I am enmeshed in a disagreement with esteemed and long-time Ethics Alarms commenter Chris Marschner regarding Texas’ HB 20 signed into law last year. It prohibits social media platforms with over 50 million monthly U.S. users from censoring posts based political positions and viewpoints. To my surprise (although considering the Court, maybe it shouldn’t have been) the Fifth Circuit helding that the right to free speech didn’t include the right to censor speech, a privately-owned platform. That opinion is here. I wrote that I didn’t understand the opinion at all, meaning that while I find the way social media platforms employ bias and partisan favoritism to censor posts using double standards profoundly unethical, I also think the Texas law is screamingly unconstitutional, and is likely to be held to be so by the U.S. Supreme Court. However, I understand the opinion better than I did thanks to Chris’s advocacy.
Here is his Comment of the Day on Item #4 of the post, “Sunday Consequential Ethics Epiphanies, 9/18/2022: On Incompetence, Diversity, Censorship And More..”
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You and I are in complete agreement on the issue of viewpoint discrimination. I will counter that the service provided is not free. It is true that monetary compensation is not used but the Users barter for the service by providing valuable personal data and rights to the content they post online on an ongoing basis.
While Facebook does not sell users data directly it does so indirectly by serving as a middleman using its algorithm to serve up targeted advertising. That is the foundation of the business model from which the service derives its income.
One might argue that the perceived value of this trade is lopsided in favor of the user because of the billions of dollars needed to create and maintain the platform while all the user exchanges for access is giving the Service intelligence about the User. The problem with that argument is that it only appears lopsided because until the business model was developed the user has no individual means to collect financial compensation for them being subjected to an endless barrage of advertisements. Through this business model Users obtain an exchange of value by creating a social media account. In a sense, Facebook, et al serves as a medium of exchange which is the primary defining characteristic of money.
Obviously, in aggregate the value to advertisers must be large enough to pay the fees to social media firms so that they can make a profit. Without large numbers of Users social media cannot reach the economies of scale necessary to remain viable. In a sense, Users collectively agree to provide data in exchange for the ability to use the platform. If the platforms restrict who can say what to such a degree that the User base shrinks, then the value of the targeted advertisements shrinks in value. Assuming that restricting censorship would chill the creation of new platforms and subsequently chill speech that would suggest that creating a platform has few barriers to entry. I would say that creating a platform has huge barriers to entry especially in light of the vertical integration of existing platforms which can and have shuttered other upstart social media firms using their monopoly power. If a platform censors and Users no longer gain value because their speech is suppressed, those Users will end the relationship and the economies of scale that allowed the Service to be profitable may disappear and the Service goes away like the predecessor to Facebook, “MySpace”
My reading of the opinion would not subject blog sites or web-based newspapers to the public utility standard that would trigger the commerce clause. Facebook seems to want to paint itself as a mere platform to avoid being responsible for what it publishes and also have the right to publish only what it deems fit to print under the rubric of providing “safety”. Invoking “Safety” has become the operative means to restrict challenges to the ruling class. Sticks and stone might break my bones, but words will never hurt me needs to be the standard by which the term safety should be applied.
Ethics Alarms 
Thanks for the discussion. I will say that my opinion is a lay opinion, and the actual constitutionality of the legislation may in fact wind up being ruled unconstitutional. If nothing else, the discussion on this subject allowed me to exercise my mind a bit – what little I have left of it.
My understanding of the appellate decision boiled down to nothing stops the platforms from creating its own speech to counter opinions that the platforms chose to censor. Consequently, because there are virtually unlimited opportunities to provide counter arguments the platforms cannot claim what some deem offensive is compelled speech on their part. The platforms claim editorial discretion when it does not curate ex ante but instead relies on users to flag objectionable content. That was one of the elements the court used to come to its conclusion.
The way to deal with disfavored speech is with more countervailing speech and not shutting down that which is disfavored. The notion that the speech they are shutting down enhances safety is lost on me. If that were the case, such an argument would suggest that government should also have that right given that the words “promote the general welfare” have been used to justify all sorts of intrusive and expansive government programs.
Call me a purist but private sector monopolies should have no business determining what I should read, hear, or see by virtue of their ability to control the marketplace of ideas through their economic and legal barriers to entry. We give government some control over such things, and we expressly limit that power. Information is a commodity that is collected and sold. It is therefore a commodity with value. If the platforms wish to trade in that value chain a competitive environment must exist, or the platforms must be regulated as we do with monopolies.
Monopoly is the appropriate word. We had many voices saying, “If you don’t like Twitter, Facebook, etc., create your own.” When that happened with Parler there was manipulation by Amazon to shut it down.
Happy First Amendment Day!
The primary reason I believe the opinion is correct is because the Court was faced only with a pre-enforcement facial challenge.
Under first Amendment jurisprudence, a facial challenger must show there is no conceivable constitutional application of the law, or that there is a chilling effect of freedom of speech.
the Fifth circuit’s recounting of the history of common carrier legislation, the admissions by the plaintiffs in original argument, and the only remedies the law provides being equitable remedies, mean that a facial challenge must fail.
Regardless of the law – it needs to be fundamentally understood that the Leftist totalitarians are skirting the law by using their private control of multiple aspects of society to enact what they can’t enact politically.
The social media monopolies (and they are despite the presence of ‘competitors’ like Myspace regarding Facebook or Parler regarding Twitter) *are* de facto “the Commons” in the information age. They perform a pseudo-governmental function of a free speech ‘zone’. The controllers of which can violate the spirit of the 1st Amendment with aplomb.
So, once we can figure out the ethical and legal way to define this reality, at the instant we can do that – damn right we should compel massive free speech platforms (which is what they are) to allow *all* speech.
Michael West wrote, “it needs to be fundamentally understood that the Leftist totalitarians are skirting the law by using their private control of multiple aspects of society to enact what they can’t enact politically.”
Defacto mob rule laws.
What happens in a constitution based free society/culture (where liberty has always been the core status quo since its inception) when the leaders of government bureaucracies, vast majority of prominent businesses, most public and private education systems, half or more of the politicians in the society and half or more of the voting population in the society all swallow the same extremely biased, hive-minded, anti-liberty propaganda as if it’s fact?
Liberty and the constitution die a slow death, that’s what happens.
The concept of liberty first dies when a majority of society willingly sets it aside for the greater good and then businesses, authorities and bureaucracies finish it off with the dreaded death by a thousand cuts. The death of the Constitution will follow the death of Liberty.
With every day, week and month that passes the tactics of the hive-minded Democratic Party become more and more obvious as their totalitarian tentacles stretch deeper and deeper into the bureaucracies that actually run and control the United States and those tentacles are strangling their opposition out of leadership and replacing them with anti-American anti-constitution hive-minded individuals with the ends justifies the means as a core belief. Consider this; the constitution will be toothless when all the bureaucracies are in complete control by the hive-minded totalitarian Democratic Party cult. If this cult is allowed to gain more power over the population then real tyranny is just over the horizon.
We are in complete agreement Michael.
If should be noted that 50 government agencies corresponded via email with Facebook executives to discuss “misinformation” .
In doing so, the government turned a private firm into an instrumentality of the government.