Creating State Action Via Antitrust Law And Making The People Who've Been Wrong About The Constitutionality Of Content Moderation Suddenly Right

from the stopped-clocks dept

The challenge of a 24+ hour legislative session covering multiple bills is that it’s hard to keep track of everything that happens. In my last post I wrote about a few impressions and examples that I happened to catch. This post is about another.

Plenty of people on both sides of the aisle have been plenty wrong about content moderation on the Internet. Many Democrats get it very wrong, and so do many Republicans. In the case of people like Reps. Jim Jordan and Matt Gaetz, their particular flavor of wrongness has been to rant and rave about the private editorial decisions platforms have made to remove the speech they think they should have the right to make on these services, no matter what. They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rights?and they are completely and utterly wrong on that point. Platforms are private actors with their own First Amendment rights to choose what speech to associate with. Making those decisions, even in ways some people (including these Congressmen) don’t like, is entirely legal and THEIR constitutional right to exercise. It in no way impinges on the First Amendment rights of any would-be user of their service to refuse their expression.

But these Congressmen and some of their similarly-minded colleagues have noticed that if these antitrust bills should become law in anything close to their current form their speech will continue to be denied access to these services. And this time that denial may well represent an unconstitutional incursion on their speech rights. Because it’s one thing if the platforms make their own independent editorial decisions on whether to facilitate or deny certain user speech, including these Congressmen’s speech. But it’s another when government pressure forces platforms’ hand to make those decisions in any particular way. And that’s what these bills threaten to do.

One such way that they flagged is through the bills’ demands for interoperability. Interoperability sounds like a nice idea in theory, but in practice there are significant issues with privacy, security, and even potentially content moderation, especially when it is demanded. Because one of the problems with an interoperability mandate is that it’s hard to tell if, in being interoperable, one platform needs to adopt the same moderation policies of another platform they are trying to interoperate with. If the answer is yes, then suddenly platforms are no longer getting to make their own editorial decisions; now they are making editorial decisions the government is forcing them to make. Which means that when they impose them against certain user speech it now is at the behest of the state and therefore likely a violation of those users speech rights, which are rights that protect their speech against state action.

But even if a platform opts not to conform its moderation policies, the constitutional problem would remain. Because if these bills were to become law in their current form, the decision not to conform moderation policies might still be seen to flout the law’s requirement for interoperability. And, at least initially, it would be up to the FTC to decide whether it does and thus warrants taking an enforcement action against the platform. But that means that the FTC could easily be in the position of making content-based decisions in order to decide whether the platform’s content moderation decision (in this case not to conform) looks like an antitrust violation or not. This situation deeply concerned these Congressmen, who also happen to be of the belief that the FTC is a captured agency prone to making content decisions that conflict with their own preferred viewpoints. While their concerns generally seem overwrought, bills like these start to give them an air of legitimacy. Because regardless of whether the FTC actually is captured by any particular point of view or not, if it is going to make ANY enforcement decision predicated on any expressive decisions, that’s a huge Constitutional problem, irrespective of which point of view may suffer or benefit from such government action.

So while it is very difficult to credit the particular outrage of these Congressmen, their alarm illustrates the fundamental problem with these bills and other similar legislative efforts (including some anti-Section 230 bills that these Congressmen favor): these targeted businesses are not ordinary companies selling ordinary products and services where market forces act in traditional market-driven ways. These are platforms and services handling SPEECH. And when companies are in the speech-handling business we can’t treat them like non-speech businesses without impinging on those speech interests themselves in an unconstitutional “make no law” sort of way.

But that is exactly what Congress is deliberately trying to do. It is the government’s displeasure with how these companies have been intermediating speech that is at the root of these regulatory efforts. It’s not a case of, “These companies are big, maybe that’s bad, and oops! Our regulatory efforts have accidentally implicated a speech interest.” The whole acknowledged point of these regulatory efforts is to target companies that are “different,” and the way they are different is because they are companies in the online speech business. Congress is deliberately trying to make a law that will shape how companies do that business. And the fact that its efforts are running headlong into some of the most provocative political speech interests of the day is Exhibit A for why the whole endeavor is an unconstitutional one.

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Companies: amazon, apple, facebook, google

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Comments on “Creating State Action Via Antitrust Law And Making The People Who've Been Wrong About The Constitutionality Of Content Moderation Suddenly Right”

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32 Comments
danderbanditsays:

I'm so tired

I’m so tired of these stories. Not that they aren’t true or important. I’m tired of them because we’ve got so many effin jackasses saying its raining while all the time they’re pissin’ on our leg. If they say the sky is red often enough we’ll start to believe it.

These stories ARE important. But the sheer volume means the fight back is drowning in the sea of crap. If the ‘mainstream’ media would pick up just a fraction of them, and report them as constitution killing crap that they are, we would be in a lot better shape.

Bobvioussays:

January 6th Paradox

So a bunch of heavily-conservative-leaning people attempted to use the US Capitol building to "express their free speech", among other things.

And yet some of them are being prosecuted under Federal laws for those actions. Isn’t this "silencing conservatives"?

Should they have the right to use that building in any manner to express further free speech?

Scary Devil Monasterysays:

Re: Re: January 6th Paradox

"Should they have the right to use that building in any manner to express further free speech?"

I can somehow see some pretzel case working its ways through less perceptive courts ending up with the precedent that "Yes, pooping on the floor of public buildings is a right under 1A"*.

Guaranteed to be tested within the week of such a ruling by trolls dropping trou in courtrooms and on the sidewalk.

sumgaisays:

Ms. Gellis,

In general I concur with your thoughts. However, I must take issue with this:

These are platforms and services handling SPEECH.

No, they’re not in the business of handling speech, capitalized or otherwise. They are in the business of creating and providing tools to create communities of association, usually of like-minded individual private citizens. Speech is a by-product of participation in a community, it is not the main raison d’etre.

That’s the problem with this whole discussion – no one wants to be forced to associate with non-like-minded people. 1A prevents the government from doing 5 things (6, but religion got 2 mentions), and it seems to me that the right "to peacefully assemble" is what’s really in danger of facing the firing squad, not speech itself. Case in point: we all know that #45 can speak out in a wide array of methods he might wish, but he can’t force Twitter to let him force an association with anyone – that’s the difference here, and I wish more influencers would see it, and point it out for the red herring it really is. (Some TD readers have already taken up this mantle.)

If it were pointed out, politely, that anyone who wants to associate with you (i.e. peacefully assemble with you) can do so, I think we’d be on better footing to have this discussion. The corollary being, of course, that no one can be forced to assemble with you, peacefully or otherwise. But the way the grandstanders are acting, I don’t think they’ll see that second part for themselves, they’re gonna need some "help" in getting all the way through the idea of what 1A was meant to convey. (And by that I mean, what 1A put in place as limits on government, all three branches of it.)

sumgaisays:

Re: Re: s

In my post above, I accidentally hit enter instead of preview, so the following got cut off:

My finishing thought was to be, the Bill introducers are really wanting just one thing: the legalization of breaking into a community and disrupting it beyond any and all repair. They want to authorize anyone to walk into your home (or community center) and pee all over the carpets, to the point where you’ll leave of your own accord, because not even Serv-Pro will be able to get rid of the odiferous results.

The only law I’d like to see is one where if a Congress-critter proposes a law that is obviously repugnant to the Constitution, they are immediately expelled. And their State/District does not get to replace them until the next election. That last is meant to put a damper on replacing one asshat with another right away. Let them ponder for awhile their own stupidity in electing an asshat in the first place, and what it cost them (their voice in Congress).

That One Guysays:

Re: Re:

My finishing thought was to be, the Bill introducers are really wanting just one thing: the legalization of breaking into a community and disrupting it beyond any and all repair. They want to authorize anyone to walk into your home (or community center) and pee all over the carpets, to the point where you’ll leave of your own accord, because not even Serv-Pro will be able to get rid of the odiferous results.

That does seem to be the ultimate goal for most of these attempts, preventing platforms from imposing any rules or consequences for actions so the assholes have free reign and can say and do what they will unchecked, though of course they’re not honest enough to admit it.

They’ve realized that by and large most people don’t want to associate with them and won’t do so if given a chance and rather than engage in some self-reflection to figure out why or accept that people might have very good reasons to not want to have anything to do with them they’ve instead decided to make it so people have no choice, where either the majority has to repeatedly abandon their current platforms to get away from the assholes or they have to deal with them on a regular basis.

PaulTsays:

Re: Re: Re: Re:

"That does seem to be the ultimate goal for most of these attempts, preventing platforms from imposing any rules or consequences for actions so the assholes have free reign and can say and do what they will unchecked, though of course they’re not honest enough to admit it."

The issue is that they don’t see themselves as the assholes. It’s all those damn "snowflakes" and "woke" people who are wrong for not liking what I say, it can’t possibly be what I’m saying that’s the problem!

They’re the spoiled children, the bullies who were never told "no", and now can’t deal with the fact that they’re not the popular kid.

PaulTsays:

Re: Re: Re:3 Re: Re: Re: lol

"The far left are so unpopular they all have to move to specific cities"

Citation needed. I’m sure I’d have read something about mass exoduses happening across the nation if it were really happening, but I don’t tend to get my news from fiction writers so I may have miss something that you read.

Also, define "far left" because the definition used by people who aren’t in the alt-right bubble tend to define it differently.

Plus, they’re so unpopular that they have to… move to the cities where most people live? I don’t think words mean what you think they do.

Chozensays:

Re: Re: Re:4 Re: Re: Re: Re: lol

Oh shut up with your citations needed, you god damn sealion. That is all you do is sealion.

How many people who live in Portland, Seattle, and San Francisco were born there? Native brain drain is a well known "problem" in these cities. The influx of far leftists drive the native born population out.

Stephen T. Stonesays:

Re: Re: Re:5

You don?t even know what a ?sealion? is in the context you?re trying to use it in. Like ?critical race theory? and ?cancel culture? and ?woke?, you?re using a phrase you don?t understand that was invented by people you probably hate so you can water it down into meaning absolutely nothing because appearances matter more than substance to you.

PaulTsays:

Re: Re: Re:5 Re: Re: Re: Re: Re: lol

"Oh shut up with your citations needed"

Sorry, I don’t accept vague assertions. Too often people use them to make false claims, and I need to understand which specific claim is being made before I can response to it.

If you’re not that sort of person, then it should be minimal effort to specify facts so we can continue. If your argument depends on me not confirming, you are the one with a problem.

If your argument depends on not offering specifics, it’s not a real argument.

"you god damn sealion"

Whatever definition of that word you read, it’s not applicable to the real definition.

"How many people who live in Portland, Seattle, and San Francisco were born there?"

Why is that even remotely relevant? Every major city gets immigrants, tourists and migrants.

Scary Devil Monasterysays:

Re: Re: Re:3 Re: Re: Re: lol

"… because they are so disliked by everyone else."

So the vast majority of people on social platforms and offline communities who do not accept alt-right assholes are somehow the rare few who "everyone" dislikes?

News flash, moron. There’s a reason why you and your small circle of malicious bigots aren’t welcome anywhere. It’s not because "anywhere" is in your corner. It’s because you are the small group everyone else considers an asshole.

Leftists tend to be fairly welcome all over. Proud boys and alt-righters most decidedly not.

Scary Devil Monasterysays:

Re: Re: Re:4 Re: Re: Re: Re: lol

[Addendum]

Hell, if anything you claimed was true, leftists and liberals would be the ones begging you guys to be let on to Facebook and Twitter.

I swear, the delusion the alt-right has of being the majority voice which somehow no one wants to hear cracks me up every time. Once they’re done racking up everyone who opposes their agenda a "liberal" or "leftist" they’ve declared 80% of the nation actively hostile. And yet they keep claiming that’s the unpopular view.

Stephen T. Stonesays:

Re: Re: Re:2

Someone wants to read a bunch of right-wing bullshit can read it anywhere that?ll host it. But they can?t make anyone else host it. Implying they should have that right also implies that leftist bullshit should be forced onto spaces for right-wingers, and I don?t think you have the balls to say that.

Scary Devil Monasterysays:

Re: Re: Re:4 Re: Re: Re: Re:

"Every cable provider has to proved channels for networks so long as the networks content doesn’t violate federal law."

Net Neutrality was more or less abolished so no, the cable providers no longer has to do that much.

"No one is making Big Tech abide by rules that other platforms don’t have to abide by."

And if "Big Tech" the way you define it included infrastructure you’d be correct. They do not so you’re wrong. You are conflating the public street with the bar having an address on that street. The bar owner is not obligated to let everyone travel through his bar and the street isn’t obligated to hold a liquor license. Because they are not the same.

That’s the exact analogy between social platforms and ISP’s and telcos. Not the bullshit you keep trying to push where they are one and the same.

"That is our law."

Literally no ones law. Damn, I see you attended the Giuliani school of law where it’s assumed your personal desires holds weight in court.

PaulTsays:

Re: Re: Re:4 Re: Re: Re: Re:

"Thats our law. Every cable provider "

How are laws that govern cable applicable to a completely different industry that does something not related to cable service?

I understand that some people are desperate to rewrite the law to avoid having their feelings hurt. But, claiming that they are bad because they don’t abide by laws that apply to them is a new low. Netflix don’t follow food safety guidelines either – so?

Chozensays:

Re: Re: Re:5 Re: Re: Re: Re: Re:

"How are laws that govern cable applicable to a completely different industry that does something not related to cable service?"

Please go look up "Common Carrier" some time. By that I mean the real common law and its history, not the crap that Mike with his juris doctorate in nothing spews. Please tell me how maritime law came to govern communications.

We expand legal concepts to other industries all the fricking time. That’s how maritime law became the legal frame work communications operates under.

Now to the original point. The question was along the lines of

‘How is it constitutional to force a private business to host speech it doesn’t’ like’

The point was that is asked and answered. The Supreme Court has already ruled on the constitutionality of forcing cable provides to host channels they don’t agree with.

FYI that exact case will come up on the appeal of the hand picked Judge’s ruling in Florida because the judge ignored the SCOTUS.

Stephen T. Stonesays:

Re: Re: Re:6

The Supreme Court has already ruled on the constitutionality of forcing cable provides to host channels they don’t agree with.

FYI: The must-carry rules apply to broadcast networks and their local affiliates. A cable company has to carry a local CBS affiliate; it doesn?t have to carry Cartoon Network.

Since Twitter, Facebook, and other interactive web services aren?t broadcast networks or cable/satellite TV providers and don?t operate under the auspices of the FCC??as well they shouldn?t??those must-carry rules don?t apply to them. They?re free to moderate speech however they wish, and you can?t do shit about that but complain. Or, y?know, start your own service with blackjack and hookers and all the 4chan-esque content your heart desires to host.

Chozensays:

Re: Re: Re:7 Re:

"They must-carry rules apply to broadcast networks and their local affiliates. A cable company has to carry a local CBS affiliate; it doesn?t have to carry Cartoon Network."

First you are wrong. Second, that is distinction without difference. Even if you were correct and it was only local broadcast, which it is not, it would still void your argument. If local broadcast must carry is constitutional then forcing a private platform to carry content is not a 1st Amendment violation. As always your legal arguments are laughable. You seriously don’t get it.

Now its not just broadcast. Every cable provider over a certain size has to provide a certain number of leased access to any network so long as the networks content is legal.

PaulTsays:

Re: Re: Re:6 Re: Re: Re: Re: Re: Re:

"Please go look up "Common Carrier" some time"

I know what that means. Now explain how it applies to the services you’re talking about.

To give another analogy – you’re talking about the laws that apply to highways and claiming they apply to the mall they lead to. That’s not how it works.

" The Supreme Court has already ruled on the constitutionality of forcing cable provides to host channels they don’t agree with."

Yes. Which is completely irrelevant to what we’re talking about. Facebook isn’t the road that lets to get to the mall, it’s the mall. Why should they have to accept any traffic that comes into their property?

"FYI that exact case will come up on the appeal of the hand picked Judge’s ruling in Florida because the judge ignored the SCOTUS."

In that case cite the SCOTUS case that’s relevant, because I don’t think it says what you think it says.

christensonsays:

Wild Proposal

Let’s see what sort of legs this has…..the devil will be in the details.

Suppose Sen Cruz (or our fave bogeyman, Out of the Blue) hates this site (or your favorite bogeyman site, say, twitter). What if a compliant site had:
a) the site had to have some kind of interoperable protocol, maybe the sort of thing needed for disability compliance, and
b) the user-generated content had no copyright, or at least none unless specifically claimed on an opt-in only basis?
c) A copying site had to clear Trademark rules….so no confusion about who is doing the moderation…

I’m still kind of looking for the carrot for Mr Cruz "free speech" site…perhaps a copyright pass only if he copies stuff with proper attribution, and his interoperability is also working.

this leaves the bad faith chuds free to say whatever they like (they aren’t cancelled), but leaves sites free to moderate as they see fit.


Emotionally, but perhaps not rationally, I think a large website should take on some attributes in the name of the public interest .. namely that any two users of the site who are peers see the same view of it, but i’m not sure how to deal with lots of sticky little issues like random ads, A/B testing, or even random.org in a consistent and useful way.

restless94110says:

Wrong?

"They complain that what these platforms are doing to their posts must somehow be violating their First Amendment rights?and they are completely and utterly wrong on that point."

No they aren’t. These monopolies have taken the place of the Common Square and must now be treated just like the phone company is. They have no Free Speech rights at all.

Just because that does not happen to be the way it is this minute doesn’t mean you need to write non-stop about how Jordan and Gaetz are " utterly" wrong.

You should instead be writing about how utterly right they are and what steps we all should be taking to move these monopolies to the status of public utility.

You are letting your prejudice cloud your writing.

sumgaisays:

Re: Re: Wrong?

These monopolies have taken the place of the Common Square….

Assumes facts not in evidence, and easily proven otherwise.

I can still go downtown and sit in any of a dozen public squares (within blocks of each other), and either listen to idiots like you make fools of themselves, or if I’m feeling particularly peckish, I can can also stand up and prove to the world that I am also a fool.

That poses a very poignant question – if Facebook is truly the 800 lb gorilla that some make it out to be, then why did #45 insist on using Twitter as his main sewage conduit, instead of Facebook? Moral of the story: if more than one reasonably healthy entity exists in a market sector, then by definition, neither of them is a monopoly.

Scary Devil Monasterysays:

Re: Re: Wrong?

"No they aren’t. These monopolies have taken the place of the Common Square and must now be treated just like the phone company is. They have no Free Speech rights at all."

Literally every word an outright lie.

1) None of the companies you refer to are monopolies.
2) None of them are public squares or can take the place of it.
3) The phone company is also not considered a public square and last I checked no third party is given free reign to complain if you hang up on them.
4) Private entities certainly have free speech rights. Which is why they don’t have to suffer you speaking on their premises.

"…doesn’t mean you need to write non-stop about how Jordan and Gaetz are " utterly" wrong. "

It certainly does when Jordan and Gaetz keep right on being utterly wrong. If someone decides to insist that 2+2=5 again and again then you need to contradict them, again and again.

"You should instead be writing about how utterly right they are…"

Your suggestion that Mike and everyone else ought to start lying has been noted and rejected.

"…what steps we all should be taking to move these monopolies to the status of public utility."

None, because last I checked the US isn’t a communist dictatorship where the state seizing the means of production out of convenience is a thing.

"You are letting factual reality cloud your writing."

Fixed That For You.

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