https://newrepublic.com/article/179...urce=flipboard&utm_content=user/JeffPauls2017 Sandeep Vaheesan, Tara Pincock February 25, 2024 The Red States Fighting the Good Fight Against Big Tech Conservative state governments have taken an antitrust battle to the Supreme Court’s doorstep—and you should root for them to win. On Monday, the Supreme Court will hear oral arguments in NetChoice v. Paxton and its companion case, Moody v. NetChoice. NetChoice is a trade association that represents internet platforms such as Facebook, Google, and Twitter—some of the biggest names in Silicon Valley. With a party like this, the case is bound to be pivotal for the many millions of users of digital services. Sure enough, while the debate at the center of the suit may seem abstruse at first, it could determine whether Big Tech platforms operate fairly for all who use them. NetChoice sued Texas and Florida to block state laws that were enacted to restrict social media networks’ ability to suspend or otherwise marginalize users. According to NetChoice, the laws violate these companies’ First Amendment rights and, therefore, should be struck down as unconstitutional. The Open Markets Institute, where we work, filed an amicus brief in support of the states. Those who are familiar with the organization may be surprised by our siding with two conservative state governments. We, however, believe that the underlying question of whether states and the federal government have the authority to regulate social media and other internet platforms as common carriers is critical. If the Supreme Court decides in favor of Big Tech platforms by ruling that they cannot be designated and managed as common carriers, it will take essential regulatory tools away from the government. Why is this such an important issue? At heart, common carriage requires certain entities to generally serve all paying customers on the same terms. While most people—well, at least those of us who are lawyers—probably think of railroads and telecommunications companies when they hear “common carrier,” the principle stretches back several hundred years to a time long before these industries even existed. Its origins, in fact, were comparatively humbler than its modern application: Courts in England and the United States historically placed special duties on certain businesses such as inns and ferries, hence a distinct body of law called “the common law of innkeepers and common carriers.” Notably, in many states, this meant that a hotel in the early nineteenth century could not deny service to customers based on race or ethnicity. And so the common carrier norm played a vital role in the modern world, informing multiple civil rights laws. The courts did not indiscriminately designate businesses as common carriers. Rather, common carriers had to possess one of two distinguishing features. First, some businesses, expressly or implicitly, held themselves out as open to everyone. That is why courts deemed inns, ferries, wharves, delivery services, and farriers as common carriers. Second, certain enterprises required special public permissions to operate. For instance, gas companies needed municipal franchises to use the streets to lay pipes for distributing fuel. Businesses that belonged to one of these two classes could be subject to common carrier duties. By contrast, a manufacturing business or a private boarding house would not be a common carrier. The courts applied the common carrier concept in a dynamic fashion. It was not fixed in amber in the distant past. Over time, courts and subsequently legislatures expanded common carriage obligations to cover new industries, such as railroads and electricity. Although the telegraph did not exist at the inception of common carriage, the Supreme Court of Vermont in 1889 described the lines of the Western Union Telegraph Company as “a common carrier of speech for hire.” The common carrier concept remains alive and well. The judicial reinterpretation of the First Amendment to protect corporate prerogatives has not led to the death of common carriage principles for communications networks. In upholding the Federal Communications Commission’s 2015 net neutrality order, a court of appeals wrote, “Common carriers have long been subject to nondiscrimination and equal access obligations akin to those imposed by the [FCC] rules without raising any First Amendment question.” The late Justice Sandra Day O’Connor, an appointee of President Ronald Reagan, stated, “If Congress may demand that telephone companies operate as common carriers, it can ask the same of cable companies.” Congress and the courts treated these networks not as expressive outlets themselves but as conduits to facilitate the speech of others. Social media platforms fit within notions of common carriage. They are open to all comers—a person only needs to provide their name and email address to start using their platforms and posting. The platforms do some curation; they promote select content and users and suppress others. But they are distinguishable from magazines and newspapers. The New Republic, for example, reserves full authority to run the stories and commentaries it chooses and makes clear its editorial and news pages are not open to the public. Twitter and YouTube do not do that. How would common carriage apply to social media and other tech platforms? A good system would restrict the ability of Twitter, YouTube, and Facebook to suspend users without cause. As a general matter, they couldn’t ban users for expressing views they find distasteful—whether conservative, centrist, or progressive. NetChoice and the social media companies they represent want us to believe that common carriage would lead to an explosion of racist, misogynistic, and other bigoted content. But well-designed common carrier rules would merely establish a presumptive right to post content. Such rules wouldn’t lead to a free-for-all in which social media becomes—or persists as—a sewer of violent and libelous speech. Just as common carrier doctrine permitted railroads to deny service to belligerent passengers, a good system of federal or state regulation should allow social media platforms to suspend users for threatening or defaming others, using racial and other slurs, posting pornography, or employing the networks to conduct illegal activity. Under this system, the elite and powerful few who answer to no one (cough, Elon Musk) would no longer solely decide what constitutes reasonable speech and what runs afoul of social norms. Moreover, the common carriage approach isn’t a recipe for more hate speech: This problem is a function of these platforms’ basic business model—surveillance advertising. In the 1990s, people could express white supremacist views on bulletin boards, but their posts wouldn’t be amplified and disseminated widely the way they often are today. But today’s social media companies profit from keeping people online as much as possible, both to sell more ads and to track users—the better to develop more fine-grain profiles of our wants, needs, and fears. That means incendiary content, whether conspiracy theories about the Rohingya in Myanmar, the 2020 presidential election in the United States, or undocumented immigrants, sells. It keeps people highly engaged and very online. Indeed, a casual examination of recent history indicates that social media companies, at present, are not responsible stewards, but are instead leading purveyors of hate speech. In addition to social media, common carriage principles could be applied to other tech companies that hold themselves out as open to the public. For example, lawmakers could designate cloud computing companies, such as Amazon Web Services, as common carriers. These businesses provide an important service that is purportedly available to all paying customers and should be operated on a nondiscriminatory basis. Likewise, Google Search could also be regulated as a common carrier: at present, Ohio is seeking to do just that. In Ohio v. Google, the state attorney general is asking a court to declare Google a common carrier under state law. Other states could adopt its model and seek to have Google declared as a common carrier as well. What does common carriage look like if applied to Google Search? At the outset, we acknowledge some discrimination is unavoidable in online search because results that coughed up disorganized information would be useless. To be helpful, Google must determine which 10 links show up on the first page of search results and which links will be pushed to lower pages. But a system of common carriage would limit the grounds for discrimination, much like a hotel cannot deny service to a paying guest based on their race or ethnicity but can do so if they arrive late after all rooms are occupied or threaten staff. Google would be prevented from elevating its own affiliates or contractually favored partners in organic search results. In 2017, the European Commission ruled that Google abused its dominant position and fined the company 2.42 billion euros for elevating its own comparison shopping service over those offered by independent rivals. Common carriage would prevent Google from engaging in similar conduct in the future. Preserving the authority of the states and federal government to enact common carrier rules on social media and other tech platforms is vital. The two of us have no affinity for the current governments of Texas and Florida and are skeptical of the laws being challenged in the NetChoice cases. But that does not blind us to the stakes. The ordinary fix for bad laws is legislative amendment or repeal, not asking the Supreme Court to play super-legislature. Stripping government of the authority to enact common carrier rules for digital platforms would further aggrandize judicial and oligarchic power in our country.
if Paxton filed it, expect it to be bullshit. This lawsuit flies in the face of your opinion on Elon buying twitter for instance. It would allow users to post all kinds of spam, hate content, trolling, doxxing, obscene stuff, etc...
There is a huge international fascist censorship industry, that demands technology operate as gov't. enforcer. Supreme Court has a lot to answer for, expect a lame half measure. Twitter X is mostly boring, kittens and such.
You misunderstand my stance. I've said it before when discussing cryptos, unions or freedom of speech: I will side with empowering government and the legal system over other power players in most instances. The only thing I want to strip government of is running businesses that could otherwise be privatized. The reason is simple, government is elected by the people and democracy coupled with economic liberalism generally works better than dictatorship coupled with economic controls, if a key measure of "working" is population immi-emmigration. In this particular case, I agree with the article that big tech should not be the judge of what is or not acceptable to print. It's bad for big tech for they now have to police their content; a nightmare. State and federal governments have to man up and precisely define the rules of what is or isn't acceptable at their respective levels and big tech should be able to operate within the rules without legal repercussions. It is We, the People who get to choose which government we want and the door to immi-emmigration is open to those who can't ever expect their vision of State government to fit their standard.
Sorry but that's a whole lot of nonsense. The 1st amendment already establishes what can be said and we got a ton of precedent cases to back that up. Put simply, the government is already empowered. Social media has an army of lawyers that know full well what is and isn't unconstitutional so now it's up to them to set the censorship guidelines that makes them the most money. That Paxton is butthurt Texas neo-nazis are being censored online or is chasing made up boogie men for political brownie points w/the constituency is a whole 'nother thing. If they don't like it, they can start their own google, or in Musk's case, buy their own twitter. This is nothing more than asking the gov. to dictate industry to fall in line and allocate resources against their bottom line & subsidize content that's unpalatable, a system commonly known as fascism. https://www.aclu.org/press-releases...regulate-editorial-discretion-on-social-media What you are asking is a complete contradiction of what you had advocated before: https://pen.org/press-release/in-am...ntent-moderation-online-are-unconstitutional/ https://www.c-span.org/classroom/document/?21473
It's not. Because I expect far more from the government than the first amendment. Look at Europe! If tomorrow the government decides that speech is protected as long as the person takes responsibility for what they say and requires real name, address, etc. to be verified and held by the big techs, you'd have far less nonsense online. Would it eliminate it? Not because some don't care if they're branded neo nazis, but they'd have to be real careful not to break laws on incitement and threats or risk fine and/or prison. America hides behind a Constitution that isn't adapted to modern times, from ridiculous voting rules to guns laws and many others. Yet, America is the most legalistic country in the world, where anyone sues for anything. You'd think progress would be made to review and revise the Constitution. Heck, the French are on their 5th...
no thanks: https://www.politico.eu/article/france-gerald-darmanin-aims-to-ban-all-pro-palestine-protests/ https://www.theguardian.com/comment...speakers-cancelled-whether-left-or-right-gaza https://www.i24news.tv/en/news/inte...m-the-river-to-the-sea-palestine-will-be-free https://www.euronews.com/culture/20...-government-of-choking-pro-palestinian-speech
The Israeli/Palestinian conflict is a particularly salient subject that shakes public opinions and governments to the core. As far as I'm concerned, all should be able to express their views as long as it doesn't threaten others. The public square is a good option to channel, provided discourse remains civil. Elon Musk'X isn't public, it's a private enterprise with libertarian undertones. I'd prefer to have a public (government funded) platform on which anyone can express their point of view, within guidelines. The problem is when groups become radicalized on the right and the left and start threatening others. We all need outlets to voice our thoughts. A public square is a way, joining or creating a political party is another. I'm a strong proponent of multi party systems, which provide outlets for people with common ideas to promote them as a unified group. The dramatic implosion of the Republican party and the strong growth of independent voters is proof that Americans want more than a dual system. Let's have a Nationalist party were MAGA can congregate and not embarrass centrist Republicans.. Let's have a Socialist party, a Green party, whatever. Again, look at other modern democracies for systems that are far more dynamic at channeling political choices. And let's always keep in mind that if a government fails to satisfy its population, the ballot box is the opportunity to legally overthrow it.
I can agree w/a government funded social media but that's a different conversation than this lawsuit alleges. Unfortunately, if we're to respect the 1st, said gov SM would end up looking like parler/truth/etc... w/all the sieg heil shit.