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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Filed Under: antitrust, content moderation, interoperability, jim jordan, matt gaetz, state action
Companies: amazon, apple, facebook, google
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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.
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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?
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Ms. Gellis,
In general I concur with your thoughts. However, I must take issue with this:
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.)
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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).
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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.
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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.
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Re: Re: lol
You think you are popular. The far left are so unpopular they all have to move to specific cities where they congregate because they are so disliked by everyone else.
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[citation needed]
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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.
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Re:
You don't have to read what you don't want to read, but it sounds like you don't want ANYONE reading it either.
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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.
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Re: Re:
It would be better if naked propaganda were more difficult to read. But, nobody's trying to stop people reading things, they're arguing that people should not be forced to act as the publisher if they don't want to.
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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.
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i am utterly shocked that they even noticed that they are standing in the hospital they want to bomb for anti-terrorism theatre.
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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.
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Re: Wrong?
Remember folks, just flag restless the turd-dropper and move on.
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