"The platforms are not newspapers. Their censorship is not speech."
That's from one of the opinions up for oral argument in the Supreme Court today. Quoted in "Supreme Court to Hear Free Speech Challenges to Social Media Laws/The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship, violate the First Amendment. The court’s decision could fundamentally alter the nature of speech on the internet" (NYT).
That's from one of the opinions up for oral argument in the Supreme Court today. Quoted in "Supreme Court to Hear Free Speech Challenges to Social Media Laws/The tech industry argues that laws in Florida and Texas, prompted by conservative complaints about censorship, violate the First Amendment. The court’s decision could fundamentally alter the nature of speech on the internet" (NYT).
The Supreme Court blocked the Texas law in 2022 while the case moved forward by a 5-to-4 vote.... Justice Alito wrote... that he was skeptical of the argument that the social media companies have editorial discretion protected by the First Amendment the way newspapers and other traditional publishers do.
“It is not at all obvious,” he wrote, “how our existing precedents, which predate the age of the internet, should apply to large social media companies.”
ADDED at 9 a.m.: Listen to the oral argument here.
Posts
79 comments:
Important case.
The Left absolutely loves to say that the First Amendment applies only to government action in order to justify and rationalize social media censoring plebes like me under their TOS.
My response has always been that Free Speech is a core American belief and principle and it extends to all aspects of America if we are going to remain a free society.
What the tech platforms did with the FBI in Missouri v, Biden shows the extent of the problem.
If these online platforms are NOT "editors" of content, then they have to protect posters free speech rights AND are protected from the content based lawsuits and legalities. If they are editors and can control content like limiting postings/editing content/filtering content then they should not get protections as they are "deciding" what to allow and what not to allow.
They can't be both editors/publishers while also NOT being editors/publishers. Pick one and live with the consequences...
Will be an interesting election if GOP judges have thrown out both Roe and screwed with social media fundamentally disrupting it.
“ Defending the laws, the states describe social media platforms as the new “digital public square,” with enormous control over news that members of the public see and communicate. States, they say, have historically had the power to protect their residents’ access to that information. And what social media platforms are ultimately seeking, the states contend, is to avoid any regulation whatsoever – an argument, Florida says, that “if accepted, threatens to neuter the authority of the people’s representatives to prevent the platforms from abusing their power over the channels of discourse.”
Amy Howe at SCOTUSblog.
Does "the press" in the 1st amendment refer to the industry or the machine? If the industry, wouldn't the wording refer to "individuals and the press" instead of "speech and press". "Speech and press" seems to refer to the spoken word and the printed word. Is there any contemporaneous writing that discusses the choice of the language used?
I see the right belonging to the people, both as individuals and in groups, as the people see fit to form. There should be no distinctions in the freedom in either case, or in the choice of medium.
My hunch is that the crucial point will be that the sites rely on ambiguous terms of service agreements that are unequally applied in what is certainly a capricious manner and which in effect is viewpoint discrimination. They could write clearly explained TOC and enforce it dispassionately but they don’t. They want to pretend to be a freewheeling public discussion while actually being a highly curated forum with fuzzy rules subjectively applied.
The two civil liberties fights of the social media age are TOC and TOS, in which and behind which all manner of abuse is hiding.
Alito is a tool.
The platforms are printing presses, not newspapers.
If they want to be newspapers they can be liable for everything they “publish”.
It’s going to be a challenge for the left to extract their desired we want the ability to flip flop on censorship so our enemies always lose decision out of SCOTUS. A challenge but not impossible I suspect…
They can't be both editors/publishers while also NOT being editors/publishers. Pick one and live with the consequences
This has been my argument all along and seems the most workable solution. Of course that’s exactly why it infuriates the left…
Free speech, under the First Amendment, means you are free to say (or print) whatever you please and you cannot be charged with a crime. The First Amendment does not obligate others to publish or disseminate your free speech. Social media platforms have ground rules, just as newspapers do if you want your "letter to the editor" published. Just as content is moderated here. If you don't like it you can always go somewhere else. Or howl it at the moon.
Mark:
Will be an interesting election if GOP judges have thrown out both Roe and screwed with social media fundamentally disrupting it.
Yes. God forbid that "social media" should be "disrupted" by requiring transparency.
Also-Is a misplaced modifier worse than a grocers apostrophe?
The big tech censorship is coordinated with the federal government.
That seems unconstitutional; and very dangerous.
Shouldn't these things be determined at the Federal level? Seems like state by state regulation of speech is counter how our federal system works.
Alito is a tool.
Who's tool is Alito, Howard?
What powerful self-interested individual or group individuals has somehow gained control over a Supreme Court justice and is using him nefariously, working behind the scenes to foist free speech upon an unsuspecting populace?
Blogger Dave Begley said...
The Left absolutely loves to say that the First Amendment applies only to government action in order to justify and rationalize social media censoring plebes like me under their TOS
This is why the shitheads on the left are the REAL fascists.. They want corporations to do the governments dirty work. This is Mussolini's "Corporatism". But, it is clearly coordinated.
The did it with COVID restrictions and the left loved it. Milwaukee's Summerfest sold tickets in 2021, and THEN announced you had to show proof of taking the clot shot. At first they refused refunds, until everyone bitched loud enough.
Smarmy Milwaukee white liberals LOVED it, and didn't want anybody to get refunds. It wasn't the gov't telling you to get the shot. It was Summerfest. Same with companies that required it to stay employed etc... "No body MADE you get the shot".
What bullshit.
"The court’s decision could fundamentally alter the nature of speech on the internet"
No it won't, in either case. SCOTUS rulings are little more than polite suggestions now, to be end-run after the verdict.
The country is bifurcating between those who focus on the letter and those who focus on intent.
Seems like Progressives and Libertarians have come together on this issue.
The Progs went left and the Libertarians went right, but turns out it wasn't a spectrum, it was a circle.
Maybe there'll be whole new ism. Progressive Libertarianism? Libertarian Progressivism?
Neo-feudalism?
Someone needs to remind both the tech companies and the SCOTUS that many of these platforms create absolutely no content of their own and largely depend upon users to create it for them.
Which is then monetized and/or censored.
There's something fundamentally wrong here when the consumer becomes the product.
Cosign with Todd and rehajm.
It's not censorship vs free speech but the actions of the platforms. You should not have Section 230 protection if you are curating what postings are arriving in my news feed. That's publishing and should be subject to the same benefits and responsibilities as any traditional publisher.
It is conceivable that Social media is more akin to common carriers than media.
Having made that analogy, I am against curating approved content, unless it is to protect children.
Mark:
Will be an interesting election if GOP judges have thrown out both Roe and screwed with social media fundamentally disrupting it.
If by 'fundamentally disrupting it' you mean stopping them from squelching free speech, I don't think that's the dun you believe it to be.
Maybe the Constitution is a suicide pact.
"The First Amendment does not obligate others to publish or disseminate your free speech."
This case isn't about the First Amendment imposing the obligation but about whether the First Amendment prevents legislatures from using statutes to impose the obligation.
"If Donald Trump is at the top of the Republican ticket, the risk of one-party rule by a Democratic Party captured by the progressive left is severe."
Dialectic materialism at work, ladies and gentlemen. Marx may not have been good at economics, but he was a genius at seizing power. Anybody who wants to understand American politics would do better to read Marx and Nietzsche than Hamilton and Jefferson; they are just the ones who painted the lines on the tennis court.
Does "the press" in the 1st amendment refer to the industry or the machine?
Yes we need to get in agreement with this answer.
The 1st amendment protects the machine. Not the content. The Printing Press was their internet. The printing Press made pamphleteers possible. The ability to widely spread ideas. Historians need to fact check me, I believe the King had been seizing the printing press of those critical of the King. That influenced the wording of the First Amendment.
"The Left absolutely loves to say that the First Amendment applies only to government action in order to justify...."
In this case — cases, really, there are 2 up for argument today — there is government action. Government passed the statutes banning viewpoint discrimination and the privately owned media companies are burdened by a government restriction. They are asserting a First Amendment right.
The statutory right they object to is in furtherance of the freedom of speech of their users, the content creators, and the users are arguing against the corporations' assertion of a constitutional right.
We are wrestling between, the power to consent, or decline, to do business with.
The Cake Baker.
This has been muddied up bigly by courts and politians inventing protected classes.
Women
Blacks
Some selected minorities (Hispanic?) But not Asian.
Homosexuals. Now sliding away from using immutable characteristics.
Liberal. (but not conservatives)
Some Banks stopped making loans to gun sellers. Discriminating against exercising a protected right. But Exercising your right is not a protected class, like those sating their particular sexual fetish, is a protected class. A bank would be sued if they refused to do business with a homosexual.
Again, Judges and politicians have created an ungovernable maze of laws infringing on freedom.
“Neo-feudalism?”
Yes, the Democrats future is Neo-feudalism. Like California, a place of Nobles and Serfs, nothing in between.
“Government passed the statutes banning viewpoint discrimination and the privately owned media companies are burdened by a government restriction. They are asserting a First Amendment right.”
Google wants to protect their right of free speech that will allow them to limit the right of free speech of their users. So which party gets to have free speech is the question. As I see it anyway.
Google may offer the impossible solution of, let everyone make their own internet devices if they want free speech.
TBH social media companies look a lot more like utilities than like newspapers. It's not that much trouble to provide your own electricity, water or garbage removal, but if your business relies on YouTube, X or Facebook, that's impossible to replace. And yet, anyone (other than a die-hard libertarian) would agree that the phone, electric or water company can't cut-off your service because they don't like what you're saying.
"...privately owned media companies are burdened by a government restriction."
Except they aren't burdened at all. They're going to a lot of trouble to do viewpoint discrimination. By banning this kind of effort, they can save money and avoid criticism--sorry, we'd love to censor those baddies, but we can't, it's illegal. Sorry, all the way to the bank.
So, if I am understanding Ann and the quoted material correctly, the argument is that because the social media companies are not governments, they have a first amendment right to not allow free speech. This despite the always ignored tenth Amendment.
"They can't be both editors/publishers while also NOT being editors/publishers. Pick one and live with the consequences"
Clown nose On, clown nose Off.
Social media platforms have ground rules...
Yes, opaque and capriciously applied at first glance. Then we learned (Missouri v Biden) that the reason it appeared capricious was because the government was telling social media companies who and what info to censor, something expressly forbidden by the 1A and previously reiterated buy the Supreme Court. Now the Social (Disease) Media companies have tried to go back and reinterpret their "rules" as you call them, TOS, but it is a fig leaf meant to cover the fact that there is now a "business-government alliance against disinformation" which deliberately uses this KGB tern to describe "speech we don't like."
That is still a violation of the First Amendment. They are not clearly enunciated "ground rules" as you imply. They are specifically vague and guided by the hand of government, including the CIA and FBI, which is now and forever outside the legal scope of this government. The one platform that truly clarified the rules and is mostly still free is X, and your side has tried every feeble trick in your smear arsenal to poison the waters there and drive Musk out of business. Thank God our natural right to free speech still has at least one platform.
"the privately owned media companies are burdened by a government restriction"
A restriction to stop restricting.
Mark said...
"Shouldn't these things be determined at the Federal level? Seems like state by state regulation of speech is counter how our federal system works."
The constitution already makes it federal. So the argument is; what are the obligations of the self appointed gatekeepers?
Good point, Bob. I was thinking of tool in the context of "dumb as a sack of hammers", not a tool manipulated by an exterior force. A single fancy fishing trip with billionaires doesn't buy control, so I don't think Samuel is corrupted by moneyed influences any more than the average jurist. Clarence Thomas, however, is another kettle of fish.
I think the social media platforms are more like pulp paper and ink producers than they are like newspapers. An electrical utility would surely(??) not be able to legally cut off the power to the NYPost, for example, because it didn't like the paper's editorial page, or cut off my power because it didn't like my comments made using their product. The banking system would surely (again ????) not be able to debank the NYPost or me, right? Right?
I would give Twitter and Facebook a blanket legal protection against all libel and hate crime laws in return for their not censoring anyone. This actually isn't too much to ask since we already grant such favor to utility comapanies, banks, pulp-paper and ink producers.
At a certain point, people have to realize that Social media are the 21st century newspapers. And the 1st Admendment applies. This reminds me of the the early 20th century argument that copyright didn't apply to movies or recorded music only to sheetmusic and photos. Eventually, the new forms of expression were accorded the same rights.
Maybe social media platforms should have a constitutional right to censor content. Maybe Miami Herald v. Tornillo is the unacknowledged elephant in the room.
@Yancey Ward: I would give Twitter and Facebook a blanket legal protection against all libel and hate crime laws in return for their not censoring anyone. This actually isn't too much to ask since we already grant such favor to utility comapanies, banks, pulp-paper and ink producers.
Exactly: viewpoint neutrality.
If, say, Facebook allows pro-vaccine posts, it must allow all vaccine posts. Which also works the other way. If FB decides not to publish some porn, then it is entitled to not publish any porn.
I can't see why this is such a difficult concept.
Unfortunately, it is also a mystery to far too many universities.
I guess social media are not considered common carriers even tho, to a layman, they behave like one.
Josephbleau said...
Google may offer the impossible solution of, let everyone make their own internet devices if they want free speech.
2/26/24, 8:48 AM
Have that today. Anyone can start a blog, can do substack, can start their own "community comments" site. None of that stops Google from blackballing you or your site so that you have free speech but you are stuck in an empty room that you can't even see the town square from.
As a common law matter, are social media more like networks or individual parcels. You regulate networks for economic efficiency reasons where there's no way to prevent free riding and holdouts in the interest of getting their benefit.
Once it's big it's more like a network as far as speech is concerned, and a take-all-comers rule makes sense.
Or you'd have to make it really easy to compete against even an established network. Maybe limit the term of management.
Blogger rcocean said...
At a certain point, people have to realize that Social media are the 21st century newspapers
They are much MORE than newspapers. If you looking for a comparison, social media companies are the printing presses that print the newspapers.
Prior to electronic media, if you limited access to printing presses, you were violated the first amendment. You could completely stop the distribution of opinions and speech. Imagine if the British could have confiscated all the printing presses in the American Colonies.
Or, if the Catholic Church could have restricted access to the printing press by the heretics translating the Bible from Latin to other languages. They church HATED that. People could actually read the bible themselves. They couldn't stop them from printing. So they tortured them and burned them at the stake instead.
Social media platforms host content. When they say, "your content is not allowed", they are restricting access to...the printing press. Someone said above it's like a mobile provider restricting call because they don't like the content of your call or text.
Government passed the statutes banning viewpoint discrimination and the privately owned media companies are burdened by a government restriction.
Since when did racist epithets, slander, obscenity and misinformation become viewpoints? I don't think any content guidelines exist anywhere that truly infringe on viewpoints. If they do I'd like to see them.
I had to drop off listening to the arguments, but I was surprised that so far I never heard what the States were actually trying to do via these statutes. All the examples I heard re content moderation were non-contentious ones. One litigator did bring up a candidate who says all sorts of awful things without outlining what those were….as if surely that requires “content moderation” by my say-so….lol.
Dave quoted, "And what social media platforms are ultimately seeking, the states contend, is to avoid any regulation whatsoever."
Which would be ideal if there were equal access. We want the marketplace to choose. But there can only be an informed choice if everyone has equal access to the information.
Twitter was fine when progressives controlled access. They call X a wasteland because everyone has access and can contribute. That's not a wasteland. That's democratic.
"They can't be both editors/publishers while also NOT being editors/publishers. Pick one and live with the consequences"
The people who say they are in favor of diversity and inclusion want to be able to freely discriminate? Sounds about right.
The lack of a clear answer or even a clear exposition of the problem would tend to support the case that the SC should punt this back to the lower courts for further development.
I think that's what they'll do while holding enforcement of the statutes in question in abeyance. That fits with the Roberts doctrine of ducking hard choices.
It also fits with the fact that I don't know the right answer.
Also, the founders understood metaphor.
Also, this would be less of a problem if the major players had played it straight and been honest and open about their manipulations. They didn't and weren't, and some form of punishment seems at least morally justified.
"The Left absolutely loves to say that the First Amendment applies only to government action in order to justify...."
And the Twitter files prove conclusively that the government used social media companies to censure speech it didn't like.
"I don't think any content guidelines exist anywhere that truly infringe on viewpoints. If they do I'd like to see them."
So would we. That's a large part of the problem.
Thanks to Musk opening up the Twitter files to Taibbi, Shellenberger, et al, there are volumes of evidence that Twitter (as well as Facebook, Instagram, and others) controlled traffic at the request of the Federal government, some State governments, and quite a few NGOs and public corporations. This was not a series of easy choices, many of the instances were complicated transactions and discussions.
But the truth is, if these social media empires had defended their honor a little more vigorously, and demonstrated an even-handedness of viewpoint tolerance, the Supreme Court would not be asking the hard questions now. As it is, they were anybody's b*tch. The requests and demands to censor came from both Progressive left and Conservative right interests, but the truth is, the cumulative actions skewed heavily towards satisfying leftist masters, and promoting leftist ideas - while censoring / cancelling / throttling conservative voices.
I would like to see transparency measures be imposed, which I don't think would be that hard, from a programming point of view. Oversight? Cripes, government is too big already, and eminently untrustworthy. Let the NGOs handle oversight, and let the billionaires fund them, out of their bunker fund.
Imagine a pre-internet world in which there were only a couple of companies in the world that were capable of manufacturing the kind of ink that's needed for newspaper, magazine, and book publishing on the scale required to supply the needs of those industries. Imagine further that the owners of those companies openly refused to fill any orders for their product from publishers who weren't staunch Republicans and/or whose publications did not actively support Republican candidates and causes. Could Congress and state legislatures not pass laws REQUIRING the ink-makers to sell ink to any and all prospective customers regardless of political stripe?
ISTM that they could enact such laws because the sale (or non-sale) of ink is not speech within the meaning of the First Amendment. It's conduct (or non-conduct). In this hypothetical, it's conduct that has the effect of limiting someone else's speech; but that doesn't make the sale of ink itself speech.
I don't think any content guidelines exist anywhere that truly infringe on viewpoints
Okay then define "hate speech" for us in clear, easily applicable language. Since you is a wordsmith, this should be easy.
I don't think any content guidelines exist anywhere that truly infringe on viewpoints
Then you can take a try at defining "threatening or violent" language.
Be aware these two fig leaves I reference have been used to literally ban the President of the United States from social media, along with millions of ordinary people whose viewpoints don't align with the Leftist Tech Masters.
Humperdink, iowan2:
The correct answer is "neither". Rather, what is protected is the people doing the speaking and publishing.
These platforms use the benefit of Section 230 to claim they are not publishers. Publishers make decisions about the content they publish. Deciding someone is to be banned because of the content of his speech defines the platform as a publisher. They just busted the Section 230 protection.
“They just busted the Section 230 protection.”
No, this is an incorrect interpretation. I suggest you get a hold of the transcript of the oral argument and search for section 230. There’s quite a lot of discussion of it and it’s made perfectly clear that this interpretation which I’ve seen many times is not right.No one on the court took that position.
Wordsmith said:
"Free speech, under the First Amendment, means you are free to say (or print) whatever you please and you cannot be charged with a crime. The First Amendment does not obligate others to publish or disseminate your free speech. Social media platforms have ground rules, just as newspapers do if you want your "letter to the editor" published. Just as content is moderated here. If you don't like it you can always go somewhere else. Or howl it at the moon."
Yes. Or use the awesome technology we all have at home, even in our pockets, to disseminate our beliefs and opinions to our friends, family, associates, local governments, media companies and the world at large. The first amendment did not require presses to publish anything that anyone sent or walked in to their offices, as you point out. Such an obligation would violate the free speech rights of the owners of the presses. However, over time, many press owners have welcomed and published viewpoints from across the spectrum. There are press owners who align with viewpoints across the political spectrum. Others realized that a "debate" between varying factions generates a lively "conversation" that is attractive to their readers, so they publish writers whose views originate from multitudinous viewpoints, (from professional writers and communicative citizens), as on this blog, as an example. Many news media freely publish writers with conflicting perspectives, and this has been long common.
Wordsmith again:
"Since when did racist epithets, slander, obscenity and misinformation become viewpoints?"
Since "the awesome technology we all have at home, even in our pockets, to disseminate our beliefs and opinions to...the world at large" (to quote myself above) has made possible long-distance transmission of one's every considered (and informed) or random (and uninformed) thought, resentment, burp, or fart, a possibility that many vigorously exploit.
Looking at business models of the past there is no actual direct comparison between modern social media and anything else.
Newspapers create original content and sell the Newspapers to readers. They make a minimal amount selling the papers. They make their money selling advertising space. The paid subscriptions give the advertisers an idea of the eyeball count of people exposed to the ads. Not who's actually reading them. Small community giveaway papers exist solely on ad revenue. Must be a really tough business these days. Facebook for the user is free. And it's users who provide the value to other users. Facebook sells targeted advertisements, something Newspapers cannot do. Users have to provide information to sign up. Facebook sells that information. Facebook sees the posts and links that a user make and clicks on. And sells that information. P
For the user- Facebook is the soapbox on the corner to stand upon and shout a message to the world. In this manner Facebook is closest to the telegraph rather than Newspapers or telephones. Except the payment to Facebook is indirect- the info Facebook collects and sells. Telegraph companies and operators could read the contents and even if they found them disagreeable were required to send them unaltered. Telephone companies couldn't listen in to every conversation. Then. They can now. With machine algorithms. They could program those algorithms to disconnect if they heard objectionable content. Same with messaging. But they're common carriers forbidden from doing so.
The weight of past usage and examples leads to treating all social media companies as common carriers, reporting only suspected unlawful behavior to the authorities.
Alito is a tool.
It's this type of sharp, legal analysis that keeps me coming back.
"Since when did racist epithets, slander, obscenity and misinformation become viewpoints? I don't think any content guidelines exist anywhere that truly infringe on viewpoints. If they do I'd like to see them."
So, Wordsmith, let us see your definitions of racist epithets, slander, obsenity, misinformation, and viewpoints. I bet your definitions don't match mine, and that mine don't match a third person's, whose don't match person four and so on and so on. From your two comments, I am guessing you would be perfectly fine with a bank debanking someone who spouted an obsenity, slander, racist comment, or misinformation- why wouldn't you- their customers can reflect badly on them and they are allowed to protect their company's reputation, right?
These laws are attempts by states to control speech online. And that’s never a good idea.
If conservatives are upset by moderation on some platforms, they have others to choose from instead, including Elon Musk’s ExTwitter, where he seems perfectly willing to silence “the woke mind virus” but freely allows plenty of conservative grifters to grift freely. But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. SCOTUS should make that clear to Texas and Florida.
The Left absolutely loves to say that the First Amendment applies only to government action in order to justify and rationalize social media censoring plebes like me under their TOS.
It's the governments job to secure these rights.
There is no founder's era (or even Reagan-era) analogue to social media. It is not "publishing", it is the direction, amplification, and attenuation of a vast sea or statements made to the wide world. It intermediates between the producer and consumer in ways that are almost unknowable in the aggregate for reasons that serve the interest of the corporation, while serving producers and consumers well enough to keep the engine going.
It also serves the interests of the governments of multiple countries, who exercise control over the corporations through suasion and threat.
Social media can work with and without banning individual producers, but its very operation requires that individual messages are continuously steered in ways the producer cannot choose nor even foresee.
This is nothing like a publisher and nothing like a common carrier. Analogies fail.
"No one on the court took that position."
Democrats seem to be working exceptionally hard to get to the point where nobody cares about whatever position the courts take.
Interesting that the social media trade group parties retained Paul Clement, former Republican USSG and conservative favorite, to represent them alongside current USSG appearing as amicus.
TX and FL drafted statutes with size floors, so Truth Social and other smaller conservative social media companies would remain free to curate/block/delete posts.
Mark said...
Will be an interesting election if GOP judges have thrown out both Roe and screwed with social media fundamentally disrupting it.
***********
Sending Roe back to the individual states to decide isn't "throwing it out". That decision has rightly been jeered at for not being founded on Constitutional Law principles ever since it was announced.
Penumbras and emanations, my ass!
As for " screwing with social media", just what the EFF does that mean, in a legal sense?
Let's face it, Mark: if you were a knife in a kitchen drawer you would be the CLAM KNIFE.
DERP
Ann Althouse said...
"The First Amendment does not obligate others to publish or disseminate your free speech."
This case isn't about the First Amendment imposing the obligation but about whether the First Amendment prevents legislatures from using statutes to impose the obligation.
*************
It might be outside the case presented, but I am surprised to see you glide past the open and notorious use of federal threats to stifle social media content, regarding covid in particular.
It seems clear the government didn't give a warm shit about the First Amendment. Are you down with that?
Rich said...
These laws are attempts by states to control speech online. And that’s never a good idea.
If conservatives are upset by moderation on some platforms, they have others to choose from instead, including Elon Musk’s ExTwitter, where he seems perfectly willing to silence “the woke mind virus” but freely allows plenty of conservative grifters to grift freely. But it never turns out well for conservatives, or anyone else, when the supposed remedy is giving government more power to control speech. SCOTUS should make that clear to Texas and Florida.
************
As ever, you've offered another gratuitous observation, as both Roberts and Alito specifically raised the same issue.
If conservatives are upset by moderation on some platforms, they have others to choose from instead
With no one there to read them.
The term "Natural monopoly" applies to any particular type of platform. Twitter and Facebook are very different. Facebook and Myspace aren't. I had (have actually) a Myspace profile. Haven't visited there for a while. I also have a Gab account, and a few others. All of which are sitting unused- there's a dearth of people on them.
And they're unlike the current phone system. If you're my age, you recall the phone company as Ma Bell. That was it, nationwide, the Bell Telephone System. There were a few independent companies. In fact, where I live now is one of those places. A few people were hanging on because of DSL- then cable came through. I have to think all that strung up copper is going to be scrap metal soon. But the point is- all those independents had to be 100% compatible with Bell's System to be useful to anyone. For the longest time it as said the major cost of long distance was all the accountants required to keep track of the calls mad and the billing. State governments liked that- because they could tax it. Then some companies wanted to take that long distance routing away from Bell and sell it for far less- while still making a whopping big profit. My wife and I were among the first to switch to the IBM owned SBS- Satellite Business Systems. Our total phone bill stayed the same- but we made a lot more long distance calls. And all those companies had to be 100% compatible with- the Bell system. Then Bell was split up. All the regionals had to maintain the same standards. And the split up didn't even make sense- because each regional Bell was still a monopoly in it's area. Then, cell phones arrived. We were very late adopters to cell phone. For one- analog service sucked if you had trouble hearing. Not just deafness- but trouble hearing- which describes me. And initially they were more expensive then a landline. BUT- it freed frequent movers from having to get a new number after every move. (Remember- phone numbers used to not be portable...) And- the cell phone providers all had to interact with each other and the existing landline infrastructure. Then Sprint introduced digital- and it was as we were preparing to move across state, and we needed to stay in touch as I moved ahead of her. Limited coverage- but I could understand what was coming over the phone. And it all stayed compatible...
If I move to Gab I lose all my connections to Facebook contacts- the two aren't compatible. Facebook makes sure of that. If I move to Truth Social I can't follow anyone on Twitter (not that I do, but...)- they're not compatible. For a platform to be useful to the users - who for Facebook and Twitter are NOT customers in the traditional sense, there need to be people there- the more the better. For the customers, the people buying information or advertising on the platforms, the more users, the more information, the better it is for them. One solution- split Facebook into 5 groups- and require that each group maintain 100% compatible with the existing Facebook network. And after that- require the Facebook companies to share their compatibility codes with any other company that wants to start a Facebook clone. And all the Facebook clones can go after the advertisers and others who want the information they're selling. Where will the users flock? To the clone that doesn't censor them. Most will, anyhow.
And continuing on:
One more thing about phone service, which was held back by regulators, not Bell. My phone bill now, for 4 phones, unlimited calling anywhere in the USA and Canada at any time of day or night, and unlimited internet service and messaging (billing for which was always a scam), is less than it was in the 1980s for a single landline with weekly long distance phone calls to each set of parents and the occasional birthday or or other special event call to siblings or friends. Not just less in inflation adjusted dollars- less, period. $110 a month for 4 phones. Long distance and local service usually ran more then that for the one landline.
As Two-eyed Jack said...
There is no founder's era (or even Reagan-era) analogue to social media.
It's something new. But they pretend to want everyone on them to facilitate communication. And facilitating communication means no censorship except for informing the powers that be of illegal activity. Like, for example, if you're a diehard conspiracy theorist, selling pizza...
I thought this was fairly easy: either the platforms are publishers exercising editorial content, and thus responsible (along with OPs) for all content on their platforms, or a platform is an open forum, releasing the platform from responsibility for content except in egregiously obvious cases easy to stop (assassination promotion, kiddy porn) and everyone gets to post whatever they want.
It seems the problem here is the platforms and government want it both ways: editorial control without any responsibility, and also censorship without violation of 1st Amendment principles.
I don't think the platforms nor the government get both freedom from responsibility and abiltiy to censor. They may be forced to be even more covert about future censorship efforts.
Governments shouldn’t be involved in regulating what speech companies can and cannot assist. As for the argument that websites are common carriers that’s a silly argument:
IMO — this analogy is inapt. Businesses that are regulated as common carriers like telephone companies, taxis, railroads and electric utilities don’t engage in editorial or expressive activity. Yet the states implicitly concede that social-media platforms do engage in such expression when they accuse them of discriminating against disfavored speech. Florida and Texas can’t have it both ways.
The overriding problem is that extending common-carrier regulation to social-media platforms invites more government control of speech. Do Florida and Texas want the FTC dictating what can and can’t be said online? Could California pass a law requiring companies to remove posts that criticize male transgender participation in women’s sports?
"Where will the users flock? To the clone that doesn't censor them. Most will, anyhow."
And advertisers, the real customers of these companies, will flock to heavier moderation and content control ... as Twitter has clearly shown in the last few years of declining ad sales.
Facebook knows who butters their bread and has no interest in this system. If the court is going to step in and force this change, they would seem to open the door into further corporate interference from the SC.
An ancient poem:
They don’t have to bake your cake;
They don’t have to host your take.
Moderation on Social Media sites often tilts against abusive knuckleheads who can’t follow a set of rules put in place to maximize the number of satisfied users and advertisers. The fact that there is a disproportionate overlap between Republicans/conservatives and said knuckleheads is a you problem.
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