April 15, 2024 • 37 mins
THE SUPREME COURT WILL SOON DECIDE: If a social media censures you for your viewpoint - does that violate the First Amendment? If laws tell Social Media companies they must publish your viewpoint...is the company's First Amendment rights violated?
We all say we want free speech. But if you own a private company can the government tell you what it can and cannot post? Are social media companies the public square...common carriers...or...private companies that can choose their own content?
That is the question before the Supreme Court. In this episode, Bob talks with Supreme Court scholar Eugene Volokh:
Facts of the case
The State of Texas enacted HB 20 to regulate large social media platforms, such as Facebook, X (formerly known as Twitter), and YouTube. The law purports to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker.
NetChoice and the Computer & Communications Industry Association filed a lawsuit against the Attorney General of Texas, challenging two provisions of the law as unconstitutional: (1) Section 7, which prohibits viewpoint-based censorship of users’ posts, except for content that incites criminal activity or is unlawful. (2) Section 2, which requires platforms to disclose how they moderate and promote content, publish an "acceptable use policy," and maintain a complaint-and-appeal system for their users.
The district court issued a preliminary injunction, holding that Section 7 and Section 2 are facially unconstitutional. The court argued that social media platforms have some level of editorial discretion protected by the First Amendment, and HB 20 interferes with that discretion. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the idea that large corporations have a “freewheeling” First Amendment right to censor what people say. It reasoned that HB 20 does not regulate the platforms’ speech but protects other people’s speech and regulates the platforms’ conduct.
Question:
Do Texas HB 20’s provisions prohibiting social media platforms from censoring users’ content and imposing stringent disclosure requirements violate the First Amendment?
Our guest:
Eugene Volokh teaches First Amendment law and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.
Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
Volokh is the author of the textbooks The First Amendment and Related Statutes (6th ed. 2016), and Academic Legal Writing (5th ed. 2013), as well as over 90 law review articles. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a leading legal blog. His law review articles have been cited by opinions in eight Supreme Court cases and several hundred court opinions in total, as well as several thousand scholarly articles.
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Transcript
Episode Transcript
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Attorney Bob Sewell (00:04):
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat one burning question.
Is that even legal?
Let's go.
Today's guest on the show isEugene Volokh.
Eugene Volokh is a professor atUCLA College of Law.
He's a preeminent scholar andexpert in First Amendment law,
(00:49):
and he publishes the online blogthe Volek Conspiracy, which is
hosted by Reason Magazine, andhe's also a return guest to Is
that Even Legal?
Podcast.
So welcome to the show.
Professor Eugene Volokh (01:00):
Thanks.
Thanks very much for having meon.
Attorney Bob Sewell (01:03):
So I wanted to have you on, because last
time we had you on, we werediscussing First Amendment
issues, and you brought up thisidea of common carrier, which
seems to be a thread inside acase that has been argued before
the Supreme Court.
Supreme Court has not made adecision.
It's the case called Net Choice.
(01:24):
Supreme Court has not made adecision.
It's the case called Net Choice, and it involves two laws one
Texas law and a very similarFlorida law, and this Texas law
is identifying a problem, asmany people see it, and the
problem is that people view thesocial media companies as
(01:46):
censoring certain types ofspeech, and so what this law is
attempting to do is prohibitmajor social media platforms
from censoring a user's speechbased on content, based on
(02:06):
viewpoint and geographiclocation, and it's also
demanding that social mediaplatforms open quote, unquote
the black box.
They want to know what are theirpolicies If they have a user
complaint system.
What are their policies If theyhave a user complaint system?
(02:29):
They should have a usercomplaint system that's easy to
use and operate.
They should produce atransparency report every year.
They should have accurateinformation regarding their
business practices and how theythey manage and control data.
So it's an interesting lawbecause it's not censoring the
(02:51):
general public speech.
In fact it's trying to make itso the general public doesn't
get censored.
But is that even legal?
Is that a violation of theFirst Amendment?
Professor Eugene Volokh (03:07):
legal?
Is that a violation of theFirst Amendment?
Well, that's what the SupremeCourt is asked to decide in
these two cases, and one way ofthinking about it is by thinking
about a spectrum of platformsthat may host speech.
One end is a newspaper.
A newspaper is entitled to pickand choose which letters to the
(03:28):
editor to publish, which op-edsto publish, which ads to
publish.
Right, and I take it you can'teven well, it's hard to know for
sure, nobody's tried, butprobably you can't even tell
require that a newspaper, everytime it reject an op-ed, explain
in detail why it's rejecting it, among other things reject an
op-ed, explain in detail whyit's rejecting it, among other
things.
The reason might just be wedon't think our readers would
find it interesting, or we don'tagree with its logic.
(03:51):
And why?
Well, you know, it doesn't seempersuasive to us or it doesn't
seem well-written to us, right?
So newspapers clearly have theright to pick and choose what's
going to be included in theirpages.
The Supreme Court has made thatclear.
Well, what about on the otherend of the spectrum?
What about a phone company, say?
(04:11):
A phone company says we don'twant to have people on our phone
lines who are saying badthoughts.
Well, they don't have a legalright to do that.
They're usually common carriers.
And while there's been nospecific First Amendment
challenge brought by phonecompanies against these kinds of
laws, it's pretty broadlyunderstood that of course phone
(04:32):
companies have to carryeverybody.
Well, subject to someexceptions, like if somebody
doesn't pay well, they don'thave to, they can cancel the
phone line then.
Or maybe if somebody makesharassing phone calls to people
pretty well defined well, thenthey can cancel their phone
service, but not because theydon't like the person's politics
or the entity's politics.
(04:53):
Imagine it's the recruitingline for the local communist
party or the local clan church.
So where do social mediaplatforms fit in between?
Where do social media platformsfit in between?
Interestingly, one thing that Ithink there was some indication
of in the arguments is that thejustices might think and I
(05:14):
think probably correctly thatsocial media platforms may
actually have multiple functionsthat may have different rules
applicable to them.
So, for example, one functionis direct messaging, essentially
sending messages from oneperson to another, and you know
that begins to look a lot morelike a phone company or a
(05:34):
telegraph company.
So back when telegraphs werefirst developed and
commercialized in the 1800s,telegraph companies were found
to have blocked certain usersbecause they didn't like their
messages for a variety ofreasons, and the government said
you know you can't do that, andit may be that again.
(05:56):
Some functions of social mediaplatforms, like direct messaging
, are like that and thereforecan be treated as common
carriers.
On the other hand, somefunctions of social media
platforms are a lot likenewspapers.
Like, for example, if a socialmedia platform says here are
(06:17):
some items you might like.
Like we're going to take all ofthe billions of posts on our
service and we're going toselect a few that might be of
interest to you.
That's kind of like a newspaperchoosing which articles to
publish, and they're prettylikely that they're going to
have First Amendment rights tosay you know, we just don't want
(06:38):
to promote certain kinds ofthings.
So then there are the things inbetween, like what happens if
somebody has an account on thisand has followers.
Real Donald Trump may have anaccount on Twitter or some other
service and has followers whodeliberately signed on just to
read him, or at least theysubscribe to him.
(07:03):
Well, should platforms betreated more like phone
companies as to that, or morelike newspapers?
I think it's a close question.
I think there's a plausibleargument that in fact, uh, for
communications to onesubscribers.
Maybe it is kind of like uhpostal, the post office, which
is government run, but still um,or likePS or FedEx, or like the
(07:27):
phone company where peopleshould be able to reach those
who deliberately call them,let's say.
But it looked like there wasprobably going to be a majority
on the court to say no.
When it comes to hosting apublicly facing microblog or
Facebook page or Twitter feed orwhatever else, platforms should
(07:51):
be able to say we're not goingto host certain kinds of
material, but may be differentwith regard to direct messaging.
So it's hard to know for sureand different justices express
different views and it's notcompletely clear sometimes what
their views were.
But it looks like it'll beprobably mostly a victory for
the challengers of these Floridaand Texas laws, but perhaps not
(08:14):
a complete victory.
Attorney Bob Sewell (08:16):
Let's discuss these ideas a little
further.
And what you're getting at isthis concept of public carrier.
When you're talking about thephone company, the public
carrier does not get to censureyour speech, doesn't get to pick
and choose who it sends itsphone to.
If you need a phone, you getthe phone with, whether you're a
(08:37):
Nazi or or, or a liberal or youare, you know, a Republican or
Democrat, whatever it is, youget a phone number.
You are a Republican or aDemocrat, whatever it is, you
get a phone number, you get aphone.
So and I get that but socialmedia companies and I get the
concept that you have a socialmedia company.
(09:00):
What's it called?
Some of the functionality, youknow, direct messaging feels
more like phone than it wouldanything else.
What's interesting for me is,when we think about these common
(09:22):
carriers, they tend to have amonopoly, and it's a very strong
monopoly.
Professor Eugene Volokh (09:29):
Right.
So that turns out to be truefor some common carriers.
The classic landline phonecompany is a monopoly, but cell
phone companies are also treatedas common carriers and they are
famously competitive.
Right, yeah, like cell phonecompanies.
Yes, exactly, ups and FedEx arecompetitive.
(09:50):
They compete with each other.
They compete with the postalservice.
They're treated as commoncarriers Historically.
When you look more broadlybeyond communications to things
like transportation, there werevarious trucking companies that
were common carriers, but theydon't have monopolies.
There's a closely analogousconcept of place of public
accommodation.
(10:11):
Those are businesses that haveto serve people without regard
to race, for example, orreligion or sex, and
historically some of them justhad to serve old comers.
Some of them the rationale mayhave been in part that there
were monopolies or close to it.
Maybe there's only one hotel ina town, or only one inn in a
(10:32):
town, or one restaurant, let'ssay.
But pretty quickly theseconcepts got extended beyond
just monopolies.
So ordinary stores are often inmany ways places of public
accommodations under state law.
So while it's true that some ofthe most compelling arguments
(10:52):
for some duty to serve everyoneequally comes when there's a
monopoly, that's not the limitof common carrier.
So let me give you one otherexample.
One of the cases that most gutsin favor of the states here is a
(11:13):
case called Prunier ShoppingCenter and that involved a
California rule which said thatlarge shopping centers not every
shop, but large shoppingcenters let's say a block or
larger shop but large shoppingcenters let's say a block or
larger even though they'reprivate, they have to allow
(11:34):
members of the public who are onthe premises to hand out
leaflets to others or to try togather signatures or something
like that.
The shopping center challengedthat California rule in the US
Supreme Court, saying thisviolates my First Amendment
rights to decide what goes on myproperty.
And the court said no, youdon't have that First Amendment
right.
Maybe a newspaper might have aFirst Amendment right to pick
and choose what goes in itspages, but you don't have a
(11:57):
First Amendment right to choosewhat goes on to your real estate
.
Shopping centers aren'tmonopolies.
Now, it's true that they'reenviable locations for people to
use, like social mediaplatforms, but there's usually
more than one shopping centerwithin driving distance, at
(12:18):
least in very many places inCalifornia.
Nonetheless, state law couldconstitutionally treat them as a
place that has to be opened forpublic speech.
So one question is to whatextent are social media
platforms, like the new publicforum, one rationale for this
California rule, also adopted ina few other states, for
(12:40):
treating for requiring access tothese large private shopping
centers.
Is it used to be, people wouldgather in the public square,
literally in the square in themiddle of a town, or in a park
or in sidewalks.
Well, now they don't go intoprivate I'm sorry onto Main
Street to walk down the publicsidewalks.
(13:00):
They go to a mall to walk downthe private sidewalks in the
mall, but still that is a form.
It's kind of the new publicsquare.
The California court said andthe Supreme Court said yes,
california could treat it thatway.
Well, now social media, theSupreme Court has said in a
different context, is the stillnewer public square, and the
(13:21):
question is to what extent maystates say yes, we're going to
require social media platformsthere to provide access without
regard to viewpoint.
Attorney Bob Sewell (13:31):
Yeah, and I'm glad you brought that case
up because that's one of theways we feel about that, and I
use the word feel about itbecause people do feel like
social media in certain types istheir public square.
They use X to shout out theirgrievances, they use Reddit to
shout out grievances.
(13:52):
They use true social andFacebook and Instagram, and they
want people to know how theythink and feel about.
And, similarly, I can turn themoff or not go to the public
square if I choose to, and aslong as there's a place that's
well regulated for speech, thenit's fine that I choose to go to
(14:18):
that place or not go to thatplace.
And so I see that case as beinginteresting and I'm glad you
brought it up because it'srecognizing that traditional
view of public square.
But social media companiesaren't exactly like a public
square, right?
I mean, for example, let mejust say let's say I start a
(14:41):
social media account and it goeswild.
A social media account and itgoes wild, and it's dedicated to
vacations and vacations, onlyvacation pics, and I go out and
(15:08):
I have millions 50 million plususers are tuning in to see all
these people do their vacationpics.
Well, that tends to be a littledifferent than a public square,
but yet the California lawwould no excuse me.
The Texas law might treat me asa public square.
Professor Eugene Volokh (15:23):
I'm not sure I understand.
Attorney Bob Sewell (15:30):
You have an account on Twitter or Facebook
or you just set up a whole newsite, a whole new setup, and I
say it's the social mediaaccount for people who just want
to be looking at and sharingtheir vacation pics.
That's my editorial content,right?
(15:50):
I make that choice as a privatecompany to say this is about
this product, this is aboutvacations.
You come here to take vacationpics, show vacation pics.
And that's a little different,right?
Because 10 people in socialmedia tend to specify and be
(16:12):
interested in what they do,certain things.
So, but if my platform'srequired to have the neo-Nazis
on there or the, you know, theprogressive RS party or whatever
(16:33):
the party is, isn't thatdestroying my editorial content?
Professor Eugene Volokh (16:41):
Right.
So this is an interestingquestion that came up in the
arguments.
What if you want to have asocial media platform that has a
particular editorial spin?
They didn't talk about subjectmatter but viewpoint-based.
What if you want to have kindof the left-wing Facebook left
book and somebody else wants tohave a right book On left book?
They want to say we only haveleft-wing content, that's why
(17:02):
people come here.
Right book, we only want tohave right-wing content, that's
why people come here.
Right book will only want tohave right wing content, that's
why people come here.
Now the Texas law, for example,limits itself to large, large
social media platforms socialmedia platforms that have
functionally have more than 50million active users in a
calendar month.
So most really niche platformsare not going to qualify.
(17:25):
But you could imagine a verylarge platform or a smaller
platform in a state that has asmaller threshold, that
deliberately has a particularviewpoint.
You could.
But it's not completely clearunder First Amendment law what
(17:46):
that should tell us aboutplatforms that deliberately try
to open themselves up to a verywide range of views.
So just to give an analogy fromthe government-run property
context, if the governmentdecides to open up property or a
program to some messages.
It can do that.
It can say here's this bulletinboard in which you folks can
(18:10):
post messages about why everyoneshould recycle.
And if you post something onthis bulletin board that is
against recycling or completelyunrelated to recycling, why
people should, I don't know, goand play baseball instead, then
(18:31):
we're just going to take it downbecause this bulletin board is
for recycling.
There was an analogy.
There's a case where thegovernment said we're going to
fund a speech about birthcontrol, doctors' advice to
patients about birth control,but not about abortion.
We're only funding the birthcontrol side.
You want to speak out aboutabortion, you do it not using
(18:56):
our money.
That's permissible.
On the other hand, if thegovernment says you know we're
going to open this up to prettymuch everybody to speak about
pretty much anything, but noanti-recycling speech or no
pro-abortion speech.
You can say all sorts of thingson all sorts of other topics.
We're going to exclude that.
That's generally viewed asunconstitutional.
There the government is said tohave opened up a designated
(19:20):
public forum or a limited publicforum, a place where the public
is entitled to speak, and nowat that point it can't exclude a
few viewpoints.
So you know the line issometimes pretty hazy.
When does the government, whenis the government just opening
up a place for speech on aparticular expressing a
(19:46):
particular viewpoint on aparticular topic, and when is it
opening it up to almosteverybody but excluding a few
others?
But that kind of line is drawn.
Likewise, you want to just togive another example, public
accommodations.
You know there are linesbetween private clubs which can
say we are for men only or forwhites only, for blacks only,
but places that are really opento the public, generally
(20:08):
speaking, can't discriminate incertain ways.
Likewise with common carriersOne important distinction, just
to give an example from theneighboring area of
transportation we talked about,like trucking companies and such
, if you're a trucking companyand you qualify for common
carrier status, then youbasically have to take all
(20:30):
comers, more or less.
I oversimplify here.
But if you set up a businessthat's not open to the public at
large but just for kind of aparticular set of your business
partners, you kind of go out toeach one individually and say
you want to hire us for thiskind of thing, you can do that.
Well, then you're not a commoncarrier.
So these lines sometimes haveto be drawn and the law
(20:51):
generally does draw them.
So similarly, to give theexample from the California
shopping mall area, let's saysomebody says we are a shopping
mall, but we're shopping mall.
We want our message to be aconservative message, so people
aren't allowed to come andgather signatures for liberal
causes on our shopping mall.
I don't think that would getthat shopping mall out from the
(21:14):
California rule that shoppingmalls have to be open.
Once they're open themselves upto the public generally, they
have to be open to all speakersto all speakers.
Attorney Bob Sewell (21:31):
One of the things that I was curious about
when I read the Texas law wasthey just said whereas social
media platforms are commoncarriers, and the first thing I
thought was really how do youknow that?
How do you know they're commoncarriers?
They obviously understood thegene volux of the world's
(21:52):
arguments about what a commoncarrier is, but how do they know
that they're?
When I read the law in thepreamble, it says they are
common carriers.
How do they know that?
Professor Eugene Volokh (22:04):
says they are common carriers.
How do they know that?
Well, common carrier is not,like I don't know, proton or or
uh uh, planet, which issomething which exists out there
in the world, although evenwhat is a planet or what's not,
as a matter of some definition.
Common carrier is a legalconcept.
It is a legal concept that'sdefined, as most legal concepts
(22:28):
are, by legislatures.
So they could say we're goingto treat certain things as
common carrier.
I'll give you another examplePublic accommodation.
We mentioned that briefly.
It's kind of analogous to acommon carrier, of analogous to
a common carrier.
Many public accommodation lawsdon't require public
(22:49):
accommodations to be open toeverybody, but they ban
discrimination based on race,religion.
Some ban discrimination basedon political affiliation.
Seattle is one example.
There's a local ordinance.
Well, what's a place of publicaccommodation?
You look at federal law.
It basically defines it ashotels, restaurants and places
of public amusement.
Grocery stores aren't publicaccommodations.
(23:11):
Federal law doesn't bandiscrimination by grocery stores
, but many states define them asplaces of public accommodations
.
Some of them don't even requireit to be a place.
Some of them say you know abusiness a florist, let's say or
I shouldn't say a florist thatis more kind of a brick and
mortar location, let's say awebsite designer is a place of
(23:33):
public accommodation.
You may recall there was aSupreme Court case about this
just this last year, aboutwhether there's a First
Amendment defense to that kindof law.
So different states can definethem differently.
So likewise, if Texas orFlorida says these are common
carriers, I don't think it's adefense to say, well, they're
not common carriers under theexisting rules.
(23:56):
Legislature can say we canchange the existing rules.
Sure, in a time before socialmedia platforms, common carriers
were defined as phone companiesor telecommunications services
of a certain kind.
Let's say, in a time beforesocial media platforms, common
carriers were defined as phonecompanies or telecommunications
services of a certain kind.
Let's say but now that theworld has changed and that our
views about what's right havechanged, we're going to modify
(24:19):
the definition.
So there's nothing particularlywrong about that, wrong with
that as such.
You might say that they drewthe line in a bad place.
You might say that the FirstAmendment says regardless of
whether you call it a commoncarrier or not, the social media
(24:39):
platform can pick and choose.
But the definition of commoncarrier is up to lawmakers.
Attorney Bob Sewell (24:47):
So what about?
So here's the situation is thatthe social media companies are
claiming hey, our editorialcontent is that we get to choose
what stays on our platform.
That's our right, that's oureditorial content, that is our
(25:09):
free speech content, that is ourfree speech.
And so when you prohibit usfrom removing people, you're
damaging our free speech.
How do they get to thatanalysis?
What standards is the courtgoing to look to determine if
that's really the case?
Professor Eugene Volokh (25:23):
Well, you know, looks at the
precedents.
And again precedents point oneway for the newspaper or the
parade.
Those are entitled to pick andchoose as a First Amendment
matter, pick and choose what'sincluded.
On the other hand, they pointanother way to shopping centers
or to universities decidingwhether to allow, allow military
(25:49):
recruiters to use theirclassrooms and other space
during recruiting season.
Or cable companies, the courthad said, can be required to
host certain kinds of channelson their cable systems, be
(26:11):
required to host certain kindsof channels on their cable
systems.
So the court's question is, in asense well, are social media
platforms closer to one than tothe other?
And that involves a good dealof discretion.
Right that justices can decide.
You know, in a way that,differently from how you or I
might decide, they say, yeah,well, it's closer to one rather
than the other.
We may disagree, but it's theircall.
There's no very crisp, clearrule that the cases have said
(26:36):
these are the entities that haveFirst Amendment, protected
editorial discretion newspapers,parades.
These are the entities that donot have such discretion
telephone companies, shoppingmalls.
And that's because here is thetest, the one simple test that
tells us is it A or is it B.
There is no very clear test.
(26:56):
There are just these precedentsand there are judges who say
you know, is it closer to one orto the other?
Attorney Bob Sewell (27:20):
choice.
The easy example of a socialmedia company censoring speech
is if Bob Sewell gets on thereand he starts spouting
conservative rhetoric on andFacebook starts deleting my
posts, right, they start or theyturn me off generally.
(27:43):
They take away my platform.
That is one sense of censorship.
But there's also the othersense of censorship where the
code can devalue the newsfeed.
So Bob Sewell is spouting hisconservative ideas.
(28:06):
They don't take me off theplatform, they just make me.
So I get buried in the newsfeedor not appear in people's news
at all.
So that's a different way ofcensoring the speech.
Professor Eugene Volokh (28:20):
Right, and you might say that the rules
are different in thosesituations.
It may be that platforms haveto host you on their service but
don't have to promote you toother people in a way that seems
to carry their seal of approval.
I'll give you an example.
(28:40):
Remember I mentioned theuniversity context.
I oversimplify here, butbasically there was a case where
Supreme Court said thatCongress could require
universities to allow militaryrecruiters on their premise.
Some universities didn't wantto do this because at the time
the military discriminated basedon sexual orientation and that
(29:01):
was contrary to the university'sviews.
So they excluded it.
But Congress basically said ifyou want government money, you
have to allow militaryrecruiters.
And the Supreme Court upheldthat saying.
It doesn't matter whether it'sconditioned, whether it's tied
to the provision of governmentmoney.
(29:21):
Congress could just mandatethat all universities host
recruiters.
So universities can't justexclude military recruiters.
So universities can't justexclude military recruiters.
They don't have that FirstAmendment right, even if they
want to have a totally pro-gayrights university where all the
messages come from pro-gayrights perspectives.
On the other hand, if themilitary then says, well, not
(29:46):
only do we want you to host us,we would like it, if you kind of
listed us as one of the fivebest recruiters that everybody
should see.
We'd like it if your professorswould at the start of class say
oh, make sure you show up totalk to the military recruiters
there.
The university would say no, wehave a First Amendment right
(30:06):
not to do that.
The Supreme Court saiduniversities could be required
to host them.
Universities could be requiredto provide simple location or
directional information, likefor them, the same way they do
for everybody else, which is tosay indicate the recruiters in
this room, the militaryrecruiters in this room, the
Justice Department recruiters inthat room.
(30:27):
But if the university, if thequestion is a speech that goes
beyond that, if it's auniversity affirmatively
choosing to promote certainrecruiters, then it's entitled
to say well, we're not going topromote the military ones
because we don't like theirpolicy on sexual orientation,
discrimination and hiring.
(30:48):
So I think something quitesimilar could be done here.
You might say social mediaplatforms can't block direct
messages based on theirviewpoint.
Maybe they can't deletesomebody's account because of
their viewpoint, but they cansay when we're choosing what to
(31:09):
recommend to our users, we'regoing to choose the things we
like and not the things wedislike.
Attorney Bob Sewell (31:14):
Yeah, and that makes a lot of sense to me
in that context, because I got afriend and he really loves
motorcycles and his social mediacontent is all about
motorcycles.
And I think he'd be upset ifhis social media content all
about motorcycles and I thinkhe'd be upset if his social
(31:36):
media content, if the Instagramand the Facebook started showing
him all sorts of democraticstuff.
He would be kind of upset withthat.
And so because he wants theplatform to be for him, Isn't
that part of it?
Professor Eugene Volokh (31:50):
Is that part of it?
Well, I do think thatfunctionally it is pretty useful
for platforms to, let's say,useful from the user's
perspective, for platforms to beselective in what they show us
as users.
Look, I'm not a supporter ofDonald Trump, but it doesn't
(32:10):
matter to me as a user ofTwitter that there is an account
on Twitter called Real DonaldTrump that's run by Donald Trump
.
But I don't care.
Maybe some people are upset.
I refuse to use any platformthat even hosts material I
dislike.
Well, that's on them, that'stheir problem.
If they just can't stand thenotion of being on this platform
(32:33):
, well, I'm not sure why the lawshould be terribly
accommodating.
On the other hand, it'sunderstandable.
People might say the thingsthat come to me not because I go
and want to visit them, notbecause I go to that page, not
because I subscribe to it, butjust because it's in this
newsfeed of latest breakingstories.
I want those things to bethings that are relevant to me,
(32:56):
maybe not terribly offensive tome, maybe more likely to be
accurate rather than hoaxes.
So that's a pretty valuablefunction that the social media
platforms can provide.
Here's one way of thinkingabout it.
It's not necessarily dictatedby the First Amendment, but
maybe it's a helpful way ofthinking about what might make
(33:17):
sense here.
There's a huge problem out therein many contexts in our lives
of information overload, andcertain institutions newspapers
are an example are a way ofdealing with that problem.
Another example is Googlesearch.
Actually, I wrote, as a lawyer,a paper supporting Google's
(33:37):
right to include what they wantin their search results.
So I should warn you I saidthat as a lawyer, but I'm saying
that as an academic as wellthat if there are all these
billions of web pages out there,we need some tools that pick
and choose.
We need a newspaper that picksand chooses which stories to run
(33:59):
.
We don't need a phone companythat picks and chooses which
phone lines, which entities getphone lines, because it doesn't
matter to me whether thecommunists happen to have a
phone line on the same cellularservice that I use.
Likewise, it probably doesn'treally matter to me, as I said,
whether Twitter is hosting aparticular page, because the way
(34:22):
I deal with informationoverload in many ways is I just
pick and choose which pages I goto.
But when it comes to all thethings that Twitter or Facebook
or YouTube show me as here arepages you might want to visit
here, based on what we knowabout you, is what we think you
might enjoy.
Well, there they are dealingwith a problem of information
(34:45):
overload.
They are trying to find thetiny number of useful things out
of this universe that is mostlyuseless or upsetting or just
not helpful to me.
And there it makes a lot ofsense that they would have the
discretion to say well, certainthings are going to be included
based on viewpoint, certainthings exclude.
Attorney Bob Sewell (35:04):
All right.
So one final question.
You're in Vegas, you're inVegas, okay, you have $1,000
that you must bet on who thewinner of this case will be.
How are you going to place yourbet and why?
Professor Eugene Volokh (35:20):
Well, I'm not sure that the rules of
professional responsibility forlawyers allow betting on
judicial decisions, but if theydo, I'm not sure they don't.
But if they do, and if I wereso inclined, I would bet that
the social media platforms,which is to say NetChoice, the
organization that representsthem, will win, that maybe they
(35:42):
won't win completely.
Maybe, for example, the courtwill say well, it could be
different as to direct messagingand the like, but for the
things they care about, which isthe right to say, we get to ban
users who post things to thepublic or to their subscribers
that we don't like, I think thecourt will say, yes, they have
(36:04):
the right to do that.
They're more like newspapersthan like phone calls.
Is that right or wrong?
Not sure.
Functions.
Is that right or wrong?
Not sure, but that's what itlooked like from the oral
argument.
Attorney Bob Sewell (36:22):
Yeah, I got to be honest with you.
It's a troubling outcome for meeither way and, as a guy who
loves the First Amendment andwants to be able to say whatever
he wants, I want people to beable to say it right and to be
out there and I don't want to becensored.
But on the other hand, I couldsee how, if I own that company,
(36:42):
I don't necessarily want to betold what to do with my company
and it's a troubling outcome.
But, professor Volokh, thankyou for coming on the show.
Professor Eugene Volokh (36:51):
Thanks very much for having me, and all
the best.
Attorney Bob Sewell (36:53):
Thanks for listening to the podcast.
Is that Even Legal is nowlistened to in 100 countries and
available on virtually allpodcast platforms.
Leave us a review, send us someshow ideas and do so at
producer at evenlegalcom.
Don't forget, as smart as wesound and as lovable as we are,
(37:13):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
Is that even legal?
It's a question we askourselves on a daily basis.
We ask it about our neighbors,we ask it about our elected
officials, we ask it about ourfamily and sometimes we ask it
to ourselves.
The law is complex and itimpacts everyone all the time,
and that's why we are here.
I'm attorney Bob Sewell andthis is season five of the
(00:26):
Worldwide Podcast that exploresthat one burning question.
Is that even legal?
Let's go.
Today's guest on the show isEugene Volokh.
Eugene Volokh is a professor atUCLA College of Law.
He's a preeminent scholar andexpert in First Amendment law,
(00:49):
and he publishes the online blogthe Volek Conspiracy, which is
hosted by Reason Magazine, andhe's also a return guest to Is
that Even Legal?
Podcast.
So welcome to the show.
Professor Eugene Volokh (01:00):
Thanks.
Thanks very much for having meon.
Attorney Bob Sewell (01:03):
So I wanted to have you on, because last
time we had you on, we werediscussing First Amendment
issues, and you brought up thisidea of common carrier, which
seems to be a thread inside acase that has been argued before
the Supreme Court.
Supreme Court has not made adecision.
It's the case called Net Choice.
(01:24):
Supreme Court has not made adecision.
It's the case called Net Choice, and it involves two laws one
Texas law and a very similarFlorida law, and this Texas law
is identifying a problem, asmany people see it, and the
problem is that people view thesocial media companies as
(01:46):
censoring certain types ofspeech, and so what this law is
attempting to do is prohibitmajor social media platforms
from censoring a user's speechbased on content, based on
(02:06):
viewpoint and geographiclocation, and it's also
demanding that social mediaplatforms open quote, unquote
the black box.
They want to know what are theirpolicies If they have a user
complaint system.
What are their policies If theyhave a user complaint system?
(02:29):
They should have a usercomplaint system that's easy to
use and operate.
They should produce atransparency report every year.
They should have accurateinformation regarding their
business practices and how theythey manage and control data.
So it's an interesting lawbecause it's not censoring the
(02:51):
general public speech.
In fact it's trying to make itso the general public doesn't
get censored.
But is that even legal?
Is that a violation of theFirst Amendment?
Professor Eugene Volokh (03:07):
legal?
Is that a violation of theFirst Amendment?
Well, that's what the SupremeCourt is asked to decide in
these two cases, and one way ofthinking about it is by thinking
about a spectrum of platformsthat may host speech.
One end is a newspaper.
A newspaper is entitled to pickand choose which letters to the
(03:28):
editor to publish, which op-edsto publish, which ads to
publish.
Right, and I take it you can'teven well, it's hard to know for
sure, nobody's tried, butprobably you can't even tell
require that a newspaper, everytime it reject an op-ed, explain
in detail why it's rejecting it, among other things reject an
op-ed, explain in detail whyit's rejecting it, among other
things.
The reason might just be wedon't think our readers would
find it interesting, or we don'tagree with its logic.
(03:51):
And why?
Well, you know, it doesn't seempersuasive to us or it doesn't
seem well-written to us, right?
So newspapers clearly have theright to pick and choose what's
going to be included in theirpages.
The Supreme Court has made thatclear.
Well, what about on the otherend of the spectrum?
What about a phone company, say?
(04:11):
A phone company says we don'twant to have people on our phone
lines who are saying badthoughts.
Well, they don't have a legalright to do that.
They're usually common carriers.
And while there's been nospecific First Amendment
challenge brought by phonecompanies against these kinds of
laws, it's pretty broadlyunderstood that of course phone
(04:32):
companies have to carryeverybody.
Well, subject to someexceptions, like if somebody
doesn't pay well, they don'thave to, they can cancel the
phone line then.
Or maybe if somebody makesharassing phone calls to people
pretty well defined well, thenthey can cancel their phone
service, but not because theydon't like the person's politics
or the entity's politics.
(04:53):
Imagine it's the recruitingline for the local communist
party or the local clan church.
So where do social mediaplatforms fit in between?
Where do social media platformsfit in between?
Interestingly, one thing that Ithink there was some indication
of in the arguments is that thejustices might think and I
(05:14):
think probably correctly thatsocial media platforms may
actually have multiple functionsthat may have different rules
applicable to them.
So, for example, one functionis direct messaging, essentially
sending messages from oneperson to another, and you know
that begins to look a lot morelike a phone company or a
(05:34):
telegraph company.
So back when telegraphs werefirst developed and
commercialized in the 1800s,telegraph companies were found
to have blocked certain usersbecause they didn't like their
messages for a variety ofreasons, and the government said
you know you can't do that, andit may be that again.
(05:56):
Some functions of social mediaplatforms, like direct messaging
, are like that and thereforecan be treated as common
carriers.
On the other hand, somefunctions of social media
platforms are a lot likenewspapers.
Like, for example, if a socialmedia platform says here are
(06:17):
some items you might like.
Like we're going to take all ofthe billions of posts on our
service and we're going toselect a few that might be of
interest to you.
That's kind of like a newspaperchoosing which articles to
publish, and they're prettylikely that they're going to
have First Amendment rights tosay you know, we just don't want
(06:38):
to promote certain kinds ofthings.
So then there are the things inbetween, like what happens if
somebody has an account on thisand has followers.
Real Donald Trump may have anaccount on Twitter or some other
service and has followers whodeliberately signed on just to
read him, or at least theysubscribe to him.
(07:03):
Well, should platforms betreated more like phone
companies as to that, or morelike newspapers?
I think it's a close question.
I think there's a plausibleargument that in fact, uh, for
communications to onesubscribers.
Maybe it is kind of like uhpostal, the post office, which
is government run, but still um,or likePS or FedEx, or like the
(07:27):
phone company where peopleshould be able to reach those
who deliberately call them,let's say.
But it looked like there wasprobably going to be a majority
on the court to say no.
When it comes to hosting apublicly facing microblog or
Facebook page or Twitter feed orwhatever else, platforms should
(07:51):
be able to say we're not goingto host certain kinds of
material, but may be differentwith regard to direct messaging.
So it's hard to know for sureand different justices express
different views and it's notcompletely clear sometimes what
their views were.
But it looks like it'll beprobably mostly a victory for
the challengers of these Floridaand Texas laws, but perhaps not
(08:14):
a complete victory.
Attorney Bob Sewell (08:16):
Let's discuss these ideas a little
further.
And what you're getting at isthis concept of public carrier.
When you're talking about thephone company, the public
carrier does not get to censureyour speech, doesn't get to pick
and choose who it sends itsphone to.
If you need a phone, you getthe phone with, whether you're a
(08:37):
Nazi or or, or a liberal or youare, you know, a Republican or
Democrat, whatever it is, youget a phone number.
You are a Republican or aDemocrat, whatever it is, you
get a phone number, you get aphone.
So and I get that but socialmedia companies and I get the
concept that you have a socialmedia company.
(09:00):
What's it called?
Some of the functionality, youknow, direct messaging feels
more like phone than it wouldanything else.
What's interesting for me is,when we think about these common
(09:22):
carriers, they tend to have amonopoly, and it's a very strong
monopoly.
Professor Eugene Volokh (09:29):
Right.
So that turns out to be truefor some common carriers.
The classic landline phonecompany is a monopoly, but cell
phone companies are also treatedas common carriers and they are
famously competitive.
Right, yeah, like cell phonecompanies.
Yes, exactly, ups and FedEx arecompetitive.
(09:50):
They compete with each other.
They compete with the postalservice.
They're treated as commoncarriers Historically.
When you look more broadlybeyond communications to things
like transportation, there werevarious trucking companies that
were common carriers, but theydon't have monopolies.
There's a closely analogousconcept of place of public
accommodation.
(10:11):
Those are businesses that haveto serve people without regard
to race, for example, orreligion or sex, and
historically some of them justhad to serve old comers.
Some of them the rationale mayhave been in part that there
were monopolies or close to it.
Maybe there's only one hotel ina town, or only one inn in a
(10:32):
town, or one restaurant, let'ssay.
But pretty quickly theseconcepts got extended beyond
just monopolies.
So ordinary stores are often inmany ways places of public
accommodations under state law.
So while it's true that some ofthe most compelling arguments
(10:52):
for some duty to serve everyoneequally comes when there's a
monopoly, that's not the limitof common carrier.
So let me give you one otherexample.
One of the cases that most gutsin favor of the states here is a
(11:13):
case called Prunier ShoppingCenter and that involved a
California rule which said thatlarge shopping centers not every
shop, but large shoppingcenters let's say a block or
larger shop but large shoppingcenters let's say a block or
larger even though they'reprivate, they have to allow
(11:34):
members of the public who are onthe premises to hand out
leaflets to others or to try togather signatures or something
like that.
The shopping center challengedthat California rule in the US
Supreme Court, saying thisviolates my First Amendment
rights to decide what goes on myproperty.
And the court said no, youdon't have that First Amendment
right.
Maybe a newspaper might have aFirst Amendment right to pick
and choose what goes in itspages, but you don't have a
(11:57):
First Amendment right to choosewhat goes on to your real estate
.
Shopping centers aren'tmonopolies.
Now, it's true that they'reenviable locations for people to
use, like social mediaplatforms, but there's usually
more than one shopping centerwithin driving distance, at
(12:18):
least in very many places inCalifornia.
Nonetheless, state law couldconstitutionally treat them as a
place that has to be opened forpublic speech.
So one question is to whatextent are social media
platforms, like the new publicforum, one rationale for this
California rule, also adopted ina few other states, for
(12:40):
treating for requiring access tothese large private shopping
centers.
Is it used to be, people wouldgather in the public square,
literally in the square in themiddle of a town, or in a park
or in sidewalks.
Well, now they don't go intoprivate I'm sorry onto Main
Street to walk down the publicsidewalks.
(13:00):
They go to a mall to walk downthe private sidewalks in the
mall, but still that is a form.
It's kind of the new publicsquare.
The California court said andthe Supreme Court said yes,
california could treat it thatway.
Well, now social media, theSupreme Court has said in a
different context, is the stillnewer public square, and the
(13:21):
question is to what extent maystates say yes, we're going to
require social media platformsthere to provide access without
regard to viewpoint.
Attorney Bob Sewell (13:31):
Yeah, and I'm glad you brought that case
up because that's one of theways we feel about that, and I
use the word feel about itbecause people do feel like
social media in certain types istheir public square.
They use X to shout out theirgrievances, they use Reddit to
shout out grievances.
(13:52):
They use true social andFacebook and Instagram, and they
want people to know how theythink and feel about.
And, similarly, I can turn themoff or not go to the public
square if I choose to, and aslong as there's a place that's
well regulated for speech, thenit's fine that I choose to go to
(14:18):
that place or not go to thatplace.
And so I see that case as beinginteresting and I'm glad you
brought it up because it'srecognizing that traditional
view of public square.
But social media companiesaren't exactly like a public
square, right?
I mean, for example, let mejust say let's say I start a
(14:41):
social media account and it goeswild.
A social media account and itgoes wild, and it's dedicated to
vacations and vacations, onlyvacation pics, and I go out and
(15:08):
I have millions 50 million plususers are tuning in to see all
these people do their vacationpics.
Well, that tends to be a littledifferent than a public square,
but yet the California lawwould no excuse me.
The Texas law might treat me asa public square.
Professor Eugene Volokh (15:23):
I'm not sure I understand.
Attorney Bob Sewell (15:30):
You have an account on Twitter or Facebook
or you just set up a whole newsite, a whole new setup, and I
say it's the social mediaaccount for people who just want
to be looking at and sharingtheir vacation pics.
That's my editorial content,right?
(15:50):
I make that choice as a privatecompany to say this is about
this product, this is aboutvacations.
You come here to take vacationpics, show vacation pics.
And that's a little different,right?
Because 10 people in socialmedia tend to specify and be
(16:12):
interested in what they do,certain things.
So, but if my platform'srequired to have the neo-Nazis
on there or the, you know, theprogressive RS party or whatever
(16:33):
the party is, isn't thatdestroying my editorial content?
Professor Eugene Volokh (16:41):
Right.
So this is an interestingquestion that came up in the
arguments.
What if you want to have asocial media platform that has a
particular editorial spin?
They didn't talk about subjectmatter but viewpoint-based.
What if you want to have kindof the left-wing Facebook left
book and somebody else wants tohave a right book On left book?
They want to say we only haveleft-wing content, that's why
(17:02):
people come here.
Right book, we only want tohave right-wing content, that's
why people come here.
Right book will only want tohave right wing content, that's
why people come here.
Now the Texas law, for example,limits itself to large, large
social media platforms socialmedia platforms that have
functionally have more than 50million active users in a
calendar month.
So most really niche platformsare not going to qualify.
(17:25):
But you could imagine a verylarge platform or a smaller
platform in a state that has asmaller threshold, that
deliberately has a particularviewpoint.
You could.
But it's not completely clearunder First Amendment law what
(17:46):
that should tell us aboutplatforms that deliberately try
to open themselves up to a verywide range of views.
So just to give an analogy fromthe government-run property
context, if the governmentdecides to open up property or a
program to some messages.
It can do that.
It can say here's this bulletinboard in which you folks can
(18:10):
post messages about why everyoneshould recycle.
And if you post something onthis bulletin board that is
against recycling or completelyunrelated to recycling, why
people should, I don't know, goand play baseball instead, then
(18:31):
we're just going to take it downbecause this bulletin board is
for recycling.
There was an analogy.
There's a case where thegovernment said we're going to
fund a speech about birthcontrol, doctors' advice to
patients about birth control,but not about abortion.
We're only funding the birthcontrol side.
You want to speak out aboutabortion, you do it not using
(18:56):
our money.
That's permissible.
On the other hand, if thegovernment says you know we're
going to open this up to prettymuch everybody to speak about
pretty much anything, but noanti-recycling speech or no
pro-abortion speech.
You can say all sorts of thingson all sorts of other topics.
We're going to exclude that.
That's generally viewed asunconstitutional.
There the government is said tohave opened up a designated
(19:20):
public forum or a limited publicforum, a place where the public
is entitled to speak, and nowat that point it can't exclude a
few viewpoints.
So you know the line issometimes pretty hazy.
When does the government, whenis the government just opening
up a place for speech on aparticular expressing a
(19:46):
particular viewpoint on aparticular topic, and when is it
opening it up to almosteverybody but excluding a few
others?
But that kind of line is drawn.
Likewise, you want to just togive another example, public
accommodations.
You know there are linesbetween private clubs which can
say we are for men only or forwhites only, for blacks only,
but places that are really opento the public, generally
(20:08):
speaking, can't discriminate incertain ways.
Likewise with common carriersOne important distinction, just
to give an example from theneighboring area of
transportation we talked about,like trucking companies and such
, if you're a trucking companyand you qualify for common
carrier status, then youbasically have to take all
(20:30):
comers, more or less.
I oversimplify here.
But if you set up a businessthat's not open to the public at
large but just for kind of aparticular set of your business
partners, you kind of go out toeach one individually and say
you want to hire us for thiskind of thing, you can do that.
Well, then you're not a commoncarrier.
So these lines sometimes haveto be drawn and the law
(20:51):
generally does draw them.
So similarly, to give theexample from the California
shopping mall area, let's saysomebody says we are a shopping
mall, but we're shopping mall.
We want our message to be aconservative message, so people
aren't allowed to come andgather signatures for liberal
causes on our shopping mall.
I don't think that would getthat shopping mall out from the
(21:14):
California rule that shoppingmalls have to be open.
Once they're open themselves upto the public generally, they
have to be open to all speakersto all speakers.
Attorney Bob Sewell (21:31):
One of the things that I was curious about
when I read the Texas law wasthey just said whereas social
media platforms are commoncarriers, and the first thing I
thought was really how do youknow that?
How do you know they're commoncarriers?
They obviously understood thegene volux of the world's
(21:52):
arguments about what a commoncarrier is, but how do they know
that they're?
When I read the law in thepreamble, it says they are
common carriers.
How do they know that?
Professor Eugene Volokh (22:04):
says they are common carriers.
How do they know that?
Well, common carrier is not,like I don't know, proton or or
uh uh, planet, which issomething which exists out there
in the world, although evenwhat is a planet or what's not,
as a matter of some definition.
Common carrier is a legalconcept.
It is a legal concept that'sdefined, as most legal concepts
(22:28):
are, by legislatures.
So they could say we're goingto treat certain things as
common carrier.
I'll give you another examplePublic accommodation.
We mentioned that briefly.
It's kind of analogous to acommon carrier, of analogous to
a common carrier.
Many public accommodation lawsdon't require public
(22:49):
accommodations to be open toeverybody, but they ban
discrimination based on race,religion.
Some ban discrimination basedon political affiliation.
Seattle is one example.
There's a local ordinance.
Well, what's a place of publicaccommodation?
You look at federal law.
It basically defines it ashotels, restaurants and places
of public amusement.
Grocery stores aren't publicaccommodations.
(23:11):
Federal law doesn't bandiscrimination by grocery stores
, but many states define them asplaces of public accommodations
.
Some of them don't even requireit to be a place.
Some of them say you know abusiness a florist, let's say or
I shouldn't say a florist thatis more kind of a brick and
mortar location, let's say awebsite designer is a place of
(23:33):
public accommodation.
You may recall there was aSupreme Court case about this
just this last year, aboutwhether there's a First
Amendment defense to that kindof law.
So different states can definethem differently.
So likewise, if Texas orFlorida says these are common
carriers, I don't think it's adefense to say, well, they're
not common carriers under theexisting rules.
(23:56):
Legislature can say we canchange the existing rules.
Sure, in a time before socialmedia platforms, common carriers
were defined as phone companiesor telecommunications services
of a certain kind.
Let's say, in a time beforesocial media platforms, common
carriers were defined as phonecompanies or telecommunications
services of a certain kind.
Let's say but now that theworld has changed and that our
views about what's right havechanged, we're going to modify
(24:19):
the definition.
So there's nothing particularlywrong about that, wrong with
that as such.
You might say that they drewthe line in a bad place.
You might say that the FirstAmendment says regardless of
whether you call it a commoncarrier or not, the social media
(24:39):
platform can pick and choose.
But the definition of commoncarrier is up to lawmakers.
Attorney Bob Sewell (24:47):
So what about?
So here's the situation is thatthe social media companies are
claiming hey, our editorialcontent is that we get to choose
what stays on our platform.
That's our right, that's oureditorial content, that is our
(25:09):
free speech content, that is ourfree speech.
And so when you prohibit usfrom removing people, you're
damaging our free speech.
How do they get to thatanalysis?
What standards is the courtgoing to look to determine if
that's really the case?
Professor Eugene Volokh (25:23):
Well, you know, looks at the
precedents.
And again precedents point oneway for the newspaper or the
parade.
Those are entitled to pick andchoose as a First Amendment
matter, pick and choose what'sincluded.
On the other hand, they pointanother way to shopping centers
or to universities decidingwhether to allow, allow military
(25:49):
recruiters to use theirclassrooms and other space
during recruiting season.
Or cable companies, the courthad said, can be required to
host certain kinds of channelson their cable systems, be
(26:11):
required to host certain kindsof channels on their cable
systems.
So the court's question is, in asense well, are social media
platforms closer to one than tothe other?
And that involves a good dealof discretion.
Right that justices can decide.
You know, in a way that,differently from how you or I
might decide, they say, yeah,well, it's closer to one rather
than the other.
We may disagree, but it's theircall.
There's no very crisp, clearrule that the cases have said
(26:36):
these are the entities that haveFirst Amendment, protected
editorial discretion newspapers,parades.
These are the entities that donot have such discretion
telephone companies, shoppingmalls.
And that's because here is thetest, the one simple test that
tells us is it A or is it B.
There is no very clear test.
(26:56):
There are just these precedentsand there are judges who say
you know, is it closer to one orto the other?
Attorney Bob Sewell (27:20):
choice.
The easy example of a socialmedia company censoring speech
is if Bob Sewell gets on thereand he starts spouting
conservative rhetoric on andFacebook starts deleting my
posts, right, they start or theyturn me off generally.
(27:43):
They take away my platform.
That is one sense of censorship.
But there's also the othersense of censorship where the
code can devalue the newsfeed.
So Bob Sewell is spouting hisconservative ideas.
(28:06):
They don't take me off theplatform, they just make me.
So I get buried in the newsfeedor not appear in people's news
at all.
So that's a different way ofcensoring the speech.
Professor Eugene Volokh (28:20):
Right, and you might say that the rules
are different in thosesituations.
It may be that platforms haveto host you on their service but
don't have to promote you toother people in a way that seems
to carry their seal of approval.
I'll give you an example.
(28:40):
Remember I mentioned theuniversity context.
I oversimplify here, butbasically there was a case where
Supreme Court said thatCongress could require
universities to allow militaryrecruiters on their premise.
Some universities didn't wantto do this because at the time
the military discriminated basedon sexual orientation and that
(29:01):
was contrary to the university'sviews.
So they excluded it.
But Congress basically said ifyou want government money, you
have to allow militaryrecruiters.
And the Supreme Court upheldthat saying.
It doesn't matter whether it'sconditioned, whether it's tied
to the provision of governmentmoney.
(29:21):
Congress could just mandatethat all universities host
recruiters.
So universities can't justexclude military recruiters.
So universities can't justexclude military recruiters.
They don't have that FirstAmendment right, even if they
want to have a totally pro-gayrights university where all the
messages come from pro-gayrights perspectives.
On the other hand, if themilitary then says, well, not
(29:46):
only do we want you to host us,we would like it, if you kind of
listed us as one of the fivebest recruiters that everybody
should see.
We'd like it if your professorswould at the start of class say
oh, make sure you show up totalk to the military recruiters
there.
The university would say no, wehave a First Amendment right
(30:06):
not to do that.
The Supreme Court saiduniversities could be required
to host them.
Universities could be requiredto provide simple location or
directional information, likefor them, the same way they do
for everybody else, which is tosay indicate the recruiters in
this room, the militaryrecruiters in this room, the
Justice Department recruiters inthat room.
(30:27):
But if the university, if thequestion is a speech that goes
beyond that, if it's auniversity affirmatively
choosing to promote certainrecruiters, then it's entitled
to say well, we're not going topromote the military ones
because we don't like theirpolicy on sexual orientation,
discrimination and hiring.
(30:48):
So I think something quitesimilar could be done here.
You might say social mediaplatforms can't block direct
messages based on theirviewpoint.
Maybe they can't deletesomebody's account because of
their viewpoint, but they cansay when we're choosing what to
(31:09):
recommend to our users, we'regoing to choose the things we
like and not the things wedislike.
Attorney Bob Sewell (31:14):
Yeah, and that makes a lot of sense to me
in that context, because I got afriend and he really loves
motorcycles and his social mediacontent is all about
motorcycles.
And I think he'd be upset ifhis social media content all
about motorcycles and I thinkhe'd be upset if his social
(31:36):
media content, if the Instagramand the Facebook started showing
him all sorts of democraticstuff.
He would be kind of upset withthat.
And so because he wants theplatform to be for him, Isn't
that part of it?
Professor Eugene Volokh (31:50):
Is that part of it?
Well, I do think thatfunctionally it is pretty useful
for platforms to, let's say,useful from the user's
perspective, for platforms to beselective in what they show us
as users.
Look, I'm not a supporter ofDonald Trump, but it doesn't
(32:10):
matter to me as a user ofTwitter that there is an account
on Twitter called Real DonaldTrump that's run by Donald Trump
.
But I don't care.
Maybe some people are upset.
I refuse to use any platformthat even hosts material I
dislike.
Well, that's on them, that'stheir problem.
If they just can't stand thenotion of being on this platform
(32:33):
, well, I'm not sure why the lawshould be terribly
accommodating.
On the other hand, it'sunderstandable.
People might say the thingsthat come to me not because I go
and want to visit them, notbecause I go to that page, not
because I subscribe to it, butjust because it's in this
newsfeed of latest breakingstories.
I want those things to bethings that are relevant to me,
(32:56):
maybe not terribly offensive tome, maybe more likely to be
accurate rather than hoaxes.
So that's a pretty valuablefunction that the social media
platforms can provide.
Here's one way of thinkingabout it.
It's not necessarily dictatedby the First Amendment, but
maybe it's a helpful way ofthinking about what might make
(33:17):
sense here.
There's a huge problem out therein many contexts in our lives
of information overload, andcertain institutions newspapers
are an example are a way ofdealing with that problem.
Another example is Googlesearch.
Actually, I wrote, as a lawyer,a paper supporting Google's
(33:37):
right to include what they wantin their search results.
So I should warn you I saidthat as a lawyer, but I'm saying
that as an academic as wellthat if there are all these
billions of web pages out there,we need some tools that pick
and choose.
We need a newspaper that picksand chooses which stories to run
(33:59):
.
We don't need a phone companythat picks and chooses which
phone lines, which entities getphone lines, because it doesn't
matter to me whether thecommunists happen to have a
phone line on the same cellularservice that I use.
Likewise, it probably doesn'treally matter to me, as I said,
whether Twitter is hosting aparticular page, because the way
(34:22):
I deal with informationoverload in many ways is I just
pick and choose which pages I goto.
But when it comes to all thethings that Twitter or Facebook
or YouTube show me as here arepages you might want to visit
here, based on what we knowabout you, is what we think you
might enjoy.
Well, there they are dealingwith a problem of information
(34:45):
overload.
They are trying to find thetiny number of useful things out
of this universe that is mostlyuseless or upsetting or just
not helpful to me.
And there it makes a lot ofsense that they would have the
discretion to say well, certainthings are going to be included
based on viewpoint, certainthings exclude.
Attorney Bob Sewell (35:04):
All right.
So one final question.
You're in Vegas, you're inVegas, okay, you have $1,000
that you must bet on who thewinner of this case will be.
How are you going to place yourbet and why?
Professor Eugene Volokh (35:20):
Well, I'm not sure that the rules of
professional responsibility forlawyers allow betting on
judicial decisions, but if theydo, I'm not sure they don't.
But if they do, and if I wereso inclined, I would bet that
the social media platforms,which is to say NetChoice, the
organization that representsthem, will win, that maybe they
(35:42):
won't win completely.
Maybe, for example, the courtwill say well, it could be
different as to direct messagingand the like, but for the
things they care about, which isthe right to say, we get to ban
users who post things to thepublic or to their subscribers
that we don't like, I think thecourt will say, yes, they have
(36:04):
the right to do that.
They're more like newspapersthan like phone calls.
Is that right or wrong?
Not sure.
Functions.
Is that right or wrong?
Not sure, but that's what itlooked like from the oral
argument.
Attorney Bob Sewell (36:22):
Yeah, I got to be honest with you.
It's a troubling outcome for meeither way and, as a guy who
loves the First Amendment andwants to be able to say whatever
he wants, I want people to beable to say it right and to be
out there and I don't want to becensored.
But on the other hand, I couldsee how, if I own that company,
(36:42):
I don't necessarily want to betold what to do with my company
and it's a troubling outcome.
But, professor Volokh, thankyou for coming on the show.
Professor Eugene Volokh (36:51):
Thanks very much for having me, and all
the best.
Attorney Bob Sewell (36:53):
Thanks for listening to the podcast.
Is that Even Legal is nowlistened to in 100 countries and
available on virtually allpodcast platforms.
Leave us a review, send us someshow ideas and do so at
producer at evenlegalcom.
Don't forget, as smart as wesound and as lovable as we are,
(37:13):
we are not your lawyers and weare not giving you legal advice.
But if you need some legaladvice, get some.
There are some great lawyersout there and we are always
ready to help.
See you next time.
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