The Political Form of the Social Media Regulation Debate

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Another excerpt from my Social media as common carriers? article (see also this thread):

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These days, calls to treat social media platforms as common carriers come mostly from the right, likely because these platforms are perceived (rightly or wrongly) to be run by progressives who are particularly susceptible to censoring voices. conservative. But the link with the argument in the United Citizens dissent may help explain why some leading left-wing academics, like Erwin Chemerinsky,[41] Michael Dorf,[42] Genevieve Lakier,[43] and Nelson Tebbe,[44] have proposed similar regulations.[45]

Some left-leaning advocacy groups have also accused the platforms of unduly restricting their speech.[46] And of course, even many conservatives, although generally more skeptical of government regulation of private actors, have long been open to some regulation, particularly where private companies have been viewed as or close to monopolies. .[47]

Diehard libertarians, who oppose virtually any government regulation of private business transactions, will likely oppose common carrier status for platforms (and perhaps the common carrier concept as a whole).[48] And of course, many liberals, moderates and conservatives can conclude that while such common carrier rules are not theoretically impermissible, they are likely to be unsound in practice. But what I mean here is simply that concerns about the power of the platform are not exclusively about one or the other side of the ideological divide.

[41] Prasad Krishnamurthy & Erwin Chemerinsky, How Congress Can Stop Big Tech From Becoming the Speech Police, Hill (February 18, 2021), https:‌//‌perma.cc/‌645W-LMLP.

[42] Michael C. Dorf, could Is Clarence Thomas right on Twitter?, Verdict (April 14, 2021), https:‌//‌perma.cc/‌D7AB-8Z4M.

[43] Genevieve Lakier and Nelson Tebbe, After the “Great Deplatforming”: Reconsidering the Form of the First Amendment, Law & Political Economy [LPE] Draft (March 1, 2021), https:‌//‌perma.cc/‌56F3-KMBE.

[44] Identifier.

[45] Rebecca Tushnet had also long expressed concerns about the excessive power of intermediaries. Rebecca Touchnet, Power Without Accountability: Intermediaries and the First Amendment, 76 Geo. Wash. L.Rev. 986, 1010, 1015 (2008).

[46] See, for example, Natacha Lennard, Facebook’s ban on far-left pages is an extension of Trump’s propaganda, Intercept (August 20, 2020), https:‌//‌perma.cc/‌Z2JC-YEEB (arguing that Facebook banned a wide variety of[] and antifascist[]”groups); André Damon, Facebook purges left-wing pages and individuals, int. Com. of the Fourth International [World Socialist Web Site] (January 23, 2021), https:‌//‌perma.cc/‌7EX8-ADUY.

[47] See, for example, Ryan Cooper, Even Republicans are fed up with monopolies. here’s why, The Week (April 1, 2016), https:‌//‌perma.cc/‌Z876-N337. Similarly, some arguments in favor of the right of marriage providers to refuse to service same-sex marriages under religious liberty protections or under the doctrine of coerced speech – generally considered a conservative position – have recognized that these exemptions could be refused if there are too few other alternatives to the services of these companies. See, for example, Douglas Laycock, Epilogue, in Same-Sex Marriage and Religious Liberty: Emerging Conflicts 200–01 (2008) (“Religious dissidents can live out their own values, but not if they occupy choke points that allow them to prevent couples of the same gender to live their own values. If dissidents want complete moral autonomy on this issue, they must refrain from occupying such a choke point.”); Robin Fretwell Wilson, The Calculation of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Religion-State Conflicts, 53 BCL REV. 1417, 1485 (2012) (“A commercial objector may object only if ‘substantial hardship’ would not result.”); Executive Summary of Statement by William Bassett et al., Hearing before the Hawaii Senate Committee on the Judiciary and Labor 9-10 (October 28, 2013), https://perma.cc/LW3R-XT4M; Stephanie H. Barclay and Mark L. Rienzi, Constitutional anomalies or disputes as applied? A defense of religious exemptions, 59 BCL Rev. 1595, 1629–30 (2018); see Attorney Gen. v. DeSilets, 636 NE2d 233, 242–43 (Mass. 1994) (concluding that whether landlords should obtain religious exemption from housing discrimination prohibitions against unmarried couples should determine whether policies of rental accommodation for persons such as the defendants can be housed, at least in [particular geographical] area, without significantly impeding the availability of rental accommodation for people who cohabit”, and in particular on the question of whether “a significant percentage of [housing] accommodation is not available for cohabitants”); see also John Inazu, Liberty’s Refuge: The Forgotten Freedom of Assembly 172 (2012) (calling for a similar “contextual factual analysis” with respect to the right to exclude from private clubs).

[48] See, for example, Katherine Mangu Ward, Don’t try to fix Big Tech with politics, Reason, July 2021, https:‌//‌perma.cc/‌8CQ7-2J6T (Mangu-Ward is the editor of Raison magazine, the most prominent libertarian publication in the United States); John Samples, Why the government shouldn’t regulate social media content moderation, Cato Institute (April 9, 2019), https://perma.cc/XKR4-8V6Z (Samples is Vice President of the Cato Institute, one of the largest libertarian think tanks in the United States).

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