pruneyard – Techdirt (original) (raw)

The Right To Advertise?

from the open-access-proved dept

Sometimes, an advertisement is worth a thousand op-eds. Last week, one of us co-authored an op-ed criticizing an amicus brief filed by the American Economic Liberties Project and several prominent law professors in the pending Supreme Court case NetChoice v. Paxton. AELP’s brief defends the constitutionality of a Texas law prohibiting social media companies from moderating – or “censoring,” at least according to Texas – user-generated content. Among other things, AELP argues that social media companies and newspapers have different First Amendment rights, because social media is “open-access” and newspapers aren’t.

AELP’s argument is based on two Supreme Court cases, Miami Herald and PruneYard. In Miami Herald, the Court held that Florida couldn’t require a newspaper to print a politician’s rebuttal to a critical article. And in PruneYard, it held that a state could require a shopping mall to permit political speech. AELP claims that social media is more like a shopping mall than a newspaper, because malls and social media are both open-access.

Not only is AELP’s legal argument absurd, but also its premise is false. Newspapers and social media are both open-access, so AELP’s own theory implies they should have the same First Amendment rights. According to AELP, social media and newspapers are different because everyone can publish on social media, but not everyone can publish in the newspaper.

Wrong. Sure, not everyone can publish an op-ed, but anyone can publish an advertisement. All they have to do is pay for it. The only difference between social media and newspapers is that access to social media is free, but you have to pay for access to the newspaper. Yes, newspapers reserve the right to exercise editorial discretion over which ads they’re willing to print. But that’s all social media companies want, and it’s what Texas is trying to prohibit them from doing. The Florida law at issue in Miami Herald required newspapers to give politicians a free right of reply, and the Texas law at issue in NetChoice does the same thing, by forcing social media companies to publish speech that is anathema to their advertisers. If newspapers can offer open-access to ads, but moderate what they print, then so can social media.

But the op-ed wasn’t enough. If telling readers about the problems with AELP’s arguments is good, then showing them is better. So we decided to demonstrate that newspapers are every bit as open-access as social media and exercise editorial discretion in exactly the same way.

So we bought an ad in the Miami Herald, criticizing AELP’s argument by demonstrating that newspapers are in fact open-access, so long as you’re willing and able to pay for access. As of today, our ad is scheduled to run from Monday to Thursday, pending approval.

Amusingly, our demonstration works whether or not the Miami Herald ultimately publishes our ad. If the Miami Herald prints our ad, it shows that newspapers are in fact open-access, because anyone can publish an ad. We were able to create an advertising account, schedule a campaign, and pay for it, in minutes. This default openness is moderated only by the paper’s reservation of the right to reject particular creatives. And if the Miami Herald refuses to publish our ad, perhaps deciding that it violates their social media community guidelines-esque “creative approval policies,” it shows that newspapers are open-access publications that still exercise editorial discretion over what they print. Heads, free speech wins, tails compelled speech loses.

Filed Under: ads, larry lessig, open access, pruneyard, tim wu, tornillo, zephyr teachout
Companies: aelp, netchoice

Florida Presents Its Laughable Appeal For Its Unconstitutional Social Media Content Moderation Law

from the disney-exempt! dept

Now that Texas has signed its unconstitutional social media content moderation bill into law, the action shifts back to Florida’s similar law that was already declared unconstitutional in an easy decision by the district court. Florida has filed its opening brief in its appeal before the 11th Circuit and… it’s bad. I mean, really, really bad. Embarrassingly bad. I mean, this isn’t a huge surprise since their arguments in the district court were also bad. But now that they’ve had a judge smack them down fairly completely, including in terribly embarrassing oral arguments, you’d think that maybe someone would think to try to lawyer better? Though, I guess, you play with the hand your dealt, and Florida gave its lawyers an unconstitutionally bad hand.

Still, I’d expect at least marginally better lawyering than the kind commonly found on Twitter or in our comments. It starts out bad and gets worse. First off, it claims that it’s proven that social media platforms “arbitrarily discriminate against disfavored speakers” and uses a really bad example.

The record in this appeal leaves no question that social media platforms arbitrarily discriminate against disfavored speakers, including speakers in Florida. The record is replete with unrebutted examples of platforms suppressing user content for arbitrary reasons. E.g., App.891 (Doc.106-1 at 802) (Facebook censoring The Babylon Bee, a Florida-based media company, for obviously satirical content). When caught, platforms frequently cast these decisions off as ?mistakes.? E.g., App.1693 (Doc.106-5 at 201). But systematic examinations show that platforms apply their content standards differently to content and speakers that express different views but are otherwise similarly situated, all while publicly claiming to apply those standards fairly. See App.999, 1007, 1183 (Doc.106-2 at 14, 22; Doc.106-3 at 17). There are many examples in the Appendix, and even that list is hardly exhaustive.

Except that at scale, tons of mistakes are made, so yes, many of these are mistakes. And others may not be, but it is up to the platform to determine who breaks the rules. But, much more importantly, it is totally within the right of private companies to moderate how they see fit and interpret their own terms of service. So even if there were proof of “discrimination” here (and there is not), it’s not against the law.

From there it just gets silly:

Undoubtedly, social media is ?the modern public square.? Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017). In S.B. 7072 (the ?Act?)…

Generally speaking, citing Packingham is a demonstration for support of your plan to force private actors to host speech shows you have totally misunderstood Packingham and are either too ignorant or too disingenuous to take seriously. Packingham is about preventing the government from passing laws that remove full internet access from people. It does not mean that any private company has to provide access to anyone.

The argument that Florida’s law is not pre-empted by Section 230 is nonsense. Section 230 is clear that no state law can contradict it and do anything to put liability on private website operators (or users) regarding the actions of their users. But that’s exactly what Florida’s law does.

As the District Court tacitly acknowledged, the only part of that statute that could possibly preempt the Act is Section 230(c)(2). But that provision serves only to absolve platforms of liability when they remove in good faith content that is ?objectionable? within the meaning of Section 230(c)(2). That leaves myriad ways in which the Act can apply consistently with Section 230(c)(2). For example, the Act and Section 230 can peacefully coexist when a social media platform fails to act in ?good faith,? when the Act does not regulate the removal or restriction of content, or when a platform removes unobjectionable material.

This is disingenuous to downright wrong, and completely ignores the interplay between 230(c)(1) and 230(c)(2) and, notably, the fact that nearly every lawsuit regarding moderation has said that (c)(1) protects all moderation choices, whether or not they are “good faith.” And Section 230 clearly also pre-empts any attempt by a state to ignore moderation that is protect by (c)(1). Florida’s lawyers just ignore this. Which is kind of stunning. It’s not like the lawyers for NetChoice and CCIA are going to ignore it too. And they can point to dozens upon dozens of cases that prove Florida wrong.

The 1st Amendment argument is even worse:

Plaintiffs are also unlikely to succeed on their claim that the Act violates the First Amendment on its face. Most of the Act is directed at ensuring that social media platforms host content in a transparent fashion. For example, the Act requires non-controversial, factual disclosures, and disclosure requirements have long coexisted with the First Amendment. Even the portions of the Act that regulate the manner in which platforms host speech are consistent with the First Amendment. When properly analyzed separately from the Act?s other provisions?and from the extraneous legislative statements on which the District Court primarily relied?these requirements parallel other hosting regulations that the Supreme Court has held are consistent with the First Amendment. E.g., Rumsfeld v. FAIR, Inc., 547 U.S. 47, 63 (2006). The Act?s hosting regulations prevent the platforms from silencing others. They leave platforms free to speak for themselves, create no risk that a user?s speech will be mistakenly attributed to the platforms, and intrude on no unified speech product of any platform. These requirements are little different from traditional regulation of common carriers that has long been thought consistent with the First Amendment.

The reliance on Rumsfeld v. FAIR is quite silly, and the few people who have brought it up also tend to look quite silly. This is not even remotely similar to the Rumsfeld situation, which was very narrow and very specific and cannot be extended to apply to an entire social media platform. And to just sort of toss in the idea that social media is a common carrier — when they do not meet (at all) the classification of a common carrier, and have never been deemed a common carrier — is just boldly stupid.

There’s more, of course, but those are the basics. You never know how a court is going to decide — and perhaps you get a confused and persuadable judge (there are, unfortunately, a few of those out there). But, this is really weak and seems unlikely to stand.

Filed Under: 1st amendment, common carrier, content moderation, florida, free speech, packingham, pruneyard, public square, section 230, social media