THE SUPREME COURT WILL SOON DECIDE: If a social media censures you for your viewpoint - does that violate the First Amendment? If laws tell Social Media companies they must publish your viewpoint...is the company's First Amendment rights violated?
We all say we want free speech. But if you own a private company can the government tell you what it can and cannot post? Are social media companies the public square...common carriers...or...private companies that can choose their own content?
That is the question before the Supreme Court. In this episode, Bob talks with Supreme Court scholar Eugene Volokh:
Facts of the case
The State of Texas enacted HB 20 to regulate large social media platforms, such as Facebook, X (formerly known as Twitter), and YouTube. The law purports to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker.
NetChoice and the Computer & Communications Industry Association filed a lawsuit against the Attorney General of Texas, challenging two provisions of the law as unconstitutional: (1) Section 7, which prohibits viewpoint-based censorship of users’ posts, except for content that incites criminal activity or is unlawful. (2) Section 2, which requires platforms to disclose how they moderate and promote content, publish an "acceptable use policy," and maintain a complaint-and-appeal system for their users.
The district court issued a preliminary injunction, holding that Section 7 and Section 2 are facially unconstitutional. The court argued that social media platforms have some level of editorial discretion protected by the First Amendment, and HB 20 interferes with that discretion. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the idea that large corporations have a “freewheeling” First Amendment right to censor what people say. It reasoned that HB 20 does not regulate the platforms’ speech but protects other people’s speech and regulates the platforms’ conduct.
Question:
Do Texas HB 20’s provisions prohibiting social media platforms from censoring users’ content and imposing stringent disclosure requirements violate the First Amendment?
Our guest:
Eugene Volokh teaches First Amendment law and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.
Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
Volokh is the author of the textbooks The First Amendment and Related Statutes (6th ed. 2016), and Academic Legal Writing (5th ed. 2013), as well as over 90 law review articles. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a leading legal blog. His law review articles have been cited by opinions in eight Supreme Court cases and several hundred court opinions in total, as well as several thousand scholarly articles.
THE SUPREME COURT WILL SOON DECIDE: If a social media censures you for your viewpoint - does that violate the First Amendment? If laws tell Social Media companies they must publish your viewpoint...is the company's First Amendment rights violated?
We all say we want free speech. But if you own a private company can the government tell you what it can and cannot post? Are social media companies the public square...common carriers...or...private companies that can choose their own content?
That is the question before the Supreme Court. In this episode, Bob talks with Supreme Court scholar Eugene Volokh:
Facts of the case
The State of Texas enacted HB 20 to regulate large social media platforms, such as Facebook, X (formerly known as Twitter), and YouTube. The law purports to prohibit large social media platforms from censoring speech based on the viewpoint of the speaker.
NetChoice and the Computer & Communications Industry Association filed a lawsuit against the Attorney General of Texas, challenging two provisions of the law as unconstitutional: (1) Section 7, which prohibits viewpoint-based censorship of users’ posts, except for content that incites criminal activity or is unlawful. (2) Section 2, which requires platforms to disclose how they moderate and promote content, publish an "acceptable use policy," and maintain a complaint-and-appeal system for their users.
The district court issued a preliminary injunction, holding that Section 7 and Section 2 are facially unconstitutional. The court argued that social media platforms have some level of editorial discretion protected by the First Amendment, and HB 20 interferes with that discretion. On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the idea that large corporations have a “freewheeling” First Amendment right to censor what people say. It reasoned that HB 20 does not regulate the platforms’ speech but protects other people’s speech and regulates the platforms’ conduct.
Question:
Do Texas HB 20’s provisions prohibiting social media platforms from censoring users’ content and imposing stringent disclosure requirements violate the First Amendment?
Our guest:
Eugene Volokh teaches First Amendment law and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.
Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
Volokh is the author of the textbooks The First Amendment and Related Statutes (6th ed. 2016), and Academic Legal Writing (5th ed. 2013), as well as over 90 law review articles. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a leading legal blog. His law review articles have been cited by opinions in eight Supreme Court cases and several hundred court opinions in total, as well as several thousand scholarly articles.
Attorney Bob Sewell:
Is that even legal? It's a question we ask ourselves on a daily basis. We ask it about our neighbors, we ask it about our elected officials, we ask it about our family and sometimes we ask it to ourselves. The law is complex and it impacts everyone all the time, and that's why we are here. I'm attorney Bob Sewell and this is season five of the Worldwide Podcast that explores that one burning question. Is that even legal? Let's go.
Attorney Bob Sewell:
Today's guest on the show is Eugene Volokh. Eugene Volokh is a professor at UCLA College of Law. He's a preeminent scholar and expert in First Amendment law, and he publishes the online blog the Volek Conspiracy, which is hosted by Reason Magazine, and he's also a return guest to Is that Even Legal? Podcast. So welcome to the show.
Professor Eugene Volokh:
Thanks. Thanks very much for having me on.
Attorney Bob Sewell:
So I wanted to have you on, because last time we had you on, we were discussing First Amendment issues, and you brought up this idea of common carrier, which seems to be a thread inside a case that has been argued before the Supreme Court. Supreme Court has not made a decision. It's the case called Net Choice. Supreme Court has not made a decision. It's the case called Net Choice, and it involves two laws one Texas law and a very similar Florida law, and this Texas law is identifying a problem, as many people see it, and the problem is that people view the social media companies as censoring certain types of speech, and so what this law is attempting to do is prohibit major social media platforms from censoring a user's speech based on content, based on viewpoint and geographic location, and it's also demanding that social media platforms open quote, unquote the black box.
Attorney Bob Sewell:
They want to know what are their policies If they have a user complaint system. What are their policies If they have a user complaint system? They should have a user complaint system that's easy to use and operate. They should produce a transparency report every year. They should have accurate information regarding their business practices and how they they manage and control data. So it's an interesting law because it's not censoring the general public speech. In fact it's trying to make it so the general public doesn't get censored. But is that even legal? Is that a violation of the First Amendment?
Professor Eugene Volokh:
legal? Is that a violation of the First Amendment? Well, that's what the Supreme Court is asked to decide in these two cases, and one way of thinking about it is by thinking about a spectrum of platforms that may host speech. One end is a newspaper. A newspaper is entitled to pick and choose which letters to the editor to publish, which op-eds to publish, which ads to publish. Right, and I take it you can't even well, it's hard to know for sure, nobody's tried, but probably you can't even tell require that a newspaper, every time it reject an op-ed, explain in detail why it's rejecting it, among other things reject an op-ed, explain in detail why it's rejecting it, among other things. The reason might just be we don't think our readers would find it interesting, or we don't agree with its logic. And why? Well, you know, it doesn't seem persuasive to us or it doesn't seem well-written to us, right? So newspapers clearly have the right to pick and choose what's going to be included in their pages. The Supreme Court has made that clear.
Professor Eugene Volokh:
Well, what about on the other end of the spectrum? What about a phone company, say? A phone company says we don't want to have people on our phone lines who are saying bad thoughts. Well, they don't have a legal right to do that. They're usually common carriers. And while there's been no specific First Amendment challenge brought by phone companies against these kinds of laws, it's pretty broadly understood that of course phone companies have to carry everybody. Well, subject to some exceptions, like if somebody doesn't pay well, they don't have to, they can cancel the phone line then. Or maybe if somebody makes harassing phone calls to people pretty well defined well, then they can cancel their phone service, but not because they don't like the person's politics or the entity's politics. Imagine it's the recruiting line for the local communist party or the local clan church.
Professor Eugene Volokh:
So where do social media platforms fit in between? Where do social media platforms fit in between? Interestingly, one thing that I think there was some indication of in the arguments is that the justices might think and I think probably correctly that social media platforms may actually have multiple functions that may have different rules applicable to them. So, for example, one function is direct messaging, essentially sending messages from one person to another, and you know that begins to look a lot more like a phone company or a telegraph company. So back when telegraphs were first developed and commercialized in the 1800s, telegraph companies were found to have blocked certain users because they didn't like their messages for a variety of reasons, and the government said you know you can't do that, and it may be that again. Some functions of social media platforms, like direct messaging, are like that and therefore can be treated as common carriers.
Professor Eugene Volokh:
On the other hand, some functions of social media platforms are a lot like newspapers. Like, for example, if a social media platform says here are some items you might like. Like we're going to take all of the billions of posts on our service and we're going to select a few that might be of interest to you. That's kind of like a newspaper choosing which articles to publish, and they're pretty likely that they're going to have First Amendment rights to say you know, we just don't want to promote certain kinds of things. So then there are the things in between, like what happens if somebody has an account on this and has followers. Real Donald Trump may have an account on Twitter or some other service and has followers who deliberately signed on just to read him, or at least they subscribe to him.
Professor Eugene Volokh:
Well, should platforms be treated more like phone companies as to that, or more like newspapers? I think it's a close question. I think there's a plausible argument that in fact, uh, for communications to one subscribers. Maybe it is kind of like uh postal, the post office, which is government run, but still um, or likePS or FedEx, or like the phone company where people should be able to reach those who deliberately call them, let's say. But it looked like there was probably going to be a majority on the court to say no. When it comes to hosting a publicly facing microblog or Facebook page or Twitter feed or whatever else, platforms should be able to say we're not going to host certain kinds of material, but may be different with regard to direct messaging. So it's hard to know for sure and different justices express different views and it's not completely clear sometimes what their views were. But it looks like it'll be probably mostly a victory for the challengers of these Florida and Texas laws, but perhaps not a complete victory.
Attorney Bob Sewell:
Let's discuss these ideas a little further. And what you're getting at is this concept of public carrier. When you're talking about the phone company, the public carrier does not get to censure your speech, doesn't get to pick and choose who it sends its phone to. If you need a phone, you get the phone with, whether you're a Nazi or or, or a liberal or you are, you know, a Republican or Democrat, whatever it is, you get a phone number. You are a Republican or a Democrat, whatever it is, you get a phone number, you get a phone. So and I get that but social media companies and I get the concept that you have a social media company. What's it called? Some of the functionality, you know, direct messaging feels more like phone than it would anything else. What's interesting for me is, when we think about these common carriers, they tend to have a monopoly, and it's a very strong monopoly.
Professor Eugene Volokh:
Right. So that turns out to be true for some common carriers. The classic landline phone company is a monopoly, but cell phone companies are also treated as common carriers and they are famously competitive. Right, yeah, like cell phone companies. Yes, exactly, ups and FedEx are competitive. They compete with each other. They compete with the postal service. They're treated as common carriers Historically.
Professor Eugene Volokh:
When you look more broadly beyond communications to things like transportation, there were various trucking companies that were common carriers, but they don't have monopolies. There's a closely analogous concept of place of public accommodation. Those are businesses that have to serve people without regard to race, for example, or religion or sex, and historically some of them just had to serve old comers. Some of them the rationale may have been in part that there were monopolies or close to it. Maybe there's only one hotel in a town, or only one inn in a town, or one restaurant, let's say. But pretty quickly these concepts got extended beyond just monopolies. So ordinary stores are often in many ways places of public accommodations under state law. So while it's true that some of the most compelling arguments for some duty to serve everyone equally comes when there's a monopoly, that's not the limit of common carrier. So let me give you one other example.
Professor Eugene Volokh:
One of the cases that most guts in favor of the states here is a case called Prunier Shopping Center and that involved a California rule which said that large shopping centers not every shop, but large shopping centers let's say a block or larger shop but large shopping centers let's say a block or larger even though they're private, they have to allow members of the public who are on the premises to hand out leaflets to others or to try to gather signatures or something like that. The shopping center challenged that California rule in the US Supreme Court, saying this violates my First Amendment rights to decide what goes on my property. And the court said no, you don't have that First Amendment right. Maybe a newspaper might have a First Amendment right to pick and choose what goes in its pages, but you don't have a First Amendment right to choose what goes on to your real estate.
Professor Eugene Volokh:
Shopping centers aren't monopolies. Now, it's true that they're enviable locations for people to use, like social media platforms, but there's usually more than one shopping center within driving distance, at least in very many places in California. Nonetheless, state law could constitutionally treat them as a place that has to be opened for public speech. So one question is to what extent are social media platforms, like the new public forum, one rationale for this California rule, also adopted in a few other states, for treating for requiring access to these large private shopping centers. Is it used to be, people would gather in the public square, literally in the square in the middle of a town, or in a park or in sidewalks.
Professor Eugene Volokh:
Well, now they don't go into private I'm sorry onto Main Street to walk down the public sidewalks. They go to a mall to walk down the private sidewalks in the mall, but still that is a form. It's kind of the new public square. The California court said and the Supreme Court said yes, california could treat it that way. Well, now social media, the Supreme Court has said in a different context, is the still newer public square, and the question is to what extent may states say yes, we're going to require social media platforms there to provide access without regard to viewpoint.
Attorney Bob Sewell:
Yeah, and I'm glad you brought that case up because that's one of the ways we feel about that, and I use the word feel about it because people do feel like social media in certain types is their public square. They use X to shout out their grievances, they use Reddit to shout out grievances. They use true social and Facebook and Instagram, and they want people to know how they think and feel about. And, similarly, I can turn them off or not go to the public square if I choose to, and as long as there's a place that's well regulated for speech, then it's fine that I choose to go to that place or not go to that place. And so I see that case as being interesting and I'm glad you brought it up because it's recognizing that traditional view of public square.
Attorney Bob Sewell:
But social media companies aren't exactly like a public square, right? I mean, for example, let me just say let's say I start a social media account and it goes wild. A social media account and it goes wild, and it's dedicated to vacations and vacations, only vacation pics, and I go out and I have millions 50 million plus users are tuning in to see all these people do their vacation pics. Well, that tends to be a little different than a public square, but yet the California law would no excuse me. The Texas law might treat me as a public square.
Professor Eugene Volokh:
I'm not sure I understand.
Attorney Bob Sewell:
You have an account on Twitter or Facebook or you just set up a whole new site, a whole new setup, and I say it's the social media account for people who just want to be looking at and sharing their vacation pics. That's my editorial content, right? I make that choice as a private company to say this is about this product, this is about vacations. You come here to take vacation pics, show vacation pics. And that's a little different, right? Because 10 people in social media tend to specify and be interested in what they do, certain things. So, but if my platform's required to have the neo-Nazis on there or the, you know, the progressive RS party or whatever the party is, isn't that destroying my editorial content?
Professor Eugene Volokh:
Right. So this is an interesting question that came up in the arguments. What if you want to have a social media platform that has a particular editorial spin? They didn't talk about subject matter but viewpoint-based. What if you want to have kind of the left-wing Facebook left book and somebody else wants to have a right book On left book? They want to say we only have left-wing content, that's why people come here. Right book, we only want to have right-wing content, that's why people come here. Right book will only want to have right wing content, that's why people come here.
Professor Eugene Volokh:
Now the Texas law, for example, limits itself to large, large social media platforms social media platforms that have functionally have more than 50 million active users in a calendar month. So most really niche platforms are not going to qualify. But you could imagine a very large platform or a smaller platform in a state that has a smaller threshold, that deliberately has a particular viewpoint. You could. But it's not completely clear under First Amendment law what that should tell us about platforms that deliberately try to open themselves up to a very wide range of views. So just to give an analogy from the government-run property context, if the government decides to open up property or a program to some messages. It can do that. It can say here's this bulletin board in which you folks can post messages about why everyone should recycle. And if you post something on this bulletin board that is against recycling or completely unrelated to recycling, why people should, I don't know, go and play baseball instead, then we're just going to take it down because this bulletin board is for recycling. There was an analogy.
Professor Eugene Volokh:
There's a case where the government said we're going to fund a speech about birth control, doctors' advice to patients about birth control, but not about abortion. We're only funding the birth control side. You want to speak out about abortion, you do it not using our money. That's permissible. On the other hand, if the government says you know we're going to open this up to pretty much everybody to speak about pretty much anything, but no anti-recycling speech or no pro-abortion speech. You can say all sorts of things on all sorts of other topics. We're going to exclude that. That's generally viewed as unconstitutional.
Professor Eugene Volokh:
There the government is said to have opened up a designated public forum or a limited public forum, a place where the public is entitled to speak, and now at that point it can't exclude a few viewpoints. So you know the line is sometimes pretty hazy. When does the government, when is the government just opening up a place for speech on a particular expressing a particular viewpoint on a particular topic, and when is it opening it up to almost everybody but excluding a few others? But that kind of line is drawn. Likewise, you want to just to give another example, public accommodations. You know there are lines between private clubs which can say we are for men only or for whites only, for blacks only, but places that are really open to the public, generally speaking, can't discriminate in certain ways.
Professor Eugene Volokh:
Likewise with common carriers One important distinction, just to give an example from the neighboring area of transportation we talked about, like trucking companies and such, if you're a trucking company and you qualify for common carrier status, then you basically have to take all comers, more or less.
Professor Eugene Volokh:
I oversimplify here. But if you set up a business that's not open to the public at large but just for kind of a particular set of your business partners, you kind of go out to each one individually and say you want to hire us for this kind of thing, you can do that. Well, then you're not a common carrier. So these lines sometimes have to be drawn and the law generally does draw them. So similarly, to give the example from the California shopping mall area, let's say somebody says we are a shopping mall, but we're shopping mall. We want our message to be a conservative message, so people aren't allowed to come and gather signatures for liberal causes on our shopping mall. I don't think that would get that shopping mall out from the California rule that shopping malls have to be open. Once they're open themselves up to the public generally, they have to be open to all speakers to all speakers.
Attorney Bob Sewell:
One of the things that I was curious about when I read the Texas law was they just said whereas social media platforms are common carriers, and the first thing I thought was really how do you know that? How do you know they're common carriers? They obviously understood the gene volux of the world's arguments about what a common carrier is, but how do they know that they're? When I read the law in the preamble, it says they are common carriers. How do they know that?
Professor Eugene Volokh:
says they are common carriers. How do they know that? Well, common carrier is not, like I don't know, proton or or uh uh, planet, which is something which exists out there in the world, although even what is a planet or what's not, as a matter of some definition. Common carrier is a legal concept. It is a legal concept that's defined, as most legal concepts are, by legislatures. So they could say we're going to treat certain things as common carrier. I'll give you another example Public accommodation. We mentioned that briefly. It's kind of analogous to a common carrier, of analogous to a common carrier.
Professor Eugene Volokh:
Many public accommodation laws don't require public accommodations to be open to everybody, but they ban discrimination based on race, religion. Some ban discrimination based on political affiliation. Seattle is one example. There's a local ordinance. Well, what's a place of public accommodation? You look at federal law. It basically defines it as hotels, restaurants and places of public amusement. Grocery stores aren't public accommodations. Federal law doesn't ban discrimination by grocery stores, but many states define them as places of public accommodations. Some of them don't even require it to be a place. Some of them say you know a business a florist, let's say or I shouldn't say a florist that is more kind of a brick and mortar location, let's say a website designer is a place of public accommodation.
Professor Eugene Volokh:
You may recall there was a Supreme Court case about this just this last year, about whether there's a First Amendment defense to that kind of law.
Professor Eugene Volokh:
So different states can define them differently. So likewise, if Texas or Florida says these are common carriers, I don't think it's a defense to say, well, they're not common carriers under the existing rules. Legislature can say we can change the existing rules. Sure, in a time before social media platforms, common carriers were defined as phone companies or telecommunications services of a certain kind. Let's say, in a time before social media platforms, common carriers were defined as phone companies or telecommunications services of a certain kind. Let's say but now that the world has changed and that our views about what's right have changed, we're going to modify the definition. So there's nothing particularly wrong about that, wrong with that as such. You might say that they drew the line in a bad place. You might say that the First Amendment says regardless of whether you call it a common carrier or not, the social media platform can pick and choose. But the definition of common carrier is up to lawmakers.
Attorney Bob Sewell:
So what about? So here's the situation is that the social media companies are claiming hey, our editorial content is that we get to choose what stays on our platform. That's our right, that's our editorial content, that is our free speech content, that is our free speech. And so when you prohibit us from removing people, you're damaging our free speech. How do they get to that analysis? What standards is the court going to look to determine if that's really the case?
Professor Eugene Volokh:
Well, you know, looks at the precedents. And again precedents point one way for the newspaper or the parade. Those are entitled to pick and choose as a First Amendment matter, pick and choose what's included. On the other hand, they point another way to shopping centers or to universities deciding whether to allow, allow military recruiters to use their classrooms and other space during recruiting season. Or cable companies, the court had said, can be required to host certain kinds of channels on their cable systems, be required to host certain kinds of channels on their cable systems.
Professor Eugene Volokh:
So the court's question is, in a sense well, are social media platforms closer to one than to the other? And that involves a good deal of discretion. Right that justices can decide. You know, in a way that, differently from how you or I might decide, they say, yeah, well, it's closer to one rather than the other. We may disagree, but it's their call. There's no very crisp, clear rule that the cases have said these are the entities that have First Amendment, protected editorial discretion newspapers, parades. These are the entities that do not have such discretion telephone companies, shopping malls. And that's because here is the test, the one simple test that tells us is it A or is it B. There is no very clear test. There are just these precedents and there are judges who say you know, is it closer to one or to the other?
Attorney Bob Sewell:
choice. The easy example of a social media company censoring speech is if Bob Sewell gets on there and he starts spouting conservative rhetoric on and Facebook starts deleting my posts, right, they start or they turn me off generally. They take away my platform. That is one sense of censorship. But there's also the other sense of censorship where the code can devalue the newsfeed. So Bob Sewell is spouting his conservative ideas. They don't take me off the platform, they just make me. So I get buried in the newsfeed or not appear in people's news at all. So that's a different way of censoring the speech.
Professor Eugene Volokh:
Right, and you might say that the rules are different in those situations. It may be that platforms have to host you on their service but don't have to promote you to other people in a way that seems to carry their seal of approval. I'll give you an example. Remember I mentioned the university context. I oversimplify here, but basically there was a case where Supreme Court said that Congress could require universities to allow military recruiters on their premise. Some universities didn't want to do this because at the time the military discriminated based on sexual orientation and that was contrary to the university's views. So they excluded it. But Congress basically said if you want government money, you have to allow military recruiters. And the Supreme Court upheld that saying. It doesn't matter whether it's conditioned, whether it's tied to the provision of government money. Congress could just mandate that all universities host recruiters. So universities can't just exclude military recruiters. So universities can't just exclude military recruiters. They don't have that First Amendment right, even if they want to have a totally pro-gay rights university where all the messages come from pro-gay rights perspectives. On the other hand, if the military then says, well, not only do we want you to host us, we would like it, if you kind of listed us as one of the five best recruiters that everybody should see. We'd like it if your professors would at the start of class say oh, make sure you show up to talk to the military recruiters there. The university would say no, we have a First Amendment right not to do that.
Professor Eugene Volokh:
The Supreme Court said universities could be required to host them. Universities could be required to provide simple location or directional information, like for them, the same way they do for everybody else, which is to say indicate the recruiters in this room, the military recruiters in this room, the Justice Department recruiters in that room. But if the university, if the question is a speech that goes beyond that, if it's a university affirmatively choosing to promote certain recruiters, then it's entitled to say well, we're not going to promote the military ones because we don't like their policy on sexual orientation, discrimination and hiring. So I think something quite similar could be done here. You might say social media platforms can't block direct messages based on their viewpoint. Maybe they can't delete somebody's account because of their viewpoint, but they can say when we're choosing what to recommend to our users, we're going to choose the things we like and not the things we dislike.
Attorney Bob Sewell:
Yeah, and that makes a lot of sense to me in that context, because I got a friend and he really loves motorcycles and his social media content is all about motorcycles. And I think he'd be upset if his social media content all about motorcycles and I think he'd be upset if his social media content, if the Instagram and the Facebook started showing him all sorts of democratic stuff. He would be kind of upset with that. And so because he wants the platform to be for him, Isn't that part of it?
Professor Eugene Volokh:
Is that part of it? Well, I do think that functionally it is pretty useful for platforms to, let's say, useful from the user's perspective, for platforms to be selective in what they show us as users. Look, I'm not a supporter of Donald Trump, but it doesn't matter to me as a user of Twitter that there is an account on Twitter called Real Donald Trump that's run by Donald Trump. But I don't care. Maybe some people are upset. I refuse to use any platform that even hosts material I dislike. Well, that's on them, that's their problem. If they just can't stand the notion of being on this platform, well, I'm not sure why the law should be terribly accommodating. On the other hand, it's understandable. People might say the things that come to me not because I go and want to visit them, not because I go to that page, not because I subscribe to it, but just because it's in this newsfeed of latest breaking stories. I want those things to be things that are relevant to me, maybe not terribly offensive to me, maybe more likely to be accurate rather than hoaxes. So that's a pretty valuable function that the social media platforms can provide. Here's one way of thinking about it. It's not necessarily dictated by the First Amendment, but maybe it's a helpful way of thinking about what might make sense here.
Professor Eugene Volokh:
There's a huge problem out there in many contexts in our lives of information overload, and certain institutions newspapers are an example are a way of dealing with that problem. Another example is Google search. Actually, I wrote, as a lawyer, a paper supporting Google's right to include what they want in their search results. So I should warn you I said that as a lawyer, but I'm saying that as an academic as well that if there are all these billions of web pages out there, we need some tools that pick and choose. We need a newspaper that picks and chooses which stories to run. We don't need a phone company that picks and chooses which phone lines, which entities get phone lines, because it doesn't matter to me whether the communists happen to have a phone line on the same cellular service that I use.
Professor Eugene Volokh:
Likewise, it probably doesn't really matter to me, as I said, whether Twitter is hosting a particular page, because the way I deal with information overload in many ways is I just pick and choose which pages I go to. But when it comes to all the things that Twitter or Facebook or YouTube show me as here are pages you might want to visit here, based on what we know about you, is what we think you might enjoy. Well, there they are dealing with a problem of information overload. They are trying to find the tiny number of useful things out of this universe that is mostly useless or upsetting or just not helpful to me. And there it makes a lot of sense that they would have the discretion to say well, certain things are going to be included based on viewpoint, certain things exclude.
Attorney Bob Sewell:
All right. So one final question. You're in Vegas, you're in Vegas, okay, you have $1,000 that you must bet on who the winner of this case will be. How are you going to place your bet and why?
Professor Eugene Volokh:
Well, I'm not sure that the rules of professional responsibility for lawyers allow betting on judicial decisions, but if they do, I'm not sure they don't. But if they do, and if I were so inclined, I would bet that the social media platforms, which is to say NetChoice, the organization that represents them, will win, that maybe they won't win completely. Maybe, for example, the court will say well, it could be different as to direct messaging and the like, but for the things they care about, which is the right to say, we get to ban users who post things to the public or to their subscribers that we don't like, I think the court will say, yes, they have the right to do that. They're more like newspapers than like phone calls. Is that right or wrong? Not sure. Functions. Is that right or wrong? Not sure, but that's what it looked like from the oral argument.
Attorney Bob Sewell:
Yeah, I got to be honest with you. It's a troubling outcome for me either way and, as a guy who loves the First Amendment and wants to be able to say whatever he wants, I want people to be able to say it right and to be out there and I don't want to be censored. But on the other hand, I could see how, if I own that company, I don't necessarily want to be told what to do with my company and it's a troubling outcome. But, professor Volokh, thank you for coming on the show.
Professor Eugene Volokh:
Thanks very much for having me, and all the best.
Attorney Bob Sewell:
Thanks for listening to the podcast. Is that Even Legal is now listened to in 100 countries and available on virtually all podcast platforms. Leave us a review, send us some show ideas and do so at producer at evenlegalcom. Don't forget, as smart as we sound and as lovable as we are, we are not your lawyers and we are not giving you legal advice. But if you need some legal advice, get some. There are some great lawyers out there and we are always ready to help. See you next time.
