In Which A Bunch Of Us Try To Explain The 1st Amendment To Jeff Sessions Concerning 'Social Media Bias'

from the you'd-think-he'd-understand-it-already dept

A few weeks back, we did a post trying to explain how the planned meeting between Attorney General Jeff Sessions and a group of state Attorneys General to “discuss” how to deal with the imaginary problem of “political bias” on social media platforms actually represented a serious First Amendment problem. The government simply isn’t allowed to pressure companies into any sort of compelled speech, and yet it appears that’s exactly what these law enforcement officials were trying to do.

Late last week, we signed onto a detailed letter put together by the think tank TechFreedom, explaining why this meeting is so problematic.

We write to express our concern over your plans to convene a meeting of state attorneys general later this month ?to discuss a growing concern that [operators of popular social media services and search engines] may be hurting competition and intentionally stifling the free exchange of ideas on their platforms.? The First Amendment bars the government from attempting to ?correct? the first alleged problem, political bias, including through the antitrust laws, and sharply limits how the antitrust laws can be used against anticompetitive behavior beyond editorial bias. Essentially, antitrust law can prescribe anticompetitive economic conduct but ?cannot be used to require a speaker to include certain material in its speech product.? ? For all these reasons, we are skeptical that there are any grounds for legal action that could arise out of your inquiry.

The letter also highlights why the very idea of a “fairness doctrine” for the internet is Constitutionally impossible, not to mention ridiculous, given that the push for it is coming from the very same Republicans who have spent years falsely “warning” that the Democrats wanted to bring back a “fairness doctrine” for broadcast TV.

A Fairness Doctrine for the Internet Would Be Unconstitutional. The President and top congressional Republicans have talked about the need to ensure the ?fairness? of social media platforms and search engines. Consciously or otherwise, this invokes not antitrust law but the ?Fairness Doctrine? imposed on radio and television broadcasters by the Federal Communications Commission from 1949 until 1987. In theory, the Fairness Doctrine required broadcasters to represent a wide spectrum of opinion on controversial issues of public importance. The Supreme Court upheld this Doctrine in Red Lion (1969) ? but only because it declined to extend the full protection of the First Amendment to broadcasters on the grounds that they received government licenses to use a scarce public resource: the airwaves. Five years later, the Court categorically rejected mandating that newspapers offer a right of reply.

Anything like the Fairness Doctrine would undoubtedly be struck down as unconstitutional if applied to any other media ? whether to Fox News (the cable network) or Internet media….

Ironically, it was conservatives who led the fight to repeal the Fairness Doctrine over four decades ? because it hurt conservatives most: The threat of losing an FCC license discouraged broadcasters from including non-mainstream voices in their coverage and made impossible alternative media offerings with an unabashed conservative ?bias.? Indeed, it was President Reagan?s FCC that repealed the Fairness Doctrine in 1987.

The letter, targeted at Jeff Sessions repeatedly reminds him how such a tool might be used in the other direction as well:

The last thing conservatives should want is a Democratic administration with such arbitrary power (or a Republican administration, for that matter). A Warren administration, say, could use such powers to coerce existing social media sites and search engines to disadvantage conservatives (in the name of neutrality and fairness, and stopping ?fake news,? of course) and also to prohibit the ?Facebook for conservatives? network recently called for by Donald Trump, Jr.

It’s quite incredible that we’re even discussing this. A fairness doctrine doesn’t make any sense, and is broadly unconstitutional for a whole host of reasons. What’s bizarre and troubling is how quickly those who like to wear blue or red uniforms like to rush to it as soon as they feel one area of the media is “biased” against them, not recognizing how it would clearly be used in other areas of the media as well.

While it appears that Sessions’ gathering with Attornerys General will happen, hopefully all it serves to do is remind them all that the First Amendment exists, and that they are Constitutionally prohibited from messing with how online platforms present content.

Filed Under: , , , , , , , , , ,
Companies: facebook, google, twitter, youtube

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “In Which A Bunch Of Us Try To Explain The 1st Amendment To Jeff Sessions Concerning 'Social Media Bias'”

Subscribe: RSS Leave a comment
Anonymous Anonymous Coward (profile) says:

Economic Competitiveness in Politics, new rules

I am still trying to figure out how the whole hurting competition thing fits into Session’s rhetoric. Is he saying that if Facebook or Twitter ban some conservatives then other social media platforms are harmed? Or is he saying that ‘conservatives’ are harmed? Since ‘conservatives’ are not engaged in business, as ‘Conservatives Inc.’ where do the antitrust issues arise?

Or is Session’s and minions seriously trying to tie politics with commerce? Now there is some understanding that corporations are major players in the economics of politics in both the hard and soft money arenas, but politicians seem to attempt to distance themselves from what certainly appears to be graft (except when accepting checks or large bags of cash). Now we have a government agent with a fairly high level of responsibility telling us that political money should be competitive. Some of those corporations give to both parties, or both candidates as a hedge on their bets. Is Sessions suggesting that all corporate contributions be equally divided between parties/candidates?

If he is, then he may be shooting his team in the foot/head as that would eliminate any advantage. Something he is clearly trying to endorse, but only for his side (at least in his limited way of thinking).

Anonymous Coward says:

Re: Economic Competitiveness in Politics, new rules

Anti-trust actions in the US generally require both dominance within an industry as well as activities which leverage that dominance to harm consumers. Causing harm to other businesses within the industry (or any industry) is actually not particularly important except as potential evidence of consumer harm.

Sessions is trying to allege that Facebook et al. are abusing their dominance to harm conservatives, and that “conservatives” are a close enough proxy for “consumers” that action is justified.

Anonymous Coward says:

Re: Strange laws

“1. you’re not allowed to bar anyone from your private platform/establishment.”

platform – as in something like a website on the internet?
If so – then no, you are incorrect.

“2. you’re fully liable for any problems that occur in your area(including when people “link” to your site in casual conversation)”

And again – no, you are incorrect.

It is almost as if you went out of your way in order to get it completely wrong.

Bamboo Harvester says:


Can’t have religion in schools, as the Government funds the schools, so that’s a fairly easy rationalization of the First.

How much funding does the Fed do directly to internet infrastructure? Enough to prevent them from taking action, or enough to force them to take some kind of action?

Granted, it’s all just grandstanding at the moment, the usual “do something to get votes” blather.

But someone will slip some Rider on a Bill that passes which DOES something.

Uriel-238 (profile) says:

Government compelled speech

Warning labels on cigarettes, ingredients labels on processed food and that obligatory abortion is unhealthy speech that some states require abortion providers to say, even though it includes false statements conflicted by statistical facts.

These are examples of government-compelled speech that I know of.

I absolutely don’t think search engines should be forced toward (or away from) bias, but we’ve already established exceptions to protections from compelled speech. Saying the government isn’t allowed to do that is not a strong argument.

Zippy says:

Re: Government compelled speech

I guess you don’t want to have any idea what’s in the food you’re eating, then. A simple factual list of ingredients harms no one and informs people about what they’re getting. And cigarette labels have a reason for being there. Tobacco was long ago proven to be addictive and detrimental to human health. Not putting a warning on there would be irresponsible. And you mention false statements about abortion but fail to name a single one, thereby nullifying your argument. It seems you don’t want any standards or boundaries for anything or anyone, just a hedonistic frer-for-all.

Uriel-238 (profile) says:

Re: Re: Ingredients, warning labels, etc.

Uh, Zippy I didn’t say these things are bad. I said they’re examples of state-compelled speech, and hence that we’ve established there are exceptions.

I’m saying the state mandates speech a lot, already.

I agree with you that when the state mandates factual data, it’s generally for good reason, and serves a good purpose.

Sometimes, however, the state will also mandate false or inaccurate data, such as evolution disclaimers. And I think those are harmful to the public.

U Shwul Spekt says:

Refuted this "ediitorial control" in advance on Saturday.

Here’s the short version: Users of "platform" are NOT to be controlled by it as "editor" (within common law bounds).

Now I repeat — and state flatly that this is NOT Techdirt speaking, but MY editorializing! TWO or even more different opinions and "editors" can co-exist on ONE site, see? NOT JUST TECHDIRT’S! THAT’S THE POINT!

The KEY trick: assert "editorial" control yet keep immunity:

Here it is cleverly worked in:

On Friday, libertarian-leaning groups including FreedomWorks and the American Legislative Exchange Council sent a letter to Sessions expressing "fear" that his "inquiry will be to accomplish through intimidation what the First Amendment bars: interference with editorial judgment."

NO! Totally negates the whole "platform" premise and asserts that hosting mechanisms are the actual editors!

Section 230 establishes The Public as Editors! "Platforms" are to be ONLY the technical means for conveying The Public’s Editorial choices.


Section 230 is not difficult to understand. The content of a magazine IS the magazine, and can be mechanically printed on any number of presses, without the owner of the press being liable for the content. PERIOD.

Corporations which host "platforms" are exactly analogous to owners of a mechanical printing press. Printers do not have liability for what’s printed — within BROAD common law terms, and especially relevant on Techdirt: enforcing copyright law when obviously violated.

It’s ridiculous to hold a mechanism responsible: that’s what Section 230 immunizes against. But it’s even more ridiculous to hold that the the owner of a printing press has total editorial control over magazine content.

But because The Internet blurs the line between mechanical and editorial, the corporate fiends now claim that owning the printing press DOES give them TOTAL editorial control over what WE want to publish!

Summary to here: For Section 230 immunity to be valid: 1) hosts must act in "good faith" according to common law standards, and 2) "platforms" are NOT to act as editors or publishers, are NEUTRAL / hands-off (again, by common law standards) with regard to persons and content.

Gwiz (profile) says:

Re: Re:

Section 230 is not difficult to understand.


Yet here you are, not understanding Section 230, repeatedly.

Mike refuted this garbage yesterday when you said, and I quote:

Tell ya what, Masnick. If you’ll refute that — not just quote and contradict but show / argue basis in law — then I’ll never darken your site.

Obviously you are not person who stands by their own words, so why should anyone ever listen to you concerning anything?

Anonymous Coward says:

Re: In case you missed it the first time.

iconMike Masnick (profile), 23 Sep 2018 @ 12:17pm
Re: The KEY trick: assert “editorial” control yet keep immunity:

Summary to here: For Section 230 immunity to be valid: 1) hosts must act in “good faith” according to common law standards, and 2) “platforms” are NOT to act as editors or publishers, but NEUTRAL / hands-off (again, by common law standards) with regard to persons and content.
Just to be clear: this is literally the exact opposite of what the law says or why it was written. Section (c)(2) of CDA 230 specifically says that no provider of an interactive computer service shall be held liable for “any action… to restrict access to” content. And the courts from Zeran onward have held that to be an incredibly broad prohibition.
Even more to prove that what you state here is clearly incorrect is to recognize that Congress directly said its reason for crafting CDA 230 was to remedy the mistake that happened in the Stratton Oakmont v. Prodigy case, in which Prodigy was held liable for the content left on its message boards because it had moderated some other content on those message boards.
In other words, CDA 230 was deliberately set up to encourage platforms to moderate content, including taking on an editorial/publisher role.
There are numerous points in the Zeran ruling that completely debunk your analysis, but we’ll just go with this one: “Congress’ purpose in providing the 230 immunity was thus evident.   Interactive computer services have millions of users…   The amount of information communicated via interactive computer services is therefore staggering.   The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.   It would be impossible for service providers to screen each of their millions of postings for possible problems.   Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted.   Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.”
That completely dispels with your nonsense interpretation. It specifically says that Congress recognized that computer services should have a free hand in determining which content should remain up or be taken down.
I await you now weaseling out of your promise to leave this site, because of course you won’t do that.

That Anonymous Coward (profile) says:

Dear Keebler elf,

How about you look into the huge numbers of people of darker skin shades ending up dead at the hands of police officers who always feel in fear for their lives, even when video shows the deceased walking away & they are shot 16 times in the back.

There might be real problems in the country & your duty is to address those, not POTUS & other conspiracy theorists claims that people were mean to them.

Zof (profile) says:

The debate is almost meaningless

The market is already responding to people angry about the bias the Media is hell bent on pretending doesn’t exist. It honestly doesn’t matter if the Media chooses self delusion in denying they’ve become a tool for one political party. The users are taking care of it by leaving the biased platforms in droves, and the platforms are quietly undoing the machinations they set up for a political party. These kinds of problems are auto-correcting as we get sick of the 1 percenters trying to control public opinion and start ignoring them.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »