Techdirt is off for the holidays! We'll be back soon, and until then don't forget to 
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
Comments on “The Right To Advertise?”
Waiting for trolls such as Koby and Matthew M. Bennett to come in and deliberately miss the point in 5, 4, 3, 2, 1…
This comment has been flagged by the community. Click here to show it.
Re: Google is a common carrier
Google was literally found guilty of antitrust, and under antitrust laws, companies can be forced to do business with people they don’t want to, and can be prohibited from their “free association” rights under the first amendment.
The fact is that google:
controls my telephone number
controls my passwords
controls my wireless phone service
controls my emails
controls my domain names
controls my wallet (google pay)
controls my medical records (google health)
If google didn’t want to be a “common carrier” then they shouldn’t have vertically integrated their services into every aspect of the economy.
Re: Re:
No more so than Comacast internet isn’t a common carrier because Comcast owns TV chanme;s.
i.e. not at all, fuckwit.
Common carrier status of one of ,any services provides by a company has no influence on the other separate services.
Google Fi is a common carrier. Youtube unquestionably is not.
Re: Re:
Tell us, BlowJob, just how did Google obtain that control in the first place, eh? Could it be that you chose to give such control to them? ‘Cause I certainly don’t see any articles around the internet about how Google is holding guns to people’s heads, forcing them under duress to use Google services.
Please, tell us how Google stole all control of your life from you, inquiring minds want to know!
This comment has been flagged by the community. Click here to show it.
Re: Common Carrier Cont.
So on one hand people in the government claim; that social media is so dangerous that we cant allow free enterprise, that misinformation is so important that there need to be federal officers and former federal officers embedded within the social media companies to monitor dangerous posts right? Isn’t that the entire premise of the CISA program itself that “social media” was under the prevue of federal cyber security response.
Yet on the other hand you want to reject the possibility that the same industry of national importance, such as was the case when the railroads were providing the key means of transportation and were also private companies, that those companies are cannot be deemed to be “common carriers” such that they have to serve all customers without distinction?
I see where this might go. Real Estate signs in your front yard? Haha, nothing you can do about it. Can’t remove those political signs put in your front yard either. All because of the right to advertise … I do not think this will work out like they hope it will. I wonder what HOAs think of this right to advertise. Most HOAs have restrictions upon placement of signs.
Political messages cannot be run as advertisements
There is a major problem which is immediately confronted when running a political message in an advertisement.
There are laws which require truth in advertising. Therefore it simply would not be possible for politicians to use advertising.
As we all know quite well, advertisements are always 100% truthful.
Re:
This is applicable only in commercial advertising (including non-profit organizations). Political (and religious) ads are exempted in that very same law.
Nice thought, but politicians purchase ads every day, without surcease. The one thing they have to be truthful about is the source of the ad’s funding, i.e. who paid for it. The rest can be all deceitful lies, and no one can do anything about it. Well, they can purchase ads stating a rebuttal, but that’s just playing the game of who’s got the bigger dick, and we all know how that usually turns out….
Re:
“There are laws which require truth in advertising.”
I had heard of this mythical creature many moons ago, but have yet to see one. Perhaps it is a lack of law enforcement, idk – I had simply assumed it was no longer law.
Full list of things preventing the AELJ exercising their open-access free speech and starting their own newspaper:
[list ends]
Re: ...or open their own social media platform
Full disclosure: Elmo has discovered running a social media platform is a little more complicated than it seems.
Re: Re:
Well, kinda.
I’d argue the main thing he’s finding out the hard way is that when you fire everyone who knows how to run a social media platform it’s a lot harder than it seems, but that’s less to do with the difficulty of the task itself and more do to with how hard it is for an idiot to do it.
It’s interesting how disingenuously they use the phrase “open-access” when in reality you can’t use a social media service without accepting a TOS/AUP and were the service reserves the right to decide what is acceptable.
Just like how you can’t place an ad in newsprint without first accepting a TOS/AUP and were the editor/news-org reserves the right to decide what is acceptable.
They are intentionally conflating “open-access” with “open-use” to muddy the waters, ie almost all social media allows open-access so the general public can read posts without logging in, there are some small social media sites that allows “open-use” as in posting anonymously or without accepting a TOS/AUP, but there is no social media with a larger userbase that allows that.
Re: Open to the public... under specific conditions
It’s amazing/amusing just how frequently admitting that TOSs exist absolutely demolishes the ‘social media is open to the public, therefore it should be required to host all speech’ arguments, which is probably why they basically never do so.
Re: Re:
These are the same people who don’t understand what closed US borders on whim would mean. Obviously the closed border opens for Americans and international flights. And a TOS is just a suggestion, its not an access control.
Re: Re: Re:
If a TOS is just a “shot across the bow, to get their attention”, then why publish it in the first place?
No, sorry, but a TOS is not a starting point to negotiations, it’s the final, be-all, end-all contract, fine print included. The only bargaining point you have as a user is to not use the offered service, i.e. take it or leave it, but it is what it is, and you don’t get to change anything about it. Unless you happen to have a spare $44 billion in your back pocket….
Your problematic viewpoint is naturally developed due to a lack of manpower to enforce the TOS terms across all users, and across all user generated content. That’s why we have AI getting in the picture (thousands of percent cheaper), and why nearly everybody is blaming “the other side” for what they consider bogus operations – taking down too much, or not taking down enough. The end result of that is what Mike posited nearly a decade ago: Moderation at scale is impossible.
Someday our descendants will all look back at this point in time and have a good laugh. But not just now. At this point, we have “The Speed Run of Moderation”, and we have sub-par IQ assholes who’s only qualifications for office are straight white photogenic teeth, attempting to force the rest of us into their idea of how to behave (meaning, bowing down and licking their footgear).
Meaning, to paraphrase an old meme, there’s too much death at the end of my life, and I am royally pissed that I don’t have enough time left to me so I can fix this mess before leaving it to my grandchildren. There are a few other “seasoned citizens” here, they know exactly what I mean.
Now get the fuck off my lawn!
sumgai
Re: Re: Re:2
Yes. I was supporting That One Guy in his insulting of those who consider Social Media open access. Thats why I highlighted the greater absurdity of the position of similar political figures regarding closed borders. TOS is absolutely an access control.
Re:
I’m not sure you can rely on a TOS. If that were the case, malls would be able to just add in a TOS to get around PruneYard.
(To be clear, I’m not agreeing with AELP overall)
Re: Re:
Conflating physical property with digital makes things a little messy but in this case the ‘mall’ would be closer to the internet as a whole(which would be an argument in favor of network neutrality), whereas the ‘stores’ would be the individual sites, and while the mall might be more limited in what it can and cannot do the same isn’t necessarily true regarding the stores in it.
Re: Re:
The “case” won’t work because a mall isn’t a service, it’s a physical place where the public can walk around and access a multitude of businesses/services. Pruneyard case-law says that only the places designated by the mall-owner can be used for speech and those who are speaking must conduct themselves in a manner that doesn’t disturb the mall’s peace, patrons and businesses.
If people want to apply Pruneyard to social media, they can go ahead, but they won’t like the results since it doesn’t actually mean they can say whatever they want wherever they want. They kinda gloss over that part of the case.
Sacrificing the real to enshrine in law the fictional
What it comes down to is that laws like this are aimed at ‘protecting’ a right that never existed(the right to say whatever you want without consequence, wherever you want, even if the owner of your platform of choice doesn’t want you there) by undermining not just a right but several rights that very much do(the free speech/first amendment right of association and the property right of being able to choose who gets to use your property).
This comment has been flagged by the community. Click here to show it.
Newspapers Are Not Open Access
In the CONTENT section.
In the PLATFORM section out in the courtyard area of the mall.
As mentioned last week, we aren’t fooled by the claim that because you can buy an advertisement, that the newspapers are open access. They are not. The content portions of the newspaper are under exclusive editorial control. On the other hand, social media content shows that no affirmative editorial discretion occurs. When authors hit the post button, the message typically appears to the entire public within moments, proving that no editorial decision was ever made. States can prevent viewpoint discrimination from taking place on a platform where affirmative editorial discretion is not made.
Re:
Why do you believe a private company should be forced to air your speech to the world?
Re:
Affirmative editorial discretion is not the only form of editorial discretion. On social media, such discretion takes the form of content moderation—which means removing content that violates the rules of a given service and banning the people who violate those rules. Any ruling that nullifies that kind of editorial discretion would turn back the clock on decades of First Amendment jurisprudence in re: compelled speech.
Which reminds me…
Yes or no, Koby: Do you believe the government should have the right to compel any interactive web service into hosting any third-party speech that it would otherwise refuse to host?
Re: Re:
Christisnmeet, now with gay dating.
Re: Re: Re:
What about lesbians?
Re:
Let me demolish your idiotic argument here.
Do you know what else don’t have affirmative editorial discretion? Syndicated ads on sites. Are the site owners powerless to remove such ads because it would constitute “viewpoint discrimination”?
How does it feel not to possess one iota of logic and reason?
Re:
Your own argument is self contradictory when you factor in the fact that comic strips and and obituaries are also written by third parties and are considered part of the paper rather than an ad. And those people make their own editorial judgment before it even gets to the paper.
But the paper gets last say on what’s in the paper.
Also, you self acknowledge that the account person that makes a post on social media is an author. Meaning they have likewise have the power to make editorial judgment by correcting grammar or aborting the post before they post it. With influencers, there may even be a team of people with access to the account working with the person considered the author.
You know who gets the last say for what gets to stay posted? The website they’re posting to. They may not work directly with the author, but the author still has to stay within the website’s guidelines.
This comment has been flagged by the community. Click here to show it.
The problem with free speech on the internet is when the government contacts social media to curtail opinions that the government doesn’t like, and uses levers like anti-trust and the SEC and so forth to coerce compliance. The origins of Covid comes to mind.
This case is kind of the same thing in reverse, with government intervening to compel speech. As soon as there is a government intervention, watch out. That applies in either of these cases.
Re: Problem Solving 101
Any problems are actually of your own making – you have intentionally ignored part of the very Amendment that you wish to make work for you, and you currently think is being manipulated to work against you.
That “other part”? It’s the clause about ‘freedom of association’. You are free to associate with whomever you might wish, and be logical extension, you can ignore whomever you might wish, to the point of even casting them out/off of your personal property. You CANNOT be forced by the government to associate with people you don’t like, period.
That’s where you and your ilk keep going wrong, and why you’re pissed – you don’t like it when we point out that 1A has several parts, and they’re all equally important – no one of them gets to ‘overrule’ the others. Period.
Now you get the fuck off my lawn too! And don’t come back until you’ve passed basic Constitutional Law class.
sumgai
Re:
Do you have any evidence that the government coerced social media platforms to curtail opinions they didn’t like?
Newspaper ads aren't open-access
I’d note that newspapers do have the right to refuse to accept an advertisement they don’t want to carry. It’s not unlimited (anti-discrimination laws and such) but if they don’t want to do business with the American Nazi Party then there’s not much the ANP can do to force them to carry their advertisements.
That won’t make any difference though. There’s too many well-reasoned rulings from too many courts that social media sites are not public spaces by default and it’d take a deliberate action by the federal government to make them such.
Re:
That would be the point of the stunt Mike is doing. The definition of open-access provided by the AELJ fits these ad-buys.
Like laws designed to force social media to host content, combined with a ruling from the top court in the land that the expansions of the 1A that come not from the text but are implied by the text are not constitutional, using a similar basis to Dobbs to revoke the associated 1A rights (like association, key to the prior rulings)?
The kind of ruling that this case might result in? Which is why ‘its never worked before’ isn’t the impediment you think it is?
The goal of the current article is to discuss arguements in an amicus breif on a SCOTUS case. This Case touches on principles that have blocked federal social media intervention and the brief argues in favor of introducing an exception to 1A SCOTUS jurisprudence that allows politicians to use the government to force Social media to host and promote speech.
As Dobbs showed, and is highlighted in light of the unconsidered consequences on display in the Alabama IVF ruling, this SCTOUS is absolutely willing to carelessly discard well-reasoned rulings and replace them with “lol no”.
Re: Re:
The last two paragraphs here should be struck. They were supposed to have been deleted.
These are contradictory, why are you still saying this? You don’t need to say this to make the point. You can just leave it at But that’s all social media companies want
Without the contradiction.
A publication that exercises editorial discretion is not open-access. If it were, you wouldn’t even need to do this whole jump through hoops with ads in the first place, because newspapers editorial content is also “open-access with editorial discretion”. The only difference is stricter editorial discretion.
Your broader point is correct, so I don’t know why you insist on this silliness, it just detracts from the argument. You could just… not.
As a side note, something that seems missing is how involved that editorial control is. Both you and AELJ seem to be taking it as a binary, but a lot of Section230 (or rather, pre-Section 230) related cases seem to rely on how involved in the process the editor is, for determining things like liability. I’m surprised that doesn’t come up here? Stuff like Compuserve or Prodigy. They’re not SCOTUS cases, but it seems like there’d be a lot of overlap
Re:
It’s not a contradiction.
Saying “anyone can have an ad published” is not the same as saying “any ad can be published”.
Re: Re:
It’s not clear to me that’s what they’re saying. And that doesn’t line up with PruneYard- PruneYard isn’t about who, but the content. The whole point of PY is they have to allow content they disapprove of.
But also, that also does not seem true, either? Not anyone can have an ad published. Part of that editorial discretion is that they can decline to publish ads from a certain group, or someone affiliated with a group. They’re not restricted to exerting editorial control over just the ad content, although many choose to operate that way.
If a newspaper gets an ad from a neo-Nazi group, they don’t have to publish it, even if it doesn’t mention any neo-Nazi topics. (Some will choose to publish it, using their discretion). They can say “oh, you’re David Duke? Nope, hard pass”.
Re: Re: Re:
It may have become muddled, but the main argument from the AELP is that newspapers aren’t open-access(because not anyone can have stuff published), but social media are(because anyone can have stuff published).
But as that analogy demonstrates, or at least tries to, both newspapers and social media exercise editorial discretion in the same fashion.
So the argument of the authors here is this: if both newspapers and social media exercise editorial discretion in the same fashion, then it must also follow that they’re either both open-access or neither of them are. Either way, they must have the same First Amendment rights.
If the brainiacs pushing the public square therefore free speech trope were to actually achieve this ridiculous goal, how would they suggest the resulting defamation law suits be handled? Certainly the website is not responsible because they have been forced to include all comments under penalty of law, that leaves the person or bot that posted the screed. Finding and prosecuting all those offending post initiators will be near impossible. The obvious result will be an end to the much heralded public square in the form of social media.
Oh yeah … another thing, was there ever a real public square like these fanatics envision for social media?
I recall stories of those who stood upon soap boxes in public squares but what if their speech was not acceptable? The public square was also where they had the stockade, right? Public hanging also took place there? Yup, one would feel free to voice their opinion in such a place huh.
Re:
Reinforcing the then-defunct Section 230 through the backdoor. I like it!
Potential minor typo I think? Article refers to “AELJ”, but the previous oped said “AELP”. I think it’s AELP (American Economic Liberties Project)
Even if you have the right to advertise, you don’t have a right to my eyeballs.
The ad industry continues to find that out the hard way. Them continuing to be obnoxious in foisting ads on browsers and insisting on that right has led to more people adopting ad blockers and ad skippers for YouTube.
Keep pushing your right to advertise, and the general public will push their right to not consume your advertisements.