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First Amendment News 288: Krishnamurthy and Chemerinsky v. Corn-Revere — the technology platforms debate continues

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The post below is the outgrowth of an op-ed by Dean Erwin Chemerinsky and Professor Prasad Krishnamurthy authored for The Hill — “How Congress can prevent Big Tech from becoming the speech police.” Robert Corn-Revere replied to the original article in a FAN post titled "Bring back the fairness doctrine? Destroying the internet in order to save it." 

Professor Krishnamurthy and Dean Chemerinsky offer their rejoinder in what follows. The final installment will be posted next week with Mr. Corn-Revere's reply. 

By Prasad Krishnamurthy and Erwin Chemerinsky

Prof. Prasad Krishnamurthy (Berkeley Law)

The power to censor speech, whether in the hands of the government or private companies, should be of great concern to all of us. Although we disagree with virtually everything President Trump said, we are deeply concerned that Twitter’s lifetime ban deprives him of the ability to speak and 88 million followers of the ability to hear his message. At this time, a relatively small number of media companies — Twitter, Facebook, Google, Youtube — exercise enormous control over what all of us can see and hear.

A modest proposal 

In light of this, we advanced a modest proposal: Congress should pass legislation that forbids designated social media platforms from discriminating against users and content on the basis of their political views. Platforms would still be free to remove unprotected speech such as libel, slander, threats, and the intentional dissemination of untruth. They would also be permitted to remove posts that do not conform to their community standards of decency and mutual respect. But platforms would not be permitted to censor speech based on its political content. We believe that the Supreme Court’s decisions upholding the fairness doctrine, such as Red Lion Broadcasting Co. v. FCC and Turner Broadcasting System v. FCC, provide a constitutional basis for such legislation.

Robert Corn-Revere, an eminent First Amendment lawyer and scholar, has opposed this by saying that we are urging Congress to create a fairness doctrine for the internet. He then proceeds to say that the fairness doctrine was a disaster and would “break the internet.”

Mr. Corn-Revere creates a straw person and then attacks it. We do not argue for a fairness doctrine for the internet. We mention the fairness doctrine cases because they support the constitutionality of what we propose: federal legislation to prevent monopoly social media platforms from discriminating against users and content on the basis of their political views.

Critical questions
 

Dean Erwin Chemerinsky
Dean Erwin Chemerinsky (Berkeley Law)

There are three critical questions: First, should social media platforms be able to exclude speech based on the political views expressed? Mr. Corn-Revere does not defend the desirability of their doing so. We believe that censorship based on political views is wrong whether done by the government or powerful private entities and is harmful to freedom of speech.

Second, is there a workable way to prevent social media platforms from excluding speech based on political views? Mr. Corn-Revere opposes creating an agency with this power. We never advocated such an agency. Perhaps a cause of action against social media companies when they do this would be the best option. Mr. Corn-Revere describes how litigation was strategically used by incumbent political parties to harass or silence broadcasters, especially smaller ones, under the fairness doctrine. But our proposal covers monopoly social media platforms, so there is much less of a likelihood that they can be pressured by baseless litigation. If it is agreed that social media platforms should not exclude speech based on their political views, the conversation should be about how to implement that.

Third, would such restrictions be constitutional? Unlike Mr. Corn-Revere, we find no indication that the Supreme Court ever has repudiated Red Lion Broadcasting Co. v. FCC or Turner Broadcasting System v. FCC. Reno v. ACLU declared unconstitutional some provisions of the Communications Decency Act, but did not consider any of the issues we are raising or the problems with monopoly social media companies that simply did not exist then. The argument must be that social media companies are the “press” under the First Amendment and to hold them liable for the choices they make in regards to content violates the Constitution. The irony is that under Section 230, social media companies purport to be anything but the press. More importantly, the constitutional question is whether government regulation to further free speech outweighs the institutional interests of social media companies to not be regulated. We do not deny that this is a difficult issue, but we ultimately believe that the central goal of the First Amendment is more speech — and that is what we are urging.

'Join us'

We appreciate Mr. Corn-Revere’s thoughtful response. But we fear he misunderstands our proposal. In fact, we would hope that as a forceful advocate of free expression that he would join us in wanting legislation to limit censorship of political speech.

Related

Watch this conversation between Professors Eugene Volokh and Eric Goldman via the UCLA Institute for Technology, Law, and Policy. Moderated by Leeza Arbatman. Below is "a rough summary":

As private entities, social media platforms are not bound by the First Amendment, and are free to permit—or block—content and users as they see fit; and 47 U.S.C. § 230 preempts any state statutes that would impose greater limits on such companies. That, at least, is the traditional view.

But some state legislatures are considering statutes that would ban viewpoint-based blocking by platforms; and some scholars are arguing that those laws might prevail, notwithstanding § 230. What are these theories? And what are their strengths and weaknesses?

Professor Volokh noted that his views on the subject are far from settled: "I was trying to outline arguments that I think need to be considered, though I'm not certain what policy, ultimately, makes the most sense here."

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The cert petition was filed on Sep 11, 2019. The case has been distributed for conference four times since December 23, 2019, most recently on Feb. 14, 2020.

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Forthcoming article by Volokh on 'Cheap Speech'

  1. Introduction
  2. The Return to Criminal Law as a Remedy: Libel
  3. More Criminalization: Invasion of Privacy
  4. More Criminalization: “Harassment” and Stop-Talking-About- Plaintiff Injunctions
  5. The Return to Intermediary Control
  6. Conclusion

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