The Fifth Circuit’s long-awaited decision in NetChoice v. Paxton, addressing the Texas social media statute, has prompted significant online attention and debate.
Judge Oldham’s opinion weighs dominant communication networks’ right to exclude users and control their networks against the ability of states to require non-discriminatory treatment, upholding the statute as constitutional. In contrast to an Eleventh Circuit decision earlier this year, finding state restrictions on content moderation violate the First Amendment, the Fifth Circuit decision rejects the social media firms’ claims that their content moderation constitutes speech entitled to First Amendment protection.
Our panelists will examine the extent to which content moderation is speech or expressive conduct, the degree to which states’ power to regulate common carrier affects the constitutional analysis as well as the Supreme Court’s likely resolution of these issues.
Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center.
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law.
Prof. Christopher S. Yoo, John H. Chestnut Professor of Law, Communication, and Computer & Information Science; Founding Director, Center for Technology, Innovation, and Competition, University of Pennsylvania Law School.
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit.
When Twitter Speaks: Control, Access, and the First Amendment
Alida Kass: Welcome to today’s Federalist Society virtual event. This afternoon, Thursday, October 20, we will be discussing “When Twitter Speaks: Control, Access, and the First Amendment.” I’m Alida Kass, Vice President for Strategic Initiatives at The Federalist Society, and Director of the Freedom of Thought Project, an initiative addressing new challenges and questions involving freedoms of thought, conscience, and expression.
We are very happy to be continuing the discussion that began last year with a five-part series that gave an overview of the many legal doctrines that might apply to freedom of speech on social media. We’re now able to focus the discussion on something a bit more concrete: the two recent decisions addressing the Texas and Florida social media statutes.
The decisions underscore something that makes these questions involving social media so challenging and interesting. The thinking does not break down along conventional ideological lines. And, consistent with that, we have three panelists joining us today, all, to some degree associated with libertarian or conservative legal thought, but who each see the questions at issue quite differently.
And we have Judge Katsas with us to navigate these differences and moderate the discussion. Judge Katsas is well-known to many of you. He currently sits on the D.C Circuit Court of Appeals. Prior to joining the bench, he clerked for Justice Clarence Thomas, had an impressive career as an appellate litigator at Jones Day, and served in many senior positions in past administrations.
As always, please note that all expressions of opinion offered today are those of the experts on today’s panel. We encourage our audience to submit questions for our panelists through the Q&A feature at the bottom of your screen. Please note, that’s the Q&A feature, not the chat feature. It’s difficult enough to monitor the questions on one of these panels, without actually having to switch back and forth.
After our speakers have offered their opening remarks, our moderator will turn to these submitted questions in the Q&A feature to direct the panel discussion. With that, thank you for being with us today. Judge Katsas, the floor is yours.
Judge Gregory G. Katsas: Thank you. Our topic is the question whether the First Amendment allows states to prohibit viewpoint-based discrimination by large social media platforms. And, as Alida said, we focused a fair amount of time on this topic in the rollout panels we did the summer before last in the Freedom of Thought launch project. Because this topic, obviously, implicates a lot of themes that are important to that project at a very general level: this phenomenon of large, powerful corporations embracing ideological, rather than merely economic agendas, and then the willingness of the corporations to wield their economic power against individual customers or would-be customers with whom they disagree on an ideological basis.
So, for social media platforms, in particular, where do they fit in the context of existing First Amendment categories? As I see it, there are at least three plausible analogies, keying into Supreme Court decisions that might or might not be helpful. Are the platforms most like newspapers or bookstores or parade organizers? These are all, obviously, private speakers. And they have speech interests, not only in what they say, but in choosing which third parties they want to platform. So if the New York Times hosts an op-ed by Bernie Sanders, everyone understands they can’t be compelled to give Ron DeSantis a right of reply.
Option number two: are the social media platforms most like telephones and telegraphs? We don’t think of those companies normally as speakers, but simply as providers of facilities that help speech. And they can be regulated as common carriers, and, therefore, made to provide universal access on a non-discriminatory basis. And so AT&T would probably not have much of a First Amendment defense if, for example, they just tried to drop service by anyone who had supported President Trump.
Third possibility, somewhere in between those two poles, is are the social media companies most like cable companies? And I picked cable companies in particular because they’re the subject of two Supreme Court decisions in the Turner litigation, in which the Court said, “Yes, these are private companies engaged in speech. And, yes, they have a speech interest in the selection of which channels and stations they want to cover, and, therefore, platform. But, nonetheless, they were permissibly subject to a must-carry regime that was subjected to some form of heightened scrutiny, but that survived the heightened scrutiny.”
So where do the social media platforms fall in all of that? Hugely important question, but also hugely timely, given the recent cases. Florida and Texas passed statutes barring viewpoint-based discrimination by large platforms like Facebook, Twitter, or Google. The Eleventh Circuit struck down the Florida ban. They said the platforms are like newspapers and, therefore, have a First Amendment right to make editorial judgments about which speakers to grant or deny access.
And the Fifth Circuit said the opposite. They upheld the Texas law, and said the platforms are more like the phone company, or at least like the cable company. And the Texas statute was upheld, at least on its face. Pretty clear circuit conflict, pretty clearly these cases are headed to the Supreme Court. So this will be very much in the news over the next several months.
As Alida said, this is a particularly interesting issue on a FedSoc panel, because it does tend to split conservatives and libertarians who might feel generally comfortable in the big FedSoc tent. Just in these two cases, we had very distinguished, conservative, committed, originalist judges on opposite sides of this question: Judge Newsom, in the Eleventh Circuit, adopting what’s probably the more conventional, conservative view that individuals’ First Amendment is meant to protect private individuals, large corporations count as private individuals, the government is a threat to individual rights, and the First Amendment serves to protect companies like Twitter against regulators like Texas or Florida.
And Judge Oldham on the opposite of that question, the more novel conservative view — that sounds oxymoronic — and his world-view is that something has gone badly wrong in private marketplaces for speech and ideas. And the government can play an important role in ensuring equal access to those markets for speakers of all different viewpoints.
That’s our issue in a nutshell. We’ve got a great panel to discuss these cases. Let me just briefly introduce our speakers. First up is Eugene Volokh, who is the Gary T. Schwartz Distinguished Professor of Law at the UCLA School of Law. After graduating from UCLA and UCLA Law School, he clerked for Judge Alex Kozinski on the Ninth Circuit, and for Justice Sandra Day O’Connor on the Supreme Court. He teaches First Amendment law, runs a First Amendment amicus brief clinic, and has written a First Amendment textbook, among many other publications. He also founded the Volokh Conspiracy, which is a leading legal blog.
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 eleven books and more than a hundred articles or reviews, and has won both the Bradley Prize and a Guggenheim fellowship. In the Supreme Court, he argued Gonzales v. Raich, and was actively involved in NFIB v. Sebelius.
Last, but not least, Christopher Yoo is the John H. Chestnut Professor of Law, Communication, and Computer and Information Science at the University of Pennsylvania Law School. He’s also the founding director of the Center for Technology, Innovation, and Competition. He’s written five books and more than a hundred scholarly articles, and is one of the world’s leading authorities on law and technology, including on various issues relating to the internet. He began his career as a law clerk for my colleague Judge Ray Randolph on the D.C. Circuit, and then for Justice Anthony Kennedy on the Supreme Court.
Eugene, you’re up first.
Prof. Eugene Volokh: Thank you. Thank you very much. I think this is a tremendously important question. I’m very glad that The Federalist Society is putting together something on it. I also think it’s a very difficult question. I’m not sure what the right answer is. But I want to lay out some thoughts on what might be plausible answers, even though, ultimately, it may be difficult to figure out the bottom line.
I’m going to try to share my screen right now. Do you folks see the headline, “Justice Stevens’ Citizens United Dissent”?
Judge Gregory G. Katsas: Yeah.
Prof. Eugene Volokh: Great. So I want to start with Justice Stevens’ Citizens United dissent. I think relatively few federalists, whether on the conservative or the libertarian side, are fans of this dissent. And I also would disagree with Justice Stevens on the particular point that Citizens United turns on, which is the right of corporations, including platforms, to speak. I do think they have a right to speak, including a right to speak about elections.
But I do think that, even though the majority got it right on that point there, Justice Stevens’ dissent has a lot of important things to teach us. And it may be that it is more apt when it comes to corporations blocking speech, even on their own property, rather than what was at issue in Citizens United itself, which was corporations simply speaking. So let’s look at a few passages.
“A legislature might conclude” — and I think Justice Stevens thought it would be good or sound for it to conclude — “that unregulated general treasury expenditures will give corporations unfair influence and distort public debate.” This is the classic concern, usually from the left, but also often from the center, and sometimes even from the right, about economic power being leveraged into political power. And that’s especially important, of course, when you have close elections where a little bit of power, as a thumb on the scale, might actually affect the result.
“Because of the speech of corporations, the opinions of real people may be marginalized.” Again, I don’t quite agree, because I do think corporations involve real people, and if a corporation wants to put out ads about why somebody should vote for candidate X, I do think that that’s important speech of real people and to real people. But perhaps, because of the blocking of speech of corporations, opinions of real people may indeed be marginalized.
“Corporate expenditure restrictions are thus meant to ensure that competition among actors in the political arena is truly competition among ideas,” again, without economic power being leveraged to block certain actors. “Corporate domination of electioneering can also generate the impression that corporations dominate our democracy, and politicians who fear a corporation may be cowed into silence about that corporation.” Again, Justice Stevens argued this as to corporate speech. But I would think it would apply even more to corporate restrictions on individual speech, again, even if the restrictions are on individual speech on their own property.
Now, one way of thinking about how this all plays out is in looking at what I think of as the platform spectrum. And by “platform,” I simply mean a place where sometimes people other than the owners of the platform can speak. Newspapers and magazines, as Judge Katsas pointed out – classic example of something where the platforms do get to pick and choose what they cover. And, incidentally, sometimes people are bothered by what they see as undue power of the media to sway elections. But that’s a feature, an important feature. And, on balance, I think that, on balance, a net positive for our political life, that these publications have their own ideas.
Magazines I mention especially because, generally speaking, historically, magazines have been seen as, often quite rightly, opinionated. Newspapers, historically, as well, but not in the last century or so, where many of them have tried to at least claim to be neutral. But, in any event, they need to have editorial discretion. And one reason is if they didn’t have editorial discretion, they’d be useless. Imagine a content-neutral newspaper that publishes just a random sample of everything that’s submitted to it. Who would want to read that?
Or even imagine a viewpoint-neutral National Review or New Republic. There wouldn’t be National Review and New Republic anymore, right? The whole thing that makes them what they are is precisely their selecting particular viewpoints. So they have full First Amendment rights to control what goes in their pages. And, as I said, I think it’s necessary for them to be viable sources of information.
Book stores are an interesting example. Bookstores generally don’t edit the text of what is submitted to them. But they do, often, many of them, pick and choose what’s on their shelf. And, again, with a bookstore, that’s a way of fighting information overload. Just as there are way more things than could ever be published in a particular newspaper, way more books than may be covered in any, at least, brick-and-mortar, at least — excuse me, not covered — distributed by any brick-and-mortar bookstore. So that’s why you have free-market bookstores and feminist bookstores and socialist bookstores and Christian bookstores. And that, too, I think, is pretty valid.
Another example — which I should note, I wrote a commissioned paper for Google some ten years ago on this, so I was acting as Google’s lawyer here, but I would endorse this as an academic, as well — Google as provider of search is also something that we look to to provide us with content-based judgment. Again, a content-neutral search engine would be pointless, even a viewpoint-neutral one wouldn’t be great, right? If I search for, “What is the age of the earth?” chances are I want the geological answer rather than the theological answer, at least that some offer.
And that means that they need to present a particular viewpoint, a viewpoint based on a scientific approach, rather than, say, a close analysis of the Old Testament. So Google, as a provider of search, I think, is another thing where we value, and, I think, the First Amendment protects its right to pick and choose. I would say the same thing is true about platforms recommending pages you might like. I think that is very much like Google search. And that is the speech of the platforms, just like — well, we’ll get to some analogies, shortly.
But, basically, that’s the speech of the platform promoting certain things as things that they think you might like, but also, in part, because they think it’s good. They may say, “We don’t want to recommend things that we think aren’t worthy of our recommendation. Interesting question is where you fit Facebook, YouTube, and Twitter managing conversations or just comments by outsiders on posts or on tweets, or some such.
We can bracket that for later, but that’s an interesting and important discussion. Because there, they’re essentially providing what I call a coherent speech product, which is the page that people see, includes the post and all the comments. And, at the very least, that’s a very different speech product than they can’t block spam, let’s say. But, likewise, I think that there’s real value in them being able to block various kinds of insults and threats and the like, as well. But, again, that’s an important and complicated question.
On the other hand, where do you put Facebook, YouTube, and Twitter providing hosting for users to reach willing viewers? @realDonaldTrump, where if you don’t want to see his posts, you don’t have to subscribe to him. Of course, to be sure, you might see them forwarded by other people you follow, but you chose to follow them. If you don’t like what they forward, you can block them.
So, there, there’s not really a problem with information overload that platforms are fixing. And it’s not like they’re providing you with a coherent speech product of all of the pages on their site, the way the newspaper or magazine provides to you, coherently, something people may read from cover-to-cover, all of the stories they want to run.
Another example that Judge Katsas mentioned is cable systems, where the court, again, specifically said that cable systems can be required to carry certain channels. Because, again, nobody perceives the cable system as something coherent. They perceive it as a bunch of separate channels, although, there, the court also recognized that cable systems may have considerable rights to control this, and it upheld that particular must-carry provision for specific reasons, having to do with the nature of the restriction.
How about large shopping centers? In five states, including my own California, by state law, large shopping centers are required to allow speakers on their property, in a content-neutral way, including offensive speakers, including speakers who want to protest against stores in the shopping center, where the shopping center says, “No, no. Bad for our business to allow them.” No, they have to allow them.
Now, I’m not sure that that’s a good policy. In fact, I think it’s probably not a good policy. And I don’t think it’s a sound interpretation of the state constitution, which is how we got this policy. Nonetheless, the U.S. Supreme Court has held that that is a permissible imposition on the property owner to require them to host even speech they disapprove of. And, at the very least, we know that this is something that is part of American law.
Another example is that in a couple of states — I believe, Pennsylvania and New Jersey — the same rule applies to universities as owners of open space. And, under Rumsfeld, to be fair, the Court said, even setting aside the funding feature of Rumsfeld, to be fair, the Court said, “Look, Congress could, if it wanted to, require all universities — just categorically require them — to open up space for military recruiters on the same terms as other recruiters.” Now, that’s actually, particularly important, because universities are very much speakers.
They engage in their own speech. They engage in their own speech in setting the curriculum. They engage in their own speech in choosing who will teach the curriculum. They engage in their own speech by putting on lots and lots of events of their own, let’s say, run by a department, which is, in a sense, the university’s own speech, even if, again, it will often be through invitations to particular selected outside speakers.
Universities have tremendous free speech rights. I don’t think the government could say a university has to teach some subject in a balanced way. I think that would be a pretty clear First Amendment violation. Nonetheless, when it comes to simply providing space on their property, in that kind of situation, the Court says, “Well that is a constitutionally permissible imposition.” And then, of course, there are the examples that Judge Katsas also mentioned: phone companies, both monopolies, like landline phone companies — today, actually, it’s an interesting question, to what extent they are monopolies, given that cable provides their service and such — but, also, the famously competitive cell phone companies.
They too are common carriers. So if, let’s say, some company says, you know, “We know you’re using this as a get-out-the-vote line for the communist party,” or “You’re setting up a recruiting line for the KKK, and we know this. Not by listening into the conversations. You’ve publicized this this way. It’s well-known, nothing secret about it.” Well, still, they can’t block it. Sure, it’s their property, but the government sometimes does regulate private property owners’ right to exclude things, as we see in the cable company context, shopping centers, universities, phone companies, and such.
And then there’s, of course, the Postal Service, which has the same rule, though, of course, there, it’s run by the government. But, in this respect, say, UPS and FedEx are treated under common carrier law, as I understand it, much the same as the Post Office is treated under the First Amendment. And Justice Breyer, for example, mentioned — this was in a dissent in the AOSI second case, Alliance for Open Society International, but the majority had no quarrel with him on this — requiring someone to host another person’s speech is often a perfectly legitimate thing for the government to do.
And he cited for this Rumsfeld and Pruneyard, the cases that I’ve mentioned. And, in fact, if you look at the First Amendment law, it ends up tracking pretty closely the framework that I described. Newspapers and magazines can’t be required to publish replies, for example, to speech of candidates. A parade organizer — which is also presenting this coherent speech product — can’t be required to include floats it dislikes. But a shopping mall may be required to allow speakers, a cable system may be required to carry broadcast channels, and a university may be required to allow military recruiters.
And one important point that the Court mentioned, again, is this notion that in Turner, that was a permissible imposition, and saying Hurley an impermissible one. Because, for a cable system, the programming offered on various channels by a cable network consists of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. And that, I think, is a good guide, at least as a constitutional matter, to what’s going on in some of these debates, that when it comes to just the existence of a Twitter feed, all those Twitter feeds, all those Facebook pages, they happen to be transmitted together, which is to say, transmitted on the same site for individual selection by members of the audience.
On the other hand, the recommendations page — not page, but let’s say the part of the screen where Twitter gives you its own recommendation — well, that’s not just for individual selection. To be sure, you can select individual things from there, but that is Twitter speaking. That’s Twitter giving you its own perspective, just like with the university that people pick and choose which recruiters to go to.
But if the university wants to say, “Oh, here is our list of top five recruiters,” that becomes the university’s own speech, more like a parade, which I think universities should be able to choose among. And the Supreme Court, I think, endorses that position. So that’s the distinction that I think is significant here. And it ties into some line somewhere in the spectrum, maybe basically from here, from Facebook, YouTube, Twitter providing hosting and below. That’s the constitutional line. Let me just close as a policy matter.
There are very few problems that are so bad that they can’t be made worse by regulation. It may very well be that requiring platforms to be viewpoint-neutral in various ways will just cause more problems. Maybe we value platforms’ ability to block certain kinds of viewpoints, like, maybe pro-terrorist viewpoints and such, maybe not illegal, not speech that falls within a First Amendment exception, but still things we like.
Plus, also, it may be that one way of getting more competition is by having less regulation on new entrants. So there are all sorts of good reasons why we should be skeptical, I think, of any regulatory proposal, including some of the ones that I think are constitutional here. At the same time, I do think the Constitution leaves some room — maybe not unlimited room, but some room — for some such policy.
Prof Randy E. Barnett: Okay can everybody hear me? Can you hear me?
Judge Gregory G. Katsas: Yes, we hear you fine.
Prof Randy E. Barnett: Great. Well, thank you to The Federalist Society for putting this on. You can hear I’m a little hoarse. I had laryngitis yesterday, so I’m lucky I’m able to talk at all today. It’s a very interesting topic, and it’s something that I myself have not completely made up my mind about. And I want to preface my remarks by saying that this is tentative. I do plan to work on this in earnest next year, when I’m not teaching in the next semester. So I just wish everybody would just stop for a while, just hold off doing anything on this until I get around to doing the work that would give me a firmer opinion than I currently have.
But, look, that apparently is not in the cards. And I have to keep doing these podcasts to express opinions that I haven’t fully formed. I want to say that my comments are not going to be about the First Amendment doctrine. I am not a First Amendment doctrine person. And it actually is one of the areas where doctrine matters a lot. And I defer to Eugene’s analysis of this. In fact, I urge everybody to read Eugene’s article that he was basing his comments on, as I don’t think you really will have a knowledgeable opinion about the two cases that we’re here to discuss, and the Fifth Circuit and the Eleventh Circuit, without having read Eugene’s article on the regulation of communications platforms.
But having said that I’m not going to comment on the First Amendment doctrine, let me just offer a word of caution. And that is caution about the academic response to these opinions, and, in particular, the academic response to Judge Oldham’s opinion in the NetChoice case in the Fifth Circuit. I’ve seen this movie before. During the healthcare debate, when we formulated our arguments for why the individual insurance mandate was unconstitutional, what we heard from law professors — I would say, universally, virtually unanimously — was not only that our arguments were wrong, but our arguments were so wrong that they were frivolous. And, even worse, they were dishonest, and they were incompetent.
One law professor from Florida State went so far as to say that the arguments that attorneys who signed onto briefs in our cases — in particular, in the Florida lawsuit — should expect to be subject to sanctions for having signed onto a brief that endorses these arguments. That was a law professor probably shooting a shot across the bow of junior lawyers in the state attorney general’s office, located not far from him. I have to say, this person is now a colleague of mine at Georgetown. He got a promotion after this happened.
So let me just caution you that we hear a lot about the legitimacy of the Supreme Court. I want to suggest that the legitimacy of the law professoriate is called into question by this ideological mobbing that they do, with arguments that they find themselves in ideological disagreement with. And I would say the same thing about the response to Judge Oldham’s opinion. It’s not enough that it’s wrong. And it might very well be wrong.
I’m not entirely sure if I think it’s right or wrong. But it’s got to be the worst possible thing ever. It’s got to be incompetent. It’s got to be dishonest. It’s got to be corrupt. Whatever you want to say about it, I would just respond: I would just let all that go and try to evaluate these arguments on the merits. But I warn you that, as this debate continues, we’re going to see more and more of this from law professors. And you should take that with a grain of salt.
What I’m here on the panel to talk about is sort of a bigger picture, theoretical understanding of where this might fit into what would be called classical liberal or libertarian thought. And, in this respect, I would say that most all conservatives, and, in fact, many progressives, share the same framework. And that’s a framework that distinguishes sharply between the public and the private. It’s the public-private distinction, a distinction that has been under fire from the left for a very long time, who want to collapse all the private into the public. And so those of us who insist that there’s a private domain are adamant that there should be a public-private distinction drawn.
But I want to suggest that there’s been a facile, or at least an unconscious or unreflective association of the public and private with the government/non-government distinction, as though these are just one binary. Public/governmental, on the one hand, and private/nongovernmental on the other hand, is one binary. And that’s the distinction that matters.
I want to suggest that there are actually two binaries. The public and the private is one. The government/non-governmental is another. And they don’t always correspond to each other. So, in fact, you can say that there are four categories. If you create a grid, there is the public/governmental, there’s the public/nongovernmental, there’s the private, there is the private/nongovernmental, and there’s the public/nongovernmental.
So let me just say what I mean. On the public/government side, it’s the easy one. It’s when the government is doing things and not doing things. One the private/nongovernmental side, that’s the easy part also. That’s this kind of situation in which you and I engage in private activities: who we marry, who we go out with, who we invite over to watch the game with. These are all purely private decisions, private choices.
But in the middle of these two categories, there is another category. And that is the public/nongovernmental. These are nongovernmental, usually corporations — they don’t have to be corporations — who are operating in the public sphere in some sense. Now this isn’t just my suggestion. This is the law. And, in fact, if you don’t take into account this middle category, you’re going to be very confused about what the state of the law is. And it has been the law for centuries. And it is in this middle category is located the common law categories of common carriers and public accommodations.
Common carriers are privately-owned facilities that operate, in some sense, in the public domain, and, therefore, are under obligations that purely private, nongovernmental activities are not. Like, for example, an obligation not to discriminate, with respect to who they may service. Public accommodations, again, these are privately owned, or nongovernmental institutions operating in the public domain, who are also subject to nondiscrimination obligations.
This third category, the existence of the third category, in between public/governmental and private/nongovernmental was well recognized, has been well-recognized for, as I say, a long time. It was recognized by the republicans who drafted the Fourteenth Amendment, when, after drafting the Fourteenth Amendment, they passed the Civil Rights Act of 1875, which provided for nondiscrimination in places of public accommodation. And these were privately-owned public institutions, such as railroads, inns, and even places of public amusement, such as opera halls.
Now, they may have been right or they may have been wrong, but they clearly believed that there was a middle ground in between purely private, which, for example, that law excluded boarding houses from being regulated. Why? Because the boarding house is a place where you rent out a room in your own home that you live in. You’re not Hotel 6. You’re not Hilton. This is your own place. So they exempted that, as I would think it would be on the private side of the line. But, in the middle, they regulated all of these institutions, and they thought there was a middle category.
So what is the theoretical account of this middle category? The theoretical account, I think, is suggested in Evan Bernick and my book, The Original Meaning of the Fourteenth Amendment, which is the theoretical category that motivated, first, the anti-slavery constitutionalists, and, eventually, the Republican Party to recognize the category that we call civil rights. Civil rights are the rights that one gets when one leaves the state of nature and enters into civil society. And these are the rights that are basically the government protections of our preexisting natural rights. But they’re also more than that. They are privileges you have as citizens.
And one of the first privileges you have as citizens is to have non-discriminatory access to government-provided benefits — that’s an easy case — which is, for example, if government chooses to provide schools, you should have a non-discriminatory access, or equal access to a school system that is created by your agents of government on your behalf. And you also have a civil right to be able to travel throughout the country and to enter into places of public accommodation, as an equal to your fellow citizens.
So this middle category is a real one. It has been a real one for a long time. I believe that libertarian, classical liberal political theory needs to take account of it, in the way that I’ve just suggested, by acknowledging the existence of civil rights as a thing. And it’s the failure to do so that has led some to oppose things, for example, like the Civil Rights Act, the public accommodations law of 1965, which senator from Arizona, Barry Goldwater famously voted against, even though that measure was supported by a strong majority of Republicans, a higher percentage of Republicans than it was supported by Democrats.
Barry Goldwater very famously voted against it. And other Libertarians have had issues with the non-discrimination norm in places of public accommodation, because it doesn’t fit into the public/private, government/non-government binary that they’re used to. So I suggest that this is something that classical Liberals and Libertarians need to take account of.
Now, which category is Facebook and Twitter in? That’s the issue. So there’s two things I’m undecided about. One is what is exactly the nature and theoretical justification of this middle category? That’s what I want to work on. But, secondly, given what, once we’ve decided that, once I’ve decided on that, are Facebook and Twitter in, or are they out? That’s the thing about which I think reasonable people can still disagree without being considered to be dishonest and somehow beyond the pale.
I think Eugene’s analysis in his paper gives us good reason to distinguish between Facebook and Twitter when they’re operating as hosts and, literally, platforms, and Facebook and Twitter when they’re actually speaking and deserve a right of freedom of speech. I think the last thing I’m going to say is that the challenge this whole experience poses to people on the left, progressives — we’ve been hearing for a very long time how horrific Citizens United was, as a constitutional decision. And I think Eugene is right to point to Justice Stevens’ dissent in that case and show how applicable it may be in this circumstance.
But what are the progressives, who have put Citizens United on their hit list forever, why are they opposing the state of Texas when they’re trying to provide for freedom of speech on a private platform? Why do they think now that corporations have these inviolable free speech rights? Is it because of precedent or stare decisis? No. That can’t explain it. It seems like it’s ideological to me that they should be vehemently opposed to Citizens United. And yet, now, corporations have very strong rights that resist the interference of a state legislature which would normally be responsible for regulating places of public accommodation, as well as common carriers.
So I would think that this is awkward for those who have opposed Citizens United. I think a very reasonable distinction can be drawn between what was at issue in Citizens United and what’s at issue in this case. What was at issue in Citizens United was the free speech of, in this case, a corporation known as Citizens United, which was organized to be an expressive organization. And I’m going to have to end my remarks there for a moment.
Judge Gregory G. Katsas: You okay? All right. Let’s proceed to Christopher. And, Randy, if you have more that you want to say, we’ll have another round.
Prof. Christopher S. Yoo: Well, thank you to The Federalist Society for inviting me. And thank you to Judge Katsas for hosting us. I confess, I’m fighting a cold as well. So you may hear me — I never lost my voice the way Randy has, but I apologize in advance. And you’ll see me sipping water. No disrespect intended, just trying to keep myself able to continue this conversation.
Before I get into the substance of the matter, I wanted to echo something Randy just said, which is the importance of not attacking people who disagree with you as inherently wrong, and so wrong that they’re sanctionable. And I think that that’s anti-intellectual in the extreme, and stands against everything The Federalist Society was established to create. I do have to say, I do think that that is a vulnerability any person can fall into, and that charity begins at home.
We have to model the behavior that we seek to expect from others. And a proper, engaged, intellectually honest exercise requires all of us to share that, embrace that value. Setting that aside, I wanted to thank all of the previous speakers, and John Katsas in particular, for setting up this discussion so well. I kept thinking about the rationale from Judge Katsas, and from Judge Newsome’s argument that you laid out so nicely. And you laid out the fact that the New York Times can’t be forced to give a right of reply if they run something by Bernie Sanders, to give a right of reply to Ron DeSantis.
And what we see is, the doctrinal hook for that is a case called Miami Herald v. Tornillo, which said that newspapers occupy this very special regime. And we have, over the course of the years, really explored whether we really mean that, and how much we’re going to stick to that. So, if you look, historically, one of the very first cases we looked at was CBS v. Democratic National Committee in 1973, where they looked at — the Court flat-out said, “It’s not that we think,” if you will, “private intervention and limiting of speech markets doesn’t exist.”
And they said, “Look, Tornillo was a natural monopoly newspaper. It’s economically in that position.” But even that doesn’t justify it. Why? Because the cure is worse than the disease, that allowing government to intervene to fix these markets is a huge problem. And it’s interesting because if you look at the theoretical home for that, it’s really in the kind of liberal theory often associated with Isaiah Berlin, and it’s inherent in the adherence to the state action doctrine. And many people regard — there was a movement to get rid of the state action doctrine in the ’60s and ’70s. And the high-water mark was really CBS v. DNC, and that’s where the Court turned away.
And ever since then, it’s pretty clearly stayed to that doctrine. And so, what’s interesting is why do we do that? The classically liberal conception of the relationship between the individual and the state is that the individual is the subject that creates the government, the government is the object. And that reversing it, allowing the government to engineer preferences in the individual, reverses the basic priority, which presumes the individual comes first, and there’s private areas that go beyond that, that are outside the government’s ability to regulate.
And, in fact, we’ve seen a number of proposals over the years, probably most famously from Alexander Meiklejohn, with this sort of managerial conception of speech, which, in my mind, has been pretty consistently rejected by lots of cases. The ones I think of are some pretty abhorrent speech, like the crush porn at issue in the United States v. Stevens, virtual child pornography in Ashcroft v. Free Speech Coalition. And you see a long line of cases which adhere to this vision, and, in fact, has been largely endorsed for the internet in Reno v. ACLU
So we do have some interesting cases where Randy is correct, I think, about this middle category and where they exist. We actually have a bunch of interesting data points on that. So, doctrinally, going back to Jackson v. Metropolitan Edison in 1974, the PG&E case in 1986, where we pretty clearly see, just because something is what we call a public utility, doesn’t divest them of free speech rights. And we see in the Manhattan Community Access v. Halleck case in 2019, a projection that the cable companies would fall into that middle category was also rejected, and in that, again, they adhered to a more traditional conception of the state action doctrine, and then, perhaps most closely for what we’re talking about today, the Second Circuit’s decision in Biden v. Knight, for what became in the Supreme Court, Biden v. Knight First Amendment Center.
And, basically, it applied a fairly orthodox version of the state action doctrine. So what we see from the doctrinal cues is that, in terms of that middle category, the question that Randy left open seems to be trending the other way. And it’s an interesting question that simply the government being involved isn’t necessarily enough. Now, what’s also interesting is if you look at the decisions in the broadcasting case, broadcasting is where we regulate it more heavily than anything else.
And in the case I was talking about, CBS v. DNC, and a later case, CBS v. FCC, we upheld restrictions on political speech for broadcasting. It’s as far as we’ve ever gone in this way to regulate the political speech market. But it did so on the basis of unique characteristics to broadcasting, which have been heavily criticized since. And this is not the time to go into that. But the point I would make, it has never been extended to other rationales, to other technologies, and, as well, affirmatively rejected for the internet in Reno v. ACLU.
So, in terms of — they talked about Tornillo, and they treat this as an exception. And there’s a pretty clear decision in these cases that the scarcity rationale that justified broadcast regulation doesn’t apply to the internet and that, in fact, that’s not likely to be vibrant. We have the cable cases in Turner, where they actually did uphold the restriction, but they made great pains to distinguish Tornillo from the case that was an issue in cable, which is, cable, there was a physical switch where you could turn somebody off.
And they distinguished Tornillo, saying, “Economic dominance is not enough.” So, unless there’s some physical conduit that limits you to one actor, under Turner’s own distinction of Tornillo, it doesn’t generalize beyond that. So you end up with these very technology-specific rationales for deviating from this Tornillo baseline and that Judge Katsas laid out so nicely for us. And it is treated as a baseline in all these cases with the burden of proof being on the person who wants to derogate from them, and has refused to extend it to a whole bunch of other technologies, including telephones and cable companies and broadcasting, and, in Reno V. ACLU, the internet itself.
So we have an interesting set of problems there. And I think there’s some pretty significant doctrinal obstacles and conceptual obstacles, based on our conceptions of liberalism and the individual not being the object of engineering by the state. But, in fact, it’s the prior actor that forms the state.
So what is interesting is I love, Randy, your suggestion about categories, about public accommodations, and common carriage. As you know, in the same issue that Eugene wrote his article, I wrote — it wasn’t styled as a response, because we were writing at the same time, and under deadlines. I didn’t give it the credit it probably — the cross-references that you would like to see, that I would have, had it not been produced at the same time. But what you see there is, in terms of definitional categories, common carriage and public accommodations, historically, have been turned — if you look at the doctrine, whether something’s a common carrier or a public accommodation is determined by whether the actor holds themselves out as serving the entire public.
And, to the extent to which that’s not true, it becomes a sort of an intelligence test for the actor. If they actually exercise discretion over who they serve and who they don’t serve, they’re out of this bucket that they would otherwise be in. But what’s fascinating to me is, in a world where we have, if you will, plenary police power in states, and general legislative power, what purpose does invoking these historical categories serve? Just because public accommodations were this and not that, well, that doesn’t limit on what they can do now.
And what I find is, people invoke them to imbue a historical legitimacy, that there’s no one here but us chickens. We’ve been doing this for a very long time. That kind of doesn’t help to me. Because it shouldn’t affect the First Amendment analysis, which is about speech. The fact is, whether it’s like a previous category, but different, slightly, we still have to go through the same First Amendment analysis, and analyze the phenomenon and the restriction on its own terms, instead of saying, “Oh, it’s like common carriers.”
Well, it’s interesting. The Supreme Court has never addressed the First Amendment status of telephones. So, to the extent to which we have that analogy, it’s tough. And there are a bunch of old telephone cases involving dial-a-porn and bars on telephone companies selling cable television, which suggests that, with respect to other services, they have the right to exercise editorial discretion over them, and that, in fact, we see, even the broadcasting cases, a long line of endorsements of the importance of that editorial discretion.
The one closing interesting idea is when we talk about the public accommodations cases from a First Amendment standpoint, not from a definitional standpoint, and we look at the cases that Eugene and you both cite, particularly, Eugene, Pruneyard and Rumsfeld v. FAIR, we also have against them as whole bunch of other public accommodations cases, such as Hurley and Boy Scouts v. Dale. And the line that the Court really used to distinguish between these is whether the speech was attributable to the actor.
And in Rumsfeld v. FAIR, they didn’t think the fact that you’re hosting military recruiters on campus was attributable to the school, whereas, in Hurley and Dale, it was attributable, and Pruneyard the same. Whereas Hurley and Dale, it would go the other way. And so that would be, to me, the logical way to separate these. Given the criticism of the social media platforms, I find it kind of hard to say that people aren’t attributing decisions of what’s carried and what’s not carried to them. And, in fact, they do not necessarily hold themselves out doing that.
And we see the only other doctrinal cue we have here is now-Justice Kavanaugh’s 2017 dissent from the denial rehearing en banc to the net neutrality order. And you see there some suggestions. He asked it as a rhetorical question, but it sort of seems to trend the other way. It occurred to me, the only other thing I would have to say is the cautionary note that Eugene strikes, I think is very well taken. We do have to bear in mind that attempts to regulate viewpoint neutrality may not work out the way we had hoped. And I do bear in mind, I’ve been around long enough to always think about broadcast television, which all my students think is quaint.
But I keep thinking about the fairness doctrine, and previous attempts to do this in the past. And we do know that they actually were used systematically by democrats to regulate — there’s a great book by Fred Friendly, called The Good Guys — which was systematically used in a way to suppress conservative speech. And so we have to be — I think Eugene’s note is very appropriate to sound here, which is we have to be very careful about the interventions we do, because they don’t always work out the way people intend. Thank you.
Judge Gregory G. Katsas: Thank you. Let me give each of the panelists a chance to respond to the comments of co-panelists. So, Eugene.
Prof. Eugene Volokh: Yeah, so I very much appreciate Randy’s and Christopher’s points. And I think that there’s a lot that makes a lot of sense there. I do want to speak out though, with regard to the risk of misattribution point. Because that, it seems to me, is a red herring, unless you’re willing to say that any risk of misattribution is enough to make compelled hosting unconstitutional, in which case, Pruneyard and Rumsfeld and Turner would come out the other way.
So here is how the Supreme Court dealt with this question in Rumsfeld v. FAIR. The Supreme Court says, “Nothing about recruiting suggests that law schools agree with any speech by recruiters. And nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies. We have held that high school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so. Surely students have not lost that ability by the time they get to law school.”
And I would say exactly the same, only more so, applies by the time they get on social media. Yes, it’s quite true that people fault social media platforms for carrying things that they think shouldn’t be faulted. But, likewise, in the fight over military recruiting back in the “don’t ask, don’t tell” era, where people were objecting to universities allowing the military on campus because of its policies of discrimination against gays and lesbians, that was exactly the thing that universities were facing.
They were facing protest by faculty, by students, by others who said, “Well, you must be approving of these things, because you’re allowing them on campus.” And that’s exactly what the Court rejected there. What it said is, look, it’s pretty easy to recognize that there’s some things that you approve of, and that you say yourself. And there are other things that you’re forced to carry. And if you’re forced to carry them, then it should be pretty easy for people to draw the distinction. And if they don’t draw the distinction, you can explain it to them very, very simply. You are free to say whatever you want about the military’s policies. You are free to say, “We disapprove of the military’s policies.” You are free to say, “The recruiters are here, only because they’re legally required to be here.” And that’s enough to eliminate any constitutionally significant risk of misattribution.
To be sure, there’s always going to be a risk of misattribution, because some people won’t pay attention. Some people might be foolish about it. Fine, but that doesn’t count for First Amendment purposes. The same would be even more clearly so, with regard to social media platforms, where all the social media platforms have to do is put up a little “click here” to understand, to note that you’ve read this box which says, “We are required by law to host certain things that we wouldn’t otherwise want to host. When you see them here, it’s because we’re required by law. Click here, not that you agree, but click here to acknowledge that you’ve seen this.”
To be sure, there are lots of other plausible arguments for why you don’t want to impose these kinds of requirements. But the risk that some people, in the face of the law that requires platforms to host certain things, will still think, “Oh, no, no, it’s all the platform’s fault, not the law’s fault,” and that they can’t be talked out of this by simply an explanation of the law. That, it seems to me, is not an adequate basis for a First Amendment argument.
Judge Gregory G. Katsas: Randy.
Prof Randy E. Barnett: Yes. Well, I’m not going to enter into the debate between Christopher and Eugene about First Amendment doctrine. That was very interesting, but I will leave that to them. I wanted to make a separate point, which was my own independent criticism of one part of Judge Oldham’s opinion in the Netscape case — I’m sorry, not Netscape, the —
Judge Gregory G. Katsas: NetChoice.
Prof Randy E. Barnett: Thank you, NetChoice, the NetChoice case — and that is his discussion of businesses affected with the public interest. And, here, in this opinion, he was subject to conservative Lochner-phobia, in which he endorsed Justice Roberts’ opinion of Nebbia, which is one of the most outrageous opinions that I have to teach in constitutional law. And that was arguing that business affected with the public interest was any business in which the public had an interest. In other words, this was a completely limitless, boundless category.
That middle category, which the courts have been struggling to figure out how to define, had no limits whatsoever. And, okay, that’s fine. That’s Justice Roberts for you. But I think it was unfortunate that Judge Oldham endorsed that, and dumped on what he disparagingly called the Lochner Court’s efforts to try to restrict the category of businesses affected with the public interest. Because I want to remind everybody that the history of that concept was to be an exception to the normal rule that businesses can charge what they want for their goods.
But there was going to be this exception for this small category of businesses whose rates or prices could be reasonably regulated. And we were going to just call those businesses affected with the public interest, like grain elevators, of which they have a monopoly, let’s say, or other businesses like that. And what started off as a small exception, or an exception, turned into the exception that swallowed the rule, which is your slippery slope.
And so I think that was an unfortunate weakness of Judge Oldham’s opinion. He either needed to kind of leave it out — because it was only, like, a page or two — altogether, or he needed to be much more sympathetic to the so-called Lochner Court’s efforts to try to restrict the scope of that concept. Because if that’s what he means, if that’s what we mean, going forward, then this middle category, once recognized, is going to swallow everything. And that’s not something that I would be in favor of, and I doubt most people would.
Judge Gregory G. Katsas: Christopher?
Prof. Christopher S. Yoo: Well, just to talk about what Eugene — I think you got the issue right, which is attribution has to be a dependent question. And simply saying someone might misunderstand can’t be enough. The interesting question is do we have examples where attribution was allowed for people who are largely conduits for other people’s speech? Cable companies? And the idea of what you allow in the editorial discussion, this question — this goes back to Leathers v. Medlock, through Turner and all the other cases — acknowledged that, against some fairly significant criticism, that cable companies, what are they? Just platforms for other people. Are they going to be attribution?
We did acknowledge that the decision of what to permit goes through. And to me, the catch is Hurley, which is, Hurley itself, could we just say, “Hey, parade, you can just put on some disclaimers, make sure that people understand that Massachusetts has a public accommodations law?” And we have to craft, as we think this through, a really good metric for separating those two out. And that can be quite complicated.
There’s another thing that floats out there. The last thing I’ll say at this moment is there’s a very old case called WDAY, an old Supreme Court case which people have largely overlooked, which said that, basically, “Bear in mind, if you make someone carry speech, they get defamation immunity from it.” Because it’s really kind of — it would be whipsawing a speaker to say, “Oh, you carry the speech, surprise. Here you are. Here’s your bill.” And so, bear in mind that something that goes hat in hand with enforced carriage, basic fairness and Supreme Court doctrine suggests carries with it immunity.
And this is an interesting decision we have to make, which is, it’s possible. And what’s at issue in some of these other discussions we have around the role that liability can play in making people’s incentives is by giving up liability for different forms of wrongful speech, by compelling it, you will have another aspect, where, in fact, encouraging them or allowing them to get — not holding them responsible and relieving them from responsibility from the speech that they carry. And it’s something, again, in crafting remedies we have to be aware that it’s not all perfect, where we just pull this lever and everything happens the way we do. We have to think about these in context, in a very pragmatic way.
Judge Gregory G. Katsas: Okay. Let’s go to some questions.
Prof. Eugene Volokh: Oh, sure.
Judge Gregory G. Katsas: Unless anyone — any follow-up?
Prof. Eugene Volokh: I just had a quick question for Christopher.
Judge Gregory G. Katsas: Sure.
Prof. Eugene Volokh: I totally appreciate that they’re going to be treated as kind of like common carriers or places of public accommodation if social media platforms aren’t allowed to block people, say, based on viewpoint. Then they have to be immune from liability, per se, liable in what they refuse to block. But they are, right? This is what 230(c)(1) has been interpreted, probably — at least as to libel and other such things — probably quite intentionally, quite consistently with congressional intention, is that they have this immunity, and that, if anything, now people are saying, “Well, since you have this immunity, maybe you should be treated like platforms.”
I set up this slide a while back, looking at the way the law has dealt with these things. Historically, you could be a newspaper or broadcaster, and you have full liability, subject to First Amendment constraints for, say, libelous material that you republish. But you also have full editing authority. Distributors, like bookstores, had some extra leeway. They had only notice-and-takedown liability, essentially, but full editing authority. Phone companies, post office, broadcasters providing low-rate time to candidates, as they’re required to do — no liability, no editing authority.
The current rule appears to be — setting aside the Florida and Texas law — for the online entities, is no liability, full editing authority. Maybe that’s a good rule, but, just saying they don’t have editing authority as to certain things just brings them back into consistency with the traditional way that platforms, for example, have been treated, precisely because they already lack liability.
Prof. Christopher S. Yoo: Well, the only thing I’ll say is we sort of said that the scope of this would be the NetChoice decision.
Prof. Eugene Volokh: Fair enough, fair enough. It’s true.
Prof. Christopher S. Yoo: I’m perfectly happy to have that conversation in a future Federalist Society event which we’ve decided is appropriate for an issue in and of itself.
Prof. Eugene Volokh: Right. No, that’s quite right.
Judge Gregory G. Katsas: Okay, a couple of questions. So you all, Eugene, and Christopher, you anticipated one of my questions, I think, with the discussion about the risk of misattribution, which is we’ve had a fair number of government speech cases in the last 20 years or so, where the case turns on the Court figuring out who is or is not the speaker. Is it the government? Or is it a private party? And it seems like there’s something analogous going on here, which is trying to figure out when is Twitter the speaker, and when is the Twitter customer the speaker?
And I was going to ask you about the relevance of the government speech cases to this inquiry. I assume you would say there might be some relevance from the discussion of attribution or misattribution. But if I’m wrong about that, what do you think?
Prof. Christopher S. Yoo: The government speaker cases really treat government action as different from regulation. A classical liberal conception of speech implies restrictions on government’s ability to limit what private actors can say, but doesn’t actually limit what the government itself can say. And so we have this strong sort of division. The interesting question, in terms of who the speaker is —
Judge Gregory G. Katsas: Right.
Prof. Christopher S. Yoo: — there is a recognition that exercise of editorial discretion on behalf of third parties is an important part of free speech. It’s funny, I wrote an article about “The Myth of The Internet as an Unintermediated Experience.” People thought, “Oh, anyone can talk now. They can speak directly.” And the irony is, we’ve got a firehose pointed at us now. We’re more dependent on editors to sift through what’s out there than ever before. I don’t wake up in the morning and say, “Okay, let’s see what’s new on the internet. I’ll crawl the whole thing myself.”
We have emails, people who are finding stuff for us, information newsletters, and, frankly, search engines, as tools to help us do that. And the irony, to me, is that we need as much finding tools and choice in those as before. The explosion of content, the easy access to content has had the unintended consequence it has made us more dependent on that editorial discretion than ever. And so you see this in the broadcasting cases, even there, and straight down, where you see the — and I think about this classically. Arkansas Education Television v. Forbes is an example where they said, “Look, the editorial discretion being applied here under the cable cases is very significant.”
And so we can’t actually, particularly in a world where these companies — and I was thinking about what Eugene said about search. They are competing on the results. They’re competing on a basis of filtering things in the way they filter things. Maybe the platforms play that role. And you’re starting to see this somewhat in social media as well, where they’re starting to position themselves slightly differently. And, particularly if you look at — I always look at what kids are doing, because that’s where the future is. They’re going to more specialized platforms for particular purposes. And you start to see that more and more. And that makes for a very different role.
Judge Gregory G. Katsas: So if the question turns, in part, on who the speaker is, do we really think, when Donald Trump writes some snarky tweet, that anyone in their right mind thinks, “Oh, that’s the speech of Twitter”?
Prof. Christopher S. Yoo: You’re getting right into the heart of the Knight case. And the answer there was they went with public forum doctrine, which was one of these things that people — I rarely see it cited, except for casting aspersions upon it. And so I was really surprised by the case. But they’re saying that, if, in that case, President Trump endorsed that particular Twitter channel as his official spokes place, and fired people on it and did a number of government actions, it could be different. And it was different in that case.
If it was just a personal handle, or something that wasn’t given the imprimatur of government officialdom, yeah, I agree with you 100 percent, Judge Katsas. I think that that’s correct. So we have, again, this sort of — I think what both Eugene and Randy are inviting us into is not a world where you have these large categorical generalizations, but one where we have to be more discerning. How public is it? What are the indicia? What are the principles we’re going to use to draw lines in a gray area, when people would like to actually make this much simpler than the law really permits?
Judge Gregory G. Katsas: Anybody else?
Prof. Eugene Volokh: Let’s go to the next question.
Judge Gregory G. Katsas: Go ahead. Randy, I won’t force you to have a definitive position before you’re ready to have a definitive position, but if we’re trying to draw a line between the general default rule for private actors, which is private freedom, that’s what we care about. But there’s an exception for some private entities that are sufficiently public. They can be regulated without becoming state actors, the public non-state. What’s the argument for why Twitter, with, God knows, a billion users falling on the private, rather than the “affected by some public interest” side of that line?
Prof Randy E. Barnett: Well I think if I had to pick today, I would say it was clearly on the public side of that line. So I wouldn’t try to defend it as being on the private side, except to draw the kind of distinction that Eugene makes between hosting and Twitter speaking itself. And when it’s speaking itself, it’s acting as a speaker and has First Amendment protection. When it’s hosting, who it excludes and who it accepts is not something that’s protected by the First Amendment. So that’s the distinction I would make.
I think, if we were to pursue this seriously, there’s another distinction that I think we may have to make down the road. And that is the distinction between large corporations and expressive corporations, regular corporations and expressive corporations. Citizens United, itself, was an expressive corporation, formed for the basis of expressing itself. A media company, or at least the media part of a big media company, is an expressive corporation. A corporation like Nike or Gillette, they should be entitled to speak themselves.
But they may actually have other obligations, or they would not be themselves corporations that are formed for the business of expression. Twitter would also be in that category, once they start to host. The other thing that I would distinguish between would be businesses that are, themselves, very personal in nature, and whether they would be subject to this non-discrimination norm if they don’t hold some kind of monopoly power. So that would be individually-owned businesses where people are required to deliver services personally. That adds to what goes in this middle category of non-discrimination.
There was a question in the Q&A about why should we limit this to speech platforms? What about a non-discrimination norm, generally, or non-discrimination statutes? In the District of Columbia, one of the suspect categories that would, at least in theory, get you a cause of action in the District of Columbia is discrimination on the basis of political party affiliation. Now, D.C. is not typical, but I see no reason why these local public non-discrimination laws can’t be modified to go political identity or political viewpoint.
And then, I think, at that point, I would have to say that I think it puts, let’s say, progressives, in an awkward position, because they are then being put in the position of telling us why non-discrimination laws — which they’ve strongly supported for as long as I’ve been around — are somehow bad now and should not be enforced to protect non-discrimination norms against other people who are being discriminated against as well.
So I do think that in the middle category of non-discrimination norms, I would exempt out small, personally-performed services, which is a distinction I made when I was doing contract law theory. I distinguished between specific performance of corporate service contracts and specific performance of personal service contracts. I argued, back in the 1980s, that specific performance of corporate service contracts are perfectly okay, and to be preferred. But specific performance of personal service contracts are something that should be prohibited, because of the involuntary servitude nature of it. So that’s the distinction I was prepared to make in contract law, and I think maybe should be made today.
Prof. Eugene Volokh: If I could just very quickly piggyback, I wrote an article that just came out in the NYU Journal of Law and Liberty on public accommodation statutes that ban discrimination based on political affiliation. They’re mostly at the city level, although a couple of territories have them, and maybe California has it, although California law is unsettled on this. Interestingly, a big batch of them are in what I think of as upper-Midwest college towns, and, I think, in part, from liberal sentiments of, “Anti-discrimination law is good. Let’s have more of it.”
So, for example, in Champaign-Urbana, in Ann Arbor, in Madison, they banned discrimination by places of public accommodation, based on not just party affiliation, like D.C., but political opinion and political speech. Seattle is another such place. So it’s interesting. On top of that, about half the states do the same with regard to employers. And in about half the states, employers are banned from discriminating against employees based on the employees’ political activity or speech, and sometimes defined narrowly, just to electioneering, or, in a few states, contributing, say, to candidates, contributing money to candidates.
In other states, like California, defined quite broadly to deal with expression of opinion, generally. And, by the way, employers may sometimes object, saying, “Well, people are going to connect me to my employee who’s saying all these bad things, even off the job,” and that “therefore, I need to be able to fire him to disassociate myself from them.” But the general view is no, there are these statutes that do, indeed, protect employees and patrons of public accommodation in particular ways.
Now, when they are trumped by the First Amendment rights of the entity, like the newspaper, which I totally agree has to have a right to pick and choose whom to publish, let’s say, based on ideology, or even based on religion or race and the like, I think that’s an interesting and difficult question. But it is true, descriptively, whatever one might think about it from libertarian first principles, that political affiliation is, in some jurisdictions — and, as to employment, many jurisdictions — protected from certain kinds of private discrimination.
Judge Gregory G. Katsas: Okay, I’m going to try to read and summarize some questions in the queue here. What do you all think is the relevance, if any, of monopoly power? Would we worry about this at all if Twitter had 10 percent of whatever the relevant market is, as opposed to 80 percent? And how does that figure into either the First Amendment question or the larger policy questions?
Prof Randy E. Barnett: Well, I think it makes a difference. In this project that I want to work on, on basically rethinking libertarian theory on this whole subject, I think Libertarians need to focus more on liberty and possibly less on property than we have. It’s not that property is not essential to understanding liberty, but it may not be the only thing that’s essential. And if a private entity gets to the size and power that it has the legal potential to seriously restrict individual liberty, then it’s something that I think Libertarians should be concerned about on libertarian grounds, because of their concern for individual liberty. And when we were in law school, we all read about company towns as something that happened back in the day, before all of us were born, and how that would affect individual liberty. That’s an interesting test case.
I’m not sure that monopolies, per se, affect individual liberty all that much. They may affect pricing in the marketplace for steel or some other goods and services. But where you, for example, have transportation monopolies, communication monopolies, or oligopolies, so it affects how we can travel from place to place, that’s a liberty question. It affects how we can communicate, pick up the phone and communicate with each other. That’s a liberty interest. Or how we can speak, when private platforms, via a network effect, gain effective control over the predominant mechanisms for speech, but they’re privately owned, is there not a libertarian case for viewing them as threats to liberty that need to be dealt with?
Not necessarily the same way you would deal with as government, but still dealt with nevertheless, because, in the world in which we live, they can be more threatening to individual liberty than government can. Given the constraints that are on government, government can’t do it, but, yet, it can be done by private entities that don’t have those constraints. So, returning to the question, I do think market power, be it a monopoly or oligopoly, it has some relevance, to the extent to which private entities can restrict basic fundamental liberties.
Prof. Christopher S. Yoo: I guess, what —
Prof. Eugene Volokh: No, you go Christopher —
Prof. Christopher S. Yoo: No, go ahead, Eugene.
Prof. Eugene Volokh: No, no, Christopher, after you.
Prof. Christopher S. Yoo: So, actually, Eugene, why don’t you go first, for reasons having nothing to do with speech?
Prof. Eugene Volokh: Sure, hope you’re okay. So I think, as a policy matter, surely it must matter, in some measure, to what extent we think there is a powerful competitive market that will solve a lot of these problems, instead of regulation. I’m not sure that what should matter is whether it’s monopoly in the antitrust law sense. So you may have a perfectly legal situation where, call it monopoly or not, but for network affects reasons — because everybody wants to be on the social media platform on which their friends are, rather than the upstart one, which none of their friends are — it may be that they have such great power that there ought to be basis for some regulation — interesting and difficult question.
As a First Amendment matter, however, monopoly is not required for compelled hosting. So, for example, in Turner Broadcasting, the Court did stress the market power of the cable companies. But with shopping malls, look, most towns have many shopping malls, and lots of space outside shopping malls where you could protest. Nonetheless, because shopping malls are such important places, it’s not monopoly so much that’s important for people who happen to go visit there, that they are often, for many people, the main places they may see leafleteers, not the main places they may see speech — that’s still, let’s say, television or newspapers — but where they see leafleteers, let’s say, and signature gatherers, that the Court said, if the state of California wants to provide compulsory access to this kind of property, it can do so.
Likewise, universities are not monopolies for recruiting. People can be recruited in all sorts of other ways. Nonetheless, because it is a pretty important site for recruiting, Congress decided to mandate that, again, as a condition of funding. But the Court didn’t stress that issue. And the Court upheld that, even though nobody thinks that a university, especially a law school — maybe a residential university may be different, but most law schools, people don’t live on campus. The Court did not say that any right of access is constitutional only if the university can be found to be a monopoly.
Prof Randy E. Barnett: Greg, we were asked to provide a citation for Eugene’s article that we all talked about earlier. It is “Treating Social Media Platforms Like Common Carriers?” Eugene Volokh, in Volume 1 of the Journal of Free Speech Law.
Judge Gregory G. Katsas: Great. Okay, Christopher.
Prof. Christopher S. Yoo: I think Eugene’s right, and I think we’re actually agreeing with each other, to some extent. From a policy standpoint, monopoly matters. I mean, this is why we do public utility regulation. And it’s interesting, there’s a lot of confusion. Common carriage never required monopoly, but there are some things that we do. There are things that are not naturally competitive, which we regulate for economic reasons, and there’s good rationales for doing that. The question is, to what extent does the First Amendment place constraints on that?
And what we see in the state action doctrine is there’s limits on government’s ability to restrict speech that do not apply to equally powerful private entities, because they’re not subject to the First Amendment. What you see, and you see this in great detail in the distinctions between Tornillo and cable, between newspapers and cable, the fact that many newspaper towns, or one-newspaper towns didn’t matter. What did matter was either some physical characteristic, like a physical bottleneck or scarcity or something that gave them power over this.
But the real watch out, again, is remedial, which is you see all these cases, such as CBS v. DNC and all that, warning that, “Well, be careful where you go here.” If you have the government coming in to mandate viewpoint neutrality, there is danger, as Eugene pointed out, of what that’s actually going to look like, and how that’s going to play out in real fact. And sometimes, the only way to win the game is not to play. And one way to interpret these decisions from the Supreme Court is they’re saying, “That kind of hair-splitting is not something that we’re going to do at all, so we’ll take a simpler version where the government can’t intervene on private speech. Not individuals just speaking, but also the conduits through which they speak, which constitute, as people have noted earlier, private actors, for the purposes of this analysis, subject to the category, the tough question that Randy has teed up for us about how we draw that gray area in that middle case.
Prof Randy E. Barnett: Can I just address briefly, the question in the Q&A about the incorporation of the First Amendment to the Fourteenth Amendment?
Judge Gregory G. Katsas: I thought that might be a little beyond the scope of the panel, but go ahead.
Prof Randy E. Barnett: I just have one thing to say, and that is, read this book. And this is not a close question. And so, that’s all I have to say about it. It’s The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, by Randy Barnett and Evan Bernick.
Judge Gregory G. Katsas: Pro-incorporation, or anti?
Prof Randy E. Barnett: Well, incorporation is actually a modern doctrine. It’s the wrong concept.
Judge Gregory G. Katsas: Okay.
Prof Randy E. Barnett: But it is among the fundamental privileges or immunities of citizens of the United States. All of the personal guarantees that are in the first eight amendments are among the privileges or immunities of citizens of the United States.
Judge Gregory G. Katsas: Got it. All right, I’m just picking some others. A lot of these questions are, one way or another, addressed to the monopoly power issue, which we’ve discussed. All right, here’s one. We’ve talked a lot about the speaker interests, the competing interests between the platforms and the individuals. What about on the government interest side of things?
Does it make any difference that, usually, for First Amendment purposes, the greatest threat is when the government is attempting to enforce some sort of orthodoxy? But here, the Texas and Florida laws are doing the opposite. They are equal access laws that are simply compelling Twitter and Facebook not to enforce an orthodoxy. Does that make any difference in the First Amendment calculus?
Prof. Eugene Volokh: Well, it makes some difference. It doesn’t make all the difference. So, for example, a right-of-reply statute for newspapers that says the newspaper has to publish replies to criticism of candidates, any candidates: incumbents, challengers, whatever else, republicans, democrats, doesn’t matter. I’m not sure that’s enforcing orthodoxy, but the Court said that’s unconstitutional. Likewise, a requirement that parades not discriminate based on sexual orientation — not just of the individuals who are marching, but of kind of the groups that they’re affiliated with — you might view that as enforcement of orthodoxy. But the problem isn’t so much that. The problem is that it interferes with the ability of the parade organizers to have the parade they want, rather than a modified parade that they don’t want.
On the other hand, in Pruneyard, certainly the Court stressed that this was an even-handed right of access to everyone, and that that would make it permissible, even if a right of access only to good patriots, or only to anti-racists, let’s say, would be unconstitutional. Likewise, in Turner, the Court stressed the importance of the law being content-neutral. Interestingly, in Rumsfeld, actually, this wasn’t an even-handed public accommodation law where universities had to allow all recruiters who signed up.
The only beneficiary of this was military recruiters, who certainly have a very particular set of viewpoints, quite orthodox viewpoints, in some respects, from the government’s perspective. Even so, the Supreme Court upheld that — interesting question how you fit that into the framework. But I do think that the mandates of viewpoint neutrality are easier to uphold than mandates of fairness, let’s say.
I don’t like the fairness doctrine either, in part because it requires a drawing of very vague and viewpoint-based lines. But requirements of viewpoint neutrality probably are going to be easier to uphold than them. But I agree with Christopher that, to the extent that the platforms are to be viewed as more similar to parades or newspapers, such requirements of viewpoint neutrality would still be unconstitutional. I just don’t think they’re similar enough to parades and newspapers.
Prof. Christopher S. Yoo: So what’s fascinating to me about this question is it actually picks up a lot of debates in First Amendment scholars. This really picks up Steve Shiffrin’s dissent theory of the First Amendment, that the First Amendment shouldn’t just privilege any viewpoint, but, particularly, dissenting viewpoints, because they provide particularly useful roles, that is, not orthodox viewpoints.
That, in fact, very much ties into Jack Balkin’s Duke Law Journal article where he said, “You know, we like the First Amendment, civil libertarian conception when it’s protecting communists, but now that it’s protecting companies, this isn’t what we progressives want. We progressives need to re-think this.” And so what’s fascinating is there is a thread in which this kind of works on both sides of the political spectrum.
And the problem is, traditionally, we kind of are hesitant to say we should make laws depending on whose ox is getting gored, which is the ability to understand what is a non-orthodox viewpoint, or a dissenting viewpoint in this case matters. But one of the reasons we rejected what was called the managerial conception of speech by Alexander Meiklejohn, is actually hearing the frequency of orthodox viewpoints can matter too. And understanding how to frame issues, and, in fact, from a speaker’s standpoint, can be just as important to that person as well.
And so, what I would say is, there is a sense in which I do think you can make an argument that non-orthodox viewpoints play a particularly strong role. But, on the other hand, we’ve been wrestling with this for a long time, and never really found an acceptable way to do this, short of saying we have to have equal ability to speak, and let the marketplace of ideas run as it will.
Judge Gregory G. Katsas: Okay. Alida, do we have time for any more? We’re about at the end here.
Alida Kass: Sorry, I’m also losing my voice. Maybe just sort of, if there are any final thoughts from all the speakers, as sort of a wrap-up.
Judge Gregory G. Katsas: Sure. Okay.
Prof. Eugene Volokh: I just wanted to say I very much appreciate this conversation. I always appreciate conversations with Randy and Christopher, in general. And I always appreciate conversations on this topic. And this is a great combination. I think these are interesting and important questions. I don’t want to claim for a moment that I know the right policy answer. I’m not even sure I know the right constitutional answer. But I’m very glad that people are discussing this, and discussing it seriously.
Judge Gregory G. Katsas: Randy?
Prof Randy E. Barnett: I too appreciated the opportunity to do this, even if it’s premature in my case. I think that recent developments of all kinds have raised questions about the classical liberal-libertarian paradigm that need to be examined at a fundamental level, at a theoretical level, not just at a policy level. And it’s not that I think that that paradigm is wrong. But I think it’s a paradigm that hasn’t been rethought in a fundamental way for close to 50 years. I was old enough to participate in the generation of that paradigm. And, of course, it long precedes me in many ways.
And I think there are things we can learn from history in developing refinements to this. And, in history, there has been the recognition that there are public places that citizens have a right to participate in. And it’s something that I think libertarian and classical liberal theory need to take stronger account of and, in particular, the concept of civil rights, and how civil rights relate to more basic natural rights, as well as to other kinds of rights. And I’m looking forward to doing that myself. And I hope that others will, as well, participate in that.
And I will have to say that these are issues that cut both ways. This doesn’t only require that libertarians and classical liberals rethink their views, but also that progressives decide whether they’re going to be true to the views that they’ve been telling us about for all these years, including the non-discrimination norm in public places.
Judge Gregory G. Katsas: Christopher, you get the last word.
Prof. Christopher S. Yoo: I think Randy’s invitation is really welcome, because I always think about Thomas Emerson’s attempt, boiled down in the 60s, to find the ground theory of the First Amendment. He said we don’t have one. And it isn’t the libertarian theory. And he points out the marketplace of ideas is not a libertarian, individualistic-oriented idea. It’s a consequentialist, social benefit idea, and that they both exist at the same time.
So we spent a lot of time talking about it within a certain framework, but I think there’s a broader discourse about what role these play, no matter how they should shape. And I think that matters a lot. I’m reminded by something one of my own professors told me once, “The beautiful thing about being a law professor is we get to overrule the Supreme Court every day. The bad thing is nobody really cares.”
So the good news is we’re part of a discourse here that I think that Randy says, we do have a role. That’s sort of self-deprecating, in talking about theories and frameworks that I think play a center role in pushing the law forward. Because I think when the rest of the discourse — whether it’s lower courts, like Judge Katsas, and the scholars — that we do sort of frame issues and tee them up better, we actually end up with much better law. And I hope that this discourse has served part of that purpose today.
Judge Gregory G. Katsas: Thanks to our panelists. If we were live I would ask for a round of applause. Great panel, enjoyed it very much. And let me just close by thanking The Federalist Society for giving all of us a platform on which to express our views.
Alida Kass: Thank you so much, Judge. And, on behalf of The Federalist Society, I want to thank our panelists and our moderator for their time and expertise today, and thank our audience for joining and participating in the event, and asking some really good, thoughtful questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming events. Thank you all for joining us today. We are adjourned.