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Reblogged:"Public Utility" vs. Speech and Property

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An article about social media laws being scrutinized by the Supreme Court summarizes the stakes as follows:
The owner of this auditorium does not "censor" when he decides who can or can't lecture there. (Image by Dom Fou, via Unsplash, license.)
The justices will have to decide between radically different conceptions of what social media is. Are these platforms more like old-time phone companies: basically, open to everyone without filtering?

Or, are they more like bookstores and newspapers, places that edit and curate information, that get the highest level of First Amendment protection?
Or, as conservatives of the ilk who once whined about "fairness" in search results, are social media companies "public utilities" and, as such, subject to longstanding (but illegitimate) regulations?

It is a shame that we have this longstanding abuse of government power on the books, because it muddies what should be a clear-cut case of the states of Florida and Texas violating the property rights of Facebook et al. by attempting to overrule their moderation policies.

(That this was done possibly in reaction to federal government jawboning does not justify the states doing it or exempt the federal government from being barred from dictating content moderation policies.)

The fact that a company grows large enough that it is commonplace for people to rely on it does not make its owners rightless or duty-bound at any point.

It is a travesty to see government regulation of "public utilities" go unquestioned while the right to free speech is under trial -- by people at least some of whom understand what that is even less than they do property rights -- as witness the assertions that social media companies are "censoring" content.

Censorship is an abuse possible only to governments.

-- CAV

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When the decision is made, we can read it and decide what the case is really “about”, sans baseless declarations by various idealogues. The real potential question is whether the government should give a special status to internet providers of some ilk, or should the government treat such entities like they treat anyone else. The extant contradiction is that the federal government has granted a special legal status to internet providers (like Facebook, also web hosts) to the effect that they are declared to not be publishers. Why does that matter? Because a publisher can be held liable for the content that it publishes, just as I could be held liable if I make a false claim about Smith being a rapist. Crucial to the law distinguishing internet service providers from ordinary publishers is that an ISP does not exercise control over content. Well, we know that Facebook and so on do exercise such control over content. Therefore: Facebook is a publisher, they should be liable for the content that they publish.

There are numerous issues potentially “at stake” in this case. One is the question of whether a platform should be liable for what it publishes, like any other publisher. Another is whether the federal government has the exclusive right to make that determination (analogous to enforcement of immigration laws, the exclusive power of the federal government). Also at stake is the question of a government can promulgate regulations articulating the conditons under which a publisher may be immunized against liability. And of course, the idea of being a public utility underlies the law that allowed immunization of Facebook and ilk.

We can guess what some of the main findings will be in this case. The most sweeping and most-principled ruling would invalidate the law that social media does not bear liability for what it publishes, which would undercut the whole basis for these state laws. The runner-up and apparently most likely outcome would be framing “the question” as being about compelled speech and the First Amendment, thus leaving ISPs in a privileged position. Under standard NPR reasoning, you can have your cake and eat it too, what remains to be seen is how principled SCOTUS is willing to be.

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