Ridiculous: Yale Law Prof Argues That Because Some In Congress Want More Moderation, That Makes Twitter A State Actor
from the did-he-teach-hawley? dept
I'm beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld -- currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh "hires women with a certain look" -- and a... um... biotech executive named Vivek Ramaswami who is mad about "woke" companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.
Honestly, the level of thinking here is on par with your typical Breitbart commenter, not a well known (if slightly disgraced) Yale Law professor.
Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
It's not just "conventional wisdom." It's lots and lots of legal precedent and a general understanding of 1st Amendment doctrine going back ages. State action doctrine is not some brand new concept. I mean, there have been some very thoughtful academic pieces on the idea that state action doctrine should be changed to try to make it apply to social media companies. But those are academic papers suggesting how they think the law should change. They're not saying it fits under current doctrine.
Because it doesn't.
It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.
So... the first sentence is correct. It's also why we've repeatedly raised concerns about lawmakers demanding specific content moderation options. But the second sentence is just laughably wrong. Nothing in Section 230 of the Communications Act induces, encourages, or promotes private persons to accomplish what is constitutionally forbidden to accomplish. The 1st Amendment protects a company's right not to associate with those it does not wish to associate with. It also protects against being compelled to host speech it disagrees with. Those are both constitutionally protected things. Section 230 does not change that.
The piece does highlight some members of Congress stupidly (and I believe, unconstitutionally) pressuring Facebook and Google to restrict "harmful content." And I agree that's wrong. But it's a massive leap towards insanity to try to spin that as saying that those vague threats from elected officials magically turns the websites themselves into arms of the state, subject to 1st Amendment restrictions placed on government. I mean, if it did, you've just handed Congress a magic tool to effectively nationalize any company: just unconstitutionally order them to do something, and voila, they're now state actors.
That's insane. That would only encourage Congress to make unconstitutional demands of companies to have those companies declared state actors. It's bonkers. I feel sorry for Yale Law students who deserve better.
Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on “hate speech.” It’s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech’s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to “a shift in the political winds.”
So... the argument here is that you want more hate speech online, and you're mad that Facebook is restricting it? Holy shit. What is wrong with you?
And, um, note what is left out in this claim about exactly when these companies "took its most aggressive steps against Mr. Trump." It's not just about the fact that Democrats were poised to take control of the Executive and Legislative branches, but because Trump had just inspired a fucking riot at the Capitol building in an effort to overturn a free and fair election and reports were coming out that he was happy about what happened, worrying many that he would encourage yet more attacks in the days leading up to the Biden inauguration.
Seems like kind of an important thing to include, no? There's no indication that the Trump bans were about politics at all. There is every indication they were about preventing an armed insurrection and possible civil war. But Rubenfeld and Ramaswamy literally ignore all of that and insist that it's some sort of ideological or political issue... and stretch that to argue that these companies are arms of the state. A state that is still controlled by Donald Trump.
I mean, this is embarrassing.
For more than half a century courts have held that governmental threats can turn private conduct into state action. In Bantam Books v. Sullivan (1963), the Supreme Court found a First Amendment violation when a private bookseller stopped selling works state officials deemed “objectionable” after they sent him a veiled threat of prosecution. In Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth U.S. Circuit Court of Appeals found state action when an official induced a telephone company to stop carrying offensive content, again by threat of prosecution.
As the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983), the test is whether “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.” Mr. Richmond’s comments, along with many others, easily meet that test. Notably, the Ninth Circuit held it didn’t matter whether the threats were the “real motivating force” behind the private party’s conduct; state action exists even if he “would have acted as he did independently.”
Again, this is getting the facts all mixed up. All of these cases are important ones for why the government cannot force companies into moderating the way it sees best. It's why nearly all proposals to modify Section 230 are unconstitutional. But... those all involved cases where officials made specific demands that a company then followed through on -- and then the actions are really seen as government actions. But, here, there was no government official demanding that Twitter or Facebook block Trump. Trump is the President.
I agree that there might be an argument that elected officials who make specific moderation demands could be violating 1st Amendment rights of speakers (and of the companies themselves!), but to argue that vague statements by elected officials to be better about "taking responsibility" turning all moderation decisions into state action is galaxy-brain nonsense.
The piece does at least note that repealing Section 230 is a bad idea, but then goes off the rails immediately:
Republicans including Mr. Trump have called for Section 230’s repeal. That misses the point: The damage has already been done. Facebook and Twitter probably wouldn’t have become behemoths without Section 230, but repealing the statute now may simply further empower those companies, which are better able than smaller competitors to withstand liability. The right answer is for courts to recognize what lawmakers did: suck the air out of the Constitution by dispatching big tech to do what they can’t. Now it’s up to judges to fill the vacuum, with sound legal precedents in hand.
Uh, sure. Let's have judges produce precedent -- a la Backpage v. Dart -- that says that elected officials cannot threaten or try to force companies to do something unconstitutional. But, that should be on the public officials, not on companies, and certainly not when these actions were not taken at the behest of elected officials, but in order to try to stop an armed insurrection (which, again, the authors never bother to mention other than an oblique reference towards the end of the piece about "the breach of the Capitol").
The article also says that these companies now might try to block Joe Biden because they don't like his support of antitrust action against them. And...um... does anyone believe that? That's insane (beyond the fact that there are no antitrust suits against Twitter, which isn't even that big in the first place). But even if they did do that, it would immediately backfire. I mean, it would not just be ridiculous, laughable, and a total PR disaster, but it would play right into the hands of those suing the companies for antitrust.
I'm not sure how difficult it is for Rubenfeld and Ramawamy to get this through their skulls, but the bans last week were not because of a policy disagreement with the President. No one's blocking anyone for their "conservative viewpoints." It was because he had just inspired a violent mob to attack the Capitol while Congress was in session and trying to officially count the Electoral College votes and five people died. That violates every possible terms of service agreement ever written.
There’s more at stake than free speech. Suppression of dissent breeds terror. The answer to last week’s horror should be to open more channels of dialogue, not to close them off. If disaffected Americans no longer have an outlet to be heard, the siege of Capitol Hill will look like a friendly parley compared with what’s to come.
There are tons of outlets for "disaffected Americans." They have many outlets to be heard. What they don't have is a right to demand that any company host their speech when they are spreading blatant disinformation and violent rhetoric, including calling on people to literally murder public officials.
Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right. Aggrieved plaintiffs should sue these companies now to protect the voice of every American—and our constitutional democracy.
If they do, they will lose, and they will lose badly. It will be an embarrassing waste of money. One hopes that anyone thinking of filing such a lawsuit discusses it with a lawyer trained by actual legal experts, and not taught by Jed Rubenfeld.
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Filed Under: 1st amendment, congress, content moderation, jed rubenfeld, state action doctrine, state actor, vivek ramaswami
Companies: facebook, google, twitter
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So why are the Ivy Leagues considered prestigious if a /Law Professor/ is so utterly incompetent. It would be one thing if say a Literature Professor made arrogant and utterly clueless statements about economics. But someone who made it in being that utterly wrong in his own field?
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Vicarious
Nationalizing a company doesn't mean what you think it does. It means that the government controls it and makes decisions on its behalf. Instead, applying the first amendment to corporations that have effectively created digital public squares would be a DECREASE of government control.
Leftists believe they have discovered a way to circumvent the 1st amendment by partnering with corporations, and then have the corporations implement the censorship on their behalf. It's quite a loophole.
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Re: Vicarious
Why do you constantly come here and spew this line of BS when I have personally shown you how wrong this statement is, multiple times.
Just because you keep repeating it over and over, doesn't make it true, and never will!
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Re: Vicarious
It would be the government forcing a company to do something. How is that a decrease in control?
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Gameplay
Harvard’s a state actor everytime it enacts policy similar to congress then🤣
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Re: Vicarious
"It means that the government controls it and makes decisions on its behalf."
No it doesn't. End of argument. It just doesn't.
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Re: Vicarious
I've seen some nutty arguments here. Like this where you have taken a particular (wrong) viewpoint and used it like it's common knowledge.
This isn't about corporations. The 1st amendment applies to everyone in that you are allowed to say what ever you want. That doesn't mean somebody else has to publish it.
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"The 1st Amendment protects a company's right not to associate with those it does not wish to associate with. It also protects against being compelled to host speech it disagrees with. Those are both constitutionally protected things. Section 230 does not change that."
That is true, but surely a similar argument can be made regarding ISPs, net neutrality, and the 1st Amendment? I agree that it's certainly possible to distinguish the situations on the basis of exactly how far state action doctrine goes, what is considered a common carrier, whether the market is a monopoly (natural or otherwise) but the editorial line at Techdirt tends to be very strong about claiming that the result is obvious in all cases, even when taking different lines at slightly different levels in the network stack.
Too, a similar argument can be made about, e.g., the Hollywood Blacklist. Yes, the studios sometimes used HUAC hearings as evidence, but they also did their own investigations, provided an internal clearance process to absolve people of accusations, were motivated by private considerations (even if egged on by many politicians), including pressure from their own customers (notably the American Legion.) I think it's pretty clear that the Hollywood studios had the 1st Amendment rights to impose the blacklist. I think it's also pretty clear that many of the people being discussed today are quite evil, though again anyone who was a loyal believer in the CPUSA was as well. (Many of those today were delusional; equally true of CPUSA members.) During the Hollywood blacklist, there were plenty of alternative presses, alternative publications, alternative theaters, and ways to put out pro-Communist works, just not Hollywood studios. Yet I recall people generally denouncing the blacklist on idealistic grounds (including invoking the free speech and free association of the party members, rather than the studios.) Am I to believe that all those people were in reality Communist sympathizers, or did their liberal inclinations come from some other perspective that should at least be given a fair hearing rather than dismissed?
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Re: Vicarious
Ah, the moron signal went up.
"Nationalizing a company doesn't mean what you think it does"
What do you think it means? I don't speak moron so I don't have that dictionary, but the English language one I have access to says "the transfer of a major branch of industry or commerce from private to state ownership or control". Which seems to be exactly what you keep demanding.
"Instead, applying the first amendment to corporations that have effectively created digital public squares would be a DECREASE of government control."
No, the government telling people who they can and can't host on their property against their will would be an INCREASE of government control.
"Leftists believe they have discovered a way to circumvent the 1st amendment by partnering with corporations"
Which would be a neat trick since the first amendment doesn't restrict either party. Did you ever consider maybe reading the damn document at some point?
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Re: Re: Vicarious
"Why do you constantly come here and spew this line of BS"
Because it's the lynchpin of his entire argument. He doesn't have anything if he doesn't pretend that private companies becoming popular past a certain point magically allows the government to seize them.
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Is this misdirected?
If this were true wouldn't the case presented be for enjoining Congress from making such inducements and threats?
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Re: Is this misdirected?
Very much so, yes. If members of congress are engaging in constitutional violations to force or coerce companies to do certain speech related things then the proper response is to slap down those in congress doing so, not expand upon the harm they are doing.
If this is what passes for a 'law professor' in Yale the college clearly either has abysmal standards for graduation and their diplomas should be treated as about as valuable as used toilet paper, or he managed to find a way to work around those standards and Yale should really look into replacing him with a competent professor.
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Re: Re: Vicarious
The government saying we are not going to punish you regardless of what decisions you make is really them controlling you and making those decisions for you. It's like reverse psychology or something.
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Isn't it often the case that those with loads of brains are often the ones with very little sense?
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What? Can you no longer petition your congress critters without fear of arrest.
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I shudder to think of what kind of laws this person would write were anyone insane enough to grant them that ability...
'So looks like you're accused of stealing just a ton of stuff from this store.'
'That is what I've been accused of, yes.'
'Well, if you're taking stuff from company property I can only assume that it's because it's yours to begin with, therefore the only logical reading of the law is that you now own the store.'
'So... I'm accused of breaking the law and your suggestion is to punish the store and allow me to hypothetically take even more?'
'Of course.'
'Works for me.'
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What is the source of this madness?
See it in the anti-mask morons screaming at minimum wage shocked employees, see it in right wing politicians participating on a coup, and these crazy lawyers - wtf. Some of them might get disbarred.
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Re:
That is true, but surely a similar argument can be made regarding ISPs, net neutrality, and the 1st Amendment? I agree that it's certainly possible to distinguish the situations on the basis of exactly how far state action doctrine goes, what is considered a common carrier, whether the market is a monopoly (natural or otherwise) but the editorial line at Techdirt tends to be very strong about claiming that the result is obvious in all cases, even when taking different lines at slightly different levels in the network stack.
I have posts going back over a decade discussing how we do need to think about these differently depending on where they are in the stack, and how challenging that can be, so I don't think it's at all accurate to say that the results are obvious.
But I do think that it's quite clear how this should apply to edge providers, as is the case here.
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Re: Vicarious
It much more a case that racists and bigots cannot accept that many people want nothing to do with them.
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No it wouldn’t. The law would effectively force platforms like Twitter to host speech it already chooses not to host. That isn’t a decrease of government control — that’s the government telling a platform “host this speech or else”.
You’re advocating for fuckin’ communism.
Is it censorship if the manager at your local Walmart kicks someone out for ranting about masks and COVID and Bill Gates trying to chip everyone through vaccines? Because if it isn’t, you’ll have to explain how that private property fundamentally differs from the private property owned by Twitter. Please note that none of the following arguments are valid: “it’s on the Internet”, “it’s a public forum”, “it’s a platform for speech”, and “it’s a (giant) corporation”.
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Is this wrong?
"Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship."
Armt we all covered by the constitution??
Or is that a Good reason to NOT pay women Equally? TREAT black and Hispanic and Irish and Chinese as Slaves?
Isnt it the REASON we belong to a UNION?? that all states as well as the people SHOULD be using this?
Might as well be a Christian, and NOT practice it. Think I would like Buddhist this month anyway.
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Re: Is this wrong?
So any law created by the fed is only for the FED?? REALLY?
then all our pollution laws are Null and void?
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Re: Re:
Mike definitely brings up some good points. As an example, there is no 1st Amendment defense for violations of the 1960s federal Civil Rights acts.
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“Political affiliation” isn’t a protected class, Koby.
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The First Amendment specifically spells out how the government can (and can’t) regulate speech. Twitter kicking you out for saying “fuck Joe Biden” wouldn’t violate your civil rights.
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Re: Is this wrong?
If you can't understand the following and why you are wrong, then I'm sure someone will explain.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The Constitution explains what the government can and can't do, not the people.
And the Judicial branch is part of the Government.
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Re: Re: Is this wrong?
Go find a Civics textbook, since apparently you have no knowledge of how the Federal Government works.
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Re:
Isn't it fascinating the way conservatives are both the silent majority and a persecuted minority, depending on the argument they're trying to make at the time. They also believe they should be a protected class while believing there should be no protected classes whenever the discussion turns to their misogynistic, homophobic and racist beliefs. Everytime they try to discuss free speech they attempt to twist the reality of the world they live in to such a degree they've ended as klein bottles filled with their own excrement.
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Re: Vicarious
Meanwhile in reality, the right have people in management positions at corporations like Facebook actively making it harder to see left wing content, while promoting grade A bullshit from people like Bongino and Shapiro. I don't know who you think is running things in Sillicon Valley, because it sure isn't the left making management decisions there.
Do you also believe there's a partnership between the left and the right wing megadonors who've pulled their support from the groups and websites responsible for the coup, which is the real reason Parler can't find hosting elsewhere? Or is it only the companies you're hoping you'll be able to scream about for four years then force to provide services and a platform to domestic terrorists, racists, homophobes, misogynists, antisemites, Qanoners and other right wing garbage next time America loses it's mind and votes a republican into the Whitehouse?
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Their arguments about how leftists are both fragile snowflakes and sociopathic thugs follow a similar tack: Whichever one works in the moment is the correct one.
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Liability for what?
Liability for what? Who's the injured party?
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[projects facts not in evidence]
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Women who take jobs because some guy wants to f**k them are prostitutes. All the censorship in the world won't change that.
Masnick knows MANY lawyers who prey on women.
What's done in the dark will be brought to the light.
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These loser lawyers who go around calling men "incel" are preying on women where they work.
The women who call themselves victims knew why they were hired and had no problem with other women LOSING those jobs.
If you are married to a woman who works in a law office, she probably had to fuck someone to get her job. Calling her a prostitute is not misogyny. Censorship won't change that. Women choose to whore out rather than do real work. That's why patriarchy never dies.
Let's apply sex TRAFFICKING laws to sexual harassment because that's what it is. Liberals don't want to do that because well they can't get laid any other way. Trump didn't have to do women in the Oval like Bill.
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How about sites which censor political speech are simply IRRELEVANT.
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Been waitin’ for years to see you do it, you bumblefuck. Either shit or get off the toilet.
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Shut 'er Down
Yale Law School needs to be shut down, until we can find out what the hell is going on over there.
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Re: Re: Is this wrong?
Those are PERSONAL rights.
There are other Parts to the constitution.
And the States have supposedly signed it.
And the preamble, gives a statement, WE the people.
Like the Equal rights amendment. And how we are supposed to TREAT each other.
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." this has no meaning FOR US?
think I like 23.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And I Do hope this is FOR the people. as well as 5,6,7,8
10 and 11, could be very creative.
13 would really hurt Mr. trump. And about 6 of the last presidents.
And those are personal laws, that affect US. the Citizen.
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Re: Re: Re: Is this wrong?
The constitution has Personal comments.
But if you would like. we can go by the concept that the Fed is over the state and the state over the counties and the counties over the Citizens.
So what can we say about Corps? WHO is responsible for and TO them?
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Re: Re: Re: Re: Is this wrong?
AND if you are trying to enforce LAWS onto the corps from the constitution, WTF??
You cant even enforce them on the citizens. OR the COPS.
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Re: Re: Re:
You are not a protected group.
And courts hate when you do things like that and it’s shows your just trying to poke holes into the law.
Best way to make a judge angry.
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Re:
Was wondering when you'd start playing the "Section 230 must die because women must be protected except wait no I think all women are whores" card again Jhon. What, no thinly veiled insult at Rose McGowan this time? Been spending too much time assfucking imaginary Aspies eh Jhon? You're slipping.
Yeah, keep celebrating Trump's conquests with women. You were really banking on him killing Section 230, huh? Prenda Law, Malibu Media, Strike 3, Donald Trump... You seriously know how to pick a winner don't you, horse?
Still waiting on that press release so you can finally put a face and name to that crapshoot you call a pseudonym. Hard to get is a poor game to play for three years, Jhon Smith. And you're not even good at it. How's that Paul Hansmeier fluffing fund coming along?
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Re: Re: Re: Re:
"You are not a protected group."
Actually, it's not groups who are protected, but rather classes, and everyone is in those classes. It's not black people who are protected, but rather that everybody is protected from discrimination on the basis of race. It's not a women who is protected, but rather that everybody is protected from discrimination on. the basis of gender. And so on...
Koby's problem is that things like political affiliation, ability to not be an asshole and membership of white supremacist groups are not protected classes, and thus the rest of us can discriminate against them on this basis freely, as they are able to freely discriminate against the rest of us on those same criteria.
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Re:
Jhon, you couldn't bring anything to light even if you opened a window during the Arctic summer.
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Re: Liability for what?
The only party injured would be the company, having to waste resources defending a meritless sham lawsuit that would be even more draining if not for Section 230.
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