Private Entities and Public Concern
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Aside from the purely legal questions already addressed in this programming series, how should we think about the practical and philosophical questions at stake? Many of us start with the presumption that the social media companies are private businesses and, therefore, may operate according to viewpoint norms as their owners see fit.
But the growing reliance on big tech platforms, combined with the behavior of such platforms in restricting the scope of permissible speech, has raised concerns across the political spectrum, including among those of generally libertarian policy preferences. And the new interest in considering a range of regulatory options is not breaking down along conventional left/right lines. How should we think about these larger philosophical questions?
- Ashley Keller, Partner, Keller Lenker LLC
- Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
- Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
- William Baude, Professor of Law, Aaron Director Research Scholar, University of Chicago Law School
- Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society’s practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Alida Kass: Welcome to The Federalist Society Showcase Discussion Series on free speech and social media. I’m Alida Kass, Vice President for Strategic Initiatives at The Federalist Society and Director of The Freedom of Thought Project, a new initiative to address emerging challenges to freedom of thought, conscience, and expression.
This afternoon, July 22, we will be discussing private entities and public concerns. How should we think about private platforms and the way they shape and affect the public discourse? This is the final event in our six-part series on free speech and social media. You can view the entire series on The Freedom of Thought Project page of our website.
As always, please note that all expressions of opinion are those of the experts on today’s call. After our experts give their opening remarks, we will turn to audience questions. If you have a question, please enter it in the Q and A feature at the bottom of your screen. And if you’re registered for CLE, don’t forget to complete the sign-in form for this program. The sign-in form is on the CLE page, and you can find the CLE link on the event page for today’s event.
With that, I’d like to introduce our moderator for today’s panel — actually been our moderator for this entire series, Judge Katsas. Judge Katsas was appointed to the D.C. Circuit in December 2017. After graduating from Harvard Law School, he served as a Law Clerk to Judge Edward Becker on the Third Circuit and to Justice Clarence Thomas on the Supreme Court. For 16 years he practiced at Jones Day, where he specialized in appellate and complex civil litigation. He has also served as Assistant Attorney General for the Civil Division of the Justice Department, as Acting Associate Attorney General, and as Deputy Counsel to the President.
Before joining the bench, Judge Katsas argued for more than 75 appeals, including 3 cases at the U.S. Supreme Court. I’m now going to turn this over to Judge Katsas to frame our discussion and introduce our panelists. Judge Katsas, thank you so much for being with us today and through this entire series. The floor is yours.
Hon. Gregory G. Katsas: Thank you. This is the last of six panels on free speech and social media. We’ve been focused on one particular aspect of social media, which is their practice of restricting access to platforms for speech by other private speakers whose speech the social media companies find offensive. Now, those who support these restrictions, or at least support the freedom of the platforms to engage in them, describe this as content moderation. A less charitable description might be censorship.
So we’ve looked at different possible theories for the government to restrict the content moderation or censorship acts by the platforms. We’ve talked about common carrier theories under either state law or the Communications Act. And we’ve talked about state and federal anti-trust law. We’ve also looked at possible protections for the content moderation or censorship practices of the platforms, mainly Section 230 of the Communications Decency Act and the First Amendment.
Today, we’re going to talk about the line between the public sphere and the private sphere, or may or may not be the same thing, but the line between the government — a government and non-government. This is, of course, a very fundamental distinction, at least in constitutional law, reflected in, among other things, the State Action Doctrine. Now, there’s a very traditional view of the line between public and private. It was held by old school ACLU-type liberals, and it’s probably held by many modern conservatives and libertarians under the FedSoc tent. And that traditional view is that private individuals are speakers, are consumers of liberty, the government are the censors and the threats to liberty.
And so a defining objective of our legal order should be to constraint the government and thereby preserve rights of individuals. You see this pretty prominently expressed in the Halleck case in the Supreme Court. This is a state action case written a couple of years ago by Justice Kavanaugh, joined by the four other conservative justices who were serving at the time. Holding of the case is that private cable companies aren’t state actors who are constrained by the First Amendment, even when they’re carrying out — carrying public access channels that they’re required to carry, and so they retain traditional editorial discretion that private individuals would have as to their own speech.
This is a very bipolar view in the case that the First Amendment restricts the government in order to protect private individuals. So Justice Kavanaugh says, among other things, “The bigger the government, the smaller the individual.” Or another choice line, he says that the state action doctrine enforces a critical boundary between the government and the individual and thereby protects a robust sphere of individual liberty. Now, the traditional view is under stress in the social media context because the platforms are doing things normally done by the government. They are the censors in this story, and they are doing it with a degree of power normally associated with the government.
Market control of the Facebooks and Twitters and Googles — I don’t need to say a lot about that. Now, contrast that traditional view with an interesting recent case in the Second Circuit which involved the question whether President Trump’s Twitter account was a public forum for First Amendment purposes. Now, roughly speaking, a public forum is a space controlled by the government that the government opens up for speech by others. So all right, who controlled President Trump’s Twitter account? Well, the Second Circuit held that — might not be surprising at first glance — President Trump controlled President Trump’s Twitter account.
He let speakers in. He spoke to them as he wished through that channel. But as it turns out, President Trump didn’t really control the Twitter account. One private company, Twitter, managed to prevent the President of the United States, the single most powerful government official in the world, from instantaneously communicating with something on the order of 85 million listeners who wanted to hear what he had to say. So what should we make of that?
Is that an exercise of individual liberty by the platform, which is a private party and which has and should have the same First Amendment rights to curate and make editorial judgments that you would think a newspaper or a book store or a parade organizer has? Or should we think of that as an act of suppression that, even though done by a formally private party, it’s done by a company that actually wields more power than the government, than even the president, with regard to access to what may be an essential facility for speech in the modern world? We’ve got a great panel to address these public-private issues. Let me introduce them to you briefly. Most of these folks probably need no introduction, but here I go anyway.
Randy Barnett is the Patrick Hotung Professor of Constitutional Law at the Georgetown University Law Center and the Director of the Georgetown Center for the Constitution. After graduating from Harvard Law School, he began his career as a prosecutor in Cook County, Illinois. He’s written 11 books and more than 100 articles or reviews, and he’s won both the Bradley Prize and a Guggenheim Fellowship. In the Supreme Court, he argued Gonzales v. Raich and was actively involved in the constitutional challenge to the Affordable Care Act in NFIB v. Sebelius.
Genevieve Lakier is an Assistant Professor of Law and the Herbert and Marjorie Fried Teaching Scholar at the University of Chicago Law School. Her research explores the connections between culture and law, including the First Amendment. She has a JD from NYU Law School and an MA and Ph.D. in Anthropology from the University of Chicago. She clerked for Judge Leonard Sand in the southern district of New York and for Judge Martha Daughtrey on the Sixth Circuit. She has also served as an academy scholar at the Weathersfield Center at Harvard.
William Baude is a Professor of Law at the University of Chicago Law School, where he teaches federal courts and constitutional law. He co-edits a textbook on conlaw, and his current interests include constitutional liquidation. He’s an affiliated scholar at the Center for the Study of Constitutional Originalism and a member of the American Law Institute. After graduating from Yale Law School, he clerked for Judge Michael McConnell on the Tenth Circuit and for Chief Justice John Roberts on the Supreme Court.
Ashley Keller is a Partner at Keller Lenker, where he handles complex anti-trust, securities, patent, contract, and mass tort cases. He previously worked as a hedge fund analyst, and he co-founded the litigation finance firm Gerchen Keller Capital which became the world’s largest private investment manager focused on legal and regulatory risk. He graduated from the University of Chicago Law School and Business School. And he served as a Law Clerk for Judge Richard Posner on the Seventh Circuit and Justice Anthony Kennedy on the Supreme Court. Randy, you’re up.
Randy E. Barnett: Thank you, Judge Katsas. When I agreed to speak on this panel, I expected that the panel was going to fall in the middle of my summer research, which was going to be about the subjects that have been raised by the series of programs for The Federalist Society. But unfortunately, a series of events have intervened, and my summer research has not yet begun. So instead, these are essentially simply my opening very tentative thoughts. This is how I start a project, with a basic notion, and then I see how it works and if I can make it work. So I am not to that stage yet, but this is where I’m going to start.
Until the 1950s, when African Americans traveled in the south, they were so restricted in the hotels and restaurants that would serve them that they bought The Green Book. Produced by Victor Hugo Green, The Green Book was a guide to hotels and other services who would cater to African Americans. This was, at best, an imperfect private solution to a serious public problem. Through a combination of state laws, private prejudice, and private violence, combined with a lack of government projection, a vital national privilege of African American citizens was abridged. It was their right to travel.
Tragically, this abridgment had been made possible by decisions of the Supreme Court of the United States. The Privileges or Immunities Clause of the Fourteenth Amendment reads, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In 1875, Republicans in Congress used their power under Section 5 of the amendment to protect those fundamental privileges or immunities of national citizenship.
The Civil Rights Act of 1875 barred just this type of discrimination in publically and privately owned places of public accommodation. However, in the slaughterhouse cases, the civil rights cases, and in Plessy v. Ferguson, the Supreme Court gutted this clause, all but redacting it from the Constitution. In its absence came 90 years of white supremacist laws and practices. Brown v. Board of Education was an opening salvo against the regime of white supremacist’s racial segregation. But this ugly chapter in our history was only brought to a legal conclusion with the Civil Rights Act of 1964, which once again barred discrimination in places of public accommodations.
It was this law and the subsequent regime of federal enforcement that finally broke the back of Jim Crow, unlike the republicans in 1875. Because of these wrong-headed Supreme Court precedents, the Court upheld this time the 1964 Act, but this time it was based on Congress’s commerce power rather than on a Section 5 power, as I think it should have been. The Civil Rights Act of 1964 was passed with a higher percentage of republican support in both the Senate and the House than democrat. Without that republican support, the Act would have died.
Yet some Republicans, most prominently Senator Barry Goldwater, objected to the constitutionality of the bill because it barred discrimination by private businesses as well as by the government. Republicans have been tarred by this association ever since, and conservatives have been uneasy about barring discrimination by private parties. In 1875, of course, it was Democrats, not Republicans, who raised this objection. Understanding why Republicans then thought such a measure was constitutional is useful today.
In our forthcoming book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, Evan Bernick and I explain the concept of republican citizenship embodied in Section 1 of the Fourteenth Amendment. To understand the privileges of republican citizenship, we must distinguish between the two binaries — or between two binaries, which Judge Katsas eluded to in his opening remarks. There is the public-private binary, and then there is the government-non-government binary.
It is commonly assumed by almost everyone, but especially by conservatives and libertarians, that these two binaries are identical. By this, I mean there exists just two categories: public governmental on the one hand and private non-governmental on the other. But once we distinguish them as two distinct binaries, we can see how the anti-slavery constitutionalism that was adopted and reshaped by the newly formed Republican party could see not just two but three categories. In between the categories of public governmental and private non-governmental is a category of public non-governmental.
Such a category can be located in the common law, in particular the common law governing inns and common carriers. After the Fourteenth Amendment, it went by the label businesses affected with a public interest. Such businesses could be subject to price controls, and they were subject to a nondiscrimination norm that a purely private non-governmental actor would not be. The boundaries of this middle category were not always easy to discern, and there are different ways to conceptualize it and to justify it. Sometimes these privately owned companies receive public charters, sometimes they exercise the power of eminent domain, sometimes they could be viewed as a monopoly, sometimes, while not individually a monopoly through a mixture of common prejudice reinforced by private violence, they would have the practical power of a single monopoly.
And that is what African Americans confronted when they traveled throughout the south before 1964. A phalanx of non-government providers refusing to provide them with the means by which they could travel within a whole swath of the United States. Now, many of these providers were motivated by bigotry, some were just obeying the law, and still, others were coerced by the threat of violence by private actors who were given free rein by local law enforcement officials. Whatever their motivations, this regime of public government, together with private non-governmental actors, was able to restrict the means by which African Americans could exercise their fundamental privilege to travel, which belonged to them as citizens of the United States.
Just as slavery needed to be ended by force of arms, it is not at all clear that such an interlocking regime of government and non-government power could have been ended without bringing to bear the force of the federal government. In describing this theory, I do not mean to be equating the current situation of political conservatives and other political dissenters with that of African Americans during Jim Crow. Still, the conceptual categories that explain why the Republicans believed that their 1875 bill was constitutional are useful today to appreciate the challenge posed today by privately owned social media platforms.
Let’s begin with the nature of the right that’s at issue. As we explain in our book, the privileges or immunities of citizens are the civil rights that every person received from the government in its positive law to secure the preexisting natural rights they enjoyed in a state of nature. In the words of the Declaration of Independence, it is to secure these rights that one leaves the state of nature to enter civil society. In return for their allegiance, government has a duty to every citizen to protect these fundamental rights. It is this duty that is reflected in the equal protection of the laws clause, which poses a duty on the government to afford protection equally amongst all persons in the United States. In sum, civil rights are the government guarantees of our natural rights along with any other rights that are necessary to protect these rights.
For example, in his speech to the House proposing amendments that eventually came to be what we call the Bill of Rights, James Madison offered the following description of the right of trial by jury. He said, “Trial by jury cannot be considered as a natural right but a right resulting from the social compact which regulates the actions of the community but is as essential to secure the liberty of the people as any one of the preexisting rights of nature.” The privileges of citizenship also extends beyond these guarantees to secure natural rights.
When governments choose to create additional benefits for its citizens, citizens have a right of access to those benefits on an equal footing with all other citizens. Put another way, no citizen can be denied access to these public goods except for a proper reason. The right to travel was considered in 1868 and is still considered today to be a privilege or immunity of national citizenship. Indeed, the only time the Supreme Court has used the — a majority of the Supreme Court has used the privileges or immunities clause since it was basically redacted by the slaughterhouse cases, was to protect the right of travel between the states. They did so in the 1999 case of Saenz v. Roe.
During Jim Crow, African Americans were discriminated against in the provision of common carriers like railroads. Then, when automobiles became affordable, they took to the road. While they were allowed access to public highways in wide swaths of the country, they were denied such essential services as fuel, food, and lodging. The upshot of this mixture of government and non-government action was a lack of access to the essential means of exercising their fundamental right to travel. Sure, African Americans were legally free to travel as long as they didn’t need fuel, food, or lodging. Having early on been barred by the Civil Rights Act of 1875, this discrimination was once again barred by the Civil Rights Act of 1964.
The freedom of speech is another well recognized privilege of U.S. citizenship that was protected by the privileges or immunities clause against state laws. The guarantee of freedom of speech in the First Amendment is a civil right of all American citizens that protects the very same natural right we possess against our fellow citizens. It is the first duty of government to protect this civil right from private invasion, not just from the public, not just from the government, which brings us to privately owned social media platforms.
Just as restaurants and hotels are public accommodations reached via government owned highways, social media platforms can be considered public accommodations that are accessed via the internet. Just as no one is compelled to open a restaurant or hotel, no one is compelled to create a public forum for the expression of speech. It is to their credit that privately owned companies like Facebook and Twitter have successfully created a communications platform that, because it is so user friendly, has come to be as essential a means of exercising the fundamental privileges of freedom of speech as privately owned restaurants and hotels are to the privilege of traveling.
By so doing, they have become public accommodations akin to restaurants and hotels. They are in the middle category I described earlier: non-governmental public institutions. And such institutions are typically regulated by the states. For example, the District of Columbia’s public accommodation laws makes it unlawful “to deny directly or indirectly any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodations wholly or partially for a discriminatory reason based on the actual or perceived political affiliation of any individual.” All it would take for a state to extend this nondiscrimination prohibition to social media platforms would be to include social media platforms that are open to the general public as a public accommodation and then add political viewpoint to the list of improper bases for exclusion.
Recognizing the right to express oneself on political issues as a privilege of national citizenship is easy. More challenging is defining social media platforms as places of public accommodations. For example, the Civil Rights Act of 1875 distinguished between public inns and private boarding houses, which were owner-occupied. The public inns were subject to the prohibition. Private boarding houses were not. Like boarding houses, truly private networks — like, for example, the Georgetown Listserv — are not places of public accommodations, but the universal nature of social media companies seems easy to place them into the public accommodations side of the line.
Now, these remarks only scratch the surface of the difficulties raised by regulating social media companies as though they are public accommodations. I have not reached any final conclusion on how best to do so or even whether to do so. But I do think we need to stop thinking in terms of the binaries of public, private — I’m sorry, of public government and private non-governmental. The anti-slavery constitutionalists and the Republicans who wrote the Fourteenth Amendment recognized the existence in civil society of three categories, not two, as does our current civil rights laws, and so too should libertarians and conservatives. Thanks.
Hon. Gregory G. Katsas: Thank you, Randy. Genevieve —
Genevieve Lakier: All right. Great. So thank you for having me. My remarks, actually, are going to add a supplement and maybe complicate Professor Barnett’s remarks in an interesting way. So I only have 12 minutes. I’m going to try and talk about the complexity of thinking about free speech in social media, in particular, requires us to keep in mind two countervailing concerns. I’m going to spend most of my time talking about the first, but I just want to flag the second.
Today I’m going to suggest that the problem of social media discrimination and bias — the concern by both those on the right and those on the left that there is perhaps rampant, perhaps idiosyncratic — we don’t know enough actually to know, but viewpoint and political discrimination on the social media platforms points to what are really deep problems in the contemporary First Amendment law. Problems that are particularly evident when it comes to the social media platforms, but I do not limit it to the problem of the social media platforms.
And so this is an incredibly exciting time, I have to say, to be a free speech scholar because reality is forcing us to think more deeply about existing doctrine. And also, I’ll just say, this panel is a really interesting example of how it is creating cross-partisan mix-ups. I think the views — I do not consider myself either a conservative or libertarian, and yet I was agreeing with so much of what Professor Barnett was saying, and somewhat surprising in these highly polarized times. So it’s a really interesting opportunity, I think, to think deeply about First Amendment law.
However, recognizing the problem of private censorship and indeed — and this is my view — recognizing that contemporary First Amendment law does not take seriously enough the problem of private censorship and the threat that private censorship poses to the vitality and the diversity of the marketplace of ideas. It does not mean that we should be — forget about the serious problem of government censorship and government control of the marketplace of ideas. And again, when we look at what’s happening in the social media space, and in particular what’s happening around the world in countries where there isn’t the First Amendment, what we are seeing is lots of different regimes ranging from the not so totalitarian Germany to the very totalitarian, say, China and Korea using the excuse of sort of protecting the vitality of the marketplace of ideas to enact very repressive social media laws.
And so, thinking about the proper way of going about the business of regulating social media platforms, I think, requires us to take seriously — and this is — I think this is just genuinely very difficult to do, both the problem of private censorship and the problem with government censorship, both public power and private power. So to focus on the first point, how does the current social media problem illuminate deep difficulties of a contemporary First Amendment law?
So I think, as Professor Barnett suggested, current First Amendment law is organized to a very significant extent around a rigid divide between state and private action that is layered on top of — and I think rather unselfconsciously layered on top of — a distinction between government as public and private. So under existing law, government or state actors possess no First Amendment rights, but they possess robust First Amendment duties, including in many contexts the duty to not discriminate against private persons based on the content of their speech, and even more affirmative duties like the duty to grant access to public property and protect speaking on public property against hostile crowds.
Private actors, in contrast, possess no First Amendment duties, only First Amendment rights, so it’s completely the inverse. As a result, they are not only not prohibited by the First Amendment from engaging in content discrimination. They are actively protected by the First Amendment against laws that would restrict their ability to discriminate against other speech by, for example, requiring them to grant access to their property, to speakers they don’t like, or by denying them the right to exclude from their organization, from their parade, those who express views contrary to their principles.
Now, the theory outlying this binary framework is a relatively simple one, namely that content discrimination is a bad thing when performed by the government because governmental discrimination, when it comes to speech, has the power to — as Justice Scalia put it in R.A.V. v. St. Paul — drive certain ideas over your points from the marketplace. That is to say, it’ll undermine the diversity and the vitality of the marketplace of ideas. But the view is that content discrimination, when it comes to private actors, is a good thing because it is this kind of discrimination that powers the marketplace of ideas.
As Fred Schauer, I think, put this best in a 1977 article — and I’m going to read this quote, and you’ll note that this quote explicitly distinguishes the race discrimination cases that Professor Barnett was talking about from the First Amendment cases. Schauer said, “Private choices based on the content of speech are not unlike racially discriminatory choices viewed by society as inherently evil, rather, individual decisions about speech preferring some ideas and information to others, placing one’s property at the service of some ideologies and not others, essential to the concept of a marketplace of ideas.”
Ideals of free public debate, and a marketplace of ideas, presume that there will be partisanship and preference for some ideas over others. And courts, in upholding the private right to select among sources of information and ideas, do no more than enforce the ground rules of public debate. They protect an element of First Amendment freedom as important as the right to speak. Schauer knew — and I think this is also the view that Justice Kavanaugh expressed in the Halleck opinion that Judge Katsas referenced — that the right of private persons to engage in discrimination when it comes to other private person’s speech is as important to the First Amendment freedom as the right to speak. And this is obviously correct, I think, to a certain extent.
It would be hard to imagine a vibrant marketplace of ideas in which private individuals were not allowed to make content discriminatory, even viewpoints from [inaudible 32:26] choices when it comes to the speech they consume or the ideas they express. So I wouldn’t want to live in a society in which if I read a jack of a magazine, I have to read the national review, or if I send out a Tweet in favor of Bernie, I have to send out a Tweet in favor of Trump. I mean, that would be — that’s not how the marketplace of ideas works.
But it is much less clear that the binary framework that Schauer defends makes as much sense when it comes to content discrimination that is related to control and access to property. That is to say, it’s much less obvious than Schauer here assumes that granting all private persons the right to decide for themselves not only which ideas they wish to use their body or their voice to promote, but which viewpoint or speakers they wish to allow to — on their property, whether that is always beneficial to the marketplace of ideas. And this is because property is a rivalrous and equally distributed good.
Some people own lots of property, other people own very little, and some people own property that happens to serve an important function — an incredibly important function in the marketplace of ideas. So they might own malls, which until a few decades ago were, in fact, important public gathering places. They might own cable television stations. They might own social media platforms. The unequal distribution of property rights means that construing the First Amendment to grant all private property owners the right to discriminate when it comes to access to their property means in effect granting some private persons much more power to dictate the terms and character of public debate than others.
And in a context where control over important expressive resources is very unequally distributed, the result is to vest private persons with power that looks very similar to the power that the government possesses and that the First Amendment is supposed to prevent the government from wielding. That is to say, it gives private property owners the ability to drive certain ideas or viewpoints from the marketplace. Now, this is not merely a theoretical concern, and it’s not only a concern that we have today. This becomes immediately apparent if we look at the history of the mass public sphere in the United States.
Since the mid-19th Century, most of the most important channels and forums of mass communication in this country have been owned or controlled by private corporations and often by very few and very powerful private corporations. So the social media companies are by no means the first private companies to play an important role in constructing the public sphere as we know it. And perhaps unsurprisingly, the powerful private corporations that have owned important channels or forums of mass communication since the mid-19th Century had often used that power to limit public debate for self-boosted reasons.
So in the 1870s and the 1880s, for example, the Western Union Telegraph Company successfully muzzled criticism of its operations by threatening newspapers that they had to print negative stories about it of being denied access to the really important telegraph wires that covered — transported news. In the 1930s, the National Associate of Broadcasters that represented the 500 largest commercial board classes in the country severely limited the ability to unions to propagate their views on air when they imposed a rule that blanket banned the ability to unions to purchase time on radio stations. And of course, today, there is intense concern on both the left and right about viewpoint discrimination on the social media platforms.
Now, the First Amendment cases have not been totally insensitive to these problems despite the general embrace by courts over this binary framework that, in theory, treats the most powerful private person equally to the least powerful private person. But they’ve always done so — they tended to do so by finding exceptions from the binary framework rather than by challenging the framework itself. So first, the Supreme Court has developed ad hoc justifications for allowing the government to impose more robust nondiscrimination obligations on certain powerful private media corporations.
And the most famous — or maybe I should say infamous — example of this is, of course, Red Lion v. FCC, in which the court held that radio broadcasters — private radio broadcasters could be required to offer a right of reply to politicians that criticized, and more generally, could be bound by the nondiscrimination duties that were a part of the fairness doctrine because the radio waves were a scarce public resource that no one had a right to control. Now, as a lot of people have argued in the years since Red Lion, and in fact, argued at the time of Red Lion — this was an argument that was very powerfully made during — before the Court.
The scarcity argument that the Court made, though, was very unconvincing because, by the 1960s, technological developments had proceeded such that the radio spectrum was not scarce. It could be divided up very finely. And indeed, at the time that Red Lion was being argued, there were more private radio stations in the United States than there were private newspapers. And yet, the Court used this scarcity justification as a way of explaining why it was going to allow Congress to treat the radio broadcasters more, as Professor Barnett suggested, as we might say public non-governmental actors than as private actors.
And this explains — this justification, which by the way the Court has continued to — has acknowledged in the years since it really doesn’t buy, has continued to be essentially the band-aid that the Court uses to provide some kind of justification for why, for example, in the Communications Act of 1934 radio broadcasters are not allowed to discriminate when it comes to the ability of political candidates to access the airwaves. So we know that the fairness doctrine is no longer part of the law. That continues to be the case that radio broadcasters and television broadcasters are subject to the kind of nondiscrimination duties that ordinarily the First Amendment does not allow a private person to be subject to.
So this is one way courts have responded. I think it’s a very unsatisfying response because, for one thing, it requires courts to buy into arguments that are, on their face, unpersuasive and, I think, incoherent. And also, it produces a body of First Amendment law that tends to be Balkanized. So the rules that apply to radio broadcasters are, from a constitutional perspective, completely different from the rules that apply to cable companies, even if we might think that in the next public sphere, they play pretty similar roles.
Now, the second way in which the First Amendment has responded to the profound problem that unequal property ownership poses to the binary framework is by denying that common carriers or other private property owners that typically do not exclude speakers from their property based on the content of their speech — by denying that these private persons possess any First Amendment rights at all. So this is how courts have justified the significant nondiscrimination obligations that common carrier laws at both the state and the federal level impose on telephone and telegraph companies, on postal and other mail carriers, and in many states on internet service providers as well.
This argument, though — this way of sort of carving out arenas of regulation which are not subject to the rigid nondiscrimination obligations that the First Amendment ordinarily applies, I think is also problematic. As Justice Kavanaugh argued very powerfully in a dissenting opinion in the D.C. Circuit Court of Appeals case involving a constitutional challenge to the net neutrality regulations, the D.C. Circuit Court of Appeals ultimately upheld the net neutrality regulations that the FCC enacted under President Obama as constitutional. Kavanaugh dissented because he said it doesn’t make any sense to hold that ISPs or other common carriers lose their First Amendment rights simply because they don’t use them.
The First Amendment is not a use it or lose it provision that provides rights that are there whether or not you exercise them or not. The mere fact that companies have not, in the past, exercised their right to viewpoint discrimination does not explain why we can bind them in the future to not being legally committed to exercise their right of viewpoint discrimination. And I think it’s perfectly correct. It’s not at all clear on the terms of the binary framework why common carriage laws should be any more constitutionally permissible than any other nondiscrimination laws.
So neither of these doctrinal responses to the problem that the binary First Amendment framework creates by immunizing the discriminatory choices of even really powerful private actors from regulatory control, and neither of these responses is very satisfying. I think this is illuminated or made quite unavoidable by the social media — the problem of social media companies. So when thinking about if we were to try and enact, as Professor Barnett suggests, public accommodations law for the social media platforms and we were thinking about whether or not such a law would be constitutional, I think the conclusion would be under — if we apply the law as we have it so far, no. And this is because, first, none of the ad hoc justifications that the Court has provided for why we can impose nondiscrimination obligations on some private media companies extend to the social media companies.
So there is no physical scarcity when it comes to cyberspace. That’s a whole amazing thing about cyberspace. It’s not physically scarce. It’s infinite. In a case called Turner Broadcasting, the Court came up with another ad hoc justification, I think, to explain why cable companies might be required to carry, in a nondiscriminatory fashion, the signals of television broadcasters. And in that case, it was because when you are a cable company, and you are actually providing the physical cable that consummates television into someone’s home, you have gatekeeping power of all other forms of television that they might be able to access and that, the Court thought, gives you a kind of power that enables or justifies the government being able to impose nondiscrimination duties.
But the social media platforms have no such power. The mere fact that Facebook is a really powerful, important forum doesn’t mean that Facebook has any ability to stop you from going to Twitter or stop you from going to TikTok or Parler or any of the other platforms. So none of the existing ad hoc justification that the courts have found apply to the social media companies — now, it’s possible. I think the search is on to come up with another ad hoc justification with the social media platforms so you can always come up with others.
But then what I think only adds to the incoherence and the kind of Balkanized character of current First Amendment law, and of course, the arguments that have been made to explain why common carrier companies can be required to not discriminate absolutely do not work in this context. Social media companies, unlike telephone and telegraph companies, unlike ISPs, routinely exclude speech from their platforms because of its content. They are pervasive content discriminators. Some media scholars have suggested that content discrimination is the primary function that they provide to their users.
You go to Facebook, or to Parler, or to TikTok because of the particular ways in which they organize, discriminate, and rank speech on the platforms. We may agree or disagree with that, but it is absolutely clear that there’s pervasive content discrimination, and so if we’re using the use it or lose it theory of the First Amendment — well, they use it. So they haven’t lost it. Does this mean that the First Amendment prevents the government from doing anything about private censorship, or should it mean that? I don’t think so. But it does mean that figuring out how to understand or how to think about the scope of possible regulation of the social media companies and how to reconcile it with the First Amendment pushes us to think, again, about the assumptions underlying the binary framework and the binary frame itself.
And to do so, I want to suggest we can turn to the cases that the Court decided before it embraced as enthusiastically as it did in the 1970s, the very rigid public-private divide that underpins contemporary law. And the case I want to suggest we look to is Marsh v. Alabama. Marsh is almost always misremembered today as a decision that held that private corporations can be considered to be state actors when they perform a traditional government function like running a town. That’s how we think about Marsh today.
But that is not what Marsh held. Neither the majority nor the dissent in Marsh ever suggested the possibility that a corporation — or the corporation involved in the case, which was the Gulf Shipbuilding Corporation — was a state actor. Gulf wasn’t even, in fact, a party to the case. It’s not present. It wasn’t one of the parties. All nine members of the Court instead agreed that the relevant state actors were the three Alabama state courts that either convicted or affirmed the trespass conviction of a Jehovah’s Witness who Gulf tried to kick out of the town it owned because it disliked her religious proselytizing but then refused to leave.
The Marsh majority reversed the trespass conviction because it concluded that allowing the corporation to use state property law to dictate what views could be expressed in the town’s public spaces denied the town’s residents of full opportunity to exercise their First Amendment rights. Marsh concluded, in other words, that a private corporation and a corporation that had recognized to be private, not a state actor, had a duty to respect the free speech interests of other private persons because of the role it played in the regulation of the public sphere.
And in doing so, it was drawing on a much longer line of public accommodations cases, so maybe — I mean, I think it’s interesting to think about Marsh as a — because one of the cases that in fact recognizes the existence of this category of public non-governmental — a third category. But Marsh itself is a — it’s resisting even a tripod type, not just a binary framework because — and I’m going to quote from Justice Black’s really wonderful opinion in Marsh. It’s a very rich opinion. Marsh is a —
Hon. Gregory G. Katsas: Okay. Can you do it quickly?
Genevieve Lakier: Oh, sorry. Am I running — okay. I’ll stop here. Rather than thinking that there are three categories or even four categories, Justice Black suggests that there should be a continuum of public duties and public rights. So Justice Black put it, “The more an owner for his advantage opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.” Whether a corporation or municipality owns or possesses the town, the public, in either case, has an identical interest in the functioning of the community in such a manner that the channel of communications remains free.
Now, people have been pointing to Marsh in recent years, I think, when thinking about the social media platforms for obvious reasons because the problem of private censorship and control of important sites of public privately owned sites of public expression that the Marsh Court dealt with is very similar to the problem we are faced with today when we’re thinking about social media platforms. I suppose I will end by just urging those who are intrigued or interested by this idea of the Marsh social media comparison to go back to the opinion in Marsh because it was — what Marsh is not saying is that we should treat the social media platforms identically to the way we think of the government.
They’re not state actors. And the interesting, and I think illuminating, insight of the Marsh opinion is that the rules that might apply to the social media platforms do not necessarily have to be, and in fact probably should not be, the same as the rules that apply to the government. But that does not mean that we should think that the public — that the private corporation in Marsh is identical in its rights and duties to the Jehovah’s Witness they kicked out of the town. And equally, I think that when we are thinking about the First Amendment rights and duties of the social media platforms, we should not presume that they’re identical to the rights and duties of those who use them. Okay. I’ll stop there.
Hon. Gregory G. Katsas: All right. Will, 12 minutes.
William Baude: Thank you. So I do have a lot of views about the First Amendment and Fourteenth Amendment legal questions that Professor Lakier and Professor Barnett have raised, which I hope we’ll have time to tackle a little bit in our back and forth. But when I came to thinking up this problem, I think there are some even bigger issues at stake than constitutional law, so I’m going to start by trying to tackle them from a little farther away.
In London in 1859, John Stuart Mill published one of the most important works of political thought in human history on liberty. The book is a treatise on freedom of thought and expression on the nature of liberty, on the nature of harm, and the proper relationship between the individual and the state. And it turns out that John Stuart Mill thought through and addressed some of the dilemmas we’re facing today. We think about the relationship between private entities and public concerns. We think about the relationship between freedom of thought and private property. We think about the basic question of to what extent can a private entity be seen as a threat to liberty and to what extent should the government regulate it on that basis.
So first on freedom of thought, Mill was a great champion of freedom of thought and freedom of speech for lots of reasons that have now become so deeply part of our basic free speech discourse that they sound phenomenal. We should tolerate freedom of speech because we’re not always sure who’s right and who’s wrong, or even if we’re sure that we’re right, we’re not sure that we’re going to be the ones in charge of writing the rules. And even when we’re mostly right, we benefited a lot from the marketplace of ideas and so on and so forth. But Mill also wrote, quite insightfully, about the threats to freedom of speech and freedom of thought that came from outside the government.
Indeed, he noted that in England itself, where he was writing, the greatest threats to free thought and free speech did not come from government prosecutions, even when there were laws criminalizing various kinds of speech on the books, in practice, they were not enforced a lot. They weren’t enforced against the kinds of the speech that really mattered. What really mattered, he said, were the various social norms and social sanctions that had emerged in the shadow of the law. And passage that’s been circulating a lot on the internet and the sort of cancel culture era he noted that what good does it do you not to be thrown in jail if you still lose your job whenever you express an unpopular opinion unless you happen to be independently wealthy.
He went on, “Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them or to abstain from any active effort for their defusion. Theoretical opinions do not gain or even lose ground in each decade or generation. They never blaze out far and wide but continue to smolder in the narrow circles of thinking and studious persons among whom they originate without ever lighting up the general affairs of mankind with either a true or a deceptive light. Thus has kept up a state of things, satisfactory to some, because, without the unpleasant process of finding or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed without having to formally interdict the freedom of thought.”
But he concludes, “But the price paid for this sort of intellectual pacification is the sacrifice of the entire moral courage of the human mind.” That seems to be basically right. In the world we have now, the major threats to freedom of speech and freedom of thought don’t come from prosecutions or civil sanctions. They come from a complex set of social sanctions by private actors. Some of them the choices of powerful individuals who run universities or tech platforms or corporations or what have you, a lot of them from the collective but private choices of various groups of people who lobby to cancel, suppress, deplatform, harass, or otherwise cause trouble to the people who they disagree with and don’t think should be a part of the conversation.
Mill recognized that’s a big problem that really is a threat to freedom. It’s not a mistake to view that as a threat to freedom of speech and to freedom of thought just because it’s not coming from the government and just because it doesn’t involve people being killed or locked up. That seems quite right to me. It’s a real problem. We’re thinking about freedom of thought and freedom of speech in the 21st Century. That’s the kind of freedom we have to think about. It does not follow from any of that that the government can or should regulate the entities that are causing these problems. Indeed, throughout — despite recognizing this problem early on in the freedom of thought and discussion, when Mill turned to the relationship between this side and individual, he repeatedly stresses the limits of the proper role of the government.
The government should still only regulate things according to the formal harm principle. There are certain kinds of harms to others that the government has a proper place in regulating and a lot of other very bad behavior of which this is a part is not something the government can or should regulate. Instead — this is where Mill doesn’t fully spell it out, but since they’re sort of thinking about — how can these both be true? How can we both recognize a grave problem — the threat to freedom of speech and freedom of thought from general intolerance today and the lack of a government solution.
It’s a little bit like the binary stuff that everybody was talking about. How can we have both those things at once? Well, it must be that we should turn to non-governmental solutions. It must be that we should think about each problem having different spheres of solutions. So I think the right way to think about the intolerance or bad behavior of private companies, private entities, etc., is to think about other kinds of private solutions to that. We need norms. We need better companies. We need competition. We need different platforms, different institutions. We need a whole range of other responses within that social realm to try to respond to the social problem, not just government regulation.
And I think there are some obvious norms we need to pursue. Individuals and institutions that are engaged in the marketplace of ideas, that are engaged in speech, should aim to promote truth. They should believe in freedom of thought. They should recognize the possibility of their own fallibility and the benefits that come from the exchange of ideas. All of us — and this is another great insight from later in Mill — should respond to those who are bad and wrong through the principle of natural consequences rather than the principles of pitchforks and torches.
That is — and I won’t — anymore Mill quotes given the time and attention spans, but when we encounter people who are bad, what do we do? We don’t associate with them. We don’t read them. We criticize them. But we should not, says Mill, go around trying to rile up everybody else to drive them out of town, to cut them off from the rest of their social circles, to try to sort of generate a mob of disapproval beyond the natural disapproval of disassociation, disagreement, and criticism that will come from their own bad ideas. That seems to me just about right.
So the right solution to people spreading terrible stuff on Twitter is to block them and not to follow them, not to yell at Twitter, and try to stop people who want to follow them want not to block them from doing so. In other words, I guess nowadays we’d call this a principle against secondary boycotts [inaudible 55:18] principle against boycotts, generally. I’m not sure we can approve of this analysis today. Certainly, nothing I’ve heard in the month I’ve been reading about the problems of freedom of thought in tech companies has convinced me that we can do better than this.
Now, of course, I’m not so naive as to think that if we just wish for better norms or better institutions, they will magically appear. It’s fine to say what we need are — if we have institutions that are not respecting freedom of speech, we need them to stop, or we need better institutions who will respect it, or we need to behave better. Obviously, knowing from normative ideas or normative arguments what we should do — to getting everybody to do it is a big problem and something we need to do through rational discussion, organizing, and institution building.
But I don’t think proponents of regulation should be too naive either. So when we look around at a wave of social intolerance or social movements, we disapprove of who are pressuring institutions to do things we think they’re bad. And then imagine that we can just appeal above them to some government that will magically, I guess, agree with us and not them about what the right kind of regulation should be. I think we can frequently over anticipate our own influence or over anticipate the way politics will just happen to line up with what we want.
I mean, just today I was reading stories about people pressuring social media companies, indeed, to behave differently, to recognize the profound power they exercise over freedom of thought, but the pressure was we need to do more to stop misinformation about various topics that the people in government don’t approve of or that certain elites don’t want us to talk about. It’s not clear to me that government regulation of social media is going to lead to more freedom of thought rather than even less. So it seems to me we ought to maintain that norm, that the private sphere is something that the government should not be trusted with, and not fall prey to the temptation for a quick fix, which will probably just make things even worse. Thank you.
Hon. Gregory G. Katsas: Thank you. Ashley —
Ashley Keller: Thanks, Judge Katsas. My apologies to everybody that I’m only with you by audio, although that will probably be softer on many of your eyes. Like Professor Baude, I want to focus more on the normative aspect of this question as opposed to the purely doctrinal or legal aspect. And I agree with a lot of what Will said, but in terms of the punchline, I fundamentally disagree. Big tech is a big problem. That’s my conclusion. And we should sound the alarm and do something about it.
That conclusion stems from an overarching commitment that I have to sort of lower case R republican values that animate the First Amendment. We’ve heard a lot about them from my able colleagues all ready. Basically, the marketplace of ideas, as Montesquieu said, the spring of republican government, is virtue. You need to have a virtuous citizenry that can consider public policy questions, evaluate the best way to proceed, and then go into the voting booth and conscientiously cast their ballot for the leaders that are going to effectuate those policy choices.
And so a vigorous clash of ideas is sort of the well springs for everything that we do in our society. It’s the premise of republican government. So where the marketplace becomes dysfunctional, that is a problem, and I think big tech is part of why the current marketplace of ideas is not working. That stems from a couple of different observations that might not seem connected at first, but I think they do end up connecting and intersecting at big tech. The first observation — and the professors on this panel, I think, see it first hand — is that as a society, I think our commitment to the values that animate the First Amendment are starting to erode.
There’s still probably a majority of people who believe in free speech and free expression, but there is a very loud minority, and a growing minority, that doesn’t. And when I’m talking about free speech and free expression values, I’m not talking about the strict doctrinal legal principle embodied by the positive law that is the First Amendment, obviously. That applies to Congress and the government, and we’ve heard about the lines between public and private. But more as a matter of culture and norms and values and customs and morays — the things that Will was just talking about — I think there is a significant percentage of the population that no longer thinks it’s okay to hear unpopular ideas, that thinks that silence is violence and words are violence, and the free expression of unpopular ideas is just a sort of pretext for white supremacy and all sorts of other woke stuff that you’re hearing on campuses.
It’s supposedly courageous of the University of Chicago to have a free expression policy when 20 years ago that’s just what every single university did. And professors on this panel and on others need to be careful about what they say because if they offer an unpopular viewpoint — even if they don’t agree with it, just for a pedagogical purpose — they could find themselves in hot water. They could lose their job. The Twitter mob could come from them. Who is the minority that holds these views? Well, I think it’s not just randomly distributed throughout the population. I think it is overwhelmingly younger people and liberal people.
And what are the views that they think are violent? What are the ideas that they want to suppress as a way to sort of prevent hurt to people? It’s conservative viewpoints, almost monolithically. It’s not sort of random which ideas they find hurtful. It’s sort of one side of the perspective on public policy discourse. And so again, going back to republican virtues — lower case R, republican virtues — if an entire side of the debate is going to be stifled because this minority view becomes a majority view, that’s a significant problem because it prevents the citizenry from making good decisions.
This new trend with, I think, a significant number of people being comfortable abandoning the traditional First Amendment values has sort of infected corporations as well. I’d sort of say as short hand, corporations have gone woke 10 years ago, certainly 20 years ago. It would have been pretty much unthinkable for corporations to speak out en mass on controversial issues of public concern. They were in the business of selling products and services. They sold those products and services to republicans, independents, and democrats alike, and so they wanted to, essentially, be Switzerland and not weigh in on these topics.
That has been abandoned in favor of virtue signaling and all sorts of other stuff where, for example, the CEO of Delta Airlines had no compunctions against coming out immediately against the Georgia election law and spewing all sorts of falsehoods about what the law contained. The same thing happened with the CEO of American Airlines with respect to the Texas law. The President of the United States came out and said it’s Jim Crow part two, and people aren’t going to be allowed to vote after 5:00 p.m. after they come off of work, and all sorts of things that just weren’t accurate. I don’t think that the First Amendment, doctrinally, applies to corporations.
I’m with Chief Justice Rehnquist that there’s no First Amendment protection for corporate actors. But as a policy matter, as a normative matter, I don’t have a problem with the CEO of Delta expressing his views, even wearing his CEO hat. I’ve all ready said I believe in the values that animate the First Amendment. The cure for bad speech is good speech. People can come out, and have come out, and pointed objectively to the statutory text of the Georgia election law to point out that some of the things said about it weren’t correct. And if people have a problem with the CEO of Delta saying what he did or the Commissioner of Major League Baseball moving the All-Star game, the shareholders or stakeholders of those organizations are perfectly good at policing them.
So the fact that corporations have gone woke, in and of itself, is not something that I think poses the problem that big tech does. The problem with big tech is that they are run by young and liberal people, i.e., the people who don’t have a commitment to free expression and free speech. They are corporations who are now weighing in on all of these policy issues. But unlike Delta Airlines, which sells you airline seats, these corporations have market power on the dissemination of ideas. They are the access point for viewpoints to get into the marketplace, as we have seen.
If you want to come up with a competitor product, which is what Will was saying is the solution, if we have bad companies that don’t respect free speech, let’s have good companies that do respect free speech. Well, one of those good companies was Parler, and it’s been shut down because Amazon has a stranglehold on all of the access points to get web service. And even though Parler was the most popular downloaded app, nobody can get access to it because it no longer exists because Amazon has decided to shut it down. And so when you have corporations who are responsible for disseminating speech, who have all of the tools at their disposal to decide which viewpoints are allowed to make it into the public square, then you have a big problem on your hands, and it’s no longer just the CEO of Delta Airlines that we have to worry about.
We have to worry about the market becoming dysfunctional and only hearing certain viewpoints. And so, again, because I’m focusing my remarks on the normative side as opposed to the legal side, I think the solution is pretty simple. We need to break up big tech so that they no longer have a monopoly on people’s ability to get viewpoints into the marketplace of ideas, or if they’re going to retain their monopolies, they have to agree to be Switzerland and to not discriminate against viewpoints. No deplatforming, no changing the content of speech because it’s from a conservative perspective and therefore, according to the censors within these private entities, deemed to be false.
We just have to have a free and unfettered marketplace or the ability to have competition so that if Twitter wants to be a universally leftist and alternative platform — that is more right of center — is able to disseminate its ideas in the marketplace. And by the way, when you hear all of the censorship that we’ve been discussing from these platforms, not formal government censorship but censorship from within the private entities, why are they censoring misinformation? Why are they choking off access to ideas that they find dangerous? Ironically, it’s because they’re afraid that people are going to buy it.
The President of the United States said just the other day that these tech companies have blood on their hands because they’re allowing misinformation about COVID to get into the marketplace. But if it’s misinformation about COVID, if it’s not true, then why are people believing it? Do we not have faith in the citizenry to make determinations for themselves as to what information is accurate and what is not? There’s plenty of “accurate information” about COVID in the marketplace, using this as the example, and you don’t hear anybody saying that the people are incapable of digesting that information.
So why are contrary viewpoints, even if wrong, even if false, even if just demonstrably and objectively false, not allowed to be presented so that people can say for themselves it’s not true, I don’t believe it? I see the other true information, and as a capable autonomous adult, I’ll come up with my own conclusions. It doesn’t say good things about, again, republican government if we can’t trust people to properly digest information and determine for themselves what’s accurate and what’s not. And so if we don’t want to break up big tech, or we don’t want to force them to be Switzerland when it comes to viewpoints, the alternative, I think, is to have highly concentrated market power where private actors are going to replace government actors with the same fear that animates the First Amendment.
The problem with government censorship, as Will accurately pointed out, is we can’t have confidence that some government bureaucrat is going to be able to weed out the good information from the bad information. But does anybody on this Zoom have confidence that Jack Dorsey or Zuckerberg is able to make these sorts of determinations? I certainly don’t. And so if you don’t want to have a concentration of power in the hands of one or two or three individuals in terms of what views get out into the marketplace, something has to be done from a policy perspective. And from my vantage point, as long as it’s constitutional, I’m completely consequentialist about it. I don’t care if you use anti-trust or Section 230 or some other creative policy solution, but something has to be done about these guys. They pose a real problem.
Hon. Gregory G. Katsas: Thank you. All right. We’re running a little late, but we have some extra time so let me give the panelists maybe two minutes each if they have any responses to what they heard from their colleagues. Randy —
Randy E. Barnett: All right. There’s so much to talk about. I’ll try to be short.
Hon. Gregory G. Katsas: Sure.
Randy E. Barnett: Just make a couple of points. First of all, I think we need to distinguish between accessing a public accommodation and controlling behavior while present in a public accommodation. Those are really two separable issues. The public accommodations laws allow access once on the property. Once on the premises, then your behavior can be regulated in a variety of different ways. So that would be the difference between kicking people off social media because of their political views and regulating the content of posts on social media.
With respect to the second, I don’t have a strong policy recommendation here, but I would think one possibility is just replicate First Amendment doctrine. Any speech that’s protected by the First Amendment would be permissible on a public accommodation social media platform. Any speech that is not protected by the First Amendment would not be. And we know what some of those forms of speech are as well. I would say that it’s important, I think, to view social media platforms more generally, or is the problem that would be more general, and I think we can get there.
For example, what if Delta Airlines decides it’s not going to allow Alex Jones to fly on his planes? And then once — as a result of social media pressure, all the other airlines won’t allow Alex Jones to fly on their airplanes. Now, they’re not in the free speech business, but they could be very well in the suppression of free speech business. They’re not allowed to because they’re common carriers. I think the fact that social media platforms are common carriers — or they are public accommodations, and they’re also speech platforms, accentuates the reason why it’s important that people have access to them.
The last thing I’ll just want to say is in response to a question in the queue, which I don’t have the answer to, but I want to point it out as a very good question. The questioner asked me, am I in favor of treating — in favor of public accommodations laws because public accommodations are like quasi-monopolies and people don’t have choice, or am I in favor of it because people — these businesses hold themselves open to the public and therefore you should have access? I’m torn on this because I think if the issue were only liberty, then I think it would matter whether it was a monopoly or not. That is, you can always go down the street and get your gas if you could always go to the next restaurant. If there’s plenty of alternative suppliers, your liberty really isn’t being infringed by the denial of services from one particular company.
And so you would need to have a monopolistic status of the kind that Facebook and Twitter have successfully gotten. However, the republicans developed a theory of republican citizenship. And what republican citizenship was — a privilege of citizenship was to be treated equally in the public sphere, to be not disregarded, not discriminated against as the citizen against — by some invidious discrimination. And so if the emphasis is on citizenship, and on the right — and the privileges each one of us has as American citizens to be treated a certain way, then I think that at that point, the fact that you’ve held yourself open to the public would be enough to subject you to public accommodations restrictions, not you didn’t have to be a monopoly. But I’m torn on this. I don’t have the answer, but I think it’s an interesting question. I wanted to highlight it.
Hon. Gregory G. Katsas: Genevieve —
Genevieve Lakier: Okay. Hi. Well, so I wanted to respond to Mr. Keller’s comments because I think I really disagree with his characterization of the problem, and then a little bit to Will’s. So two things — one, I do not think we should view what is happening now as a sign that we used to care about free speech, and now people on the left don’t care about free speech anymore. As my remarks suggested, these are long-standing problems in America that we have struggled with for a long time. The new technologies are making them particularly evident, powerful, new, but this is nothing new.
And by the way, in universities, there have been struggles over speech and ethics to exclude people because of their speech for — since the university has emerged. It is a constant struggle. I also think that it is a mistake to think that the anti-free speech attitude right now is concentrated among young people on the left. From my perspective, what we are seeing right now is a wave of anti-free speech activism by republican legislatures across the country that is pretty worrying. So we’ve seen dozens of states pass very stringent anti-protest laws. We have seen the anti-critical race theory laws. We’ve seen efforts to strip tenure protections for professors at state colleges.
Just this morning, I was reading about this new Texas law that refuses to give contracts to any contractor that has agreed to a boycott on the fossil and gas industry. And this is following the model of these anti-BDS laws that are being enacted by dozens of states, and yet I — clearly, I think, violate the First Amendment. So what we are seeing right now — I mean, I think the best way to understand this, rather than saying the good guys, the bad guys, the pro-free speech people, the anti-free speech people, is we are an incredibly polarized, fractured country with groups that have really very different conceptions of what’s appropriate speech, what’s good speech, and what’s bad speech.
And in this context, we are going to have — and we’ve seen this before, but we are a particularly heightened moment of it — incredible fights about what are the appropriate speech norms. And these fights are going to be — going to take place in all kinds of venues, and groups are going to use whatever power they have available to them to promote their point of view. And so we see Twitter mobs using the power that they have — because they don’t have other forms of political power — using the power on Twitter. And then we see legislatures using the power that they have. If I had to choose between whose exercise of power is more scary to me, I will have to say it’s the legislative exercise of repressive speech power over Twitter mobs’ exercise of repressive speech power, but I recognize that both are doing the same thing.
We are in the middle of a pitch battle over speech norms. And given that, I think we need to recognize that it is, as Will is suggesting, giving government more power to regulate the speech of private actors is a potentially extremely dangerous thing to do. And so whenever we are thinking about regulating the social media platforms, we need to do it really thoughtfully and carefully because, oh boy, things could go badly really quickly given how intense and fractured our views about speech norms should be. But I don’t think that that necessarily means that the binary framework we have where we are really going to be very vigilant of government censorship and really not think at all about private censorship is a great way to go.
There are intermediate forms of regulation that would help subject private power to more public accountability without meaning that the social media companies are completely subject to government control. So, for example, we might think transparency requirements where the platforms have to be much more open about what they’re doing and the choices they’re making could be a way of subjecting the platforms to forms of constraint that they clearly do not want to be subject to. That would give them a form of political accountability — well, not formal democratic accountability — without giving the government too much power to dictate what they will do.
Professor Barnett suggested apply First Amendment norms to the platforms. Now, I think I resist that because I do think one of the great values, particularly in the fractured public sphere we have today, one of the great values about social media platforms is that we get a diversity of different speech environments. So, for example, there have — there are platforms devoted to dog lovers. And they don’t allow any speech about the death of dogs or torture of dogs. And I understand why. They’re for dog lovers. They want to hear positive dog stories, not horrible dog stories.
There are also websites about fashion which don’t allow there to be any body shaming among the comments because they’re like positive — they’re trying to be positive. I see no problem with those forms of restrictions, even though the government surely could not write those restrictions into its laws. I actually think one of the amazing things about the social media platforms is you get a bazillion different forms of speech norms and language communities, and this adds to the diversity enrichments of the public sphere. So I don’t think applying the First Amendment to the social media platforms is the answer. But I also don’t think doing nothing is the answer.
Hon. Gregory G. Katsas: Will —
William Baude: Thanks. Just two thoughts — I think both gloomy. So one is, I think there is a lot to admire about the common carrier and public accommodation principles that existed in common law and that were the backbone of some of what Professor Barnett was talking about in the 19th Century. I think there’s a lot to admire about those principles, and I sort of wish they were still alive and well.
But I do worry that they’re not alive and well and that even sort of principles going by those names we’ve seen as sort of a huge amount of creep in the concept, the legal doctrine, everything about common carriers and public accommodations where being labeled a common carrier or public accommodation law no longer means being subject to a kind of few basic principles of open access equal treatment and the like. But basically, a huge profusion of justification for state regulation, constitutional regulation, traditional regulation, and so on. So I’m just — I’m not sure those concepts are intellectually still available for us to use today. I hope to be wrong about that, but I worry that they are dead.
Second thought is, Ashley made the point, which I think is right, that the — it’s not like the possible private solutions or private competition that I’d like to see are alive and well right now either. And the Parler example is a good one. And if you were to try to leverage common carrier principles, for example, maybe Amazon web services would be an easier place to start than on social media platforms themselves. Maybe the real backbone of the internet could be treated in the same way as the mail and the phone lines and so on. I’m not sure. I’m not sure that would be enough.
But I do think part of the problem is that there just is inadequate demand or support for a sufficiently wide-open freedom of thought and freedom of speech. So most people don’t mind that they buy cell phones where Apple censors what apps they can receive, and they still buy them — just like I did, myself included. I’d prefer not to have one but not enough to go searching out to make the sacrifices I have to make to find — to have more of it. And as long as we all feel that way, I’m not sure there’s anything we can do.
Hon. Gregory G. Katsas: Ashley —
Ashley Keller: But there is, Will. We can break them up. So that is a solution, making it so that those preferences can be vindicated in the marketplace. And I don’t think it’s for lack of diligence or for lack of caring that you’re unable to find an alternative to your iPhone. It just doesn’t exist in the marketplace. And competition should produce it, but when there are natural monopolistic tendencies for a particular market, anti-trust law has long stepped in to make sure that competition can flourish. So there is a solution if we’re willing to embrace it.
I guess the other response I would make is I stand by my statement that the problem is the young and the liberal. And I understand that there are republican legislature responses that some people might find alarming that I don’t find as alarming from a free speech perspective, having lived through two rounds of rioting and looting and arson in Chicago — and rampant lawlessness. I don’t have a problem with content-neutral policies against protesting at particular times. To the extent they sweep too far in any particular case, I’d be willing to look at that and maybe agree that they’ve swept too far.
But as a general matter, content-neutral policies like that are not nearly as problematic as viewpoint discrimination. And similarly, with critical race theory, I don’t think that’s an apposite example. I find that to be an obnoxious, poisonous theory that I vigorously disagree with. But again, believing in free speech, my response to that would be to explain why with more speech, my daughter is not automatically an impressor who is implicitly biased just because she’s white.
However, legislatures certainly have a right to regulate what speech is taught in the school classroom. The curriculum is not some free for all where every single viewpoint gets to be presented. Parents and citizens have control over that. And so while I would never suppress critical race theory as vigorously as I disagree with it since time and memorial people have been regulating the content of what gets taught in the schools, and that’s not some anti-free speech principle.
On the flip side, I don’t see anybody getting fired for their viewpoints that they expressed 20 years ago unless it’s a conservative viewpoint. I don’t see people losing tenure in universities for ideas that they’ve expressed on campus for any liberal viewpoints. It’s universally conservative viewpoints that are getting stifled because the young and the liberal are the problems. So I stand by that observation.
Hon. Gregory G. Katsas: Okay. We are almost at the end of our allotted time. But the good news is our panelists have agreed to run over a little bit. So let’s go to some Q and A. So, Randy, you analogize travel and innkeepers to speech and platforms. Two possible distinctions that come to mind — the right to travel is the rarest of constitutional birds in so far as it is protected against private infringement. Freedom of speech under the First Amendment is only protected against state infringement. And the innkeeper — qua-innkeeper no one thinks of as a speaker, but the platform — qua-platform surely, at least to some extent, is a speaker. It’s akin to, let’s say, a cable company which has some degree of protection. So what do you have to say about the distinctions?
Randy E. Barnett: Well, I didn’t think we were going to get questioned by you, Judge Katsas. This is — I don’t think I agreed to go over time for that to happen. Well, Greg, there’s —
Randy E. Barnett: [Laughter] There are obvious differences that you can draw between different institutions of these kinds. Remember, I’m not proposing that the First Amendment protect speakers on these platforms. What I was — really, I’m not proposing anything. What I am offering is a model in which states protect against discrimination in public places of public accommodation. And so this would require a state law. The question is, would that be within the state’s police power to do so? I think it would be. It would be entirely consistent with the privileges of national citizenship that they would therefore be protecting that is affirmed by the Fourteenth Amendment when it says that all people born or naturalized are citizens of the United States and then are entitled to all of the privileges or immunities of being citizens of the United States.
The freedom of speech is just as much a fundamental liberty and right and privilege as the right to travel. And so when private parties are infringing upon that, government has a duty to protect people from that infringement. That’s exactly what was happening in the south in reconstruction. People’s speech was being obstructed. Their right to assembly was being obstructed by private parties and who permitted a massacre. The Colfax massacre, for example, which was ultimately — was prosecuted, and the prosecution was invalidated by the Supreme Court in the civil rights cases because of the state action doctrine.
So I guess the last thing I’ll just say, Greg, is that in our book Evan and I explain why the state action doctrine is appropriately applied to the privilege immunities clause and the due process clause but not to the equal protection clause because the first duty of government is an affirmative, positive duty of government to protect us from having our rights be violated by other persons as well. And that’s what was failing in the south, and that’s something that government can step in to do if our freedoms are being jeopardized by other private parties.
Hon. Gregory G. Katsas: Genevieve, you’ve expressed skepticism that common carrier regulation would survive under current First Amendment doctrine. Two thoughts on that — just pushing back a little bit. One is it seems a little — the kind of regulation you would imagine here seems a little bit analogous to the must-carry rules that were upheld in Turner. Not exactly the same, but cable companies were forced to provide access to speakers that they didn’t want to provide access to, and the Court applied heightened scrutiny but upheld the regulation.
And the other just stray thought in terms of — on the speaker side of the balance, we have these recent government speech cases which put a lot of weight on the question of precisely identifying who is the speaker. Is it the government when it issues the license plate, or is the driver of the car when he puts tape over the license plate, or whatever? And if you apply that concept to this kind of situation, no one in their right mind thinks that when Donald Trump Tweets something out that that’s the speech of Jack Dorsey or Twitter. So wouldn’t that count — could that support an argument that this kind of access regulation doesn’t really infringe very much on the speech of the platform?
Genevieve Lakier: Okay, great. I guess my answer to both of those points is going to be the same, which it really does infringe. Not so much on the speech of the platform because I agree we should think that there is a difference between what Twitter is saying in its own voice, but in the right of Twitter or the platforms to decide who to associate or not to associate with. So I think you’re correct that Turner is the strongest support for the constitutionality of, say, a common carrier law because I guess the argument would be a common carrier law is content-neutral. It doesn’t distinguish between different kinds of speech, just like the law in Turner was.
And there was a market power issue here which — justifying this. But two things distinguish it from Turner, I think. One is that the gatekeeping power, as I mentioned, which was an important part of the 1994 decision that the cable companies had the ability to cut off access to other forms of media. The social media companies do not have that kind of gatekeeping power, so we would have to figure how important that was to the resolve in Turner.
And then second is just the sheer impact on the editorial freedom or the expressive autonomy of the media company. Turner must carry — rules required the cable companies to devote a few of their channels to this broadcast television. It was segregated. The rest of what they did — the majority of what they did was completely unaffected by the must-carry law. Common carrier laws, I think we must understand, would completely transform the social media platforms. It would change their business model in many contexts.
It would destroy many platforms like the knitting forums, for example, or the dog — they would just be — disappear. They would just go away. And so I do think that we should take seriously that when we toss around words like common carrier obligations — if we’re going to take them — if they’re going to mean anything, I think, they’re going to either fundamentally — they’re going to fundamentally transform the operation of social media platforms.
Now, Professor Barnett suggested, well, common carrier maybe just means you have access to the site, but you don’t get to violate the rules. But then I’m not sure what it’s doing because none of the platforms today — if that’s all it means, then it means nothing, I think — or very little, depends on how it’s interpreted. Because for sure, none of the platforms are going to say that they are excluding people because of their political opinion or they’re excluding people because of their race or their gender or their sexual orientation or whatever it may be.
They’re, in all cases, saying we are excluding people because they are violating the rules. And so when there’s common carrier means, you really have to allow all speech even when it violates your rules, in which case we would fundamentally destroy the way the platforms operate today. Maybe then it’s constitutional, but it doesn’t really matter. It’s that they’re responsive.
Hon. Gregory G. Katsas: Okay. Will. Certainly as a general matter, it’s an appealing principle that the existence of a private — problems of private conduct doesn’t automatically support government intervention. But is there any limit — is that a rule of prudence or is that a bright-line rule in this context? Can you imagine any circumstance in which some sort of intervention would be warranted? I mean, if Twitter said we won’t carry speech by republicans, or whatever.
And I guess somewhat related to that on the — as to the regulations. We’re talking about a response. As you said, oftentimes, government intervention is dangerous. Can we maintain a fairly sharp line between government intervention that seeks to promote more speech? Equal access type obligations as opposed to government intervention that seeks to censor this or that kind of speech. I’m not an expert on Mill but the idea that the remedy for bad speech is good speech might fit this context and sounds like at least a classically liberal idea.
William Baude: Yeah, these are great questions. So yeah, what I’ve described is obviously just a — it is a matter of principle, but there’s no reason it has to be our only principle or that we have to actually live up to it all the time. I think most of us have principles that we then don’t always love to in practice, and that’s part of our make our way in the world, and that’s fine. And of course, in reality, we do have plenty of instances where government doesn’t conform to the harm principles now.
So I’m open to the idea that — that would be all well and good if it were the way we did things, but we’ve gone so far away from the million approaches to government regulation that at this point we should just take advantage of the tools we have to do what we can. I take some of Ashley’s comments to be in that vein. But at the same time, I guess it’s worth thinking about. Do those principles — do we have some — those principles exist for good reason. In part because of things like the fear of what will happen once we unleash this new weapon, this new area where it doesn’t exist yet, and all the rent-seeking that will occur to take control of that and all the possibilities of how things will go worse from there, and I think it does.
So I’d put in the category of a principle that’s there for a good reason and to remind us of the long-term consequences of our actions. If people think it’s worth it or are willing to take the risk, I hear that. Maybe you could have a more modest principle that government regulation in order to promote speech, rather than to produce speech, is good. I think for some of the reasons that Professor Lakier and others have gotten into, I’m not sure even those principles are ones we’d really want to take too far. It is true that for a lot of publications, part of the value they serve that produces the editing is the selection. So I think there’s parrels there. And I guess I’ll leave it at that.
Hon. Gregory G. Katsas: Okay. Ashley, same question about limiting principles on the other side of the debate. What are the limits on the extent to which the platform has to be like Switzerland? I mean, is it really the case that they have no greater ability to dissociate themselves from speech they don’t like than the government has to censor speech? They can not carry speech that’s legally obscene, but they can’t go one step beyond and say, well, this speech is protected, but we think it’s indecent, so we’re not going to carry it.
Ashley Keller: Yeah, people who know me like Will know that I take a back seat to nobody in my conservative economic bona fide. So I’m not some champion of regulation who’s excited to get the government involved in all aspects of private business. But for me, the limiting principle is when there’s a demonstrable market failure because of market power. I think that they should be able to disassociate themselves from whatever speech they want — conservative, libertarian, or otherwise — if there are viable competitive alternatives available so that those viewpoints can flourish.
But these are companies that have monopolies. They took affirmative steps, I would say, to obtain their monopoly power. They did so in part, by the way, by pretending that they were going to be Switzerland, like Facebook, and then yanked the rug out from underneath everybody once their market power was firmly established and competitors couldn’t easily emerge in order to allow the alternative viewpoints that are only recently being suppressed. And so I don’t think that it’s some major departure from conservative economic principles to say that where you have a market failure because of market concentration, that is one of the few instances where we countenance government regulation.
Hon. Gregory G. Katsas: One more for you, Ashley. This comes — I’m not even sure I understand this question, but it comes from one of our very distinguished panelists from a prior panel. So I’ll just read it to you. Which is, “With the Warner-Hawley Access Act, requiring data affordability and interoperability be as or more effective than breaking up the tech companies.” I hope that makes sense.
Ashley Keller: I don’t know. I bet it does make sense, but it shows the depths of my ignorance that I can’t answer it. I’m not familiar, as I should be perhaps, with that legislation and what it purports to do. So I’m not going to hazard a guess as to what the right answer is.
Randy E. Barnett: Greg, before we close, can I make a —
Hon. Gregory G. Katsas: Yeah, any final — I’ll throw the floor open to any final thoughts.
Randy E. Barnett: I just want to make it clear the kind of claim that I was making in my remarks. That is, I’m not claiming that constitutional law today requires this or that outcome, or this or that would be constitutional. I was making a much more limited claim. It was a conceptual claim that could have normative implications. And the conceptual claim is, we need to stop thinking that there are only two categories. There’s only public governmental, private non-governmental. There has been three categories for over 150 years. It’s the three — it’s the middle category that justifies the civil rights act of 1875 and the civil rights act of 1964.
That is — and what makes those categories distinct is this nature of the activity that’s taking place within those categories. And it is a mistake. It’s just a simple mistake to blindly equate public governmental with purely private — I’m sorry, public non-governmental with purely private non-governmental. Who you invite over to your house and who you decide to go out to dinner with is not necessarily the same thing as who you’re willing to do business with in the public sphere when you have a public — place of public accommodations. That’s all.
Now, you might decide you want to treat the middle category just like they’re purely private or, as some people on the left would like to do, treat the middle category as though they’re governmental. I resist that. But all I’m doing today is identifying the three categories for purposes of future analysis that might be normative or even constitutional.
Hon. Gregory G. Katsas: Got it. Anyone else have any closing thoughts? Okay. Alida, we’re a little bit over but not too bad. So I’ll turn it back to you.
Alida Kass: Not bad at all. This was a great discussion. On behalf of The Federalist Society, I want to thank our panelists and our tireless moderator for another engaging discussion and thank our audience for joining us today. We welcome listener feedback by email at [email protected] Reminder to check out the entire discussion series, which can be found on the Freedom of Thought Project page on our website. As always, keep an eye on our website and on emails and social media for announcements about upcoming programming, exploring other questions related to freedom of thought as well as other Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.