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Federal Appeals Court Upholds Texas Law Banning Viewpoint Discrimination On Largest Internet Platforms

Federal Appeals Court Upholds Texas Law Banning Viewpoint Discrimination On Largest Internet Platforms

In a split decision, the Fifth Circuit reverses district court decision in NetChoice v Paxton.

By a split decision, the federal Court of Appeals for the Fifth Circuit upheld a Texas law prohibiting large social media companies from viewpoint discrimination in the services they provide.

Some background: once upon a time, there was such a thing as a “public square.” Markets happened in public space. On market days, merchants and farmers from out of town could come into town and sell their wares at those markets. People who wanted to spread information could announce it out loud at those markets so friends and neighbors heard. Even after public markets became infrequent, people did their shopping in stores that abutted public streets, where public announcements could be made.

Then the telephone was invented, and later the shopping mall became popular. People did a lot less shopping and spreading news in public spaces. Telephones became tightly regulated public utilities.

Telephone companies were also treated as “common carriers,” a term used for businesses like buses and trains that provide service to get from point A to point B; the term now also applies to communication services. (“Common” means the service is offered to the general public.) Federal civil rights statutes outlawed discrimination on common carriers on the bases of race, color, national origin, and religion; up to now, political opinions haven’t been a prohibited basis to discriminate.

Courts wrestled with whether privately-owned shopping malls could keep out handbill spreaders, and mostly decided that they could, because they were private. There were occasional outlier decisions, like PruneYard Shopping Center v. Robins. The U.S. Supreme Court upheld the California Supreme Court’s holding that the state constitution did not let private mall owners bar the handbill-spreaders from spreading their message.

Then the internet and social media happened. Facebook, Twitter, and other social media have largely replaced the “public square” as fora for spreading news. Congress even helped social media along by granting platform owners immunity from liability for content spread on their website platforms. “Section 230,” as it’s generally called, immunizes owners (and users) of an “interactive computer service” who publish information provided by third-party users. The assumption was that platforms would be open to all.

It hasn’t quite worked out that way.

Many social media companies are owned and/or controlled by left-wing partisans. Twitter and Facebook blocked New York Post coverage of alleged influence-peddling by the Biden family until after the 2020 election. Twitter also censored coverage by the NY Post and others of corruption within the Black Lives Matter organization. Crowdsourcing platform GoFundMe has refused to host politically incorrect conservative causes like New York City bodega clerk Jose Alba, Kyle Rittenhouse, and the Canadian trucker convoy. In the case of the trucker convoy, GoFundMe even threatened to take money already donated to the convoy and divert it to other recipients. More and more frequently, all of these media obstruct advocacy of right-of-center ideas, support for partisans of those ideas, and criticism of left-of-center ideas or left-wing political partisans.

Viewpoint discrimination by the largest social media platforms has seriously harmed conservative messaging. It’s not a healthy sign to non-conservatives concerned about the free spread of ideas, either.

Texas responded by finding that large social media companies are common carriers, and forbidding them to discriminate. The law, H.B. 20, only applies to platforms with more than 50 million monthly active users, like Facebook, Twitter, and YouTube. It bans such platforms from censoring user expression based on viewpoint. The law provides:

A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

(1)     the viewpoint of the user or another person;
(2)     the viewpoint represented in the user’s expression or another person’s expression; or
(3)     a user’s geographic location in this state or any part of this state.

HB 20 also imposes disclosure and operational requirements on the platforms. They must disclose how they moderate and promote content, publish an “acceptable use policy,” publish a “biannual transparency report,” and maintain a complaint-and-appeal system for their users when the platform removes content.

NetChoice and its co-defendant, both of which are trade associations representing companies that operate platforms covered by the Texas law, challenged the statute. The lower court enjoined the law as being unconstitutional. The appeals court stayed the injunction, but the Supreme Court lifted the stay, meaning the law was enjoined from being in effect.*

[Click on image to see document.]

In a split decision (and after the quick trip to the Supreme Court to lift the circuit court’s stay), the Court of Appeals for the Fifth Circuit vacated the injunction and held that the state could properly prohibit viewpoint-based discrimination under its authority to bar common carriers from discriminating.

The circuit court reversed the lower court and upheld the anti-censorship law.

A Texas statute named House Bill 20 generally prohibits large social media platforms from censoring speech based on the viewpoint of its speaker. The platforms urge us to hold that the statute is facially unconstitutional and hence cannot be applied to anyone at any time and under any circumstances. In urging such sweeping relief, the platforms offer a rather odd inversion of the First Amendment. That Amendment, of course, protects every person’s right to “the freedom of speech.” But the platforms argue that buried somewhere in the person’s enumerated right to free speech lies a corporation’s unenumerated right to muzzle speech.

The implications of the platforms’ argument are staggering. On the platforms’ view, email providers, mobile phone companies, and banks could cancel the accounts of anyone who sends an email, makes a phone call, or spends money in support of a disfavored political party, candidate, or business. What’s worse, the platforms argue that a business can acquire a dominant market position by holding itself out as open to everyone—as Twitter did in championing itself as “the free speech wing of the free speech party.” Blue Br. at 6 & n.4. Then, having cemented itself as the monopolist of “the modern public square,” Packingham v. North Carolina, ––– U.S. ––––, 137 S. Ct. 1730, 1737, 198 L.Ed.2d 273 (2017), Twitter unapologetically argues that it could turn around and ban all pro-LGBT speech for no other reason than its employees want to pick on members of that community, Oral Arg. at 22:39–22:52.

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings…

And Section 7 of HB 20 imposes a basic nondiscrimination requirement that falls comfortably within the historical ambit of permissible common carrier regulation…

The doctrine’s roots lie in the notion that persons engaged in “common callings” have a “duty to serve.” This principle has been part of Anglo-American law for more than half a millennium. For early English courts, this principle meant that private enterprises providing essential public services must serve the public, do so without discrimination, and charge a reasonable rate…

The common carrier’s duty to serve without discrimination was transplanted to America along with the rest of the common law… It got its first real test with the rise of railroad empires in the second half of the nineteenth century. Rail companies became notorious for using rate differentials and exclusive contracts to control industries dependent on cross-country shipping, often structuring contracts to give allies (like the Standard Oil Company) impenetrable monopolies. See id. at 112–15, 129. American courts, however, often found that these discriminatory practices violated the railroads’ common carrier obligations…

The telegraph was the first communications industry subjected to common carrier laws in the United States. See Genevieve Lakier, The Non-First Amendment Law of Freedom of Speech, 134 Harv. L. Rev. 2299, 2320– 24 (2021). Invented in 1838, the telegraph revolutionized how people engaged with the media and communicated with each other over the next half century. But by the end of the nineteenth century, legislators grew “concern[ed] about the possibility that the private entities that controlled this amazing new technology would use that power to manipulate the flow of information to the public when doing so served their economic or political self-interest.” Id. at 2321. These fears proved well-founded…

In response, States enacted common carrier laws to limit discrimination in the transmission of telegraph messages. The first such law, passed by New York, required telegraph companies to “receive d[i]spatches from and for … any individual, and on payment of their usual charges … to transmit the same with impartiality and good faith.” …

Courts applied this same holding-out test to novel communications enterprises. For example, in State ex rel. Webster v. Nebraska Telephone Co., 17 Neb. 126, 22 N.W. 237 (1885), a Nebraska lawyer sought a writ of mandamus to compel a telephone company to put a telephone in his office. The Supreme Court of Nebraska granted the writ, explaining that the company “ha[d] undertaken with the public to send messages from its instruments, one of which it propose[d] to supply to each person or interest requiring it.” Id. at 239, 22 N.W. 237. Because the company had “so assumed and undertaken to the public,” it could not arbitrarily deny the lawyer a telephone. Ibid. Other courts agreed and clarified that telephone companies owed this common carrier obligation even though they also imposed “reasonable rules and regulations” upon their customers…

Texas permissibly determined that the Platforms are common carriers subject to nondiscrimination regulation. That’s because the Platforms are communications firms, hold themselves out to serve the public without individualized bargaining, and are affected with a public interest…

The Platforms nonetheless contend that they cannot be regulated as common carriers because they engage in viewpoint-based censorship—the very conduct common carrier regulation would forbid. This contention is upside down. The Platforms appear to believe that any enterprise can avoid common carrier obligations by violating those same obligations.

That is obviously wrong and would rob the common carrier doctrine of any content. The Platforms’ contention also involves a fair bit of historical amnesia. As discussed earlier, telegraph companies once engaged in extensive viewpoint-based discrimination, but that did not immunize them from common carrier regulation. Rather, for most legislators and courts, it made such regulation all the more urgent.

Judge Jones wrote a concurring opinion.

I concur in Judge Oldham’s conclusion and reasoning that the business of the regulated large social media platforms is hosting the speech of others… In particular, it is ludicrous to assert, as NetChoice does, that in forbidding the covered platforms from exercising viewpoint-based “censorship,” the platforms’ “own speech” is curtailed. But for their advertising such “censorship”—or for the censored parties’ voicing their suspicions about such actions—no one would know about the goals of their algorithmic magic. It is hard to construe as “speech” what the speaker never says, or when it acts so vaguely as to be incomprehensible. Further, the platforms bestride a nearly unlimited digital world in which they have more than enough opportunity to express their views in many ways other than “censorship.” The Texas statute regulates none of their verbal “speech.” What the statute does, as Judge Oldham carefully explains, is ensure that a multiplicity of voices will contend for audience attention on these platforms. That is a pro-speech, not anti-free speech result.

The language of Judge Jones’ concurrence is useful in evaluating the conduct of contemporary “protestors” at universities and elsewhere. Frequently, they shout down invited speakers; when prevented from doing so, they claim their free speech rights are being interfered with.

Judge Southwick concurred and dissented. He would have held that the internet companies engage in protected speech when they moderate content.

The central question in this case is whether social media platforms engage in First Amendment-protected expression when they moderate their users’ content. The erudite opinion of my colleagues in the majority says no. Although there are parts of the opinion I join, I write separately because, fundamentally, I conclude the answer to the question is yes.

The full opinion is available here.

Given that it’s a split decision, on such an important issue that crops up regularly, I doubt we’ve heard the last of it. Look for the plaintiffs to seek review from the entire Fifth Circuit (en banc review), or to seek review from the Supreme Court with a realistic chance the case will be accepted. As Justice Alito (joined by Justices Thomas and Gorsuch) wrote when the Supreme Court vacated the circuit court’s stay (i.e., the circuit court’s injunction against the district court’s injunction against the statute), “This application concerns issues of great importance that will plainly merit this Court’s review.”

* 9/28/22 This paragraph and the one below it were edited for clarity.


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“The U.S. Supreme Court upheld the California Supreme Court’s holding that the state constitution did not let private mall owners bar the handbill-spreaders from spreading their message.”

I’ve often wondered why the Hari Krishnas and the LaRouchies just disappeared from airports. Was it a change in the law, unprofitable ROE, the migration of the public square to the Internet, or just the realization that airports are depressing places to spend all your time?

If what you are doing does not violate a law and a platform is getting protection from section 230 removes you from the platform they should then be considered a publisher and be responsible for every single thing on the platform.

If you are clearing financial transactions i.e. Bank, credit card, PayPal, Vinmo etc. etc. you should not be able to remove people without a court order saying they are using your service for fraud or other unlawful actions.

Any other standard is antithetical to the values of the United States.

    Milhouse in reply to Martin. | September 24, 2022 at 10:55 pm

    If what you are doing does not violate a law and a platform is getting protection from section 230 removes you from the platform they should then be considered a publisher and be responsible for every single thing on the platform.

    That is wrong and unconstitutional. You can’t just declare someone a publisher because you feel like it. Either a person is engaged in publishing or they are not. The reason a publisher is responsible for everything it publishes is because it has read everything it publishes, and has made a positive decision to publish it. Therefore it can constitutionally be held accountable for it.

    Interactive computer services such as Twitter or Legal Insurrection do not read most of what is published on their platforms. They are unaware of most of the content unless and until someone brings it to their attention, or until a moderator happens to come across it. LI is small enough that a moderator eventually reads everything and removes whatever they don’t think is appropriate, but only after it’s been there for some time. Most of Twitter’s content is never seen by a moderator. Therefore neither Twitter nor LI is a publisher.

    The NY court’s decision against Prodigy was wrong and unconstitutional, and would eventually have been overturned, even if § 230 had never passed. The reason for § 230 was not to protect computer services, but to force them to moderate content. They replied that they were afraid if they complied they’d be exposed to lawsuits, so Congress banned such lawsuits. Then the courts properly struck down the requirement for moderation, leaving the protection in place. But even without that the protection would still be required by the constitution, and the courts would eventually have said so.

    The proper analogy for Twitter, or Legal Insurrection, is not to a newspaper but to a bookstore. They are not publishers but distributors. Bookstores can and do exercise censorship; if they are aware that a book is objectionable to them, they refuse to carry it. But they have not read the vast majority of their stock, and can’t be expected to have read it, so the courts have ruled that it is unconstitutional to hold them liable for the content of those books, unless you can prove that they were aware of a specific book’s content, and that it was actionable, and deliberately chose to keep selling it.

    The same should be true for computer forums such as Twitter or LI. And I believe that was the intent of § 230 and is supported by its language, but some courts seem to have wrongly held that it prevents even distributor liability. If so, those decisions should be overturned, but only those decisions.

      So you think Facebook and twitter should be able to have it both ways, be able to exercise censorship whenever they want but also get all of the protections? A bookstore proactively chooses which books they are going to carry, which is not really Facebook.

        Milhouse in reply to 4rdm2. | September 25, 2022 at 7:57 am

        You have it exactly backwards. “Proactively choosing which books they are going to carry” is what makes someone a publisher, and means they’re not entitled to protection. But bookstores don’t really do that; they have never read most of their stock, and if there’s something illegal in a book they are probably unaware of it, which is why they are not publishers but distributors, and it is unconstitutional to hold them liable for the contents of a book unless you can prove they were aware it was illegal. And that is exactly what Facebook is. Which means FB is constitutionally entitled to the status of distributor, and it is unconstitutional as well as simply a lie to call it a publisher. And that is all § 230 does: it says moderating content shall not be used as a reason to consider a service to be a publisher.

          CommoChief in reply to Milhouse. | September 25, 2022 at 10:55 am

          Yes that’s true but it leaves out the underlying assumptions behind sec 230.
          Namely it would be unfair and frankly unworkable to tech to attempt to hold them liable for the posted content of a third party due to volume.

          The concern was that requiring proactive moderation of content v reactive in response to notification that the content was illegal was too large a burden. Which is true and sec 230 was correctly granted as a shield to that.

          The tech companies have turned that on its head and now use sec 230 as a shield from liability while simultaneously using moderation as a sword v unpopular speech. That’s impermissible IMO. Personally I don’t think the answer is to treat them as a common carrier but rather recognize they function, in practice, as the modern public square which is an important distinction.

          If these tech companies alter their business model to paid subscription only then they wouldn’t be a public square, it would be a private, commercial transaction similar to a private club. Until they restrict service and stop holding themselves out and representing themselves as open then they should be forced to remain open to all.

          Obviously doing so would impact their reach, the number of users and thus ad revenues. It would also create the necessary spur for adoption of rival platforms by the members of the public left out of their club.

          The tech companies don’t want a left Twix/right Twix dynamic being created because it would severely curtail their revenues and upend their business model.

          Milhouse in reply to Milhouse. | September 25, 2022 at 11:45 am

          Yes that’s true but it leaves out the underlying assumptions behind sec 230.
          Namely it would be unfair and frankly unworkable to tech to attempt to hold them liable for the posted content of a third party due to volume.

          And that remains true. Do you dispute it?! It is unworkable for them to pre-moderate everything. Even more so now than it was then, because the volume is so much greater now.

          If they are aware of offending content, and that it’s illegal, and choose to leave it up, then § 230 doesn’t protect them, at least as I read the text. According to Justice Thomas, some courts have gone beyond the text and have held them immune even then; that is of course wrong and should be corrected, but that doesn’t require any amendment to the law.

          As for “public square” status, their servers are private property. I think Pruneyard is a disgrace and should be reversed; it constitutes a taking by the courts.

          And the companies do require a subscription. Why should it matter whether they charge money for subscriptions or give them away for free? Is a free newspaper less protected?! The fact remains that you can’t post on these services without having signed up and agreed to the TOS.

          I thought you were going to say that the underlying assumption was that they’d be neutral, but that isn’t true. There was never any such assumption. Nobody in the debate at the time claimed that this would necessarily be so.

          CommoChief in reply to Milhouse. | September 25, 2022 at 2:19 pm

          Still true. Far too much content to effectively moderate. The distinction I am making is that they are a square, simply a digital version. They are not common carriers, except email platforms.

          They are akin to a mall where folks hand out pamphlets. Just like a space held out as open to all can’t engage in political viewpoint discrimination these platforms can’t either. Doesn’t matter that they own servers and more than investors own the food court at a mall; it’s being held out as a public space.

          This line of reasoning seems far more in tune with heart of the matter. It leaves the owners of the space to choose to make themselves into a nonpublic facing, private space or accept that unpopular speech must be allowed in the space that they hold out as public.

          I didn’t make those arguments because they are by and large not irrelevant. These platforms did hold themselves out as open, freewheeling, viewpoint neutral during their expansion phase FWIW.

          The hand bill v common carrier argument seems more effective and a better analogy that gets us to a better outcome.

          Milhouse in reply to Milhouse. | September 25, 2022 at 6:19 pm

          Just like a space held out as open to all can’t engage in political viewpoint discrimination these platforms can’t either.

          In most states they can.

          So you’re arguing Pruneyard. That is an exceptional ruling that is not consistent with the rest of first amendment or fourth amendment law, and I don’t see how it can be morally justified. How is it not a seizure of private property?

          CommoChief in reply to Milhouse. | September 25, 2022 at 11:58 pm

          It is either a private space, not open to the public for viewpoint expression as in Lloyd v Turner. Alternatively it is a public space such as in Pruneyard v Robins.

          What you seem to propose is a blend where it is a public space open to some viewpoints but not others and all at the discretion of the owners. That’s not the standard. They standard in our case law is:
          1. Is it a public or quasi public space
          2. Is viewpoint communication allowed by owners in this space

          If yes to those questions then viewpoint discrimination isn’t allowed. Simple. There is a straight line back to Marsh v Alabama, at least IMO.

          This isn’t new ground. This position doesn’t force anyone to do anything other than declare whether they are a public space that allows all legal viewpoints or they are not. Based on that declaration there may be changes but only in bringing the digital public square in alignment with the way we treat the physical public square.

      George S in reply to Milhouse. | September 25, 2022 at 3:38 pm

      Huh? Twitter is an instantaneous communication platform which all users interact in real time. That is why Section 230 exists, to protect the platform from slander/libel lawsuits resulting from the widespread dissemination of such wrongs. But the underlying principle is that all users are free to speak their mind with the only restrictions being anti-social activity (criminal activity, terrorism, indecency and the like, which all reasonable people agree with what constitutes anti-social communications). That is thousands of miles away from similarity to a book store.

      Further, Twitter or Facebook does not wait for snitches or moderators to flag content. They have elaborate algorithms that scan everything posted. And that algorithm power is precisely what makes them a publisher when they turn it to flag conservative content. Because that algorithm power can be adjusted towards conservative content, it can be adjusted to libel against other individuals so that Mary can sue Facebook if Betty posts that Mary’s apple pie is made with dog spit. Facebook spread the libel far and wide, and that is what hurt Mary. Exactly what would happen if Mary got Simon and Schuster to put that in a book.

        Treguard in reply to George S. | September 25, 2022 at 4:33 pm

        They are certainly not a mall where the primary purpose is to shop.

        They are a town square where the focus is in communication, much closer to a phone line.

        Yes, they are common carriers.

          CommoChief in reply to Treguard. | September 25, 2022 at 6:06 pm

          IMO, these platforms not common carriers but are more like the non store public areas of the mall where people meander, look, listen, browse, people watch and so on.

          Imagine the ‘internet’ as the mall. There are areas that are clearly stores; Amazon being one. Other areas of the internet aren’t primarily for shopping but for the public to gather, observe and interact with each other; YouTube as an example. A simple observance of ‘don’t shoot the messenger’ would suffice to protect the services who deliver messages.

          They shouldn’t face liability for the content of messages ….unless of course they begin to curate otherwise legal content proactively. When a given platform begins to deploy resources to pick and choose what content is allowed on a public platform they should then be responsible for policing all the content.

          If they want to hold that only certain viewpoints are welcome on the platform then they can choose to restrict the use of the platform to those who hold those views. Of course that would blow up their business model and create an immediate opportunity for a rival platform and in today’s political climate that would mean discarding 50% of the population.

          Treguard in reply to Treguard. | September 26, 2022 at 1:52 am

          Certainly not. Twitter is, quite literally, instantaneous communication between users. It is a *communication application*.

          If it’s a non store ‘public’ area – what is the “Storefront”?

          CommoChief in reply to Treguard. | September 26, 2022 at 9:56 am

          Twitter is part of the non store public space. Its not a communication system that is designed to deliver a message to a single person. Instead it delivers the content to all and then invites comments from others about the communication.

          IMO, the better argument is public square v common carrier. It’s a cleaner argument that cuts to the heart of the matter; viewpoint discrimination.

      Joseph K in reply to Milhouse. | September 25, 2022 at 3:40 pm

      Somebody’s drawing a paycheck fro the social media behemoths.

Bravo to the author. This is a thoroughly research, well-written, educational – and entertaining – deep dive into this issue. It has a grad student’s finger prints all over it. Compliment.

I would caution against cheering too hard for ‘common carrier’ regulation of social media, though. It was a key component of the recent attempted ‘Net Neutrality’ takeover by the lefties, and reeks of ‘equity & inclusion’ – which is catnip for lefties. ‘Rules for thee, but not for me’ is typically how that game plays out. Sure, they do that now, but if its one thing lefties luv more than burning down cities for ‘racial justice,’ it’s enshining this stuff into law – complete with byzantine regulations overseen by a mysterious czar tucked away in a dark corner of some alphabet agency with unlimited budgets and subpoena power.

ZuckerStalin or HinduRanger don’t bother me ’cause I’m not on FaceBook or Tweeter. I post elsewhere more suited to my stellar personality. Stop using these platforms and they collapse like a drunkard at midnight. But since ‘230’ aided in the creation of these digital monsters, at least some recognition of that fact by a court is a nice consolation prize.

    henrybowman in reply to LB1901. | September 24, 2022 at 10:00 pm


    Corporate social responsibility is a sharp turn off the main highway of capitalism. It leads onto a corporatist back road that may be picturesque but winds its way toward socialism.

    The journey begins by turning business into a kind of slush fund for activists too radical to get their way via political campaigning. As Friedman put it, corporate social responsibility is a sort of taxation without representation. “[T]hose who favor the taxes and expenditures in question have failed to persuade a majority of their fellow citizens to be of like mind and . . . they are seeking to attain by undemocratic procedures what they cannot attain by democratic procedures.

    ”Stakeholder capitalism professes, [Milton] Friedman says, “that collectivist ends can be attained without collectivist means.” That is its fatal conceit. Once people notice how much corporate power has been taken by political activists, they will inevitably demand the right to the sort of political oversight expected elsewhere and throw out capitalism in the process. “If businessmen are civil servants rather than the employees of their stockholders then in a democracy they will, sooner or later, be chosen by the public techniques of election and appointment.” And so our charming back road — which seemed far more pleasant than the aggressive, profit-driven freeway of capitalism ­— reaches its destination.

    I italicized the part that immediately reminded me of Danny.

    Treguard in reply to LB1901. | September 24, 2022 at 10:39 pm

    But it’s the same provision that allows Twitter to kick LibsOfTikTok off the channel that allowed ISPs to remove Kiwi Farms entirely.

    Believe it or not, Net Neurtality would keep Legal Insurrection from being tossed off the web. I have no idea why Conservatives continue to argue in favor of their own destruction.

      henrybowman in reply to Treguard. | September 24, 2022 at 11:26 pm

      Yeah, as a former independent ISP, believe it or not, I don’t believe it. Net Neutrality is like any other federal regulation — gets passed off to the legal department of the behemoth carriers, and crushes the little guy into insolvency.

I think a little more research might disclose that the 11th Circuit reached the opposite conclusion on the same issue. That’s why it’s going to the S.Ct. Because of a split in the circuits. Oh and the 5th Circuit will be reversed for failing to properly value the 1st amendment rights of the platforms.

    Treguard in reply to Concise. | September 24, 2022 at 10:36 pm

    Except the Social Media sites *are not speaking*. Carrying the speech does not degrade their own speech, nor does it *prevent* them from speaking. It is only some twisted imagination that makes you think that censorship somehow promotes the First Amendment.

      Milhouse in reply to Treguard. | September 24, 2022 at 11:02 pm

      Compelling them to carry speech that offends them certainly does violate their first amendment rights. It’s the same reason the courts ruled that the NY Hibernian Society was entitled to keep the Irish Lesbian and Gay Association out of its parade. Imagine forcing Prof Jacobson to host neo-nazi comments on LI. Look at the sort of antisemitic bilge that infests PJ Media comment sections and makes them so toxic to read; PJM has apparently decided to allow that, but thankfully LI doesn’t. Do you seriously think a law compelling LI to leave such comments up would be constitutional?!

        Then they shouldn’t get the extra protections offered by 230. They need to choose which type of platform they are, not reap the benefits of both.

          Milhouse in reply to 4rdm2. | September 25, 2022 at 8:01 am

          There are no “extra protections” in § 230. It simply says that just because they moderate content that doesn’t mean you can consider them a publisher. Because you simply can’t. It would be a lie, and it would also be unconstitutional, just as it is unconstitutional to do that to a bookstore, which does the same thing.

          Again, do you think it is constitutional to ban Prof J from deleting antisemitic comments here, of the kind that proliferate on PJM sites?! And do you think it is constitutional to force him to leave those comments up, by telling him that if he dares to delete them he will be considered a publisher and held liable for every single comment that appears here, even for five minutes?! If you think that would be both wrong and unconstitutional, then how can you advocate that for Facebook or Twitter?

        Why do you stump so hard for these people?

        That isn’t the same Milhouse and you know it. Whey this twisting to try to prop up what these companies are doing?

Yes. It would be Constitutional.

Does it degrade LI’s own speech? No?

Does it keep LI from speaking?


    Treguard in reply to Treguard. | September 25, 2022 at 8:40 am

    I suppose, if people really wanted to split hairs, one could add a third question: “Is the main purpose of the forum the ability to give people – who are not the forum’s owners – to speak?

    Again. Therefore Constitutional.

Every government official involved in pushing online censorship needs to go to prison.

The tech platforms are ingrained into the daily lives of people around the world. That is reason enough to separate the tech platforms from private entities, because the word private does not apply when everybody is allowed entry.

Suburban Farm Guy | September 25, 2022 at 5:05 pm

Was a good try — almost fooled us into thinking he’s actually human and not a lizardoid alien with that sip of whatever it is looks like water there.

From working for phone companies and knowing history all the internet should be treated as utilities. Facebook, Twitter, Google, and others using it as platforms should be forced to follow the US Constitution as the utilities cannot block or shape what comes through their services.

Ah, reading the above comments, what is a publisher and what is a common carrier is up for debate. There is a fuzzy line separating the two, not a big bright line.

Looking at how they work- the major social media platforms, Facebook, Twitter, Gab, Myspace, all of them, are common carriers, as were the telegraph companies and railroads, which if they weren’t the first two industries to which the common carrier rule was applied, were among the first. And, all of those listed have something in common- not one of them provides content, only access. The railroad doesn’t sell you a tank car full of #2 fuel oil- they deliver it on behalf of another company. Telegraph and their successors telephone companies don’t send messages to you, they transmit what others are sending you.

Whether comments are moderated in advance or not- LI is not a common carrier. Whatever computer service is hosting LI is and shouldn’t be permitted to decide they don’t like what’s being said and shut off access. Discussions are a lot more freewheeling without prior moderation, with the possibility of instant feedback- without the host or employees intervening. What are they commenting on? The content of LI’s posts, and what other commenters are saying about it. The underlying platform provides none of that.

Althouse got tired of some of her commenters- and now moderates almost all posts. No more freewheeling discussions there. Have to wait until Ann approves a batch to see if your comment was included, and what others are saying. And decide if it’s worth responding. Blogspot, her hosting platform, again, provides no content and should not be able to ban viewpoints they don’t like. But they have.

Now of the social media companies, Facebook is the one I’m most familiar with. Again- Facebook provides nothing except hosting. No content, just an extremely easy to use platform- that at the beginning once they opened up from purely a college alumni only platform to the general public, promoted themselves AS a free speech platform where anyone could communicate with anyone else. That is, a common carrier. The only qualification needed is that users be 13 or over. They do not enforce that. Ask me how I know… I don’t think they even have a way to enforce it. Now Facebook has Factcheckers- censors- who Factcheck. Except they don’t really do that, they simply censor bases on what appears to be political grounds. Everyone with any common sense knew that Hunter’s laptop was Hunter’s laptop, not Russian disinformation, including every one of the traitorous former intelligence officials who openly stated it was Russian disinformation. So posting about Hunter’s laptop got you banned. Turns out the factcheck was wrong. We don’t even want to get into what they’ve been doing with covid “disinformation”. Most of the falsehoods about the vaccine that isn’t are spread by government itself, not the people talking about it.

But let’s look at Facebook groups. I belong to one- MHN – Meme Control Bureau that tells members upfront- if you’re easily offended, stay away. They routinely bounce out of the group people who report their posts as offensive to Facebook. The group is more a publisher then Facebook, but, again, the moderators provide only some of the content. The rest is provided by people, like well, me. Half the groups I belong to prohibit political posts to the group. Because the moderators realize that such discussions would tear the group apart. One group I belong to exists for political discussions. Most members are like minded- and you get kicked out for reporting a post to Facebook as offensive.

Now posts on my own timeline- suppose you are offended, and don’t like what I have to say. And you whine to mommy, oops, Facebook “Wah! I’m offended!” What should Facebook be able to do about that? Mediate our dispute? Throw me in Facebook jail for two weeks? (They’ve done that for posting “misinformation” that turned out to be true- Hunter’s laptop WAAS Hunter’s laptop.) How about absolutely nothing is what they should be able to do about it? Someone doesn’t like what I post- they can block me of defriend me. I’m 67- I’ve been defriend by several liberal “friends” from HS, so I guess they weren’t really friends at all. Fine by me. One because I wouldn’t bless and support his SSM, because it isn’t marriage, it’s an abomination. No matter what the courts say. I’ve never defriended anyone. Why? If they want to try and convince me or their viewpoint, they can. A flaming liberal will have as much chance to convert me as Mormon or Jehovah’s Witness coming to my door does- none at all. But no one has to be subjected to my posts- they can block or defriend me. And shadow banning shouldn’t be part of Facebook or Twitter- the users are capable of making their own minds up on who they want to see or block. I know I’m partially shadow banned, as are many of my friends. I have to go to their streams to see their posts, they don’t show up on my feed.

Facebook makes money by selling access to it’s users. And they don’t factcheck their advertisers. I’ll be kind and say only 80% of the ads I see are scams. And they sell sponsored posts. For about 2 weeks I was getting a half dozen posts a day from Actblue. Like many others- I commented on them- since they were targeted posts, not ads. And my guess is that they tweaked their algorithm for deciding who gets them as I stopped getting them, as likely did many of the other commenters. “Donate to Joe – he stands for all this. Suzy his opponent is against all of it!” comment- “Gee, I’ve never heard of Suzy before. Why didn’t you include a link to her website? Now I’ll have to search it out and donate to a sane person.”

Coming to this post late, yet timely. I’m not as familiar with the the legislative laws, rulings and case law as many are here today. It’s been an education as in Law 101! What was dominant is the demeanor of everyone posting. It was refreshing and comparative, even when making point/counter point posts.

One of the things that is obvious as an long term reader is Mr. Milhouse tends to take a lawyers position…I like that even when he’s occasionally carrying water up hill. He does his homework and presents a position that challenges all of us. Ya just gotta up vote him for bringing what he has to share.