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Free Speech

Profs. Adam Candeub & Philip Hamburger on "The Common Carrier Cure for First Amendment Uncertainty"


An interesting new twist on the argument, which particularly focuses on how social media quasi-common-carrier regulations can fight governmental pressure on platforms to censor certain material; it reminded me of Ian Samuel's The New Writs of Assistance, which similarly argued that some Big Tech companies should be legally required to limit the data they maintain about users, in order to fight governmental pressure on them to disclose it.

I'm not sure whether on balance such social media quasi-common-carrier rules are a good idea, but I thought the essay was worth passing along. (I have argued that some kinds of such rules are constitutional, and laid out some other arguments in their favor, but I can certainly see lots of arguments against them as well, some of which have been well laid out in this symposium.) I'd of course be glad to post or link to responses to this as well.

Recently leaked documents, published by Senators Grassley and Hawley, show the crucial importance of anti-discrimination requirements for Big Tech. Notably, they reveal the value of the Texas free speech statute currently under review in the U.S. Court of Appeals for the Fifth Circuit. The documents disclose planning by the Department of Homeland Security to work with its "partners" such as Twitter (and presumably the other dominant internet platforms) to monitor so-called "disinformation"—including through the infamous "Disinformation Board." This leads to the pressing constitutional question: Can the government sidestep the First Amendment by coordinating with private companies to shut down "misinformation" and "disinformation"?

The constitutional problem, interestingly, has a statutory solution. The First Amendment bars Congress from making any law abridging the freedom of speech, or of the press. But the courts have left unclear whether the Administration's coordination with the social media companies is unconstitutional. And that is why the Texas statute is so important.

The Texas statute, HB 20, finds the largest social media platforms to be common carriers—which is well justified by both their function and their size—and bars them from discriminating on the basis of viewpoint. It thus prohibits them from coordinating with the Biden administration to censor Americans in the ways described by the leaked documents. Just as AT&T cannot lawfully acquiesce to government-pressure to deny you a telephone, HB 20 makes it unlawful for the major internet platforms to go along with the Biden administration's pressure.

Government coordination with private organizations to censor individuals is not a new problem. The English government in the seventeenth century worked through the Universities and the Stationers Company (a trade guild) to censor printing. Although the government sometimes required them to do the censorship, it at times just coordinated with them.

This history reveals much about the reach of the First Amendment, because the seventeenth-century censorship was the primary example of what the amendment forbade. So there is no doubt that the First Amendment bars the government from privatizing its censorship—from using private companies to stifle dissent.

But can the Department of Homeland Security evade the First Amendment by simply avoiding force—by merely asking private companies to "cooperate." This is utterly creepy. But is it unconstitutional?

Suppose the Secretary of the Interior asked the Acme Construction Company (just as a favor to the government) to bulldoze your house. That would surely be as much a taking as if the secretary did it herself. Similarly, the government is abridging the freedom of speech when it coordinates with tech companies to silence your speech. This conclusion is suggested by the seventeenth-century history, the breadth of the term "abridging," and the spirit of the First Amendment.

But the courts have never clearly recognized this. So the administration thinks it can get away with asking for cooperation in silencing Americans without violating the First Amendment.

This failure of the amendment, as interpreted by the courts, to resolve the question is what makes common carrier anti-discrimination laws so important. By barring viewpoint discrimination by private companies, whether AT&T or YouTube, such statutes prevent government censorship through coordination.

The Texas law, for example, prohibits the largest social media platforms from engaging in viewpoint discrimination. Under this legal regime, the most massive social media platforms would have the legal basis to stand up to government pressure. Indeed, they would have to stand firm, lest the courts order them to cease their censorship.

There already is a compelling interest in recognizing the largest social media platforms as common carriers because the resulting duty against viewpoint discrimination protects freedom of debate. In addition, it limits the privatization of censorship through Section 230. But there is more. The anti-discrimination duty redresses a wide range of risks from government interference with speech, including interference that, under current precedents, is not clearly unconstitutional.

As Eugene Volokh has pointed out, current precedents permit government to urge private suppression of speech, as long as government "doesn't coerce the intermediaries by threatening prosecution, lawsuit, or various forms of retaliation." And as long as government doesn't "implicitly threaten[] retaliation, rather than simply exhorting or encouraging third parties to block speech."

The difficulty with the current state of these precedents is that, in shadow of its regulatory and contractual power, government can exert much pressure on private companies without being explicit about the threat of retaliation. It just has to hint at what it wants, and the companies will know that there may be consequences. So the First Amendment, as interpreted by current precedents, leaves a gap in the protections for freedom of speech.

One could consider this merely an evidentiary problem. But the First Amendment uses the term "abridging" rather than suppressing, forcing, or coercing. So the problem could also be viewed as a failure of current precedents to recognize the breadth of situations in which the amendment limits government. Reinforcing this point is that the Constitution was understood to give Congress no regulatory power akin to the commerce power over speech or communications.

In short, the doctrinal uncertainty in the space between government coercion and government persuasion leaves a profoundly dangerous opportunity for government to suppress speech. And the point here is that the common carrier anti-discrimination duty fills that gap.

Odysseus had himself tied to the mast to prevent him from heeding the sirens' song. Now, communications common carriers need to be tied to nondiscrimination, so they cannot conform to government's "coordination" and other subtle pressures that lie somewhere between overt coercion and mere criticism.

The companies respond that viewpoint discrimination is their freedom of speech. But information carriers have been treated as common carriers and barred from viewpoint discrimination since at least around 1700. It once was true of letter carriers on horse, it then was extended to the railroads and telegraph and telephone companies. Even to some degree to cable systems. And this has never been considered a suppression of their speech, because it merely limits them from discriminating when carrying the speech of others.

Of course, in barring viewpoint discrimination, the Texas common carrier law does not require firms to carry content they don't want on their platforms. So they can engage in any type of content discrimination—for example, by banning nudity, threats, or harassment, provided this is done without discriminating by viewpoint. And, nothing in the Texas law limits the freedom of social media companies to express their own opinions about any viewpoint or any statement their users make. They can disassociate themselves from any of their users' statements.

Even if the social media companies have a speech interest in suppressing others—which is improbable—states have a compelling interest in barring viewpoint discrimination by common carriers. This is how states since the founding have been able to make information carriers immune from government pressure for censorship. And now this is the only way to prevent the creepy and creeping censorship accomplished by "coordination."

The Texas statute, in other words, is of immense importance because it fills the gap left by a weak interpretation of the First Amendment. If government can coordinate massive private communications companies to discriminate according to its vision of "MDM"—misinformation, disinformation and malinformation—then dissent, minority viewpoints, and free speech will no longer inform public debate.

We will have returned to the time of Galileo—in politics and science. The Department of Homeland Security proposes that "Twitter become involved in Disinformation Governance Board Analytic Exchanges on Domestic Violent Extremism (DVE) and Irregular Migration"—these being code words that include discontent parents and critics of immigration policy. The Department also will counter "[d]isinformation related to the origins and effects of COVID-19 vaccines or the efficacy of masks." In other words, dissent on empirical medical questions will be stifled. And all of this will be done by providing "timely, quality information on disinformation threats … to …private sector partners." Again, creepy and unconstitutional. But absent clarity on the unconstitutionality, common carrier anti-discrimination laws are the only solution.

The documents include plans for what appears to be a meeting between Twitter executives and HHS Undersecretary Robert Silvers. Matters to be discussed will be "operationalizing public-private partnerships" to counter DVE and exploring "other ways the Department could be helpful to Twitter's counter-MDM efforts." Helpful for the government's agenda, too. But not for open debate.

Only the unprecedented dominance of a few internet firms in controlling information flows makes this public-private "partnership" possible. In earlier times, when there were thousands of independent newspapers and broadcasters, government coordination and control of information was difficult, expensive, and easily discoverable. Now, the consolidation of private communications carriers makes coordination easy for government. And the looming shadow of government retaliation (whether through regulation or the loss of government contacts) makes it wise for the companies.

Of course, it is possible that one day the Supreme Court will clarify that the First Amendment bars the government from coordinating with private entities to censor the rest of us. That would be true to the letter, spirit, and history of the Constitution. And it would be a good test of whether the allegedly Living Constitution has much life beyond personally important rights—such as those of sex, marriage, and abortion—to protect structurally important rights, such as those of speech and the press.

But unless the courts are willing to do such things soon, very soon, they need to recognize the profound interest in barring common carrier discrimination—if only to prevent government from evading the First Amendment, whether through open threats or mere "coordination."

There is a compelling public interest in barring discrimination—not least, in barring viewpoint discrimination in highly concentrated media environments. Under long-standing Supreme Court doctrine, this is dispositive as to the constitutionality of Texas HB 20 and other such anti-discrimination laws. But that's not all. The reality is that without such anti-discrimination laws, the First Amendment will become nearly meaningless—a mere formality, which government can evade simply by working through dominant private communications carriers.