[NCAC] PRIVATE CENSORSHIP – FIGHTING SUPPRESSION OF SPEECH BY NON-GOVERNMENTAL ACTORS

this is why this issue is so interesting, and vexing

 

Volokh has a draft article ready on the common carrier analogy:

https://reason.com/volokh/2021/07/05/social-media-platforms-as-common-carriers-2/

Social Media Platforms as Common Carriers?
I finally have a presentable draft of this article, forthcoming in the Journal of Free Speech Law; I'll be posting excerpts over the next couple of weeks.

EUGENE VOLOKH | 7.5.2021 6:45 PM

You can also read the article PDF; I still have time to make edits, and I'd love to hear what corrections or suggestions or counterarguments people have. Here, to start with, is the Introduction:

[* * *]

Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications.[1] That would be unconstitutional,[2] however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren't bound by the First Amendment, they too are common carriers[3] and thus can't refuse to ship books sent by "extremist" publishers.[4]

Likewise for phone companies, whether land-line monopolies or competitive cell phone providers.[5] Verizon can't cancel the Klan's recruiting phone number, even if that number is publicly advertised so that Verizon can know how it's being used without relying on any private information.[6] To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others' views.[7] But they are common carriers as to their function of providing customers with telephone communications services.

And this seems to me to be a valuable feature of our regulatory system, not just an odd side effect of common carrier law. Certain kinds of important infrastructure, under these rules, are available equally to all speakers, regardless of the speakers' ideologies. Government enterprises (such as the post office) shouldn't decide which organizations or ideas should be handicapped in public debates. And neither should large private businesses, such as phone companies or package delivery services.

That is important even as to groups and viewpoints that are seen as extreme. But it is especially important as to viable political candidates, ideas, or media outlets that are serious competitors in democratic life. When elections are closely divided, even small interference with various groups' ability to affect public opinion can make a big difference in outcomes.[8] FedEx and Verizon shouldn't have the power to thus affect elections by refusing to carry certain views.

On the other hand, say the Los Angeles Times refuses to run an ad promoting the KKK, or promoting Antifa, or opposing vaccination. There is good reason to support the Times' right to do this. People read the Times in part precisely because of its editorial judgment, its ability to winnow the good and sensible views out of the vast mass of nonsense and folly; treating the Times as a common carrier would make it useless. And indeed the Times would have a First Amendment right to refuse to publish whatever material it chooses.[9]

The same would likely happen if a bookstore refused to distribute books like that. Perhaps both the newspaper and the bookstore might be condemned as unduly narrow-minded, if they go too far in excluding such material, at least unless they promote themselves as being ideologically focused. But for material that is seen as sufficiently extreme, newspapers' and bookstores' rejecting such material is quite normal.

The question, of course, is where we might fit the various functions of social media platforms.[10] This Article will offer some (often tentative) thoughts on this questions. I'll begin by asking in Part I whether it's wise to ban viewpoint discrimination by certain kinds of social media platforms, at least as to what I call their "hosting function"—the distribution of an author's posts to users who affirmatively seek out those posts by visiting a page or subscribing to a feed.

I'll turn in Part II to whether such common-carrier-like laws would be consistent with the platforms' own First Amendment rights, discussing the leading Supreme Court compelled speech and expressive association precedents, including PruneYard Shopping Center v. Roberts; Turner Broadcasting System v. FCC; Rumsfeld v. FAIR; Miami Herald Co. v. Tornillo; Wooley v. Maynard; Pacific Gas & Electric Co. v. Public Utilities Commission; Riley v. National Federation of the Blind; Hurley v. Irish-American Gay, Lesbian & Bisexual Group; NIFLA v. Becerra; Boy Scouts of America v. Dale; and Janus v. AFSCME. (I discuss elsewhere whether such laws, if enacted on the state level, would be barred by 47 U.S.C. § 230(c)(2)(A) and the Dormant Commerce Clause.[11]) And then I'll turn in Part III to discussing what Congress may do by offering 47 U.S.C. § 230(c)(1) immunity only for platform functions for which the platform accepts common carrier status, rather than offering it (as is done now) to all platform functions.

On balance, I'll argue, the common-carrier model might well be constitutional, at least as to the hosting function. But I want to be careful not to oversell common-carrier treatment: As to some of the platform features that are most valuable to content creators—such as platforms' recommending certain posts to users who aren't already subscribed to their authors' feeds—platforms retain the First Amendment right to choose what to include in those recommendations and what to exclude from them.

And I also don't want to oversell the label "common carrier." I think the analogy to certain familiar common carriers, such as phone companies and package delivery services, is helpful; but it's only an analogy. Even if it proves to be a helpful analogy, there's little reason to think that all the details of common carrier law ought to be fully adopted for social media platforms, or that the threshold for regulation should be defined by traditional common carrier rules.[12]

Other analogies can also be helpful: As Part II.A will argue, the clearest First Amendment analogs would be cable must-carry rules and rights of access to the real estate of shopping malls and universities.[13] Justice Thomas has recently suggested that public accommodation laws might be useful analogies as well;[14] indeed, some courts have recently treated media web sites as places of public accommodations for purposes of disability law,[15] and laws in some jurisdictions already ban discrimination based on political affiliation or ideology.[16] The point is simply that the insights behind how certain communication and distribution services—and certain forms of property more generally—may and may not be regulated could also be helpful for thinking about various functions of social media platforms.



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Volokh serializing the paper on his blog. Adds a comment that was made in response to the first entry above:

A commenter on the Introduction post, by the way, remarked that such calls for treating social media platforms as common carriers aren't very libertarian or conservative—and they're not. They stem from a concern that's mostly associated with liberals (though not foreign to conservatives): the concern over excessive private corporate power, which sometimes needs to be checked by government power. I'm generally skeptical about such concerns (more on that later), but I wonder whether in this instance this traditional liberal worry is justified. More below, and more on the First Amendment questions coming up soon.
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Economic Power Being Leveraged to Control Political Discourse

https://reason.com/volokh/2021/07/06/economic-power-being-leveraged-to-control-political-discourse/

 

he spends a LOT of time discussing the weaknesses of the analogy

 

https://reason.com/volokh/2021/07/0...n-against-religious-national-or-other-groups/

FREE SPEECH

Facebook Will Now Ban Criticism of "Concepts, Institutions, Ideas, Practices, or Beliefs" When They Risk "Harm, Intimidation, or Discrimination" Against Religious, National, or Other Groups
This includes "burning a national flag or religious texts, caricatures of religious figures, or criticism of ideologies."
EUGENE VOLOKH | 7.6.2021 8:54 PM

Facebook is adding the following to its "hate speech policy":

Do not post:

Content attacking concepts, institutions, ideas, practices, or beliefs associated with protected characteristics, which are likely to contribute to imminent physical harm, intimidation or discrimination against the people associated with that protected characteristic. Facebook looks at a range of signs to determine whether there is a threat of harm in the content. These include but are not limited to: content that could incite imminent violence or intimidation; whether there is a period of heightened tension such as an election or ongoing conflict; and whether there is a recent history of violence against the targeted protected group. In some cases, we may also consider whether the speaker is a public figure or occupies a position of authority.​

The explanation:

This provision will appear in a section of the Community Standards devoted to policies that require additional context in order to enforce (for more about this group of policies, see here, under the heading "Sharing Additional Policies Publicly"). Specialized teams will look at a range of signals, as noted in the text quoted above, to determine whether there is a threat of harm posed by the content.

By way of example, burning a national flag or religious texts, caricatures of religious figures, or criticism of ideologies may be a demonstration of political or personal expression, but may also lead to potential imminent violence in certain contexts. Previously, this content would have been left up; now, with context, we have created a framework of analysis for determining when it poses an imminent risk of harm and might be taken down.​

Protected characteristics are "race, ethnicity, national origin, disability, religious affiliation, caste, sexual orientation, sex, gender identity and serious disease"; so it seems like Facebook may block:

• Criticisms of religious institutions and belief systems, if Facebook concludes they seem "likely to contribute to imminent … discrimination" against the targeted religious group.
• Criticisms of a foreign country or government (China, the Palestinian Authority, in principle Israel), if Facebook concludes they seem "likely to contribute to imminent … discrimination" against its citizens or people who share an ethnicity with it.
• Criticisms of pro-transgender-rights or pro-gay-rights beliefs, if if Facebook concludes they "likely to contribute to imminent … discrimination" against sexual minorities.
• Criticisms of feminism, if Facebook concludes they seem "likely to contribute to imminent … discrimination" against women.
• Criticisms of pro-disability-rights positions, if Facebook concludes they seem "likely to contribute to imminent … discrimination" against the disabled.

And of course the proposal contemplates that this would be applied to election campaigns, even when candidates for office are debating these very issues, and even when swaying a small percentage of the electorate can change the outcome. Which leads me to ask again, "Whose rules should govern how Americans speak with other Americans?," on a platform "has become a virtually indispensable medium for political discourse, and especially so in election periods"? (Naturally, citizens of other countries may reasonably ask similar questions for their own countries as well.) Right now, the answer seems to be "an immensely rich and powerful corporation."

​

 

another installment on the Volokh paper:

Social Media Platforms and the Dangers of Censorship Creep

https://reason.com/volokh/2021/07/07/social-media-platforms-and-the-dangers-of-censorship-creep/

 

h/t @adoo