Yes, Actually, The 1st Amendment Does Mean That Twitter Can Kick You Off Its Platform, Wall Street Journal
from the columbia-law-students-should-get-a-refund dept
Back in February, we did a thorough debunking of Columbia Law Professor Philip Hamburger arguing (bizarrely, and blatantly incorrectly) that Section 230 violates the Constitution in the pages of the Wall Street Journal. It was a nearly fact free opinion piece that got so much wrong I was vicariously embarrassed for anyone who ever got a law degree from Columbia University. In the intervening months, it does not appear that Prof. Hamburger has done anything to educate himself. Instead, he appears to be digging in, with the help of the Wall Street Journal again. Leaving aside the fact that the Wall Street Journal's parent company has been lobbying against Section 230, and its various news properties have been among the most vocal in spreading blatantly false information about the law, I guess this is no surprise. But if the Wall Street Journal really believes this nonsense, then why won't it let me publish my op-ed in their pages about how the WSJ is the worst newspaper ever, and regularly prints lies and nonsense to please its scheming owner in his hatred of the internet?
Anyway, Hamburger's latest is, I guess, in some ways a response to everyone pointing out that he was wrong in his first op-ed. A key argument actual experts made was that what Hamburger was really mad at regarding content moderation was not Section 230 (as he claimed), but the 1st Amendment, which gave websites all the leeway they wanted to moderate content. So Hamburger's new response, written with former Trump DOJ official Clare Morell, tries to argue that the 1st Amendment doesn't actually protect website content moderation choices. It's almost difficult to believe, but it's even more wrong than his February article.
Does the Constitution require Americans to accept Big Tech censorship? The claim is counterintuitive but the logic is clear: If you submit a letter to this newspaper, the editors have no legal obligation to publish it, and a statute requiring them to do so would be struck down as a violation of the Journal’s First Amendment rights. Facebook and Twitter, the argument goes, have the same right not to provide a platform to views they find objectionable.
The claim is not counterintuitive. It's one of those basic "property rights" things that most of us believe in. And the logic is clear, because... uh... that's how the 1st Amendment works. But Hamburger has just discovered the other hammer that a bunch of clueless Twitter-pretend-lawyers discover when someone points this out. He thinks that "antidiscrimination" laws are the answer. Again, this is mildly embarrassing when @JoeBob2354192081 on Twitter comes up with it. It's horribly embarrassing when a law professor at one of the top law schools in America comes up with it.
Another reason to doubt the First Amendment claim: Antidiscrimination laws are familiar limits on speech. The U.S. has a range of local, state and federal antidiscrimination laws with significant speech consequences, and courts haven’t held that they violate the First Amendment. One has a First Amendment right to bigoted speech, but not, according to the courts, in circumstances that, for example, amount to discrimination in employment or public accommodations.
Antidiscrimination laws apply to protected classes, and they are designed in response to long histories of systematic oppression. Your political party is not a protected class. And being an elitist fool is not a systematically oppressed class.
From there, Hamburger pulls out another debunked tool from the Twitter lawyers' playbook: "common carrier."
Yet another reason is that large tech platforms and services function as common carriers. The states and the federal government have the power to regulate common carriers, and this certainly includes the authority to ban discrimination. The common-carrier tradition can be traced to the common law, which viewed persons serving as common carriers as privileged by government. At the same time, it barred them from discriminating.
We've been through this before. Common carrier designations are extremely limited and they serve a particular purpose: specifically for natural monopoly interchangeable commodity services that serve in transporting things (that's the carrier part) whether it's people, goods, or communications. But social media isn't just about transporting information from here to there. It's about hosting it -- forever. And that's why common carriage laws make no sense at all. They're also not interchangeable commodity services.
Also, it appears that Professor Hamburger does not actually understand the relevant caselaw, especially rulings from the Supreme Court on this topic. Again, this is embarrassing. If someone handed in Prof. Hamburger's article to a good law professor, it would easily get a failing grade.
The large tech companies meet both definitions. They serve a public function, providing the public square or conduit for the information age. We meet and communicate on their services or platforms much more than on the grass of the village green.
Just two years ago, in the Halleck case, Justice Brett Kavanaugh made it abundantly clear that this argument is nonsense. Social media websites are not the public square and are not subject to the 1st Amendment. From Kavanaugh's ruling that maybe Prof. Hamburger should look up:
By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”
Notably, this ruling was not controversial, because it is so obviously supported by tons of earlier precedent. The kinds of precedent one would hope a law professor at Columbia University Law School would know about.
The entire piece is so amateurish, and so devoid of any connection to reality, it makes you wonder if the former DOJ official who co-authored it (who is now a "policy analyst" at a DC think tank), did pretty much all of the writing and somehow got this well known law professor to sign his name to it without realizing how embarrassingly bad it is. I mean, this nonsense is basically unforgivable:
That Big Tech is subject to common-carrier regulation is especially clear because Section 230 already recognizes the tech companies as akin to common carriers. Along these lines, Section 230(c)(1) protects Big Tech from being treated as “the publisher or speaker of any information provided by another information content provider.”
That, um, is not Section 230 "recognizing tech companies as akin to common carriers." Yes, common carriership also restricts liability from the carrier for the speech it carries, but it's not a transitive thing where having that immunity automatically also means you're a common carrier. This is not why 230 was put in place. This wouldn't be difficult to look up. Hell, the two authors of Section 230 still speak about what they intended regularly. Just last year they debunked this nonsense idea that 230 made websites into common carriers. As they pointed out, the intent of the law was to do the exact opposite -- to encourage websites to moderate their own communities as they saw fit:
The first is that Section 230 does not require political neutrality. Claiming to “interpret” Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect. The second is that any governmental attempt to enforce political neutrality on websites would be hopelessly subjective, complicated, burdensome, and unworkable. The third is that any such legislation or regulation intended to override a website’s moderation decisions would amount to compelling speech, in violation of the First Amendment....
And then, the article gets even worse. I honestly have no clue what Hamburger is trying to say when he suddenly starts talking about fair use, as if fair use is a "public privilege."
The public privileging of these companies is extraordinary. Consider the fair-use doctrine in copyright law. A teacher can copy a small number of pages to show to a class. Google can copy whole books, and even when it shows only a snippet to the public, it can use the entire volumes to develop its algorithms and offer the public an online index. This appears to have been important for Google’s early enticement of the public into its services.
Wut? Fair use is a public's right. Not a public privilege. And we all get it. What Google did anyone can do. It seems like Hamburger is arguing that Google somehow gets different fair use rights than anyone else? But that's... just not true. Everyone gets the same fair use rights. And I don't understand what any of that has to do with the rest of his argument.
Section 230 privileges tech communication over print and in-person communication by excusing tech companies from liability in the courts. In contrast, paper and in-person communication is still fully subject to liability. The result has been to accelerate and accentuate tech dominance over other modes of speech.
This is just wrong. Again, embarrassingly so. Everyone -- including tech companies -- are still fully liable for speech they create. They are not liable for speech someone else creates. It's that simple. Though it appears that an actual law professor from a top law school doesn't understand this simple fact.
So it isn’t true that the large tech services and platforms reached their dominance merely by private effort. Their dominance is partly the product of public privileging, and this reinforces the conclusion that tech dominance over speech is not only private enterprise. It is also the result of enterprising capture of government.
I honestly don't understand how we get from the pervious sentence to this one. Suddenly he seems to be dropping a "you didn't build that" kind of argument into the middle of this. And, that makes no sense at all. I mean, sure, every business relies on some elements of public infrastructure -- roads, plumbing, etc. -- but that doesn't make them all state actors. And, again, Hamburger seems totally oblivious that Section 230 applies equally to everyone online (including the Wall Street Journal, which hosts user comments).
Section 230 relieves the large tech services and platforms of liability for restricting a congressionally specified list of materials, even when the materials are “constitutionally protected.” As one of us has explained in these pages, this is privatized censorship—a license to censor, free of concerns about ordinary legal duties that would apply to anyone else, including newspapers and individuals.
No, it is not a "congressionally specified list of materials." Section 230 makes it clear that websites can moderate however they see fit. And they can do that because it's their website. Just as Professor Hamburger will not let me come into his classroom at Columbia to spend a lecture explaining to his students (in great detail, with annotated charts and graphics!) why they will come out of any such class dumber than they started, and should ask Columbia University for their tuition back, any website can tell any user that they are violating its policies, and cannot post there any more.
Meanwhile, WHY IS PHILIP HAMBURGER CENSORING ME IN NOT LETTING ME TEACH HIS CLASS? I mean, Philip Hamburger clearly relies on public privileges to get to Columbia University, so it's not like he's a private individual. His censorship must violate the 1st Amendment, according to the logic of (oh look) Philip Hamburger.
The large tech companies are private, and the point isn’t that they violate the First Amendment when they censor users’ speech. But they have participated in the censorship secured by Section 230’s privileges. It therefore is not unreasonable for states to protect Americans from the tech company’s government-sponsored censorship.
I've read this paragraph four times. It makes less sense every time you read it again.
Columbia Law School: this is embarrassing. I understand why the Wall Street Journal would publish this cynically dishonest nonsense because of Rupert Murdoch's crusade against the internet. But, it's still embarrassing.
Filed Under: 1st amendment, clare morell, common carrier, content moderation, discrimination, fair use, philip hamburger, section 230, state action
Companies: facebook, twitter, youtube
