Journal of Free Speech Law: "Free Speech and Private Censors," by Prof. Larry Alexander (San Diego)

A short piece just published at 2 Journal of Free Speech Law 17 (2022), as part of the "Non-Governmental Restrictions on Free Speech" symposium; the Abstract:

In this piece I contrast societal conditions in which free speech can flourish with those in which it is threatened by private censors. I then suggest measures that would protect free speech in the latter conditions, conditions that unfortunately prevail today.

Comments

[apedad]

"Suppose, for example, that there were (sic) only one business, Corpzilla, and it employed everyone except those employed by the government. And suppose that its management decided that anyone who expressed views that differed from those of management would be fired or demoted. Unlike the government, it could not put people in jail for expressing the views it opposed. But it could fire people, people who would then be unemployed and unemployable. Would we still recognize the society as one in which the values of free speech were realized? Surely not. Size
matters."

No size does NOT matter.

Monopolies matter.

[David Nieporent]

I love arguments that rely on bizarre scenarios like that. How exactly could there be only one business? How would it make money? Who would it sell to or buy from?

By the way, I don't understand your "(sic)." The statement is correct as written.

[BravoCharlieDelta]

The same way our only one Federal government does. Through corruption, evil, bribery, and violence. Never doing any good for society.

[apedad]

Never doing any good for YOUR society.

The rest of us are moving along OK.

[BravoCharlieDelta]

Like how children's test scores are the lowest they've been in 30 years?

I guess if you hate white children like Democrats do, that's moving along OK.

[apedad]

Should it be, "“Suppose, for example, that there was only one business. . . ?"

[Jacob Grimes]

The fact that it's a hypothetical question means that "were" is used, regardless of the number of businesses. It's an obscure rule and I don't know why it exists, but it does.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It's known as the "subjunctive".

[apedad]

Here's another bizarre suggestion, "A second measure would be one aimed at big tech. Platforms for mass communication that achieve a certain market share (say, 50%)—either themselves or in combination with affiliated companies—must be treated as common carriers."

So that would only affect ONE company since all the others would be under the 50% threshold.

[Dr. Ed 2]

Apedad, is there really a difference between the two?

And you don’t have to have an actual monopoly for a Corpzillai situation to exist, and while it is not RICO, you could have a RICO-ish situation where a fairly large number of corporations collude-ish to do this.

The Higher Ed industry already does — to apply for admission to any college or university or grad/law school (that I am aware of), you have to include transcripts from any other IHE that you have attended. Hence while Justice Harlan F. Stone could wind up graduating from Amherst College after having been expelled from what is now UMass Amherst for punching a dean in the 1890s, today he’d be SOL and wind up working at McDonalds.

Likewise — and I don’t know why this isn’t actual collusion — all IHEs have agreed not to accept anyone who owes any other IHE any money.

So the Corpzilla situation already exists — and Higher Ed is not a “Monopoly” as defined by law.

[wolfefan]

Popehat will be pleased that you italicized the not RICO part.

[apedad]

". . . you could have a RICO-ish situation where a fairly large number of corporations collude-ish to do this."

I can agree with that, but that's not the scenario he gave.

Additionally, captcrisis noted this decision NYNEX Corp. v. Discon Inc., the today's SC History which actually allowed collusion - under certain conditions.

[Stephen Lathrop]

Professor Alexander, do you think private editing prior to publication constitutes troublesome censorship? Does the extent of diversity and profusion among private publishers affect that view?

If you can see where I am going with those questions, why not simply diagnose the present problem as a case of malign giantism among internet media, and deal with that question by public policy to make the giants smaller? Probably the remedy could be as simple as unconditional repeal of Section 230, which is what empowered the giantism in the first place.

[Rev. Arthur L. Kirkland]

The article thanks Prof. Eugene Volokh for comments -- which could have been related to Prof. Volokh's ample experience with imposing private (and viewpoint-driven, and repeated) censorship at his blog, the Volokh Conspiracy.

Carry on, clingers.

[EscherEnigma]

Sounds like someone got banned by Twitter for hate speech and got very bitter over it.

And then failed to notice that (A) they weren't banned for their politics, but because they're dicks about it, and (B) Twitter gets a disproportionate amount of attention by politicians and reporters because it is disproportionately used by them. But it's marketshare is closer to 10%.

Seirously folks, when someone whines about "cancel culture" after their twitter is suspended, they're not even talking about a fifth of the market.

[rtkz]

Eugene, this is a downright embarrassing piece to publish. It's poorly written sentence-by-sentence, poorly thought out, and has very little to say. Not a good look for a publication you head.

[Dr. Ed 2]

I believed that Hillsdale and Grove City Colleges were the only ones not to accept Federal Funding, only to then learn of a couple really small seminaries who also don’t. Hence I now say “that I am aware of.”

And RICO-ish and collude-ish reflects the fact that the conduct may not technically meet the legal definition, but the layman would consider it to be.