Journal of Free Speech Law Symposium on Non-Governmental Restrictions on Free Speech

From the Introduction, which was just published:

On March 19, 2022, Arizona State University's Sandra Day O'Connor College of Law hosted a day-long symposium titled "Non-Governmental Restrictions on Free Speech." The Symposium was funded by a gift from the Stanton Foundation, and was organized by Professors Ash Bhagwat (UC Davis), Vince Blasi (Columbia), Thomas Healy (Seton Hall), and Jim Weinstein (ASU). The Symposium explored contemporary free speech controversies that generally do not involve repression or censorship by a state actor, and therefore do not implicate the First Amendment.

Professor Danielle Keats Citron of the University of Virginia presented the Symposium's keynote address, and was followed by four separate panels: "Social Restraints and Free Speech Theory," "Restrictions on Campus Speech," "Private Employer Sanctions on Free Speech," and "Speech Regulation by Online Platforms." In this issue of the Journal of Free Speech Law we publish the papers that resulted from the Symposium.

We'll be publishing the articles in the days and weeks to come, as we finish up the final proofreads. We begin today with Prof. Citron's article, Intimate Privacy's Protection Enables Free Speech, and will proceed to the articles in the general principles panel, the Internet platforms panel, the private universities panel, and the private employment panel.

Comments

[Krayt]

“If you don’t censor harrassing speech, section 230 might…get broken.”

“Our business model will be broken and we’ll lose hundreds of billions in stock valuation!”

“And? That’s the wrench we are loudly and publicly using.”

“Oh kay.”

“And start with the harrassing tweets of our political opponents right before the election!”

(Later)

“Hey, you can’t order the companies to carry all this stuff now. That would be wrong!”

[Krayt]

This is the starting point for context. And then traditional twitter scaring of companies to enforce cancelation via firing.

Which, of course, is only a problem the past 10 years or so. The previous 10,000, cancel gays (and other religions, and witches and…)

[Dr. Ed 2]

Alan Bloom (1930-1992) addressed that in his classic _The Closing of the American Mind_ — he lived through the McCarthy era and stated that the colleges were largely insulated from it.

Cancel culture didn’t exist until the personal and the political became commingled, and that didn’t really happen until the late ’80s. Yes, there were “Blacklists” in the 1950s, but those were people who had criminal convictions, not unlike the Jan 6th folk — and even still, they were often able to work under assumed names.

[Sarcastr0]

Nothing like what you said happened, as you’ve been told repeatedly. By multiple people.

I know you love this story of government oppression but not only was nothing like that happened on the government side, but with all these internal comms from twitter being released, nothing like that has turned up.

So quit with your persecution fan fiction. I know government as mafia is something that you love, but it has the flaw of being not true.

[Stephen Lathrop]

Where is the paper on all the horrors inflicted by traditional private editors, who suppress contributions prior to publication?

[Dr. Ed 2]

One of the underlying principles behind NYT v. Sullivan was that the New York Times did not have a monopoly — that there was a bleepload of other newspapers and hence the editorial supporting Sullivan could appear in some other paper.

And unlike today, could not be silenced as people could share clippings & photocopies via snailmail, and there were things called “libraries” where one could (and still can) look at back issues of newspapers. Had the NY Post published the Hunter Biden Laptop story in, say, 1990 — Team Trump would have distributed photocopies of it and likely run advertisements citing it.

Yes, this would have taken time — stories moved slower back then — but there wasn’t the power to prevent re-distribution of the story the way that Twitter did. There wasn’t the monopoly chokehold.

[David Nieporent]

One of the underlying principles behind NYT v. Sullivan was that the New York Times did not have a monopoly

That was not one of the underlying principles behind NYT v. Sullivan.

Yes, this would have taken time — stories moved slower back then — but there wasn’t the power to prevent re-distribution of the story the way that Twitter did. There wasn’t the monopoly chokehold.

This is stupid for so many reasons, including the fact that Twitter has no monopoly, and that every avenue available in 1990 was available in 2020.

[Dr. Ed 2]

The ultimate irony is that it is Section 230 of the Communications Decency Act — most of which was almost immediately ruled unconstitutional in Reno v. ACLU.

It’s also important to put this in the context of what AOL (then a massive bulletin board service) had done with the primitive technology of that era — they had banned key words to censor pornography, one such word being “breast.” This had truly upset women with breast cancer who wished to discuss treatment strategies and other such things relative to their cancers.

It even more upset grandmothers who wished to swap recipes which included chicken breasts, and couldn’t understand how a recipe that the’d been given by their grandmothers — a dish they took to church suppers — could possibly be obscene.

So the presumption was that while obscene stuff would be removed from the bulletin boards when found, Section 230 would protect the BBS operators from criminal liability for, essentially, negligence — i.e. the one thing they didn’t find & remove.

No one ever imagined that the commercial internet would expand to the extent it did — the official policy of UMass at the time (1996) was that “the web is a passing fad” that would soon die out like the Rubic Cube had a decade earlier. UUCP protocol (unix to unix copying protocol) was still in use in places — it consisted of writing everything to a magnetic tape and then physically driving the spool(s) of tape to a distant location and mounting them there.

UMass Amherst only had a T-1 connection to the (then) NSF Backbone hub in Cambridge and it was a physical copper T-1 because it ran down the MassPike with three other abandoned T-1s and one day someone cut all four… Facebook didn’t exist until 2004, Twitter until 2006, while we can argue about dates, I use 1993 for the web itself existing (before that it was ftp protocol).

AOL (and its competitors, eg Compuserve) were dial-in — the now-abadoned DSL phone service wouldn’t exist for some years later, and I’m not sure if AOL was even yet connected to the internet.

THAT is the world that Section 230 was written for — no one ever thought about the consequences of what Twitter appears to have done, and the intent was to avoid things like the AOL “breast” ban.

[Zarniwoop]

TL,DR version: “get off my lawn!”

I’m not sure if AOL was even yet connected to the internet.

It’s right in the name. The “OL” part was what they were selling, even at dialup speeds.

https://en.m.wikipedia.org/wiki/Eternal_September

[Dr. Ed 2]

What happened in Vegas stayed in Vegas — it doesn’t now.

Yes, that twit in charge of nuclear waste would never have gotten a security clearance in the 1950s (or 1980s) but should someone who steals luggage in airports (knowing all the security there) and then lies about it be trusted with nuclear waste?