Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘social media’

Free speech and social media moderation

“Big internet platforms for speech are privately owned, but those who would pressure private firms to restrict speech are often the same people who would substantially restrict the rights of people to speak. John Samples and Emily Ekins discuss how Americans think about free speech today and ways to defend it in the modern age.” [Cato Daily Podcast with Caleb Brown]

More: John Samples on Facebook moderation policies; Matthew Feeney, “Keep Government Away From Twitter.” And if Congress abrogates the liability protections of Section 230, as some conservatives urge, one predictable consequence will be that more conservatives will wind up getting purged from social media [Elizabeth Nolan Brown]

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Government oversight of social media moderation would infringe First Amendment liberties

Mike Masnick, TechDirt:

[J]ust after Twitter and Facebook appeared before Congress, the DOJ released a statement saying that it was investigating whether or not actions by the big internet companies was “intentionally stifling the free exchange of ideas.” The full statement was short and to the point:

We listened to today’s Senate Select Committee on Intelligence hearing on Foreign Influence Operations’ Use of Social Media Platforms closely. The Attorney General has convened a meeting with a number of state attorneys general this month to discuss a growing concern that these companies may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.

The competition question is one that the DOJ’s antitrust division clearly has authority over, but alarms should be raised about the DOJ or state AGs arguing that these platforms are “stifling the free exchange of ideas on their platforms.” Because while — on its face — that might sound like it’s supporting free speech, it’s actually an almost certain First Amendment violation by the DOJ and whatever state AGs are involved.

There are lots and lots of cases on the books about this, but government entities aren’t supposed to be in the business of telling private businesses what content they can or cannot host. Cases such as Near v. Minnesota and Bantam Books v. Sullivan have long made it clear that governments can’t be in the business of regulating the speech of private organizations — though those are both about regulations to suppress speech.

More: “How Regulating Platforms’ Content Moderation Means Regulating Speech – Even Yours” [Cathy Gellis]; John Samples, Cato Daily Podcast on Trump’s comments about Google searches; Federalist Society debate on social media antitrust; “if you’re going to make an allegation that there’s a big [anti-conservative] conspiracy [on search engine results], you should do your due diligence.” [Zachary Graves] Earlier here, etc.

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(Some) conservatives for social media regulation

“It was quite something to hear Republicans sounding like Elizabeth Warren on a trust-busting bender, but it is difficult to take seriously the proposition that what’s at work here is concern about monopoly power, Supreme Court precedents, or anything of the sort: This is about friends and enemies, and Republicans have decided that Silicon Valley is the enemy.” [Kevin Williamson, National Review] “Trump allies propose nationalizing Facebook, Google data” [Jason Tashea, ABA Journal] And see John Hinderaker, PowerLine, on a tape showing Google employees disappointed by the results of the last election (“Break them up under the Sherman Act? Turn them into regulated public utilities, with public employee-level salaries and no stock options? Those are all possibilities.”) Related: Thomas Hazlett, “Making the Fairness Doctrine Great Again,” Reason, March.

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Free speech roundup

  • Senators have big plans for government regulation of social media but U.S. Constitution keeps getting in way [John Samples, Cato; David McCabe, Axios, earlier] “Censorship breeds censorship envy, and that’s true of private suppression by massively influential platforms such as Facebook as well as of governmental censorship.” [John Samples, Eugene Volokh]
  • Is it lawful for a state lawmaker to block someone on Twitter who’s publicly discussed ways of murdering him? [Dorit Reiss, PrawfsBlawg, earlier]
  • European Parliament delays adopting online copyright directive that critics said would result in Internet content filtering and royalties for linking [Thomas McMullan/Alphr, BBC earlier]
  • Is the ACLU OK with French catcalling law? [Robby Soave] With using government to keep the wrong sorts of people from owning radio outlets? [Scott Shackford, related]
  • Federalist Society telecast on Ninth Circuit decision on Idaho “ag-gag” law with UCLA lawprof Eugene Volokh and Andrew Varcoe of Boyden Gray & Associates;
  • “Arrests for offensive Facebook and Twitter posts soar in London” [Sadie Levy Gale, Independent] Downhill in Denmark: “How the Right Abandoned Free Speech in Europe” [Cato podcast and Reason interview with Jacob Mchangama]

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Free speech roundup

  • Sen. Dianne Feinstein (D-Calif.) proposes to regulate social media bots, or to put it differently, to regulate a form of speech carried on through automated mechanisms [John Samples, Cato]
  • “The State of New Jersey Wants to Subsidize News. Uh-oh.” [Jack Shafer, Politico] Canada, farther down this road, moves toward outright government subsidies to newspapers [Mylene Crete and Jordan Press, Canadian Press]
  • “Court tosses disbarred lawyer’s suit over newspaper article on his ethics case with a ‘crime’ header” [ABA Journal]
  • Compelled speech in NIFLA v. Becerra: “A First Amendment Win in a Case That Was NOT about Abortion” [Ilya Shapiro and Meggan DeWitt, Eugene Volokh, Erica Goldberg] More: DeWitt Cato podcast;
  • New Nadine Strossen book on hate speech challenges some conventionally accepted ideas about its effects [John Samples, earlier] Man in Pennsylvania charged with felony ethnic intimidation after calling officers who were arresting him Nazis, skinheads, and Gestapo [Joshua Vaughn, The Appeal]
  • Will lawyers face punishment for using wrong-gender pronouns in social or bar-association activities? Lambda Legal suggests the answer is yes [Eugene Volokh]

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First Amendment roundup

  • Dangerous and misguided: Michigan pursues prosecution on charges of jury tampering of man who handed out “jury nullification” pamphlets on public sidewalk outside courthouse [Jay Schweikert, Cato; Jacob Sullum, earlier here, here, etc.]
  • “‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [Eric Goldman] Among first casualties: Craigslist personals [Merrit Kennedy/NPR, Elizabeth Nolan Brown] And Elizabeth Nolan Brown joins (no relation) Caleb Brown on a Cato Daily Podcast;
  • Is reprinting thumbnail headshots fair use? [Mike Masnick, TechDirt]
  • “16 Pulse survivors sue Google, Facebook, Twitter for ‘supporting’ ISIS” [Daniel Dahm, WKMG Orlando]
  • Not the group it used to be: ACLU calls for government-owned broadband, claims First Amendment may require as opposed to forbid state-operated communications infrastructure [Randolph May and Theodore Bolema, Free State Foundation] More: Scott Greenfield;
  • Cato amicus commercial speech triple-header: Virginia’s ban on promoting happy hours (bars may hold them, but not promote them off premises) is an irrational leftover of Prohibition [Ilya Shapiro] While some commercial speech can be mandated, Ninth Circuit goes too far in upholding government-ordered scripts [Shapiro and Meggan Dewitt on structured-mortgage-payment case Nationwide Biweekly Administration v. Hubanks] Sign laws face tough scrutiny under 2015’s Reed v. Town of Gilbert, and Tennessee’s billboard law, which applies even to noncommercial speech, may run into trouble [Shapiro and Aaron Barnes]

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Political pressure on Facebook intensifies

Will revelations over data use by Cambridge Analytica lead to more intense government regulation of Facebook? Julian Sanchez and I talk to Caleb Brown at the Cato Daily Podcast. Separately, Sanchez writes that we shouldn’t expect regulatory micromanagement to do a good job of safeguarding user privacy. “How Cambridge Analytica’s Facebook targeting model really worked – according to the person who built it” [Matthew Hindman, The Conversation] Note that regulation tends to entrench incumbents [Tyler Cowen linking Stratechery (one consequence of outcry is that social media providers may make it harder for users to export their data to other platforms)]

Related: “In Europe, platforms are incentivized to take down first, ask questions second.” [William Echikson, Politico Europe] Pro-censorship UNC professor and New York Times contributing op-ed writer (and what a phrase that is to type) recalls days when media had but one throat to squeeze [David Henderson on Zeynep Tufekci in Wired] How Facebook recently navigated pressures on hosting a group whose leaders were prosecuted under British hate-speech laws [John Samples, Cato] From LBJ and Nixon to Trump and Elizabeth Warren, “regulation is an inherently political act.” So maybe think twice before putting Facebook and Google under the thumb of your worst political foe? [Donald E. Graham]

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Claim: government should regulate YouTube recommendations

There is some evidence that algorithms employed by YouTube to suggest next videos can foster rabbit holing, in which curious newcomers are drawn into ever more extreme and outrageous content, including fever-swamp ideology. That’s a legitimate concern, for sure, but in this instance it’s melded with blithe urgings that the state get in and impose its ideological will on content, as if that wouldn’t raise dangers of its own [Zeynep Tufekci, New York Times] Note also a body of research contrary to the notion that social media encourages the formation of ideological bubbles and reinforcement [John Samples, Cato; Michael A. Beam, Myiah J. Hutchens and Jay D. Hmielowski, Information, Communication & Society (“Facebook news use was related to a modest over-time spiral of depolarization.”)]

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March 7 roundup

  • What’s worse than undermining Section 230, charter of Internet freedom? Turning it all into a pinata for trial lawyers [No go, NRO; earlier on SESTA and FOSTA] Carve-out to Section 230 in name of fighting sex trafficking could erode protection for other businesses against being sued [WSJ editorial] More: Karol Markowicz;
  • “If You Owe the IRS Over $51,000, It Can Trap You in the United States” [Brian Doherty, Reason]
  • How far can a theft ring go in stealing a rental vehicle before the police step in? [related Twitter threads, Sharky Laguana and Noah Lehmann-Haupt]
  • “Federalism as a Check on Executive Authority,” panel at Federalist Society 2017 Annual Texas Chapters Conference with Caitlin Halligan, Scott Keller, Ernest Young, moderated by Hon. Jeff Brown [video]
  • Revisiting an auto scare: “Will the Corvair Kill You?” [Larry Webster, Hagerty, earlier here and here]
  • No, peacocks-in-the-airline-cabin isn’t really some failure of “fetishizing [individualism over] communal well-being.” It’s a failure of collectivized legal compulsion overriding contract and choice [David Leonhardt, New York Times; Elizabeth Preske, Travel and Leisure on underlying episode; earlier on emotional-support and other service animals]

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