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1. A corporation is a legal fiction created by government gift to signify that the individuals participating in the corporation's affairs have limited financial

1. A corporation is a legal fiction created by government gift to signify that the individuals participating in the corporation's affairs have limited financial exposure when they would otherwise be subject to unlimited exposure for the corporation's debts and liabilities. If, as a condition of that limited liability, a relevant governing body wants to restrict what can be published in the name of a corporation, no individual's free speech is being restricted. Congress should be able to impose such restrictions under the Commerce Clause and/or the Republican Form of Government Clause; states should be able to do so under their general police powers; all subject to the usual constitutional restrictions (equal protection, due process, etc.). 2. A corporation can (or at least should be able to) allow or forbid content on its own platform as it sees fit --- but by the same reasoning as #1, a relevant state legislature should be able impose conditions on limited liability, and logically those conditions could include free-speech [EDIT:] restrictions on content moderation (subject to federal constitutional constraints, e.g., under the Supremacy Clause).

rayiner 4y ago
Without relitigating Citizens United, I would think that content moderation is far less worthy of speech protections than the political movie in Citizens United. Content moderation is basically house cleaning. Companies do it to make their platforms more pleasant for customers, the same reason stores sweep the floors. But that makes it less deserving of speech protections because it’s not expressive. Put differently, when the ACLU publishes something, people attribute that to the ACLU and the ACLU has the right to control its message. But nobody attributes things people post on Twitter to Twitter.
- dctoedt 4y ago
  ISTM that you're putting the cart before the horse: We don't need to be discussing whether content moderation needs speech protection, because the people who advocate for government regulation of content moderation haven't proved up the need for, and appropriateness of, such regulation. (In litigation terms, since we're both lawyers: It's premature to focus on whether to give platforms free-speech protection for their content moderation would be akin to an affirmative defense: The question doesn't need to be reached unless and until those urging regulation of moderation succeed in making a Twombly/Iqbal plausible case, which in my judgment they haven't.)
- dctoedt 4y ago
  I edited my #2 in my GP post because we might be talking past each other in the second graf of your parent post above.

rayiner 4y ago

Without relitigating Citizens United, I would think that content moderation is far less worthy of speech protections than the political movie in Citizens United. Content moderation is basically house cleaning. Companies do it to make their platforms more pleasant for customers, the same reason stores sweep the floors. But that makes it less deserving of speech protections because it’s not expressive. Put differently, when the ACLU publishes something, people attribute that to the ACLU and the ACLU has the right to control its message. But nobody attributes things people post on Twitter to Twitter.

dctoedt 4y ago
ISTM that you're putting the cart before the horse: We don't need to be discussing whether content moderation needs speech protection, because the people who advocate for government regulation of content moderation haven't proved up the need for, and appropriateness of, such regulation. (In litigation terms, since we're both lawyers: It's premature to focus on whether to give platforms free-speech protection for their content moderation would be akin to an affirmative defense: The question doesn't need to be reached unless and until those urging regulation of moderation succeed in making a Twombly/Iqbal plausible case, which in my judgment they haven't.)
dctoedt 4y ago
I edited my #2 in my GP post because we might be talking past each other in the second graf of your parent post above.