Netchoice, Pruneyard, and the digital public square

The federal Fifth Circuit court has just released its ruling on Netchoice v. Paxton rejecting the argument that Texas’s new social media law violates the First Amendment. Basically, the law is a response to the way social media sites blocked and disabled people’s accounts over the last few years, often to the detriment of Trump supporters, Covid minimizers, and anti-vaxxers (i.e. things that are issues for many current right-wingers). From what I gather, the bill prohibits big tech sites from “censoring” their users, thus requiring the sites to carry content they don’t want.

This seems like a bad idea in so many ways. For one thing, the World Wide Web is, well, world wide. And although regulations by individual nations seem unavoidable — who’s to stop them? — we should definitely not allow smaller state-level governments to regulate what is essentially a national resource, because this is one area where the “laboratories of democracy” are a bad idea.

It’s confusing enough that industries such as automakers, gun manufacturers, and pesticide companies have to adjust their products on a state-by-state basis, but at least those products have to be explicitly transported into a state’s jurisdiction. It imposes an incredible burden on social media services to expect them to pay attention to the laws in each and every jurisdiction where someone might browse to their site.^[1]Yes, some online companies do have to adjust for state laws — banking and gambling sites come to mind — but those sites also involve real-world financial transactions, and implementing such systems is expensive, difficult, and error-prone. E.g. some people near state lines can’t use online gambling sites because the geolocation service can’t tell with certainty which state they’re in.

I’ll let Ilya Somin explain some of the other problems with the law:

HB 20 is blatantly unconstitutional because it compels speech, forbids the exercise of editorial discretion by social media firms, and is meant to target firms the Texas state government believes are hostile to “conservative” speech specifically.

The Fifth Circuit didn’t see it that way:

In urging such sweeping relief, the platforms offer a rather odd
inversion of the First Amendment. That Amendment, of course, protects
every person’s right to “the freedom of speech.” But the platforms argue
that buried somewhere in the person’s enumerated right to free speech lies a
corporation’s unenumerated right to muzzle speech.

Ilya Somin, writing about a slightly different issue, has a pretty good response:

Eugene Volokh asks “Whose rules should govern how Americans speak with other Americans?”…..

Th[e] answer is that each American should be able to decide for himself, with extremely rare exceptions. But each person should also be able to decide what kinds of speech are permitted on their property. And that applies to media corporations no less than individuals. Thus, I should be able to advocate virtually any viewpoint I want. But Fox News and the New York Times should be equally free to refuse to broadcast or publish my views.

Both the right to free expression and the right to refuse a platform to speech you disapprove of are vital elements of freedom of speech. If Fox were forced to broadcast left-wing views they object to and the Times had to give space to right-wing ones its editors would prefer to avoid, it would be an obvious violation of their rights. Moreover, in the long run, such policies would actually reduce the quantity and quality of expression overall, as people would be less likely to establish TV stations and newspapers in the first place, if the cost of doing so was being forced to give a platform to your adversaries’ views….

Thus, there should be a very strong presumption against forcing people to provide platforms for views they object to. Can proposals for common carrier regulation of social media overcome that objection? The answer should be a firm “no.”

I’m by no means an expert on constitutional law (or any kind of law), but that argument sounds basically correct. However, First Amendment Badass Marc Randazza (who is very much a legal expert), responded with a thoughtful Twitter thread (unwound, reflowed, and excerpted here) that makes an interesting point:

A long time ago, I worked for condo and homeowners associations in Florida. People wanted to protest. But, in this area where I worked, there was literally almost no public space. Everything was a strip mall or an HOA. Even the parks were HOA or mall properties. Working for the property owners, I was tasked with giving my opinion on how they could keep these (left leaning) protesters out of these areas. […]

I colored a map with where you could protest. It was sad… because there were a few slivers of “public space,” where nobody went, where your message was sure to be unheard, and where you would have zero effect. There was no real internet at the time. And the net effect was that dissent was privately prohibited. […]

Given his support of free speech, Randazza wasn’t thrilled about doing that work, and he found an interesting line of thought in Pruneyard v. Robins:

[The ruling] was based on the California free speech clause – but it recognized free speech as a positive right. […] It recognized that private property could consume the public square, and that the public square still needed to exist. That freedom of speech is that important — at least under the CA constitution […]

There are libertarian minded people who have a very principled objection to Pruneyard — which (very simplified) comes down to “this is my property, and you can fuck off if I don’t want you saying certain things here.” And there is an allure to that — when someone makes the unprincipled argument that “if you have to be allowed in our corporation’s shopping mall, the next thing you know, the government will mandate that people can barge into your house and protest in your bathroom.”

But Pruneyard provides no support for that. It recognizes that if private companies make a public square, that there is a positive right to free speech — not just a negative restriction on the government. That you can’t get rid of dissent by selling off all the land.

This dovetails with some concerns I’ve had with the traditional libertarian distinction between public (i.e. government) property and privately owned property when it comes to our rights.

If a government of, say, Oakbrook, Illinois allows people to hand out fliers in a public park, it might be able to limit the “time, place, and manner” they are handed out — e.g. no blocking the sidewalk, must be within 20 feet of a garbage can to discourage littering, keep away from the memorial fountain, etc. — but Oakbrook cannot limit the distribution of fliers based on their viewpoint or the ideas expressed within. ^[2]There are narrow exceptions such as fraud, true threats, and incitement to imminent violence, but they don’t affect my argument.

On the other hand, if the Oakbrook Center shopping mall allows people to hand out fliers in the open areas of the mall, not only can mall management limit the time, place, and manner in which they are handed out, they can also prohibit the distribution of fliers based on their content. So they would be free to allow charities to hand out fundraising materials but prohibit political advocacy groups from doing the same. They could allow gun control organizations to hand out fliers, but not gun clubs. Or allow local college theater groups to distribute ads for performances of You’re a Good Man, Charlie Brown but not for Cabaret, Twelfth Night, or Mrs. Warren’s Profession. It’s their property, and they get to decide what kind of environment they provide for their visitors.

My concern is that these lines can get blurry. What would happen if the Village of Oakbrook transferred ownership of all its parks, plazas, and playgrounds to a private corporation? Let’s also include all the sidewalks and parking lots as well, and all of the facilities needed to operate and maintain these areas. ^[3]The deal could be structured as a purchase by the corporation, financed with a loan from the village, to be paid back out of the fees the village pays the corporation to operate and maintain these recreational area for the benefits of village residents. Let’s call this new entity the “Greater Oakbrook Collective,” a non-profit corporation whose board just happens to overlap with 75 percent of the village board and include officers of the largest companies in Oakbrook.

The GOC is a private corporation, so at first glance it makes legal sense that they should be allowed to discriminate against pamphleteers on the basis of viewpoint, just as the shopping center could. And yet…the GOC is pretty much operating like a government, controlling traditionally government controlled resources and offering a number of traditional government services. This raises the question of whether a government could slip past First Amendment restrictions simply by transferring parts of itself to a private entity? Or could new governments form companion corporations to circumvent the First Amendment for them?^[4]If that doesn’t sound enough like a government to you, let’s make it a restricted corporation where stock is granted to all land owners in Oakbrook and must be returned if they leave. Maybe also combine all land ownership under a cooperative ownership agreement, and pay the Collective out of assessments and fines. This makes it work much more like a tax-supported government system.

(Note that this kind of corporate arrangement is not purely fiction. There are already entities that work a lot like this, such as the aforementioned homeowners associations, as well as college campuses, amusement parks, and industrial parks, some of which even have their own police or fire departments.)

If I understand the holding in Pruneyard correctly, the California Supreme Court says that the people have a right to free speech, and that right doesn’t automatically go away just because they are on private property, at least not when that private property serves as a public gathering place.^[5]Thus it doesn’t apply in your house, in a church, or in businesses that are not normally wide open to the public. Even then, the right to free speech on private property is not absolute and can be limited when it conflicts with the public use of the space. Unfortunately for the Pruneyard Shopping Center, its lawyers couldn’t explain to the court’s satisfaction how unrestricted speech conflicts with the primary purpose of a shopping mall.

Randazza explains how this could apply to social media sites:

[…] you can draw a line — that you can’t compel speech, but you can require access to the town square.

In Miami Herald v. Tornillo, the court said you can’t force the Herald to give you a space to reply to criticism. But, that was in part because there are only so many pages in a newspaper. If you have to give a page to a replier, what are you going to have to omit? And your church bulletin board can’t be told that it has to allow a flyer for SATANIC ANAL FUCKFEST 2022! Because 1) it could be seen as endorsing it, and 2) how big is that bulletin board?

Massive platforms, which have loved their argument of “it’s not our speech” fostered freedom of expression on glorious level up until 2016. But then they flexed. They decided that they would be the HOA + shopping complexes of my old Florida days.

I don’t think that’s really an accurate picture of what happened, because the big social media platforms have always filtered what people could post on their sites. We just didn’t pay much attention, because it was stuff we mostly didn’t want anyway — animal snuff films, explicit pornography, how-to videos for crimes, threats of violence, explicit racism, and so on. It’s only now that they are filtering more controversial messages about the 2020 Presidential election, transgender issues, and Hunter Biden’s laptop that a lot of people began to take interest in how social media sites were filtering content.

And it is not persuasive to me, but it is a principled argument that forcing them to allow free speech could violate the first amendment. Which is bizarre… because we all think of the First Amendment as a the guardian of freedom of speech. And we are now discovering that it could be employed to provide freedom to censor as well.

The argument is that the big social media platforms have free speech too and in addition to the right to say what they want, it also includes the right to refuse to say things you don’t want to say.

But, that’s a common law development. And the common law changes. I personally think that the common law should guide the First Amendment to be protective of the marketplace of ideas, of robust freedom of expression but I also see no need to overturn Tornillo nor any other existing Supreme Court case for Netchoice to become the law of the land.

Whether or not I buy the argument in Pruneyard, I’m not convinced it’s relevant to social media sites. I think there are important distinctions between the shopping malls and social media sites.

For one thing, shopping malls can crowd out the public square. The Oakbrook Center mall takes up a big chunk of Oakbrook which could have been put to public use. And Randazza’s home owners’ association took over all the places where one might normally expect a public space. As he says, Pruneyard recognized that “private property could consume the public square.”

But social media websites don’t consume public space. Both the Village of Oakbrook and the Oakbrook Center mall have websites, and neither one limits the size of the other.^[6]Technically, web servers are a scarce economic good, in that any web server dedicated to one purpose cannot be used for another, but it’s far easier to build more web servers than it is to make the planet have more land. Nor do the websites infringe on public land.

Furthermore, if a public square is lost, you might have to travel for miles to reach another one, but you can reach any website in the world in a fraction of a second. So if you don’t like Facebook or Twitter, you can try YouTube or WhatsApp or Instagram or WeChat or TikTok or Telegram or Snapchat or Backpage or Pinterest or Reddit or Quora or LinkedIn.

If you don’t like any of those, you can always build your own. Any organization with a few million dollars can probably build a starter bespoke social media site from scratch.^[7]Scaling it up to hundreds of millions of users will cost more. But if that’s too expensive, for prices starting at $6/month you can set up your own Twitter-like community running Mastodon on a cloud server. Or you can just download the Mastodon source code and run it any way you want on your own server. Or if you limit group membership, you can use a collaboration suite, such as Teams, Slack, ZoHo, Discord, or dozens of others.

Furthermore, I think that having multiple communities with different viewpoints will lead to much more vigorous and useful debate than than trying to force every community to carry the same bland balance of viewpoints in the name of some vague concept of fairness.

All of this discussion may be moot anyway, because I’m pretty sure the big social media sites like Facebook will, in the end, have no trouble skirting laws like this with a simple two-step process: First, convert all suspended accounts into unpublished accounts — accounts where people can still login and post stuff, but other users are blocked from seeing them. Second, give every user a big switch — a setting that turns off filtration of their feed, allowing them to see all content, blocked or not. This turns Facebook’s content censorship into an optional curation service, thus complying with the requirement to carry all content.

Of course, unfiltered Facebook would be vile and unusable. Yes, you’d get those alternative viewpoints you wanted, but you’d also get everything else that Facebook removes: Robo-posted spam, pornography, blatant racism, animal torture, Nigerian scams, suicide videos, Isis beheadings, dead people in car accidents… It would be ugly, but it would certainly be uncensored and compliant with the law.

Actually, I’ve long wanted to see social media sites take a route similar to that, but I wanted them to go a step farther and allow users to select third-party curators other than the site itself. The MAGA community could use a MAGA curator, who lets in all the Covid and Q conspiracies but keeps out wokism and CRT. The leftists could have curator that lets in global warming, union organizers, and loan forgiveness advocates but keeps out all the MAGA stuff. Transgender people could get a curator that filters out the trans-haters, climate deniers could filter out global warming content, and libertarians could filter out the other libertarians who are wrong. You could even have combination rules that say things like “filter everyone from this curator, unless this other curator whitelists it.”

I used to naively assume that this was the perfect solution since it meant nobody would have to see anything they didn’t want to see. Think modern culture is deteriorating into crass trash? Have the American Family Association filter your feed. Think old white cis-hetero males are the problem? Find a feed that curates trans-lesbians of color. You are the master of what you see.

I now realize there are some people who want social media to filter content not so much because they don’t want to see it, but because they don’t want anyone else to see it either. They don’t want MAGA fans to communicate with other MAGA fans. They don’t want transgender people to communicate with other transgender people. They want to control the ideas that spread around in the world, no matter who else wants to hear them.

This seems like a more complicated problem to solve, but as it turns out, I have identified a solution: The censorious asshats can mind their own business.