Deplatformed: The Supreme Court Hears Social Media Oral Arguments | Free Speech Unmuted

Newspapers have a First Amendment right to pick and choose what to publish in their pages. Phone companies, on the other hand, aren’t allowed to control what’s said on their phone lines. Where do the various functions of social media platforms fit on that spectrum?
ABOUT THE HOSTS
Eugene Volokh is a visiting fellow(soon to be senior fellow) at the Hoover Institution. For thirty years, he has been a professor at the University of California - Los Angeles School of Law, where he has taught First Amendment law, copyright law, criminal law, tort law, and firearms regulation policy. Volokh is the author of the textbooks The First Amendment and Related Statutes (7th ed., 2020) and Academic Legal Writing (5th ed., 2016), as well as more than one hundred law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog. Before coming to UCLA, Volokh clerked for Justice Sandra Day O’Connor on the US Supreme Court.
Jane Bambauer is the Brechner Eminent Scholar at the University of Florida's Levin College of Law and the College of Journalism and Communications. She teaches Torts, First Amendment, Media Law, Criminal Procedure, and Privacy Law. Bambauer’s research assesses the social costs and benefits of Big Data, AI, and predictive algorithms. Her work analyzes how the regulation of these new information technologies will affect free speech, privacy, law enforcement, health and safety, competitive markets, and government accountability. Bambauer’s research has been featured in over 20 scholarly publications, including the Stanford Law Review, the Michigan Law Review, the California Law Review, and the Journal of Empirical Legal Studies.
ABOUT THE SERIES
Hoover Institution Senior Fellow Eugene Volokh is the co-founder of The Volokh Conspiracy and one of the country’s foremost experts on the 1st Amendment and the legal issues surrounding free speech. Jane Bambauer is a distinguished professor of law and journalism at the University of Florida. On Free Speech Unmuted, Volokh and Bambauer unpack and analyze the current issues and controversies concerning the First Amendment, censorship, the press, social media, and the proverbial town square. They explain in plain English the often confusing legalese around these issues and explain how the courts and government agencies interpret the Constitution and new laws being written, passed, and decided will affect Americans' everyday lives.
For more information, visit www.hoover.org/publications/f...

[@softbearnet]

As a conservative I have always been on Stevens' side of Citizens United. Corporations should never be granted the rights of a natural person. That question is closely related to the arguments here. (But I'm not a lawyer and don't play one on TV.)

[@glennmitchell9107]

Jane Bambauer is wrong about digital social media being traditional media companies. Traditional media made money by attracting eyeballs to advertisers. So does digital media. The difference being digital media has virtually no limit to their viewers engagement. They make money by selling space, time, and customer algorithms to advertisers, so that their advertising customers can maximize the number of potential consumer customer eyeballs on their commercials. Depending on their algorithms, social media shouldn't care if those eyeballs are crying or laughing about the content, as long as they remain engaged with the content. The more clicks, the mo' money. Any editorial decisions they make regarding their creators' content or their audience's response is strictly political. (I don't know if any of these digital social media sites edit their content creators for grammar, punctuation, or spelling. It doesn't appear so.) Digital social media are notorious for spreading dis- and misinformation and censoring any counter information or opinions. There should be a legal distinction between common carrier and free press editorial businesses. They need to be, and declare themselves to be, on one side of the line or the other. The digital common carrier sites will grow large and get rich. The free press digital editorial businesses will wither and die, just as their traditional paper press ancestors withered and died.

[@JeremyBriggs606]

This seems more interesting to me if the question is framed whether a social media platform is acting as a proxy for state action. If this is not the root of our inquiry I do not see how the question merits Supreme Court attention.

[@pldvs]

Why is the Hoover Institution on KZbin and not (I checked) on Odysee? Why does Android ship with KZbin as a stock app and not with odysee? Effectively privatising the public square and then claiming editorial discretion over it is disingenuous at best. There is a readily discernible relationship between so-called 'platform specific editorial discretion' and off platform party politics. They want their 'discretion', fine, make them ship the competition as stock.

[@kabaduck]

The problem is the content moderation was inspired based on public institution regulatory bodies speaking on these matters. It's so problematic when political parties have weighed in on these topics, and it's well known their regulatory influence and when a social media platform puts their weight behind these policies they are no longer editorializing for their platforms benefit or society but rather for their ability to operate within the political space in avoid negative regulatory actions. For all intensive purposes that makes them a government institution as well. It's undue influence.

[@kabaduck]

Either they are a forum that's open to everybody, wear section 230 applies or they are not an open forum but a media outlet where section 230 does not apply. Can't have it both ways.

[@chuckjones9159]

This issue is not that complicated. No one is trying to limit the platforms free speech we just want to require that they do not limit ours. The platform is not a person. It is a business. It is also a business that has become a utility of sorts. To allow the platforms to suspend users that disagree with the current accepted narrative has to be stopped. IMO there is no difference between that and a grocery store denying you the ability to shop there because of your political affiliation or gender. Those who want to use convoluted legalese to allow platforms to continue this behavior are those who wish for entrenched power to maintain its hold.

[@joachimmartillo5539]

The oral hearing was interesting but unsatisfying. No participant addressed the operative statutes of Title 47 (Telecommunications). The FCC does not define a service to be a common carriage service. The common law definition of common carriage determines whether a service is common carriage. The litigation in trial court never reached the presentation of facts that would enable the Trial Court to rule whether a social medium platform is by law a common carrier of messages. The FCC decides whether a communications-related common carriage service is a telecommunications service that the FCC should regulate. When the FCC makes a determination of its regulatory authority, it applies the following definitions: § 153 (11) Common carrier, § 153 (24) Information service, § 153 (50) Telecommunications, § 153 (51) Telecommunications carrier, § 153 (52) Telecommunications equipment, and § 153 (53) Telecommunications service. When the definitions are applied together, they state that: 1. § 153 (11) Common carrier defines a communications common carrier, 2. § 153 (51) Telecommunications carrier defines a telecommunications carrier, and 3. if a telecommunications carrier is a common carrier, it is a communications common carrier, but 4. not every communications common carrier is a telecommunications carrier. Every social medium platform provides a service of common carriage of messages. For that service, the backend server is like a letter satchel of a letter carrier. A message in the backend server of a social medium platform is bailment of the social medium platform not speech of the social medium platform just as a letter in the satchel is bailment of the USPS not speech of the USPS. The USPS only has limited legal ability to deny common carriage of a letter. A social medium platform should have only limited legal ability to deny common carriage of a user’s message. 47 U.S. Code § 202 forbids discrimination by locality, and no party to the oral hearing seemed to realize that the US Internet belongs mostly to the government and to the public. A social medium platform is highly subsidized by the public and by the government. I have spoken with several attorneys that deal with Title 47. They were puzzled that in four hours of oral hearing no one mentioned § 202. A social medium platform must obey the following statute. 47 U.S. Code § 202 - Discriminations and preferences (a) Charges, services, etc. It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage. (b) Charges or services included Charges or services, whenever referred to in this chapter, include charges for, or services in connection with, the use of common carrier lines of communication, whether derived from wire or radio facilities, in chain broadcasting or incidental to radio communication of any kind. (c) Penalty Any carrier who knowingly violates the provisions of this section shall forfeit to the United States the sum of $6,000 for each such offense and $300 for each and every day of the continuance of such offense.

[@azurebadger]

The problem with the progressive politically correct social contract justification for censoring speech on social media, is both that paradigms existence, and that we already know the government was issuing those suggestion. The participation in that suggestion by private public communications was proven to be bolstered by retired fbi and cia agents who took leadership positions and consultancies under obama and after. Further twitter had an fbi office on site and relayed directives as proven by internal communications, admitted into court, and displayed to the public. The mere omission of that reality speaks to the selective memory in action while you speak topically and rhetorically about public political theater media rhetoric. That and your interest in real information at a high level. You should take your jobs more seriously than that. I view this as constructive criticism. Judge the merits.

[@relly793]

its definitely a coordinated push toward a political direction

[@rhetorical1488]

the repealing of the smith mundt act has much to do with this

[@kevinjenner9502]

CBS News 2/12/24. “Biden reelection campaign joins TikTok - though Biden banned its use on government devices”

[@kevinjenner9502]

CBS News 2/12/24 “Biden reelection campaign joins TikTok- though Biden banned its use on government devices”