.

          Also, sun rises in east.

      4. Rather like if you had to get a babysitter for tonight and there were only two possible babysitters available. One was a clone of Jeffrey Dahmer. The other was a reasonably clean homeless person you had seen outside Starbucks who seemed friendly enough although it was clear they had a drug problem of some sort.

        You, of course, would pick the homeless person.

        However after you came home and found that the curtains were scorched from the babysitter being a bit careless when attempting to start a meth lab in your home, it is unlikely you would give them a 5 (out of 5) star rating on Yelp.

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