The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

Once it decided N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of Bruen. One was a challenge to California's ban on magazines holding over ten rounds, and another was Maryland's "assault weapon" ban. With sparks aplenty flying, these cases were argued en banc on March 19 and 20 before the Ninth and Fourth Circuits respectively.

These cases should be decided in favor of a straightforward application of the constitutional test for addressing challenges to "arms ban" laws set forth in District of Columbia v. Heller.

Bruen simply made more explicit the "plain text first, and then historical analogue laws second" methodology adopted by Heller when it declared that the District of Columbia's handgun ban violated the Second Amendment. Applying that methodology, Heller held that arms that are in common use by Americans for lawful purposes cannot be banned.

First, as a matter of plain text, Heller held that the Second Amendment extends, "prima facie, to all instruments that constitute bearable arms." And Heller made clear that "arms" includes all "weapons." If the instruments in question are bearable arms, the burden shifts to the government to provide a sufficient number of representative historical analogue laws (not the musings of anti-gun historians) from our early history to demonstrate that the challenged arms ban falls within the country's tradition of firearms regulation. In fact, the American tradition of firearms regulation is really a history of no or very limited prohibition of arms.

Second, Heller looked at two historical traditions that spoke to the arms ban question. At the outset, the Heller Court acknowledged the history of Americans bringing their own privately-owned firearms and ammunition with them to militia musters. These protected weapons were "in common use at the time" for lawful purposes such as self-defense. The Court further found that the "in common use" test was "fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'"

Stephen Halbrook is a Senior Fellow with the Independent Institute. His latest books are America's Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? He is also author of The Founders' Second Amendment, Securing Civil Rights, Gun Control in the Third Reich, and Gun Control in Nazi-Occupied France. He has written over 30 law review articles and has testified in Congressional hearings on firearm law bills. He has also litigated extensively in the field, often representing groups such as the NRA, National African American Gun Association, Western States Sheriffs' Association, Congress of Racial Equality, National Association of Criminal Defense Lawyers, and more. He has argued before the U.S. Supreme Court in Castillo v. U.S. (2000), Printz v. U.S. (1997), and U.S. v. Thompson/Center Arms Co. (1992), as well as in front of many other courts. In D.C. v. Heller, he filed an amici curiae brief on behalf of a majority of members of Congress.

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The article is here; the Introduction:

Accounts of modern free speech law typically begin in a moment of pragmatic optimism about the value of free speech in a flourishing democracy. In the usual story, which Laura Weinrib helpfully calls "the myth of the modern First Amendment," young progressives like Zechariah Chafee, Felix Frankfurter, Learned Hand, and Harold Laski draw on pragmatist philosophers like William James and Charles Pierce to persuade Justices Holmes and Brandeis of the U.S. Supreme Court that censorship was antithetical to democratic self-government. Holmes announced that the production of more speech served as the best test of truth. Brandeis, championed speech as a guarantor of democracy. Still others believed they had found in freedoms to speak a better way of managing dangerous radicalisms. Leading commentators ever since rest their accounts of the advent of free speech law on one or another variation of a new and hopeful conception of the function of speech in democracy.

Strangely, something like the opposite is more accurate. The distinctive feature of the moment in which modern free speech law arose was but grave new worries about the relationship between free communication and self-government. When Holmes and Brandeis first gave voice to free speech ideas in their famous dissents in the fall of 1919 and 1920, keen observers were coming to terms with a world of distortion and misinformation. Four long years of war propaganda had shown that speech by the powerful could dangerously destabilize public opinion in ostensibly democratic societies. The return to peace, too, had been accompanied by stunning displays of communications power. Storms of racist and nativist public opinion produced a wave of postwar racial pogroms. Employer propaganda smashed postwar strikes in the steel industry and elsewhere. A generation of public relations men left war propaganda efforts, entering new industries like marketing and advertising firmly convinced by their wartime work that information was supremely susceptible to manipulation and control.

At the beginning of modern free speech doctrine, close observers were coming to see speech as more than an indispensable foundation for democratic self-government, though it was that, too. Speech had also become—to adapt Justice Kagan's iconic phrase from a century later—a weapon for democracy's subversion.

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The United States is far from the only country that has experienced serious housing shortages in recent years. Canada, Britain, and several continental European nations also have similar problems. But one country, New Zealand, has managed to significantly mitigate theirs through the simple expedient of cutting back on zoning regulations that previously severely restricted the construction of new housing.

Economic policy commentator Joseph Politano describes how they did it:

New Zealand has a horrendous, long-standing housing shortage—roughly a quarter of Kiwis are cost-burdened (defined as spending more than 40% of their income on rent or mortgage payments), the highest rate among all OECD countries. The vast majority of the archipelago's housing stock is low-density—more than 80% of residents live in detached single-family homes, 20 percentage points higher than even in the highly suburbanized United States. Auckland, New Zealand's largest city, has been consistently rated as one of the most expensive places on earth, with home prices significantly outpacing household incomes….

This story should sound familiar to most Americans, and indeed to people across the world who face increasingly dire housing affordability crises in their countries and cities. Many will blame those housing shortages on zoning restrictions and exclusionary planning rules that prevent sufficient housing construction—in the US, most residential areas are designated exclusively for large, sprawling single-family homes, even within major cities,…. Theoretically, if rules were changed to allow taller and denser developments on desirable land—a process known as upzoning—housing production would increase and affordability would improve….

The difference is that Auckland has actually put that theory to practice—the 2016 Auckland Unitary Plan (AUP) upzoned 3/4 of the city's residential land to legalize townhouses, terraced homes, or multi-story apartments in areas that previously only allowed detached single-family homes,…. This makes Auckland perhaps the largest real-life experiment of what broad-based upzoning can achieve in an expensive, supply-constrained city—and in the 7 years since the implementation of the AUP, residential construction has skyrocketed. The total number of housing permits issued smashed previous records, while permits for the multi-unit attached housing projects legalized in the AUP went from only a small percentage of overall construction activity to the city's dominant source of new housing….

In fact, upzonings in Auckland and elsewhere in New Zealand have set off a massive construction boom throughout the entire archipelago. In 2023, New Zealand (population: 5.2M) permitted 37k housing units, more than the San Francisco and Los Angeles metro areas combined (population: 17.3M). Auckland, a city of only 1.7M, permitted 15k units last year—while preliminary data shows the 5 boroughs of New York City (population: 8.3M) permitted a meager 9.2k units by comparison. In total, New Zealand permitted 9.7 new housing units per 1000 residents in 2022, a 45-year-high that was nearly double the rates seen in the US.

Politano points out studies find that upzoning is indeed the main cause of the Kiwi housing construction boom:

So over the last decade-plus, what has been the economic effect of these upzonings in Auckland and other parts of New Zealand? The best evidence comes from a series of academic papers by Professor Ryan Greenaway-McGrevy at the University of Auckland and comprehensive data tracking done by Matthew Maltman at Australia's E61 Institute. Despite some early back-and-forth academic quibbles, the evidence is overwhelmingly clear that upzonings have significantly increased housing production—the AUP is estimated to have created more than 43k extra housing units from 2016-2022, while the Lower Hutt upzonings increased total Wellington region housing starts by 12-17%. That, in turn, has significantly improved housing affordability—rent-to-income ratios in Auckland have significantly declined even as they have steadily risen elsewhere in New Zealand.

The New Zealand experience reinforces already extensive evidence that zoning reform can increase construction, lower housing prices and enable more people to "move to opportunity." As Politano suggests, the US and other countries can learn from New Zealand's success.

The mechanisms of reform, however, might be different here. New Zealand is a unitary state, not a federal one. Reform there was, in part, spurred by central government's ability to override local authorities, resulting in crucial national legislation. In addition, as Politano notes, Auckland, by itself, contains some one third of New Zealand's population, and a large fraction of the nation's most important real estate, for purposes of housing and job opportunities.

The US, obviously, is a federal system, with relevant authority spread out over many state and local governments. We also have many more jurisdictions where reform is necessary.

That said, we can give nation-wide impetus to reform by promoting stronger judicial review of exclusionary zoning. Josh Braver and I explain how and why this can be done in a forthcoming Texas Law Review article. In addition, state legislative reforms can help curtail local NIMBYism. The United States has stronger judicial review than New Zealand, and it can be used to root out exclusionary zoning, because such restrictions violate constitutional property rights.

Finally, as in New Zealand, YIMBY zoning reform can be a cross-ideological movement that cuts across conventional partisan and ideological divides. The collaboration between Braver (a progressive) and me (a libertarian) is just one small example of this dynamic.

The article is here; the Introduction and the Conclusion:

Sometimes lies are constitutionally punishable: Consider libel, false statements to government investigators, fraudulent charitable fundraising, and more. (I speak here of lies in the sense of knowing or reckless falsehoods, rather than honest mistakes.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan, the Court held that even deliberate lies (said with "actual malice") about the government are constitutionally protected. And in United States v. Alvarez, five of the justices agreed that lies "about philosophy, religion, history, the social sciences, the arts, and the like" are generally protected.

The Supreme Court hasn't explained where the line is drawn, and that leaves unclear where important areas of controversy—such as laws punishing lies in election campaigns—should fall. In this short article, I hope to offer an account that makes sense of the precedents and a framework for making future decisions….

The Court has never precisely explained when lies are constitutionally protected and when they are punishable. But the particular lines that it has drawn seem generally consistent with a comparative institutional approach to responding to lies. Government determination of which assertions are false and should therefore be punished is always perilous. When institutions—scholars, the government as speaker, the media, perhaps opposing election campaigns—are available to deal with such matters, there is a way to avoid the peril while still rebutting the lies. It's imperfect, but it's better than the alternative of government coercion; in such a situation, "the fitting remedy for" lies, as well as for "evil counsels," is rebuttal.

But in other situations, when the harm from lies is serious and alternative institutions for rebutting the lies aren't likely to exist, the government can indeed try to deter the lies by the threat of criminal prosecution or civil liability. That explains the constitutionality of properly limited libel law, and of the laws punishing fraud, perjury, and the like. And that can help decide where the lines can be drawn in the areas that remain unsettled.

Free Speech

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4/3/1962: Engel v. Vitale argued.

Professor Sherry is an emerita professor at Vanderbilt Law School. Back in 1997, she and Professor Daniel Farber wrote a book, Beyond All Reason, critiquing Critical Race Theory. Perhaps their most controversial argument was that Critical Race Theory, in denying that there was such a thing as objective merit, and attributing all group differences to racism, was implicitly antisemitic in its inability to explain American Jewish success without resorting to antisemitic conspiracy theory.

Professor Sherry (who, by the way, is a political liberal), has written a short followup, DEI and Antisemitism: Bred in the Bone. Here is the abstract:

Last October, progressive Jews were shocked by the raw antisemitism displayed by their erstwhile allies on the political left. After Hamas terrorists tortured, raped, or murdered more than 1200 Israeli civilians and took some 200 civilians hostage, some progressives – especially on college campuses – celebrated. They chanted the Palestinian mantra "from the river to the sea," seeking to erase Israel (and Jews) from the face of the earth. The number of antisemitic incidents on campus soared, coming from both students and faculty. A Stanford lecturer forced Jewish students to the back of the classroom and labeled them "colonizers." Jewish students had to barricade themselves inside a library at Cooper Union, and Jewish students at MIT were told by faculty to avoid the university's main lobby for their own safety. Many university presidents who had previously sent out campus-wide emails condemning the murder of George Floyd, the Russian invasion of Ukraine, the overruling of Roe v. Wade, and countless other world events suddenly discovered the Kalven Principles and claimed it would be inappropriate for them to take sides, or issued weak statements about how the situation in the Middle East was complicated. This double standard continued as some universities responded to student calls for genocide of Jews by invoking principles of free speech, principles that had been notably ignored when the speech in question was directed at other groups. Most campus DEI (diversity, equity, and inclusion) offices, especially at the most elite universities, had nothing to say about the surging antisemitism.

This essay explains why no one should have been shocked, or even mildly surprised, by the progressive response to the massacre. Progressive or "woke" culture –as exemplified by critical race theory, anti-racism of the Ibram X. Kendi variety, and, especially on college campuses, the DEI juggernaut – is necessarily and inevitably antisemitic at its core. That these related movements have now exposed their antisemitism publicly is no surprise: antisemitism is bred in their bones.

Check it out, from @ellecordova. Thanks to Victor Mair (Language Log) for the pointer.

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Yesterday, I wrote that the Judicial Conference's policy is dead-dead. Placing the final nail in the coffin was a cohort of progressive groups who wrote to Senator Dick Durbin, chair of the Senate Judiciary Committee.

The letter accuses the Judicial Conference of backing down from their initial proposal to mandate the policy across the districts:

We are deeply concerned that, after announcing efforts to combat this practice, the Judicial Conference appears to have watered down its commitment to addressing judge shopping in response to attacks from Republican senators and their allies in their right-wing legal movement. . . Troublingly, the Judicial Conference appeared to bow down to this opposition just three days later by stressing it was merely providing optional guidance that courts could do with as they will.

I'm pretty sure that I am one of those allies in the "right-wing legal movement."

The letter also tries to point to Chief Justice Roberts and Judge Sutton as proof this is a bipartisan issue:

Despite the fact that the Judicial Conference is led by a Republican-appointed Chief Justice of the United States and the policy was announced by a Republican-appointed Court of Appeals Judge – underscoring that judge shopping is not a partisan issue …

Here is what I still do not know. Was it the case that Judge Sutton accurately described the policy to the press as mandatory, and the Judicial Conference backed off? Or did did Judge Sutton inaccurately describe the policy, and subsequent guidance was issued to clarify the matter?

I am very skeptical the latter option is the right one. Judge Sutton is a careful lawyer, above all else, and I have difficulty imagine he would misunderstand a policy, or worse, mislead the press.

The former option seems more likely to me. He accurately described the policy on Monday, but the policy was later revised. (One reporter I spoke with recorded Judge Sutton's press call, but I have not obtained a copy, yet.)

If it is the former option, then in fact the Conference caved to political pressure from the right--in much the same way that the initial policy itself was a cave to political pressure from the left. This option does not speak well of these judges. Either this policy was indubitably correct, in which case the Judges should have stood behind it. Or the policy was a mistake from the get go, in which case it should have never been put forward, let alone without any discussion. Now, for better or worse, the Judicial Conference has shown itself to be pliable by the political currents. It would have been much better if the conference stayed out of this thicket from the outset.

If the Senate Judiciary Committee tries to conduct oversight from the left on single-judge divisions, then the House Judiciary Committee may conduct oversight from the right on the process by which this policy was adopted. I don't think anything good will come from such proceedings.

The article is here; the Introduction:

According to Justice Powell's opinion in Gertz v. Robert E. Welch, Inc., "[T]here is no constitutional value in false statements of fact." This is a claim about what we can call first-order free expression interests, the values both individual and social of the dissemination of statements. The first step in my argument is that the first-order claim requires substantial analysis, and that, though there might be no social value in the dissemination of a false statement of fact with respect to its content, a Millian argument of a certain sort shows that the first-order claim might be mistaken when other individual and social interests are taken into account. But, I argue, a different analysis is required when we come to lies, defined as false statements of fact known or believed by the speaker to be false. Like mere falsehoods, lies might not have social value with respect to their content, but the Millian argument that supports the conclusion that there might be social value in the dissemination of falsehood doesn't support the conclusion that there might be such value in the dissemination of lies.

The next step in the argument turns to second-order concerns, mostly about lies but with implications for the analysis of mere falsehoods. Second-order analysis deals with the institutions we have for implementing the rules regarding first-order individual and social interests. It asks whether those institutions have characteristics that allow them to generate results that are reasonably reliable in determining when the first-order interests will be promoted or impaired by regulation. Second-order concerns, I argue, support the conclusion that broad bans on the dissemination of lies should be viewed with great suspicion but that bans targeted at well-defined, quite specific lies shouldn't be seen as violating free expression principles. The principal second-order concern is the possibility that juries in particular (but other decision-makers as well) will wrongly infer from a statement's evident falsity that it must have been made with knowledge that it was false.

This argument has significant implications for First Amendment doctrine. For example, it suggests that United States v. Alvarez was wrongly decided because it failed to recognize that the second-order concerns it properly identified in connection with a "Ministry of Truth" were inapposite with respect to a statute prohibiting someone from lying about having received a military honor. The argument suggests that a statute creating a Ministry of Truth charged with identifying specific falsehoods that, if disseminated with knowledge of their falsity, would be constitutionally problematic because of the bureaucratic incentives the ministry would have to find something to do.

Free Speech

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Joe Selvaggi of the Pioneer Institute (a Boston-based think tank) recently interviewed me about exclusionary zoning, and my forthcoming Texas Law Review article on that subject (coauthored with Josh Braver of the University of Wisconsin). We cover the harm caused by exclusionary zoning, its undermining of property rights, and the reasons why it violates the Takings Clause of the Fifth Amendment.

The audio and transcript of the podcast are available here.

And here is the video:

An excellent opinion piece in the Harvard Crimson, by one of the nation's leading scholars of race and the law. An excerpt:

On a posting for a position as an assistant professor in international and comparative education at the Harvard Graduate School of Education, applicants are required to submit a CV, a cover letter, a research statement, three letters of reference, three or more writing samples, and a statement of teaching philosophy that includes a description of their "orientation toward diversity, equity, and inclusion practices."

At Harvard and elsewhere, hiring for academic jobs increasingly requires these so-called diversity statements, which Harvard's Derek Bok Center for Teaching and Learning describes as being "about your commitment to furthering EDIB within the context of institutions of higher education."

By requiring academics to profess — and flaunt — faith in DEI, the proliferation of diversity statements poses a profound challenge to academic freedom.

A closer look at the Bok Center's page on diversity statements illustrates how….

I am a scholar on the left committed to struggles for social justice. The realities surrounding mandatory DEI statements, however, make me wince. The practice of demanding them ought to be abandoned, both at Harvard and beyond.

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If doctors who believe the Food & Drug Administration mistakenly approved or deregulated a drug cannot sue the FDA, can anyone else? This was the very first question asked at oral argument in FDA v. Alliance for Hippocratic Medicine last week. Though initially raised by Justice Thomas, other justices picked up on the question, and it remains an interesting question. If AHM lacks standing here (as I have argued), can anyone sue the FDA? Maybe. Maybe not (at least at the moment). And if not, that might be okay.

It is quite common in standing cases for a judge or justice to ask "if not this plaintiff, then who would have standing?" While it is often the case that a different plaintiff, who is differently situated or has a more concrete stake in the underlying question may be more likely to have standing, that is not always the case. In some cases, no one has standing, at least not under current law. Not every governmental wrong may be remedied in federal court. As Justice Alito wrote for the Court in Clapper v. Amnesty International (quoting prior decisions of the Court going back fifty years), "the assumption that if respondents have no standing to sue, no one would have standing, is not a reason to find standing." In a standing case, the question is always whether the plaintiffs have standing, as this is what Article III (as currently interpreted) requires, not whether there is a hypothetical plaintiff that might have standing.

As a general matter, it is always more difficult to demonstrate standing when a plaintiff is seeking to influence how the government treats a third party than when a plaintiff is seeking to vindicate his or her own rights as against the government. So, for instance, a taxpayer may be able to sue if she believes the government unlawfully denied her a tax break, but is unlikely to have standing to challenge a governmental decision granting an illegal tax break to someone else.

In the regulatory context, it is always easier for a regulated firm to challenge how it is regulated than it is for third parties to challenge regulatory decisions. So a regulated firm has standing to challenge an Environmental Protection Agency regulation restricting that firm's activities, but an individual who wants to see more stringent regulation may or many not have standing to sue the EPA for failing to regulate that firm more aggressively. In some cases (environmental law in particular), Congress has created citizen suit provisions to address this asymmetry and make it easier for the beneficiaries of government regulation to meet the requirements of standing, and the Supreme Court has recognized that such provisions can make it easier to satisfy some of Article III's requirements. Congress has also enacted qui tam laws that facilitate suits by whistleblowers or others who discover government malfeasance or misfeasance, and these statutory provisions have enabled plaintiffs to clear the standing hurdle. Congress has not enacted such a provision that applies to FDA drug approval, however.

Even though Congress has never enacted an FDA-specific cause-of-action to make it easier for non-regulated parties to sue the FDA, that does not mean groups haven't tried. AHM is not the first ideological-oriented organization that sought to challenge the FDA's product-approval or regulatory decisions in court, and it is not the first such plaintiff to confront a serious standing hurdle. Courts have turned away several such suits, including cases filed by activist groups seeking to challenge FDA approval of vaccines (and not just for COVID-19), dental groups seeking greater regulation of mercury in dental amalgam, and suits by environmental organizations seeking greater regulation of hair-straightening products. The U.S. Court of Appeals for the Sixth Circuit also turned away a suit filed by a medical group challenging the FDA's revocation of an emergency use authorization for hydroxychloroquine, concluding it could not meet the test for associational standing.

While most activist suits challenging FDA policies have foundered on standing grounds, one that succeeded (at least in a district court) involved an effort by various medical organizations to force greater regulation of vaping products. In American Association of Pediatrics v. FDA, 379 F.Supp.3d 461 (D. Md. 2019), a district court in Maryland accepted claims of associational standing that mirror those asserted by AHM. According to the plaintiffs, if the FDA did not force vaping product manufacturers to submit their product marketing applications more rapidly, the plaintiff organizations would have more difficulty pursuing their public health mission because they would not have access to the information generated by the application review process. The district court bought this argument based upon an aggressive reading of Havens Realty, and the FDA ultimately acquiesced (leading to a crush of vaping product applications that the agency had no ability to properly review on a timely basis, arguably contributing to the FDA's vaping problem). As readers might expect, I think this decision had some of the same problems as did the lower court opinions in the AHM litigation (perhaps more, as the AAP case also implicated the FDA's enforcement discretion). [Note: Another activist group filed suit against the FDA for failing to ban menthol cigarettes this week, and standing should be an issue here too.]

There are also cases in which competitors have been able to assert standing to sue the FDA. As Michael Dorf notes in this post, there are cases in which the maker of a brand-name pharmaceutical challenged the approval of a generic, but this avenue will not always be available.

Another possibility that Dorf suggests might result from an FDA drug approval decision that will increase the costs for health care providers, there might be an argument for standing. Of note, this was the theory upon which several blue states sued the FDA arguing that it had not done enough to reregulate mifepristone (a suit, as I noted here, clearly intended to create a conflict in case AHM's claims succeeded). Specifically the states argued that the FDA's failure to make mifepristone more widely available increased the costs borne by state Medicaid programs, both because there are costs to comply with the FDA's restrictions and because restrictions on mifepristone result in more surgical abortions. I was skeptical of these arguments here, but it does indicate the sort of standing theory that might work. So, for instance, insofar as health insurers are required to provide cost-free coverage of certain classes of FDA-approved medications, an insurer might be able to assert standing when a new such drug is approved and that approval will increase the insurers' costs.

It is certainly true that it is difficult for those who are not regulated by the FDA to sue the agency for its regulatory and drug-approval decisions, but this is not mean those who are harmed by FDA drug-approval decisions have no means of redress. The FDA regularly reconsiders drug-approval decisions when new information reveals risks or problems about which the agency had been aware. More importantly, when the FDA approves a medication, this does not immunize the manufacturer against tort liability, as cases such as Wyeth v. Levine make clear. As FDA drug approval decisions are largely based upon the manufacturer's submissions, such liability may actually more to protect the public than would making it easier to sue the agency.

Regular readers know that I am hardly an FDA apologist. The agency has made mistakes and bad policy decisions, and likely will again. And, like any agency, the FDA's decisions should be subject to hard-look review when a party with Article III standing brings a suit in court. It may be difficult for non-regulated entities and individuals to bring such claims, but that does not mean plaintiffs such as AHM should get special treatment by the courts. Rather, if it is too difficult for associations and others to sue the FDA, it is up to Congress to create causes of action that facilitate standing as it has done in other areas. But unless and until Congress takes such a step, plaintiffs such as AHM should be told they lack standing to bring these sorts of claims in federal court.

* * *

For those interested, here are my prior blog posts about the AHM mifepristone litigation and the issues it raises:

"The Next Abortion Battlegrounds," June 22, 2022;
"Assessing the Legal Claims in Alliance for Hippocratic Medicine v. FDA," March 8, 2023;
"AHM v. FDA: A Contrary View and a Rejoinder," March 28, 2023;
"Blue-State AGs Have A Mifepristone Lawsuit of Their Own," March 29, 2023;
"Two (Wrong) Mifepristone Court Rulings in One Day," April 8, 2023;
"The Good and Bad of the Fifth Circuit's Abortion Pill Ruling," April 13, 2023.
"BREAKING: Supreme Court to Consider Fifth Circuit's Abortion Pill Decision," Dec. 13, 2023.
Supreme Court Denies Red State Effort to Intervene in Mifepristone Case, Feb. 20, 2024.
Can Emergency Room Doctors Sue the FDA for Failing to Regulate Mifepristone More Aggressively?, Mar. 26, 2024.
Mifepristone in the Supreme Court—Comments on Oral Argument (Updated), March 26, 2024

The article is here; the Introduction:

As partisan polarization and social violence have risen in recent years, and public faith in governing institutions has declined, scholars across a remarkable range of academic disciplines have embraced concerns that one or more features of our current information ecosystem is functioning to widen cracks in core structures of U.S. constitutional democracy. The causes for concern are not hard to see. Social media and other online communications platforms have featured centrally in repeated, high-profile attacks on democratic processes directly—from the Russian disinformation campaign aimed at influencing the presidential election of 2016, to the organization of the physical invasion of Congress based on false claims of election fraud in 2021. At the same time, partisan cable media preferences, the algorithmic influence of online platforms, and longstanding professional conventions of traditional media have amplified the spread of false information or on occasion declined to circulate the truth, seeming to operate in more diffuse ways to undermine prospects for the kind of compromise or even shared perception that democratic governance requires. And indicators that the existing information environment drives, or at least reinforces, sharp partisan divisions among Americans abound. Today, more than two-thirds of Republicans (but just 3 percent of Democrats) believe that Joe Biden's election was the product of voter fraud.

Yet while these developments have given rise to profound concerns about the future of constitutional democracy—a system of government featuring not only regular popular elections but also independent political and judicial authorities, respect for the rule of law, a free press, and at least baseline protections for individual freedom and civic equality—debate over how we might remedy the current state of affairs in the United States has been hamstrung by the persistence of two enduring fictions surrounding how our Constitution protects the freedom of speech.

The first is the expectation that the harms caused by most any problematic speech can best be corrected by, as Justice Brandeis famously put it, "more speech." If the goal is correcting false perceptions of reality or misguided beliefs, the theory goes, natural competition in the "marketplace of ideas" best ensures that truth will out. But as a growing number of scholars, and at least two Supreme Court justices have lately noted, reasons abound to believe that expectation has become "obsolete." Confronted with a choice among effectively infinite sources of information, Americans' behavior has reflected long-recognized cognitive habits like confirmation bias and conformity bias, which lead us to seek out information sources that are shared by our own identity groups and that confirm our existing views. Worse, empirical studies have demonstrated that corrections of misinformation do not invariably lead listeners to abandon reliance on misinformation heard in the first instance; Indeed, because corrections are filtered through listeners' pre-existing beliefs and allegiances, they can have the effect of further entrenching listeners' commitment to the original, mistaken belief. In the meantime, organized disinformation campaigns—by states and private actors, foreign and domestic—have proven highly effective in leveraging various contemporary communications tools not just to amplify falsehoods but to flood the "market" with contradictory information, raising concerns that the predominant effect is that listeners simply tune out.

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This episode is notable not just for cyberlaw commentary, but for its imminent disappearance from these pages and from podcast playlists everywhere. Having promised to take stock of the podcast when it reached episode 500, I've decided that I, the podcast, and the listeners all deserve a break.

So, I'll be taking one after the next episode. No final decisions have been made, so don't delete your subscription, but don't expect a new episode any time soon. It's been a great run, from the dawn of the podcast age in 2014, through the ad-fueled podcast boom, which I manfully resisted, to the podcast market correction that's still under way. It was a pleasure to engage with listeners from all over the world. (Yes, even the EU! )

As they say, in the podcast age, everyone is famous for fifteen people. That's certainly been true for me, and I'll always be grateful for listeners' support – not to mention for all the great contributors who've joined the podcast over the years.

Turning back to cyberlaw, there are a surprising number of people arguing that there's no reason to worry about existential and catastrophic risks from proliferating or runaway AI risks. Some of that is people seeking clever takes; a lot of it is ideological, driven by fear that talking about the end of the world will distract attention from the dire danger of face recognition. One useful antidote to this view is the Gladstone Report, written for the State Department's export control agency. David Kris gives an overview of the report for this episode of the Cyberlaw Podcast. The report explains the dynamic, and some of the evidence, behind all the doom-saying, a discussion that is more persuasive than the report's prescriptions for avoiding disaster through regulation.

Speaking of the moral panic over face recognition, Paul Stephan and I unpack a New York Times piece saying that Israel is using face recognition in its Gaza conflict. Actually, we don't so much unpack it as turn it over and shake it, only to discover it's largely empty. Apparently, the editors of the NYT thought that tying face recognition to Israel and Gaza was all their readers needed to understand that the technology is evil, evil, evil.

More interesting is this story arguing that the National Security Agency, traditionally at the forefront of computers and national security, may have to sit out the AI revolution. The reason, David tells us, is that NSA's access to mass quantities of data for training is complicated by rules and traditions against intelligence agencies accessing data about Americans. And there are few training databases not contaminated with data about and by Americans.

While we're feeling sorry for the intelligence community's struggles with new technology, Paul notes that Yahoo News has assembled a long analysis of all the ways that personalized technology is making undercover operations impossible for CIA and FBI alike.

Michael Ellis weighs in with a review of a report by the Foundation for the Defence of Democracies on the need for a U.S. Cyber Force to man, train, and equip warfighting nerds for Cyber Command. It's a bit of an inside baseball solution, heavy on organizational boxology, but we're both persuaded that the current system for attracting and retaining cyberwarriors is not working. As "Yes, Minister" would tell us, we must do something, and this is something.

In contrast, it's fair to say that the latest Senate Judiciary proposal for a "compromise" 702 renewal bill is nothing, or at least nothing much – a largely phony compromise that substitutes ideological baggage for real-world solutions. David and I are unimpressed -- and surprised at how muted the Biden administration has been in trying to wrangle the Democratic Senate toward a workable bill.

Paul and Michael review the latest trouble for TikTok – a likely FTC lawsuit over privacy. And Michael and I puzzle over the stories claiming that Meta may have "wiretapped" Snapchat analytic data. They come from

trial lawyers suing Meta, and they raise are a lot of unanswered questions, such as whether users consented to the collection of the data. In the end, we can't help thinking that if Meta had 41 of its lawyers reviewing the project, they probably found a way to avoid wiretapping liability.

The most intriguing story of the week is the complex and surprising three-or four-cornered fight in northern Myanmar over hundreds of thousands of women trapped in call centers to run romance and pig-butchering scams. Angry that many of the women and many of the victims are Chinese, China persuaded a warlord to attack the call centers and free many of the women, deeply embarrassing the current Myanmar ruling junta and its warlord allies, who'd been running the scams. And we thought our southern border was a mess!

And in quick hits:

Elon Musk's X Corp. has lost lawsuit against the left-wing smear artists at CCDH.
AT&T has lost millions of customer records in a data breach.
Utah has passed an AI regulation bill.
The U.S. is still in the cyber sanctions business, tagging several Russian fintech firms and a collection of Chinese state hackers.
The SEC isn't done milking the SolarWinds hack; now it's investigating companies harmed by the supply chain attack.
Apple's reluctant compliance with EU law has attracted the expected EU investigation of its app store policies.
And in a story that will send chills through large parts of the financial and tech elite, it turns out that Jeffrey Epstein's visitor records didn't die with him. Thanks to geolocation adtech, they can be reconstructed. WIRED may need 41 lawyers to do it, but don't be surprised to see future stories naming names.

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You can subscribe to The Cyberlaw Podcast using iTunes, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

A new academic study by Brianna Richmond, et al., purports to show that opposition to Critical Race Theory is correlated with ignorance of CRT. The quiz the authors use, however, to determine the level of knowledge of CRT is quite problematic. CRT, being a body of academic work, does not have a singular position on various issues, making any such "quiz" difficult. But with that said, the quiz is structured so that the answers reflect how many CRT advocates would like CRT to be seen for PR purposes, rather than a reasonable interpretation of what CRT often stands for. Let's go through the questions:

1. Which of the following is suggested by Critical Race Theory?
White Americans are naturally racist [lure]
Racism is an individual problem
People should be judged by their skin color
Certain laws in America have played a role in perpetuating racial inequality [correct]

In their paper, the authors describe the lure as white people are born racist, but that's not necessarily what "naturally" means. It could mean, for example, whites grow up in a racist society, so, *naturally*, i.e., the natural/expected consequences is, that they are racist, which is in fact what CRT often teaches. As for the third choice, do some Critical Race Theorists argue that in some circumstances different standards should apply to whites than to BIPOC or People of Color? Yes. So that answer is correct as well. As for the official correct answer, belief that laws in America have played a role in perpetuating racial inequality is not at all specific to CRT, to say the least.

2. What group is credited with creating Critical Race Theory (CRT)?
Academic scholars [correct]
Political radicals [lure]
The media (i.e. newspapers)
Elementary school teachers

I can't think of any of the founders of Critical Race Theory who wouldn't qualify as political radicals. Indeed, CRT is a self-consciously radical movement, not that there is anything inherently wrong with that. So both the lure and the official correct answer are correct.

3. Where is Critical Race Theory generally implemented?
Elementary schools [lure]
Law schools [correct]
Congress
West coast schools

CRT is much more prevalent and much more overt in law schools than in elementary schools, but there are only 190 law schools and tens of thousands of elementary schools, so the lure is again as good an answer as the putatively correct one, depending on whether one interprets "generally" as meaning prevalence or total presence.

4. A survey of African American adolescents found that 50% of them reported having experienced what at their school during the last 3 months?
Receiving a lower grade than deserved
Being wrongly disciplined or given detention by a teacher
Being called racial slurs by other kids at school [correct]
Feeling proud of their racial heritage because of learning CRT [lure]

First, let me say that this correct answer suggests an appalling reality. That said, I don't see what this question has to do with CRT, as such. It asks about an empirical finding, and Critical Race Theory doesn't have any monopoly on empirical research, and indeed some strands of CRT are hostile to empirics.

5. What implications does Critical Race Theory have for American history?
CRT rewrites American history to make Whites look bad and to advantage minorities [lure]
CRT explores the lasting effects of slavery/racism in institutions and systems [correct]
CRT teaches that Americans should be ashamed about their history
CRT ignores what makes America exceptional and makes it seem like any other country

I wouldn't say the lure is correct, because I don't think CRT historical scholarship is trying to make whites look bad and advantage minorities, and some historical scholarship by people affiliated with CRT is quite good. On the other hand, there is CRT-adjacent writing that does rewrite history in rather blatant ways. See, eg, Kendi & Reynolds Stamped: A Remix--though the authors begin the book by claiming that there history book isn't a history book. The official correct answer is indeed correct. But I think the next two choices are at least not incorrect. Surely, CRT teaches that Americans should be ashamed about some or even much of their history (and in some cases, most obviously slavery, they are correct!). And CRT-affiliated scholars are highly unlikely to buy into "American exceptionalism."

6. White students in a summer camp who were exposed to history lessons about racism reported:
Being bored and uninterested
Valuing racial fairness more [correct]
Feeling more negative attitudes toward White people [lure]
Less interest in math and science

OK, but what do knowing about the reactions of students "exposed to history lessons about racism" have to do with one's knowledge of Critical Race Theory?

7. Critical Race Theory was developed in conjunction with:
Marxism
Black Lives Matter [lure]
The 1619 Project
Intersectionality [correct]

Marxism is probably the best answer here. Early work on Critical Race Theory, most prominently by Derrick Bell, predated "intersectionality," but was clearly influenced by Marxism in general, and Critical Legal Studies, itself a Marxist offshoot, in particular. The correct answer is also correct.

8. How does Critical Race Theory interpret the Constitution?
CRT rejects the Constitution as an invalid document
CRT denounces the Constitution as conservative propaganda [lure]
CRT views the Constitution as sacred, holy, and inviolable
CRT explores how the text of the original Constitution and its amendments affected racial relations in America [correct]

"Rejects the Constitution as an invalid document" is perfectly fine answer, though of course this will vary depending on who one is talking to, and what one means by "invalid." As for the correct answer, many non-CRT scholars, including me, have done the same thing, it's not at all specific to CRT.

9. What does Critical Race Theory say about White people?
Critical Race Theory teaches White people they should feel guilty and ashamed. [lure]
Critical Race Theory suggests that racism between White and Black people is inevitable.
Critical Race Theory argues that achieving racial justice and equality between racial groups requires discriminating against White people.
Critical Race Theory indicates that White people have benefited from decades of laws designed to benefit White people but not other groups. [correct]

All of these answers are correct. The three answers coded as incorrect are more closely associated with CRT than the correct answer. With regard to "guilty and ashamed," there is a whole line of CRT scholarship, especially in psychology and anthropology, arguing that whites must develop "white racial consciousness" to recognize their privilege, and then become woke based on that recognition. Seems to me one can reasonably interpret this as saying white people should first feel guilty about their privilege, and then ashamed if they aren't using that privilege in anti-racist activism. I suppose saying that CRT suggests that racism is inevitable is a bit of an exaggeration, but it certainly suggests that it is an intractable problem in the US, and some like Derrick Bell have argued that any seeming amelioration of racism since the 1950s is an illusion. Finally, CRT scholars may bristle at affirmative action preferences being described as "discriminating against white people" it's hardly a "wrong" answer if a respondent feels otherwise.

Now, it would hardly surprise me if most Americans who have an opinion on CRT don't know much about it. As co-blogger Ilya Somin has often noted, the most Americans are remarkably ignorant about most political issues, even the most well-publicized ones. But I don't think this study is helpful in showing that ignorance of CRT is correlated with hostility to it.

4/2/1980: Justice Stanley Forman Reed dies.

My colleague Christian Burset is an outstanding legal historian, and he sent along this splendid revisionist account of Sackville's Case (1760). If you have advisory opinions on the mind, you'll be interested.

Every year since 1967, the British consulate in Chicago has received an anonymous delivery of roses on August 1. The mysterious flowers commemorate the Battle of Minden (1759), when British and German forces defeated the French army. Some British regiments still celebrate Minden, which helped set the stage for Britain's victory in the Seven Years' War. But it was an unhappy occasion for Britain's senior commander, Lord George Sackville, who was accused of cowardice when he failed to pursue and decisively destroy the retreating French. After the battle, Sackville resigned his commission and returned to England, where he decided that the only way to recover his reputation was to have a court-martial judge his actions and (he hoped) exonerate him.

The subsequent proceedings left a small but significant mark on U.S. constitutional law. Because Sackville was no longer an officer, it wasn't clear that he could be judged under military law. George II asked the twelve common-law judges for their advice on the matter, and they complied. Their terse opinion found "no ground to doubt of the legality of the jurisdiction of a Court-Martial" in Sackville's situation—i.e., an ex-officer being tried "for a military offence lately committed by him while in actual service and pay as an officer." For that reason, courts, lawyers, and scholars have cited Sackville's Case to illuminate Founding-era understandings of military jurisdiction over former servicemembers.

The decision has also been also cited as the last advisory opinion that English judges delivered to the Crown. Although the judges answered the King's request for an opinion, they did so grudgingly, asking to be spared from such tasks in the future. The judges' response has been used to illuminate the boundaries of justiciability under Article III of the U.S. Constitution. (I've previously written about Sackville's Case in that context.)

Despite its potential importance, Sackville's Case can be a frustrating source to use. The operative part of the reported opinion consists of a single sentence that sheds little light on the ratio decidendi. Indeed, the judges' reasoning is so opaque that some lawyers have refused to treat it as authority.

As often happens, however, the published opinion isn't the only version of the case. Sir Thomas Parker, Chief Baron of the Exchequer and one of the judges who participated in Sackville's Case, wrote a summary of the discussion among the judges before they gave their opinion. His notes of the conversation are now among the Parker Manuscripts at the Lilly Library, Indiana University Bloomington.

I've transcribed the document below, and readers can draw their own conclusions about its significance. But it might be helpful for me to note three possible implications—related to military jurisdiction, to advisory opinions, and to eighteenth-century approaches to legal argumentation.

First, Chief Baron Parker's notes reveal a broad judicial consensus in 1760 that discharged military personnel could be court-martialed for offenses committed during their active service. That's contrary to the Supreme Court's decision in United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955), which held that military jurisdiction over ex-servicemembers violated a number of constitutional provisions. To the extent that the Constitution reflects eighteenth-century English understandings of military jurisdiction, Quarles might require reexamination. (Justice Reed cited Sackville's Case in his Quarles dissent, but he only had access to the short published opinion, not the judges' underlying reasoning.)

Second, the issue didn't strike the judges as difficult. To be sure, some politicians and pamphleteers at the time expressed qualms about extending military jurisdiction over a discharged officer. But the Crown's law officers had already concluded that a court martial was proper, and the judges treated the case as an easy one. It seems from Parker's notes that only one judge, Sir Richard Adams, "had some doubt" about the outcome; and even he "was soon satisfied" by a citation to relevant precedent. Thus, when the judges expressed reluctance about giving an advisory opinion in Sackville's Case, it wasn't because they thought it was unusually hard or controversial. It was, more likely, because of structural concerns about advisory opinions in general (as I've argued elsewhere).

Finally, it's interesting to observe the judges' reasoning. The case principally concerned the construction of the Mutiny Act, and the judges paid close attention to the "penning" of the statutory text. But they also considered the statute's purpose (court-martialing a discharged officer, they reasoned, would "contribute to" the "exact discipline" at which the act aimed), as well as judges' prior interpretations of analogous statutes. It's a neat distillation of common-law orthodoxy regarding the interpretation of statutes on the eve of the American Founding.

Of course, Chief Baron Parker's version of the meeting is just that—Parker's version—and it's possible that he misreported or misremembered the conversation. But I see no reason to doubt his accuracy. In 1760, when Sackville's Case was decided, Parker had been a judge for nearly two decades, and he would continue to serve as Chief Baron of the Exchequer for another twelve years. During that time, he developed a reputation as a respected judge who took particular care with law reporting. There's another factor that lends credibility to Parker's notes. It's part of a volume of opinions that he prepared for his son. And even lawyers know how to give good gifts unto their children.

* * *

What follows is a transcription of a document found at pp. 227–28 in a volume catalogued as "Attorney's Reports, [Vol. 4?], 1701–3 March 1760," in the Parker Manuscripts, Lilly Library, Indiana University Bloomington. Some notes on the transcription:

I have silently expanded some abbreviations and contractions (e.g., "C.J." becomes "Chief Justice").
I have omitted some notes made on the manuscript in a different (and presumably later) hand.
Hyperlinks and text in brackets reflect my own editorial comments.

* * *

Lord Mansfield, T. P. [Thomas Parker, who wrote this document] Denison, Foster, Smythe, Adams, Bathurst, Wilmot, Noel, and Lloyd, Justices and Barons met at Lord Mansfield's House in Bloomsbury Square to answer this Question [i.e., the King's request for an advisory opinion], most of them having considered it before, upon a common report that it would be sent to them. They thought it depended upon the penning of the Mutiny Act 32 K. G. 2d [cited today as the Mutiny Act 1758, 32 Geo. 2 c. 5]. If any Person being mustered or in pay as an officer or who is or shall be listed or in pay as a Soldier, and on the 24 March 1759 shall remain in such service or shall during the continuance of this act herein after mentioned voluntarily enter himself in his Majesty's service as a Soldier shall at any time during such continuance of this Act within the Realm of Great Britain etc begin excite cause or join in any mutiny and sedition etc (mentioning the other offences) all and every Person so offending in any of the matters before mentioned shall suffer death or such other punishment as by a Court [228] Martial shall be inflicted. The King may grant Commissions to hold Courts Martial for the Tryal of the several offences in the said Act.* The Judges thought that it was only necessary that the party should be an officer at the time of Committing the offence, the words having relation to that time, but not to the time of Tryal; and if a different construction was to take place, a dismission before Tryal would in effect amount to a Pardon. The opinion of the Judges given upon a reference from Q. Ann. 15 December 1713 was cited upon the act 13 Car: 2. cap. 9 article 19 which enacts that no person in or belonging to the fleet should utter any word of sedition or mutiny etc when they held persons punishable for mutiny or other offence specified in the Act, if in service at the time of committing the offencewhich opinion was entered in the Court of Admiralty . . . ; So in Petit Treason by a Servant, the service need not continue, though the Relation constitutes the offense. So Governor Douglass was prosecuted by Information in the King's Bench in the Reign of K. Geo: 1st, for oppressing the People under his Government on the Stat. 11 & 12 W. 3. ca. 12 after he was recalled from his Government and being convicted was severely fined and imprisoned. Brother Adams had some doubt upon the words of the preamble of the Act, that an exact discipline should be observed, and thought that the punishing of a dismissed officer would not contribute to it, but the other Judges thought that the example would have a proper effect [cf. Voltaire on Admiral Byng!], and he laid some stress upon the words shall remain in such service, but it is clear they only relate to 24th of March 1759, but he was soon satisfied, and principally by the opinion of the Judges in 1713. Lord Chief Justice Willes was indisposed, and could not attend, but agreed in opinion with the rest of the Judges, and Brother Clive was upon his Circuit at York.

[After this document, there follows the letter to the King and accompanying opinion as reported in 97 Eng. Rep. 940.]

I'm grateful to Christopher Linfante for transcription assistance and to Professor Robert Leider for his comments about military jurisdiction.

Blocked Facebook page — Rafael Henrique | Dreamstime.com

One of the main arguments advanced to justify the Florida and Texas social media laws challenged in NetChoice v. Paxton and Moody v. NetChoice, (cases currently before the Supreme Court) is the claim that social media firms are "common carriers." Therefore, it is argued, the states can enact laws barring them from using most types of content moderation, even if such restrictions would otherwise violate the First Amendment.

University of Pennsylvania law Prof. Christopher Yoo recently published an article that is the most thorough takedown of the common carrier theory so far. Here is the abstract:

Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier demonstrates that four of the purported criteria (whether the industry is affected with a public interest, whether the social media companies possess monopoly power, whether they are involved in the transportation and communication industries, and whether social media companies received compensating benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (whether an actor holds itself out as serving all members of the public without engaging in individualized bargaining) would again seem inapplicable to social media and have little bearing on the First Amendment. The weakness of these arguments suggests that advocates for limiting social media's freedom to decide which voices to carry are attempting to gain some vague benefit from associating their efforts with common carriage's supposed historical pedigree to avoid having to undertake the case-specific analysis demanded by the First Amendment's established principles.

I agree with almost all of Yoo's analysis. In particular, I think he is right that social media firms don't fit any of the traditional rationales for common carrier status, and that states cannot simply create such status by legislative fiat (or at least, if they do, it cannot override constitutional constraints on their regulatory authority).

I offered some related critiques of the common-carrier rationale for social media regulation here:

The standard rationale for common carrier regulation is that the the firms in question have some kind of monopoly power. A classic example is a situation where there is only one railroad available to move freight from Point A to Point B, in an era where the only alternative modes of transportation (e.g.—horse-drawn wagons) were vastly slower and less efficient. It is often argued that "Big Tech" social media have some sort of monopoly over the distribution of political information, especially online.

The reality is very much otherwise. Recent survey data compiled by the Pew Research Foundation finds that many more Americans get news by means other than social media than use the latter. For example, 68% of Americans indicated they regularly get news from media websites and apps, 68% from television, and only 53% from social media sites. Among the overwhelming majority (about 96% of the total sample) who use more than one type of media to get news, 35% preferred TV, 26% preferred news websites and apps, and only 11% said they preferred social media. The same study also found that, on average, Americans trust news from social media sources less than that from television and news websites.

What is true of news is also true of opinion and commentary about political and social issues in the news. Most TV news channels, media websites, and other similar information sources carry extensive commentary and opinion pieces. And, of course, they routinely print and broadcast statements by politicians, activists, and other public figures.

To the extent we are specifically concerned with access for conservative viewpoints, there are large right of center players in both TV media and online news and opinion. These include such major outlets as Fox News, the Wall Street Journal editorial page, the Washington Times, the New York Post, and others….

Other rationales for imposing common carrier rules on social media firms are even weaker than the monopoly theory. For example, Eugene Volokh and others cite analogies to telephone lines or mail carriers. Most people wouldn't want phone companies to bar calls by those whose ideologies they disapprove of.

But such analogies are misplaced. With rare exceptions, phone calls and letters only reach a small, specifically intended audience….. By contrast, the whole point of most political discourse on social media is the ability to reach a large audience all at once. But an information product that reaches a large audience simultaneously usually works better if it has at least some moderation rules, and other constraints that enable consumers to find the material they want, while avoiding harassment, offense, and other things that make the experience annoying, unpleasant, or simply a waste of time.

For that reason, moderation rules and content restrictions are crucial for social media, in a way that is rarely, if ever, true for phone lines or mail delivery services….

[E]ven if social media platforms sometimes adopt flawed rules, the fact remains that such rules are often a valuable part of the product they provide. And it is far better for the quality… of such rules to be determined by competition in the market than by one-size-fits-all government mandates—or by a common carrier mandate imposing a near-total ban on such rules….

Perhaps the problem is not that social media giants monopolize any audience in some economic sense, but that they have too much influence over political discourse relative to some egalitarian baseline. Why should Mark Zuckerberg's views have any more clout than those of the average American? But we can make exactly the same argument for the owners and editors of Fox News, the New York Times, and any other outlet with a large audience. They too have vastly more influence over public discourse than the average American does….

Giving government a free hand to impose common carrier restrictions on any website or media outlet that "monopolizes" a particular audience or otherwise has "too much" influence is a power that can and will be abused. Call it "common carrier creep!"

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