Ask and ye shall receive

Robert Corn-Revere:

In a recent opinion piece, two highly respected scholars at the Berkeley School of Law, Erwin Chemerinsky and Prasad Krishnamurthy, offer a modest proposal to prevent “unaccountable technology monopolies serving as the nation’s speech police.” They point to the long-defunct fairness doctrine, which purported to require broadcast stations to cover controversial issues of public importance in their communities and to do so with “balance,” and suggest Congress could pass a law forbidding “designated social media platforms from discriminating against users and content on the basis of their political views.”

With all due respect to Dean Chemerinsky and Professor Krishnamurthy, it is hard to imagine a proposal that would more thoroughly break the internet. Their proposal ignores the sad history of failure and abuse that led even the Federal Communications Commission (“FCC”) to abandon the fairness doctrine as unworkable and unconstitutional; it rests on an unsound constitutional premise that already has been rejected by the Supreme Court; and it would empower a federal bureaucracy to become the nation’s speech police for “designated social media platforms” (but apparently not for others). The proposed cure is far worse than the disease.

My reply:

Chemerinsky and Krishnamurthy reply:

The power to censor speech, whether in the hands of the government or private companies, should be of great concern to all of us. Although we disagree with virtually everything President Trump said, we are deeply concerned that Twitter’s lifetime ban deprives him of the ability to speak and 88 million followers of the ability to hear his message. At this time, a relatively small number of media companies — Twitter, Facebook, Google, Youtube — exercise enormous control over what all of us can see and hear.

A modest proposal 

In light of this, we advanced a modest proposal: Congress should pass legislation that forbids designated social media platforms from discriminating against users and content on the basis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats, and the intentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content. We believe that the Supreme Court’s decisions upholding the fairness doctrine, such as Red Lion Broadcasting Co. v. FCC and Turner Broadcasting System v. FCC, provide a constitutional basis for such legislation.

Robert Corn-Revere, an eminent First Amendment lawyer and scholar, has opposed this by saying that we are urging Congress to create a fairness doctrine for the internet. He then proceeds to say that the fairness doctrine was a disaster and would “break the internet.”

Mr. Corn-Revere creates a straw person and then attacks it. We do not argue for a fairness doctrine for the internet. We mention the fairness doctrine cases because they support the constitutionality of what we propose: federal legislation to prevent monopoly social media platforms from discriminating against users and content on the basis of their political views.

Critical questions

There are three critical questions: First, should social media platforms be able to exclude speech based on the political views expressed? Mr. Corn-Revere does not defend the desirability of their doing so. We believe that censorship based on political views is wrong whether done by the government or powerful private entities and is harmful to freedom of speech.

Second, is there a workable way to prevent social media platforms from excluding speech based on political views? Mr. Corn-Revere opposes creating an agency with this power. We never advocated such an agency. Perhaps a cause of action against social media companies when they do this would be the best option. Mr. Corn-Revere describes how litigation was strategically used by incumbent political parties to harass or silence broadcasters, especially smaller ones, under the fairness doctrine. But our proposal covers monopoly social media platforms, so there is much less of a likelihood that they can be pressured by baseless litigation. If it is agreed that social media platforms should not exclude speech based on their political views, the conversation should be about how to implement that.

Third, would such restrictions be constitutional? Unlike Mr. Corn-Revere, we find no indication that the Supreme Court ever has repudiated Red Lion Broadcasting Co. v. FCC or Turner Broadcasting System v. FCC. Reno v. ACLU declared unconstitutional some provisions of the Communications Decency Act, but did not consider any of the issues we are raising or the problems with monopoly social media companies that simply did not exist then. The argument must be that social media companies are the “press” under the First Amendment and to hold them liable for the choices they make in regards to content violates the Constitution. The irony is that under Section 230, social media companies purport to be anything but the press. More importantly, the constitutional question is whether government regulation to further free speech outweighs the institutional interests of social media companies to not be regulated. We do not deny that this is a difficult issue, but we ultimately believe that the central goal of the First Amendment is more speech — and that is what we are urging.

C and K, again:

Platforms would still be free to remove unprotected speech such as libel, slander, threats, and the intentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content. 

"standards of decency and mutual respect" as opposed to "political content". 

My reply: Fuck you. 

Facebook is not a "platform". Platforms are under no obligation to remove unprotected speech, because they are not liable for unprotected speech. Removing posts is the prerogative of publishers with comment sections. The power of platforms and providers is something worth discussing. Fair?

tags: Freedom of Speech and Academic Freedom,  Futurism and Data Culture, etc.