Justin Hendrix is CEO and Editor of Tech Policy Press. <\/p>\n
On Friday, I attended a packed lunchtime discussion hosted by the Harvard Law School Rappaport Forum titled Censorship, Content Moderation, and the First Amendment. The panel was moderated by Noah Feldman,a Professor Law at Harvard. Speakers included Jameel Jaffer,Adjunct Professor of Law and Journalism at Columbia Law School & Executive Director of the Knight First Amendment Institute, Columbia University; and Daphne Keller,Lecturer on Law at Stanford Law School & Director of the Program on Platform Regulation at the Stanford Cyber Policy Center. <\/p>\n
The discussion focused on issues that may soon be considered by the US Supreme Court, including the constitutionality of laws passed in Texas and Florida that would prevent social media platforms from taking action on certain political speech. In August, the Biden administration urged the Court to decide whether the laws are constitutional, and it is expected to do so. <\/p>\n
And, the Rappaport Forum panel also considered Missouri v Biden in light of the recent US Fifth Circuit Court of Appeals ruling against the Biden administration. That case concerns what is permissible government persuasion and what is impermissible coercion and significant encouragement when lobbying social media companies to make certain content moderation decisions. On Tuesday, the government asked the Supreme Court to pause a block on its contacts with social media companies, while the plaintiffs seek a rehearing of the Fifth Circuit decision to address its scope. <\/p>\n
(For another compelling, recent perspective on the issues in Missouri v Biden, I recommend reading former Twitter trust and safety head Yoel Roths essay, published today by the Knight First Amendment Institute, which focuses on the portion of the Fifth Circuit ruling concerning the FBI drawing on his personal experience.) <\/p>\n
With the Law Schools permission, Im publishing the transcript of the Rappaport Forum discussion here, as it is a useful and accessible way to engage with the issues at play. As the Knight First Amendment Institutes Jaffer put it, the courts are going to hear this full slew of cases over the next few years relating to the governments power to influence or coerce or expose the social media companies content moderation decisions. And I think it hardly needs to be said that those cases are going to have an immense effect on the character of digital public sphere and therefore on our democracy as well. <\/p>\n
Id add only that the effects will extend well beyond the US, since it will change the ways in which global social media platforms conduct themselves when it comes to content moderation and political speech. The implications may be even more profound in countries far beyond the jurisdiction of US courts. <\/p>\n
This transcript is lightly edited. <\/p>\n
Noah Feldman: <\/p>\n
I just want to say a word about the two leading topics that well be talking about. And we will, Im sure expand beyond just those topics. The first is a set of cases that are in front of the US Supreme Court now that are being briefed and will be argued this Supreme Court term and decided, one expects, by the end of June, involving laws passed by Florida and Texas that in their form regulate what social media platforms may and may not do in their content moderation. <\/p>\n
And to oversimplify, each of these laws imposes on the platforms something like the standard that the First Amendment imposes on government in moderating content. As you know, that standard and not just those of you who were in my First Amendment class, welcome, glad youre here. We just had two hours of First Amendment. So these are the real, the people really committed to the First Amendment and I thank you for coming. <\/p>\n
As you know, all of you, the standards that a private company and the social media platforms are private companies, are ordinarily held to, are not First Amendment standards. Because the first amendment in the first instance only regulates the government. These state laws therefore would put the content moderation operations within those companies in a very different position with respect to what they can and cannot moderate than they presently are. It would require far, far less moderation of things like hate speech and misinformation and possibly even ordinary everyday offensiveness than they practice under current circumstances. And the circuit courts of appeals split on the constitutionality of those laws and thats why its before the Supreme Court now. <\/p>\n
Hard to imagine a topic more important for free speech in the United States today than what are the standards that the social media platforms may or may not use to determine what content can be on those platforms? And here that issue arises in direct relationship to the First Amendment. <\/p>\n
The other is also before the Supreme Court, but in a slightly different procedural posture, if youll forgive the legalese. It is a case involving an argument by individuals whose content was taken down from social media sites for violating their rules on COVID misinformation. Who alleged in district court where they won a preliminary injunction. That the Biden administration convinced by means of encouragement and even coercion the platforms to take down their content by fine-tuning their content moderation misinformation standards to prohibit what they were doing. <\/p>\n
The US Court of Appeals for the Fifth Circuit partly upheld a preliminary injunction issued by the lower court. It narrowed it down to just the Biden administration and not people in the CDC and the Supreme Court decided to stay that order until I think four oclock today and gave until the end of the day Wednesday for people to submit briefs. So its very probable that before you go off to your happy hours this evening, there will be a Supreme Court decision on this fascinating and rich issue, which sometimes we use the shorthand to call it, we call it jawbone. I actually dont know the intellectual origins of that phrase because it sounds to me like Samson and the jawbone of the ass, and that didnt end well for the Philistines. <\/p>\n
Daphne Keller: <\/p>\n
It is. <\/p>\n
Noah Feldman: <\/p>\n
Is that actually the origin? I always thought it had something to do with the fact that you talk out of your jaw, but I guess not. If so, its a very loaded metaphor, I guess it assumes a conclusion. <\/p>\n
But what is meant is circumstances where government officials use persuasion, and persuasion that may go up to the line, will cross the line of coercive persuasion to the point where the decision to remove the speech becomes in law the speech of the government. And by becoming the speech of the government, is regulated by the First Amendment. Okay, so for those of you who havent taken First Amendment or havent taken it recently, the idea is that the government ordinarily can say whatever it likes, but it cant stop people from speaking. Private parties can stop other private parties from speaking and theyre not stopped by the First Amendment from doing so. <\/p>\n
But if the private party, the social media company, removes the speech of another private person and does so because the government made them do it, then at that point it becomes the governments speech Act and then it cannot lawfully be performed. It wouldve been fine on that theory if the platforms did it themselves, but its not constitutional if they did it by being pushed into it according to some complex legal standard by the government. Without further ado, Daphne, the floor is yours. <\/p>\n
Daphne Keller: <\/p>\n
Thank you so much and thank you to Harvard and the Rappaport Forum for hosting us here. <\/p>\n
So Ive been practicing platform speech law for a long, long time and Ive been teaching it for 11 years, I just realized. And when I started teaching it, every single class was on the topic that lawyers call intermediary liability. So thats the question of when the law can or should require platforms to take down user speech because that speech or that content is unlawful and its doing harm in violating the law by being distributed further by the platforms. And every year that I teach for the past five or six years, Ive had to drop a day of talking about that question, which is when does the law require platforms to silence their users? And add more material about the opposite question, which is when can the law stop platforms from silencing their users? <\/p>\n
Are there situations where there can be, what we call must carry laws compelling platforms to carry speech against their will because a government body has decided that thats whats in the public interest? And as we know from Noahs introduction, in these cases coming out of Texas and Florida, that theyre likely to go to the Supreme Court soon, those states are asserting the right to compel platforms to carry speech that they dont want to. But lest you think that other issue has gone away, there have been three state laws requiring platforms, effectively requiring them to take down user speech that got struck down as unconstitutional in the past two and a half weeks. So there is a lot of action on both sides of this. When does the law make platform silence people? When does it compel them to let people speak? And its a very complicated set of issues because there really are speech considerations on all sides. <\/p>\n
It is quite understandable that people want to be able to talk in some of the most important public forums of our age and they dont like it when a giant corporation stops them from doing that. That is not surprising and while it is passed as politically an issue of concern to the right and to Republicans right now, I think it is absolutely a bipartisan issue. Liberals dont like being silenced by corporations either. It is, I think unsurprising that were seeing the great wave of regulation right now, including the three state laws that were just struck down and the Texas and Florida laws, because were in this historically unprecedented situation of very concentrated power over public discourse and private discourse. The things that we once would have said to each other in a church or a bar or a note passed in class are instead passed through these private companies and transmitted digitally. <\/p>\n
And that introduces both a greater capacity for control because theyre there at all, because its a centralized power and because they can have tools that automatically detect what words you use and automatically, if inaccurately you suppress things. So its unprecedented power and because it is private power, the tools to defend users rights from surveillance under the Fourth Amendment and from censorship under the First Amendment, those legal tools dont work or they dont If they work, we dont know how they work yet because the idea of applying them to private actors in the way that some advocates want to do now is unprecedented, is unexplored territory, figuring out how that could possibly work. <\/p>\n
I think I want to suggest that there is a problem in the way that states have responded to this concentration of power, and that this is a problem that appears on the right and the left. Again, I think a lot of this gets passed as partisan and isnt necessarily. The problem is that regulators say, Wow, private companies, YouTube, Facebook, Google, you have so much control over discourse, its terrible. Were going to have to take that over and tell you how to use it. So instead of saying, Theres a concentration of power, lets undo the concentration of power, which is conceivable through interoperability mandates or through changes in privacy law. Instead of taking that approach, the approach that you get from both the left and the right is to say, use your power in the following way. Use it to take down more of this kind of speech or use it to keep up more of this kind of speech. <\/p>\n
And I want to drive home that, the Texas and Florida laws, although they get called must carry laws and Texas and Florida themselves claimed that they are common carriage laws, which suggests that the platforms are supposed to just carry everything that people say, they actually introduced some pretty significant state preferences about speech. They are not content neutral, theyre not speaker neutral and they incentivize platforms to do things that will suppress speech as well as maybe carrying more speech. So, one way that that works is Texass law has a mandate to be viewpoint neutral when platforms are deciding what content to take down. If they want to take down anti-racist content, then they have to also, and I said that backwards. If they want to take down racist content, they also have to leave up anti-racist content. You pick your really difficult issue and theyre supposed to carry speech on both sides of it. If they want to take down pro-anorexia content aimed at teenagers, they might have to take down anti-anorexia content aimed at teenagers. <\/p>\n
What that does for listeners, if youre on the internet and you wanted to follow a speaker you already respect or learn about something, is as the cost of accessing the information you want, which maybe is the anti-racist speech, you have to also put up with this state mandated inclusion of the stuff that you didnt want. So it is very much changing what it is that users can see and read online at state behest in a way that raises questions, not just about platforms rights to decide what to do, but about users rights to speak or rather to access information online. It is also, I think, quite likely speaking as a former platform lawyer, that if the platform is trying to decide how to comply with the viewpoint neutrality mandate, theyll say, You know what? Id rather have no one talking about racism at all than have to carry both the pro-racist and the anti-racist viewpoints. So Im just going to take down a whole lot more speech than I used to. And thats the consequence of this, the nominally pro-free expression law in Texas. <\/p>\n
I can tell you more about ways in which I think the laws more in the weeds to introduce state preferences for speech, but hopefully that sets out the basics of it. I have about three more minutes, right? All right. I think theres an underlying problem here or an underlying difficulty, which is about what in the trade gets called lawful but awful speech. This is this very large category of speech and I had an article in the UChicago Law Review going into more depth on this, that is legal, its protected by the First Amendment, thats probably not going to change. But it is also morally abhorrent to many people, it violates social norms and they dont want to see it. So the pro-anorexia content, the pro-suicide content, the beheading videos, the Holocaust denial, the list is very long, and its very ugly. <\/p>\n
If we dont want to see that content on the internet, we cant use the law to make it go away. And so where weve been so far is were stuck having private companies come up with rules and enforcing the rules that theres economic demand for and social demand for, but nobody likes that either because of this concentration of power issue. And so the deeper question I think is, how to deal with that. And the answer cant be, or I hope it cant be, Well, well just ban a bunch more speech. If we will use the law to restrict all this stuff that is currently First Amendment protected. Or theres a version of that that says, You can still say all that stuff offline, but if you say it on platforms, its more dangerous, so they have to take it down. And maybe the FCC will administer a new set of rules for previously lawful speech and say platforms have to take it down. <\/p>\n
There are a lot of directions you could go to use legal power to address that. And I think theyre all pretty scary. And so I am much more interested in approaches that go back to this idea of maybe lets not have that concentration of power. Lets build what my Stanford colleague Francis Fukuyama calls middleware or what other people call it, adversarial interoperability or competitive compatibility. Which is finding ways to make it so that internet users can decide for themselves what speech rules they want to be subject to and have a competitive marketplace of different providers coming along, letting you select the Disney flavor of YouTube or the version of Twitter that is curated by a Black Lives Matter affiliated group or the combination or something from your church. There are all these ways to layer competing speech rules on top of existing platforms that I think can take us away from this idea that there has to be just one set of rules and the government gets to say what its going to be. <\/p>\n
Noah Feldman: <\/p>\n
Thank you so much, Daphne. On that last topic, itll be interesting to talk about A, whether that puts people into filter bubbles and B, whether were not actually seeing the market competition now in the way that, the company formerly known as Twitter, now has radically different rules of engagement than it did previously and is yet were in competition with other factors. Jameel. <\/p>\n
Jameel Jaffer: <\/p>\n
So I totally disagree with everything that Daphne said. <\/p>\n
No, its really a privilege to be up here with Daphne and Noah who are both wonderful people and really smart thinkers on this set of issues. I do need to correct one thing that Noah said. I did not, in fact, dream up the Knight Institute. It was Columbia University and the Knight Foundation that dreamt it up and then made the mistake of hiring me to build the institute. So as youve already heard, the courts are going to hear this full slew of cases over the next few years relating to the governments power to influence or coerce or expose the social media companies content moderation decisions. And I think it hardly needs to be said that those cases are going to have an immense effect on the character of digital public sphere and therefore on our democracy as well. <\/p>\n
Some of those cases have already been mentioned, in Florida and Texas. We have these laws that require the social media companies to carry content that they would rather not carry. The laws also limit the use of recommendation algorithms, they require the companies to dispose all sorts of information to their users and to the public. Theres also this Missouri case that Noah referred to where users have sued the Biden administration over its efforts to coerce the platforms or influence the platforms into taking down what the administration saw as vaccine disinformation. I would put into this category of cases, also the TikTok cases where the Montana has banned TikTok altogether from operating in the state. And one way to think about that law is as the most extreme content moderation where TikTok cant serve any content at all to its users. There are lots of other cases Daphne referred to some of them. Lots of other cases in the lower courts right now that raise these kinds of issues. I think that the plaintiffs have a pretty good chance of prevailing in most of those cases. <\/p>\n
And in my view, the plaintiffs probably should prevail in most of those cases. Because most of them involve what I think can fairly be described as government efforts to rig public discourse. And that is precisely what the First Amendment was meant to protect against. But I think that it matters a lot how the courts resolve those cases, how the plaintiffs win those cases. Im worried that the courts are constructing a First Amendment that sees every regulatory intervention in this sphere as a form of censorship. And I dont think that that version of the First Amendment would serve free speech or democracy very well. In my view, the First Amendment should be able to distinguish between regulation that undermines the values that the First Amendment was meant to serve. Values like accountability and tolerance, self-government and interventions that promote those values. The First Amendment needs to be able to distinguish those two categories of interventions. <\/p>\n
And of course its important that the First Amendment be attentive to the possibility that any intervention in this sphere is an effort to distort public discourse, or that the intervention will have that effect. And I dont want to move past that too quickly. I think thats hugely important, if you doubt the importance of that, just look around the world at the way that fake news laws are being used now against journalists. So I think its hugely important that First Amendment doctrine continue to be attentive to the possibility that any regulation in this sphere has that intent or that effect. But I do think it would be a sad thing and something terrible for our democracy if the courts constructed a First Amendment that was indiscriminately deregulatory. A First Amendment that left essentially no space for regulatory intervention at all, even intervention that might be important to protecting the integrity or the vitality of the digital public sphere. <\/p>\n
So I think its worth taking a close look at some of the arguments that the social media companies and the technology companies, more broadly, are making in these cases that we have identified already. So one of the arguments is that, the collection of user data is speech within the meaning of the First Amendment. Another is that, any regulatory intervention that implicates the platforms editorial judgment has to be subject to the most stringent form of constitutional review. Another argument is that, any regulatory intervention that focuses specifically on social media companies should be subject for that reason to the most stringent form of constitutional review. And then finally, any regulation that would be unconstitutional if applied to newspapers must also be unconstitutional if its applied to social media companies. So its not surprising that you see social media companies making those arguments. What business wouldnt want to be totally beyond the reach of regulation? <\/p>\n
So I understand and appreciate why theyre making these arguments. But if courts accept those arguments, its not just the bad laws that we have already identified that will be struck down, its also good laws. Those kinds of arguments will preempt legislatures from passing laws that I think most of us, no matter what our political views are, would agree make sense. Privacy laws for example, that would restrict what data the platforms can collect and what they can do with that data. Interoperability laws, which Daphne already mentioned, that might make it possible for third parties to build on top of the networks that the social media companies have created. Transparency laws that would allow the public to better understand what effect the platforms engineering decisions are having on public discourse. Or process oriented laws that would give users whose speech is taken down the right to an explanation or the right to appeal that decision. <\/p>\n
Now, I know Noah wants me to make this argument in the strongest possible way, but I need to caveat it in one respect at least, which is that, the details are going to matter a lot. Im not making the argument that every transparency law is necessarily constitutional. Again, its important that the courts be attentive not just to the reasons why legislatures are passing these laws, but to the actual effect that the laws are likely to have on First Amendment actors exercise of editorial judgment. But a First Amendment that precluded any and all regulation of social media platforms would make the First Amendment, I think the enemy of the values that we need the First Amendment to protect. Should I stop there or do I have a couple more minutes? You want me to- <\/p>\n
Noah Feldman: <\/p>\n
You can go on for another minute. <\/p>\n
Jameel Jaffer: <\/p>\n
Yeah. Okay, well only- <\/p>\n
Noah Feldman: <\/p>\n
Say something provocative. <\/p>\n
Jameel Jaffer: <\/p>\n
Okay. All right. <\/p>\n
Noah Feldman: <\/p>\n
The last time I had a discussion with Jameel, we got into a yelling argument that took an hour and a half and its all on video somewhere. <\/p>\n
Jameel Jaffer: <\/p>\n
You werent the moderator. <\/p>\n
Noah Feldman: <\/p>\n
I wasnt the moderator, thats true. <\/p>\n
Jameel Jaffer: <\/p>\n
I guess the only thing, maybe this will sharpen the argument slightly. So the argument that the First Amendment shouldnt make any distinction between newspapers say and social media companies seems especially misguided to me. Theres no question in my mind that social media companies exercise editorial judgment. They make judgments all the time about the relative value of different categories of speech that seems like editorial judgment of the kind that, or at least analogous to the kinds of judgments that newspapers make about what should appear in their pages or that parade organizers make when they decide which floats can appear in the parade, that seems like a form of editorial judgment to me. But the relationship that a social media company has, to the speech that appears on its platform is different from the relationship that a newspaper has to the speech that appears in its pages. To say that another way, both of these kinds of actors exercise editorial judgment, but they exercise editorial judgment in different ways. <\/p>\n
And those differences I think should matter to the First Amendment analysis. Why dont I leave it there? I can say more on that. <\/p>\n
Noah Feldman: <\/p>\n
Great. I would love to ask a question to both of you that derives from something that Jameel said, but I think its relevant to both of your comments. And that is the question of why we have a First Amendment in the first place at all. So I think you said in passing Jameel that the whole point of the First Amendment is to avoid the government distorting free speech or rigging what discourse is out there is the public. And I want to push back from the standpoint of the people who passed the Florida and Texas laws. I think what they would say is, Thats not the main purpose of the First Amendment, although it might be a purpose. The main purpose of the First Amendment isnt to enable people to speak freely. And nowadays, the place that people speak is on social media. And as platform lawyers certainly know, and everyone who uses social media knows, an enormous amount of content that you might want to say on social media, you cant. <\/p>\n
It gets taken down and the more controversial you are, the more quick they are to take it down. And so from that perspective, if the government cant tell social media to allow free speech, and if you cant define free speech by saying, Were not going to make up a special definition for you, were just going to use the definition that the courts make us use, how on earth can that be in violation of the principles of the First Amendment? It seems like the only way it could be is if you think something that you guys both claim not to think, I think, which is that, the platforms are not just like newspapers who can say whatever they want. <\/p>\n
So if theyre not like newspapers, what could possibly be wrong with Florida or Texas saying, You know what guys? Youre subject to the same standards that were subject to. And the reason for that is that the First Amendment is about maximizing peoples capacity to communicate and you are in the real world, the thing that stands between this generation and the possibility of free speech. So I would like each of you to address that. <\/p>\n
Daphne Keller: <\/p>\n
So thats not what they said though. <\/p>\n
Noah Feldman: <\/p>\n
Well, lets reconstruct it in the strongest argument that they could. Lets then just imagine a statute which is a variant on this, these statutes that just says, The platforms may not do anything that the government may not do with the regulation of free speech. Is that constitutional in your view? <\/p>\n
Daphne Keller: <\/p>\n
I dont think so. <\/p>\n
Noah Feldman: <\/p>\n
Thats what I thought. <\/p>\n
Daphne Keller: <\/p>\n
And so to be clear, the difference is, so Florida says, You have to let politicians say anything and journalists say anything. So it is picking winners as speakers and giving them special privileges. And I think those are important special speakers too, but the way they do it is very clumsy. And then Texas says, You have to be viewpoint neutral, but actually you dont have to be viewpoint neutral as to these things we think are really bad, you can just take that down. <\/p>\n
Noah Feldman: <\/p>\n
Just imagine they did it well. <\/p>\n
Daphne Keller: <\/p>\n
Yeah. So, instead were imagining a law that says theres a common carriage law, which is what Texas and Florida claim they have, which says, You have to carry every single thing period. Or you have to carry every single thing thats legal. And so if you know somethings illegal, take that down, but you have to carry everything else. I think one, I guess, the constitutionality, but man, those lawmakers constituents would hate that. Their kids and grandparents and cousins and whatever would go on YouTube and suddenly see a bunch of extreme porn or go on TikTok and see a bunch of pro-suicide videos and think this is not something people would actually be happy with. But setting that aside, I think, so I have been focusing on the speech rights of internet users and how theyre affected. But here the impact on the speech rights of the platforms is quite visible and quite extreme. Is taking away their ability to set any editorial policy at all, which I think is clearly a First Amendment problem. It also will, I think would be a . <\/p>\n
Noah Feldman: <\/p>\n
But why? Because corporations deserve free speech rights? <\/p>\n
Daphne Keller: <\/p>\n
Well, because we have a bunch of precedents saying that the parade operators and the cable operators and so forth, various commercial entities or non-commercial entities that just aggregate third party speech and set some rules for it, they do have First Amendment rights. So because the Supreme Court I think is my main answer there. But I also think it would destroy the <\/p>\n
Noah Feldman: <\/p>\n
Can I just push back? I mean, what if the Supreme Court said that, A parade is one thing, because can always make your own parade. But I tried to make my own Facebook and I wasnt so successful. So theyre not exactly like a parade, and so were going to treat them differently. And I think Jameel thinks that they should be treated differently from newspapers. So if that were the case I mean I dont think, imagine the precedent doesnt limit us here, because I personally dont think that it does. Would you still think, if you were on the Supreme Court and not bound by a precedent, do you believe that these giant gajillion dollar multinational corporations that control all of our speech have their own free speech to shut us up? Or thats the question that Im asking. <\/p>\n
Daphne Keller: <\/p>\n
Yes. Yes, they do. I dont think there should be- <\/p>\n
Noah Feldman: <\/p>\n
Why? <\/p>\n
Daphne Keller: <\/p>\n
There should be more of them. They shouldnt have the power that they do, but they are providing a service that most users want in curating the speech that they see. So its not a free speech mosh pit, every day when you show up on Twitter or YouTube or Facebook. And theyre doing that in expressing, theyre expressing their own priorities about what speech is good and bad in so doing. It seems like, I agree with you, the court can just change it and maybe they will, and maybe thats the world were heading for. So precedents not that important, but I think that there is a First Amendment value being served that would be served better with more competition, but its definitely a First Amendment value. <\/p>\n
Noah Feldman: <\/p>\n
Jameel, and especially given that you think theres a difference between the social media companies and newspapers, I want to know what the principle is behind that difference. Unless you are willing to allow the government to force the social media companies to allow free speech. <\/p>\n
Jameel Jaffer: <\/p>\n
Well, I mean I think it depends. So the answer for newspapers, the Supreme Court has already given us in a case called Miami Herald. So there was a law that wouldve required newspapers to run opposing viewpoints when they editorialize on certain topics. And the Supreme Court struck it down, saying, You cant force newspapers to publish opinions they disagree with and to carry speech so they dont want to carry. And so the question is, does that principle apply or apply with the same force to social media companies? And I dont think it should. I do think that there are circumstances in which legislatures should be able to impose, must carry obligations on platforms even if they couldnt impose the same ones on newspapers. Im not totally unsympathetic to that aspect of the Florida law. The Florida law says, the best version of the Florida law would say, A couple of weeks before elections, the big social media companies can take down political candidates posts only according to, say, published procedural rules that are applied generally and not just to political candidates or to a particular subset of political candidates. <\/p>\n
Now, do I think that law might be constitutional because I think the social media companies have no First Amendment rights at issue here? No. I think the social media companies are exercising editorial judgment as Daphne says, theyre just exercising it in a different way than newspapers do. But the fact that theyre exercising editorial judgment isnt the end of the analysis. Then theres the question of, is the public justification for overriding that editorial judgment strong enough to justify overriding it? And I think you could make a strong case or at least a plausible case, that in the weeks before an election, the publics interest in hearing from political candidates should prevail over the interests of Facebook or TikTok in promoting the political candidates that they might prefer at that particular moment in time. <\/p>\n
Now, the Florida law, Im not defending the Florida law. The Florida law I think was passed in order to retaliate against companies that were perceived to have a liberal bias. I dont think there are any legislative findings in the Florida law to justify the must carry provision I just described. But Im not unsympathetic to that argument and I dont think we want a first amendment that categorically precludes legislatures from even considering those kinds of must carry provision. <\/p>\n
Noah Feldman: <\/p>\n
So can I push you just a tiny bit to what seems to me like it would be the logical conclusion of that view? You say there has to be a compelling governmental interest, fair. What about the compelling governmental interest in the next generation of people who communicate only on social media, for the most part, having free speech? I mean, we dont have a public The Supreme Court has said that the public sphere today is online and on social media. So if you accept that, then I cant even imagine an interest more compelling to override the supposed free speech interests of these gajillion dollar corporations. I think neither of you is jumping up and down about the idea that all corporations have free speech rights, but well leave that to one side. <\/p>\n
But the core idea would be that we cant have free speech anymore if the platforms are treated as exercising the editorial control. And you yourself, I mean, I think Im expressing a view, its closer to your view than to mine, because I tend to be on neither newspapers. But Im really trying to articulate the counter view. Once youve conceded that under some circumstances their editorial control can be overridden, why not override it just all the way down the line and lets just have free speech and we dont have to invent some bad free speech law. Well just use the free speech law the Supreme Court has already created for governments. <\/p>\n
<\/p>\n
Follow this link: Justin Hendrix is CEO and Editor of Tech Policy Press. Continue reading
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