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The only reason the First Amendment is in this discussion at all is because the companies are claiming that the First Amendment forbids laws like this, which is

The only reason the First Amendment is in this discussion at all is because the companies are claiming that the First Amendment forbids laws like this, which is clearly false, since such laws have existed for a long time (as mentioned above). I didn't mean to imply that the First Amendment forbids private censorship (other laws do that). What I meant was, the First Amendment protects people from censorship, when it applies. It's perverse logic to claim that an amendment that prevents government censorship really means that there's a right to censor. And everything about corporations is an irrelevant distraction; the law would also apply to an individual who owned and operated a social media network entirely by themselves as a sole proprietor. Edit in response to edit: > you've already admitted that your whole fairness doctrine schtick is a stretch No, I admitted that there are some differences. The essential argument, that the First Amendment does not forbid such laws, remains relevant. > social media sites aren't common carriers They are if the government says they are, as recently happened to ISPs. This law doesn't exactly do that, but it has similar effect, and that's relevant because it shows that laws with this effect are constitutional. > [the government] is enjoined, by the constitution, from making a speech company a common carrier. Phone companies transmit speech, and are considered common carriers. Edit again: Whether the communications tech is one to one or one to many, the speech is still the speech of the person communicating, not the tech company. Any free speech rights belong to the writer, not the company that owns the wires or software involved in transmission. Publishers are something different entirely. Their core business is content creation, not operating the printing press or website. They pay their writers and tell them what to write about. They own the content they publish. And yes, they are responsible for what they publish.

joshuamorton 4y ago
Publishers were historically (and still are!) literally the people who owned the presses, lol. Like you went to a publisher to get your manuscript printed. All the other things, like editing and marketing were secondary to these were the people who could actually mass produce your book. The NYT and WaPo own their presses. The core business of a publisher, historically, has been the facilitation of scalable access to content created by other people. Even newspapers don't really "tell them what to write about", they hire (or use freelancers!) people who work on their own stories and submit them to the paper. And while newspapers do usually own the content they publish, they don't always, and book publishing houses rarely do. So the WaPo's and HarperCollins's of the world are a lot more like the YouTube's and Reddit's than you seem to think. And yes, the individuals who write the articles have first amendment (not "free speech", nobody in the US has a "free speech" right, that isn't a thing) rights. But so too do the Washington Post, and Penguin RandomHouse. And even though lots of people have had OpEd's in the NYT, and even though Hachette has published books by tons of authors, they're under no requirement to publish my works, because they fully and totally have the right to not enter into a relationship with me, and have the right to not assist me in broadcasting my content. And the first amendment protects their right to associate with and how they want to, and that includes not associating with me. I want to emphasize this by the way, because earlier you said > it's arguing that censorship isn't speech And this fundamentally doesn't matter, because the first amendment protects a number of things that aren't speech, including assembly. I can assemble with whom I want to (and also refuse to assemble with those I don't want to). I cannot be forced into service of any particular individual, and this is true for common carriers, they're not in service of an individual, but of an item. As soon as the thing you're doing is promoting an individual's words or brand, you're not doing what a common carrier is doing. Shipping a box is exactly the same whether it is your box or Donald Trump's box. But broadcasting a speech on my loudspeaker isn't the same if its your speech or Donald Trump's. As much as you wish it to be, you cannot make those two situations the same.
- BlueTemplar 4y ago
  By "publisher" I would assume there is some editorializing going on that makes the publisher legally liable for what they publish. GAF(AM)s are trying to have freedom of a common carrier with the power of a publisher (see my comment in parallel).
- leereeves 4y ago
  > I can...refuse to assemble with [meaning doing business with] those I don't want to > I cannot be forced into service of [again meaning doing business with] any particular [party] In many cases you are free to refuse to do business with someone, simply because no law exists against it. But you don't have a right to refuse; the government can pass a law punishing you for refusing; and they have passed many such laws. For example, in many states, you are forbidden to refuse to do business with Israel. And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. The list of such characteristics has grown quite long and includes (in some states) political affiliation, belief, or activity. From that standpoint, this law is not unusual at all.
  - joshuamorton 4y ago
    > And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. (One of which is, in California, political affiliation.) Due to a constitutional amendment! And even in California, companies are free not to do business without you based on your political beliefs they just can't retaliate against you in the workplace. And of course, the whole discrimination thing only applies if there's not a legitimate non-protected class reason, as we know from masterpiece cake shop. > For example, in many states, you are forbidden to refuse to do business with Israel, and have been for many decades Those laws would be unconstitutional and unenforceable. Actual on the books anti-bds laws are much more limited, usually only banning government contractors from boycotting Israel, and even that much more limited stance may be unconstitutional (see a recent Texas anti-bds law that's currently enjoined by the district court due to it's infringement on a corporations first amendment rights!...https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-speech-rights-rules_partner/ https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-...) There are lots of unconstitutional laws on the books (miscegenation is illegal in a few states, technically), they just can't be enforced, but you aren't doing yourself favors by citing exaggerated, clearly unconstitutional versions of dubiously legal laws as a defense of this one.
BlueTemplar 4y ago
Yep, when Facebook first started moderating messages and/or selecting what users view with an algorithm more complicated than "what has been posted last", it was predicted that they were opening themselves to the "publishers are responsible for what they publish" legal attack. And here we are. These corporations want to have their cake and eat it too... At the time a lot of people have considered the very concept of platform as evil for this reason ("protocols not platforms"), but this was also related to issues coming from their use of closed source software, and more importantly : antitrust - the mere size of these corporation makes them at the very least "friendly elephant in a china shop" kind of evil, but the USA didn't want to shut down the GAFAMs considering the immense not so soft power their monopolies give them in the world. A less radical proposal was to have some allowed middle ground between common carrier and publisher : "displayer", but this would still need to come with severe restrictions to what these companies are currently enjoying in the current "lawless" void : again, restrictions on size, kind (think Wikipedia or archival), running as a for-profit, forced usage of interoperable protocols, use of open source software, have been suggested and even somewhat put into practice in recent EUropean laws (though it is suspected that due to the heavy lobbying that the GAFAMs have done, the end result is more that the current laws are helping them by making it harder for new competitors to emerge, while they are so big they can bear the regulatory brunt). (P.S.: It's kind of amusing to see Texas Republicans to be a shining beacon of liberalism...)
- joshuamorton 4y ago
  This is a non sequitur. It is legal to repeal section 230. It would be bad, but it is legal. But in either case, the law under discussion is unconstitutional. And it'd be doubly unconstitutional if you're claiming that the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause.
  - leereeves 4y ago
    Every time you use the word "unconstitutional", it should be prefaced by "IMO". > the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause. How many states have made marijuana legal despite federal law?

joshuamorton 4y ago

Publishers were historically (and still are!) literally the people who owned the presses, lol. Like you went to a publisher to get your manuscript printed. All the other things, like editing and marketing were secondary to these were the people who could actually mass produce your book. The NYT and WaPo own their presses. The core business of a publisher, historically, has been the facilitation of scalable access to content created by other people. Even newspapers don't really "tell them what to write about", they hire (or use freelancers!) people who work on their own stories and submit them to the paper. And while newspapers do usually own the content they publish, they don't always, and book publishing houses rarely do. So the WaPo's and HarperCollins's of the world are a lot more like the YouTube's and Reddit's than you seem to think. And yes, the individuals who write the articles have first amendment (not "free speech", nobody in the US has a "free speech" right, that isn't a thing) rights. But so too do the Washington Post, and Penguin RandomHouse. And even though lots of people have had OpEd's in the NYT, and even though Hachette has published books by tons of authors, they're under no requirement to publish my works, because they fully and totally have the right to not enter into a relationship with me, and have the right to not assist me in broadcasting my content. And the first amendment protects their right to associate with and how they want to, and that includes not associating with me. I want to emphasize this by the way, because earlier you said > it's arguing that censorship isn't speech And this fundamentally doesn't matter, because the first amendment protects a number of things that aren't speech, including assembly. I can assemble with whom I want to (and also refuse to assemble with those I don't want to). I cannot be forced into service of any particular individual, and this is true for common carriers, they're not in service of an individual, but of an item. As soon as the thing you're doing is promoting an individual's words or brand, you're not doing what a common carrier is doing. Shipping a box is exactly the same whether it is your box or Donald Trump's box. But broadcasting a speech on my loudspeaker isn't the same if its your speech or Donald Trump's. As much as you wish it to be, you cannot make those two situations the same.

BlueTemplar 4y ago
By "publisher" I would assume there is some editorializing going on that makes the publisher legally liable for what they publish. GAF(AM)s are trying to have freedom of a common carrier with the power of a publisher (see my comment in parallel).
leereeves 4y ago
> I can...refuse to assemble with [meaning doing business with] those I don't want to > I cannot be forced into service of [again meaning doing business with] any particular [party] In many cases you are free to refuse to do business with someone, simply because no law exists against it. But you don't have a right to refuse; the government can pass a law punishing you for refusing; and they have passed many such laws. For example, in many states, you are forbidden to refuse to do business with Israel. And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. The list of such characteristics has grown quite long and includes (in some states) political affiliation, belief, or activity. From that standpoint, this law is not unusual at all.
- joshuamorton 4y ago
  > And you're forbidden to refuse to do business with people for a variety of reasons called protected characteristics. (One of which is, in California, political affiliation.) Due to a constitutional amendment! And even in California, companies are free not to do business without you based on your political beliefs they just can't retaliate against you in the workplace. And of course, the whole discrimination thing only applies if there's not a legitimate non-protected class reason, as we know from masterpiece cake shop. > For example, in many states, you are forbidden to refuse to do business with Israel, and have been for many decades Those laws would be unconstitutional and unenforceable. Actual on the books anti-bds laws are much more limited, usually only banning government contractors from boycotting Israel, and even that much more limited stance may be unconstitutional (see a recent Texas anti-bds law that's currently enjoined by the district court due to it's infringement on a corporations first amendment rights!...https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-speech-rights-rules_partner/ https://www.salon.com/2022/02/02/anti-bds-law-in-texas-free-...) There are lots of unconstitutional laws on the books (miscegenation is illegal in a few states, technically), they just can't be enforced, but you aren't doing yourself favors by citing exaggerated, clearly unconstitutional versions of dubiously legal laws as a defense of this one.

BlueTemplar 4y ago

Yep, when Facebook first started moderating messages and/or selecting what users view with an algorithm more complicated than "what has been posted last", it was predicted that they were opening themselves to the "publishers are responsible for what they publish" legal attack. And here we are. These corporations want to have their cake and eat it too... At the time a lot of people have considered the very concept of platform as evil for this reason ("protocols not platforms"), but this was also related to issues coming from their use of closed source software, and more importantly : antitrust - the mere size of these corporation makes them at the very least "friendly elephant in a china shop" kind of evil, but the USA didn't want to shut down the GAFAMs considering the immense not so soft power their monopolies give them in the world. A less radical proposal was to have some allowed middle ground between common carrier and publisher : "displayer", but this would still need to come with severe restrictions to what these companies are currently enjoying in the current "lawless" void : again, restrictions on size, kind (think Wikipedia or archival), running as a for-profit, forced usage of interoperable protocols, use of open source software, have been suggested and even somewhat put into practice in recent EUropean laws (though it is suspected that due to the heavy lobbying that the GAFAMs have done, the end result is more that the current laws are helping them by making it harder for new competitors to emerge, while they are so big they can bear the regulatory brunt). (P.S.: It's kind of amusing to see Texas Republicans to be a shining beacon of liberalism...)

joshuamorton 4y ago
This is a non sequitur. It is legal to repeal section 230. It would be bad, but it is legal. But in either case, the law under discussion is unconstitutional. And it'd be doubly unconstitutional if you're claiming that the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause.
- leereeves 4y ago
  Every time you use the word "unconstitutional", it should be prefaced by "IMO". > the point of this law is to get around a federal law. States can't do that, that's the point of the supremacy clause. How many states have made marijuana legal despite federal law?