by Dennis Crouch
July 4, 1776, the “united States of America” met and declared independence from Britain and its King who had worked to establish “an absolute Tyranny” over the thirteen colonies. Ever since, in the American mindset, tyranny demands revolution. “[W]henever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”
My Missouri Sen. Josh Hawley grabs hold of this rhetoric in his new book – Tyranny of Big Tech. Although Hawley’s publishing contract has been publicly cancelled, I’m sure he’ll find a way to publish it — even if it means he receives less money. Hawley is way-off the mark. As a person-in-power, he should have taken care to avoid revolutionary rhetoric for what is really a regulatory issue. He unfortunately raised tensions, raised them again, and then again.
BUT, the power of big tech is real. This week, Trump’s soap-box (twitter account) was been removed; Stripe stopped processing his donations; Parler was removed from major app stores (Google + Apple) and its web host denied (Amazon AWS) until the company complies with moderation policies. Parler says it won’t comply. You could imagine the owners of the internet backbone (Tier-1 ISPs) and as direct-to-customer-providers blocking communications from these services as well. This is the most public flexing of US internet might, but lower-key actions have been going on for years — especially toward traditional vices such as sex-workers, pornography, gambling, and marijuana sales. You could imagine next-level ramping up of tensions with pro-Trump shipping companies refusing to deliver for these companies. Ahh, but the legality of all of this may depend upon regulatory controls on speech and on common carriers.
Hawley has been calling these recent actions a violation of free speech rights. That is obviously wrong when it comes to First Amendment protections. The First Amendment does not require private companies publish Donald Trump’s speech or provide internet service Parler. That said, for years liberals have been calling for network neutrality regulations that would go a long way toward this end.
Free speech law does not begin-and-end with the U.S. Constitution. Rather, our internet has been structured as a reaction to common law principles later adapted by Congress. Those rules and regulations can change, and likely will change over the next four years.
For now though, I’m just looking for our democracy to survive the next 9 days. Good luck everyone!
= = = =
Law school was a while back but I remember a case where the Supreme Court found that a shopping mall back in the 1970s was deemed something like a common Carrier, so that it had to allow speakers in the mall even if they were objectionable. The malls were private property, but became a public forum, where free speech ruled. Social media is the modern version of those malls.
Imagine if Ma Bell said you cannot use the phone because we don’t like what you have to say.
Really good comment SVG.
And it definitely goes to common conspiracies and the fact that only a few companies control the market.
Also, it goes to the fact that these same companies are giving money in far greater amounts to Ds than Rs.
Maybe we should revisit Citizens United and disallow ALL juristic “speech” (of the money variety) to ALL Congress folks…
Thanks, Night,
I did a little research and found the case: Pruneyard Shopping Center v. Robins, 100 S.Ct. 2035 (1980), But See Lloyd Corporation, Ltd. v. Tanner, 92 S.Ct. 2219 (1972)
I stand corrected. But it’s tough for me to follow the logic that a platform is public and subject to the 1A for Trump but not subject to the 1A for anybody else, not even other public officials who announce and discuss policy positions on Twitter.
Who are the other public officials that you are referring to?
Do you really need a specific other public official to grasp the point here, NSII?
We have an immediate case that Trump tried to make his forum NOT to be a public forum (for selective editing) and that very same judicially-decreed public forum was treated as NOT being a public forum (for selective editing — just not by Trump).
There is a very clear dichotomy here.
And it makes a good Litmus test to see who has the ability to put their emotions in check and apply objective critical thinking on the underlying legal issues.
Hi Non Seq. Thanks for respectful exchange.
I was speaking hypothetically, but Twitter has in fact suspended or banned other public officials from its platform, e.g. PA State Sen. Doug Mastriano.
He will not show enough respect and return to engage on the merits.
Sorry Brad.
After watching The Social Dilemma on Netflix, I immediately jettisoned my Facebook, Twitter, Instagram accounts, made DuckDuckGo my default search engine, switched to FireFox from Chrome, and moved to MeWe and Gab. One way to stand up to Big Tech is to take your ball and go home. Once ad revenue drops, concessions will be made. Big Tech values money over political ideology.
We’ve got all the community you need right here at Patently-O.
What about signal?
True, the Constitution and the First Amendment provides protection against Government restrictions of free speech. However, Congress enabled Big tech by giving them immunity from lawsuits. Since Congress enabled them, Facebook, Twitter, and the such are now State-Actors and should be required to go through due-process proceedings before removing speech from their platforms. Amazon’s removal of Parlar is likely not only a breach of contract, but a violation of free speech as a state actor as well.
This is supported by case law. Under Norwood v. Harrison (1973), the Supreme Court ruled that inducing a private person to accomplish what the Government is constitutionally forbidden from doing, is a violation of the Constitution. Section 230 provides that inducement and enables censorship without fear of liability. There are other cases that also support this argument.
Even without a state actor argument, there is also a strong argument that the Internet has become the new public sidewalk. It is a public bulletin board. Hence, due process must be observed when removing speech from Facebook, Twitter, or the Amazon cloud.
“Since Congress enabled them, Facebook, Twitter, and the such are now State-Actors and should be required to go through…”
Yeaah – no.
Being a State actor is not the necessary conclusion reached by any type of mere ‘enabling.’
There are different avenues (for example, being determined to NOT have the 230 protection because of active shaping of content).
The 230 section is NOT permitted for the example that you want to put in play (cens 0r ship IS shaping of content and places you not as a mere platform, but as an editor).
I do like your train of thought on the ‘new’ public forum (although, the traditional analogy is ‘town square’ as opposed to ‘public sidewalk,’ or ‘public bulletin board’).
Also, as noted – the Parler situation pushes into additional areas, as an effective denial of service attack – especially as it can be shown that OTHER platforms may well have been much more major carriers of the very type of interactions being used as an excuse to shun Parler. Unequal treatment is a critical sign of something going wrong.
Interestingly, Although we are approaching a full year point since Malcolm Mooney’s precipitous drop in posting volume, THIS FORUM ‘tested out’ some of the same concepts in play at a much smaller version. Without getting too ‘meta,’ positions such as when does shaping of content and the uneven application of any cens 0r ship or other-named ‘editorial policies’ are clear indicators of what is REALLY going on.
Snowflake, so this latest nonsense you spout is because . . . you desire to have your ass handed to you? Again?
Hi Shifty. Changing your meme/tell a bit?
Maybe like engage on the merits if you want to discuss something (and possibly learn).
Of course, we both know that in your retired state, that you just don’t have the capacity for that, eh? (I’m pretty sure that your capacity prior to retiring was pretty limited as well).
“[E]ngage on the merits.”
Sure, Snowflake.
Snowflake says: “Without getting too ‘meta,’ positions such as when does shaping of content and the uneven application of any cens 0r ship or other-named ‘editorial policies’ are clear indicators of what is REALLY going on.”
Explain in a way that your nonsense is not nonsense.
Off course, you will do that, because everybody knows you’re so all about “engaging on the merits.”
Get your ass handed to you much?
Now change the subject as if nobody notices.
[what a maroon]
“Explain in a way that your nonsense is not nonsense.”
Do you really think that THAT is engaging on the merits?
What exactly did you do at the Office before you retired?
Ok, Snowflake. What is “REALLY going on.”
Your comment appears to be a non sequitur.
Try again.
We don’t think “non sequitur” means what you think it means, Snowflake.
You alleged you knew what is REALLY going on in comment 12.1 in this very thread.
You have established yet again that you are, indeed, an incredibly sloppy reader, writer, and thinker.
[and what a maroon]
Who is We?
You are dropping back to ACME plans that have never worked for you.
IF you want to comment on 12.1, then you should place your comment in response to comment 12.1 and not in response to 12.1.1.1.1.1.
And THEN try to make it like someone else’s fault when your ILL-PLACE comment is noted as being a non sequitur to the comment that you ACTUALLY responded to.
What did you do at the Office before retiring?
As to the rest of your post, meh, that’s just you projecting again.
Y
A
W
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…and your new meme/tell of something “handed” is sooo train-wrecky.
“Yeaah – no.”
Maybe you should post replies that aren’t dripping with emotion. (Sniff)
…
Bu
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sore much?
Try reading more than just the first line to recognize that one can post with emotive language AND substantive points.
And please stop channeling Malcolm Mooney.
“Being a State actor is not the necessary conclusion reached by any type of mere ‘enabling.’”
I apologize for not going into the details of an argument as my intent was not to provide a scholarly analysis. The word “enablement” was merely a short.
However, I stand by my statement. There is a very strong argument that social media giants are state actors those platforms have become de facto public forums such that any censure of speech must require due process.
Here is a good discussion of the issues:
“https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1017&context=policypractice”
I also believe the recent editorial in the WSJ provides the high-level arguments that need to be taken seriously:
link to wsj.com
If you do not have a subscription, this opinion can also be found here:
link to foxnews.com
Silicone Valley Girl’s comment under this post relating to Pruneyard Shopping Center v. Robins (1980) is also spot on.
Facebook and gang have been provided immunity from litigation. That is the carrot. That carrot allows them to post content by others without fear of liability that a third party may find objectionable.
If Big Tech is allowed to censure content that the Government would not be able to censure, then we have given Big Tech too much power. We have provided them with a carrot, but no stick. That cannot be right. Either take away the carrot, so that they are liable, or require due process.
Thanks, but, “The word “enablement” was merely a short.” was LESS the point and “state actor” was MORE the point.
I will follow up on your additional inputs (and thanks for adding), but the initial interaction should be more driven on the error of the notion of the private entity being a state actor — hat is both just not so, and not needed to be so to implicate the other positions such as invoking a “public forum” position.
Ok, I see the state actor angle that you are aiming for, and while I (still) disagree with the terminology (as being a bit imprecise), I do grant that the terminology is as you are using it, and I withdraw my objections here.
Ok, Snowflake, now we are at 12.1 per your instructions because you are five years old.
What is “REALLY going on.” ?
Prove to everybody that you are past being an incredibly sloppy reader, writer, and thinker.
Or not. [we predict still a maroon]
What is really going on is the setting of a desired narrative.
What would you think to be going on with an unequal application of rules?
How would you explain non-objective application of what should be objective?
Ok, so it this a pre-publication book review – or just a review of the title of the book?
As an old internet hand and keen observer over the decades we must recognize some basic facts and history here.
1. These ‘network effect’ (“NE”) companies are natural monopolies – once they get the high ground (not the moral high ground mind you, but critical mass) everything and anything in rolled down upon the upstarts.
2. The NE’s understood this early and by any means – actually some very anti-competitive illegal stuff they either put the competition out of business or if that didn’t work, they wrote the check for the purchase. Think eBay v. PayPal – the PayPal wars or google v adsense. Google v Expedia (the bleed out strategy).
3. Eric Schmidt – was a ‘wisened’ old hand as the general of the ‘desktop wars’ Microsoft v. Novell (WWI) and made sure that DOJ/FTC was kept complacent while he consolidated the online advertising marketplace and others consolidated there respective categories. In all the years, there has never been ‘merger’ that was disapproved. And in this second (WWII) coming won the desktop war with google as the dominant start page.
4. Very clever lawyers & DC lobby.
4.a The poor little ‘infant’ companies got Section 230 and the state sales tax federally pre-empted, special shipping rates, etc. Don’t forget that sales tax abatement – that was huge.
4.b eBay establishes the novel tort of ‘computer trespass’ bans scrapers and dis-intermediating technology. Keeping the NE.
4.c eBay v. MercExchange – And all the NE amicus henchmen sets impossible bar for injunctive relief. Keeping the NE.
4.d Technology harvesting – serial infringement by facebook et al., adopting infringing improvements and tech so fast that competition is effectively killed in the cradle – e.g., before any better, faster, cheaper solution can get traction. Of if they do – go to plan B – just buy them out. Snapchat, instagram, WhatsApp, etc. In any event, the NE must be maintained.
4. e Very clever market power leverage in creating selective ‘open source’ projects putting legal ‘damages’ for patent & somewhat copyright infringement into a quandary see for example Android and certain cloud storage acceleration technology. Keeping the NE and also carefully tethering monetization to these so called open source deployments.
4.f The 1000’s of ways in which access to the markets and low cost capital is deployed to maintain the paramount NE.
4.g Colluding with unwritten anti-poaching rules – to artificially suppress STEM wages – and competition.
With this in mind, having twitter /facebook ban the President opened the obvious opportunity for Parlor et al, to gain him and his millions of followers. Ergo, the ban was at great risk of disrupting the NE and allowing competition to gain traction and even perhaps reaching the critical user # flash point of having it’s own NE. And that, could in fact trigger the reverse bleed out of twitter – an intolerable risk to the twitter NE. Ergo, the collusion with AWS in the termination of competition was necessary to make the potential of NE disruption a reasonable albeit still calculated risk. Throwing the big boy NE weight around to terminate legal representation etc etc was all standard fair for these very raptorial NE companies. They didn’t get to the top of NE heap by anything less, it’s in their corporate DNA so to speak, so you (the general public) are just seeing on display, conduct that those in the NE wars have seen very often. And one would expect those skilled in the art of IP and competition laws to see this with clarity. All that said, GAB appears to be navigating the window of opportunity & the predators very well and could very well get to the paramount NE flash point (adding a million users a day?). Parlor is road kill IMHO w/o a PI with the next ~100 hours, building on AWS was a fatal outsourcing of what should have been a core competency (but it’s easy to see why AWS was chosen), and suing AWS in Seattle DC instead of Texas where at least a remote chance of the PI relief exists, probably another fatal decision.
I’m expecting a lot of lawsuits being filed over the next few months.
Parler’s lawsuit against AWS is flopping out the gate.
link to mobile.twitter.com
Oh, I am so offended by all that dangerous talk on Twitter.
Someone ought to shut that down.
For Parlor, IMHO, it’s going to be running on sour grapes, i.e., difficult “but for” or contract damages after the fact. Unless a PI (TRO) is granted – which should have already issued if it was going to – GAB because it’s on it’s own rails – will win the user flight window and possibly grab the brass ring of NE. The Courts are scared. And cancel culture is real. Just saying.
You forgot the Joe Rogan effect…
iwasthere: very good comments.
Thanks. I know the NE boys via the hard “road” scholarship.
Is “NE boys” equivalent to Efficient Infringers who would rather compete on non-innovation principles (like established size and existing market power)?
Yes, of course. When you have market power of the NE – patents, copyrights, etc. and the old school potential of injunctive relief – well that is something that just must be stopped, it’s so annoying (they can always stroke the check – because the patent owner “hold out” is a Lemley fiction. Scalia (RIP) was eyes wide open on that bogus argument). A decision was made by the NE (perhaps an expensive short term solution, but in the long run perhaps cheaper solution to maintaining the NE – probably informed by Schmidt), evidenced by the 100s of millions to lobby the senate 98-2? and create that abomination of the privy court the PTAB via the AIA. That masterful astroturf – ‘bad patents’ the system is broken – ‘expert’ and newspaper opinion page campaigns. Building the choir. Manipulating public opinion (where has we see that of recent vintage?). Winning over SCOTUS – patents are the red headed step child of the Constitution, the PTO is feckless – everybody say so, so do something, Ok – KSR, Alice, eBay, etc., etc.
Look, i’m not a hater of the NE, but I do rather speak directly to the issues, which to the uninformed makes me sound harsh.
One of the most clever legal and market power maneuvers ever was the leverage of the google ad (NE) monopoly and the ‘open source’ project of Android, and the Java “clone” interface. There were a ton of cell phone patents in the way of android, but by making it open source, you win over the “information must be free useful tools”, but at the same time expand your ad monopoly the NE by leveraging and tethering. Masterful play in PR, IP, public sentiments, etc. Masterful. Give the devil his due.
But once again, I counsel this patently-o community of professional IP and competition lawyers – to see the world as it really is – and see the power of big money, the market power of the NE for it’s real free speech impacts, the ability to manipulate public opinion (all the way to SCOTUS) and the anti-competitive practices they deploy to maintain the NE.
For example, I don’t hate on Lemley in his ‘digital commons’ spin (it’s profoundly CCP), but I do dislike, well not dislike, but IMHO disappointed by the IP profession in the lack of critical thinking (legal training?) by some on this forum – to swallow the spin and the just barf it back out. More is expected of a profession. If you’re getting paid for your koolaid (CCP) advocacy – to be sure part and parcel of the astroturf – well whatever. I suggest you read “the practicing stoic” so you can at least sharpen your arguments.
Wow – a very sincere ‘thank you’ for that response.
Comment caught in count filter…
“I’m just looking for our democracy to survive the next 9 days.”
Maybe this is just a peeve of mine but can we as lawyers not also use the inaccurate cliche “our democracy” when mentioning the Constitution? James Madison made it clear in Federalist No. 10 that a republic is preferable to any pure or direct democracy. In some local small governments in the US, citizens can vote directly on laws but at the federal level this is nonexistent. If we want to say “protect our democracy and republic” that is more accurate, but to only mention “democracy” is inaccurately repeating a cliche that continues to be used by laymen and the media.
Pete – To call the US a “republic” without more is also very problematic because a republic allows for autocratic leaders and other leaders who are neither elected nor appointed by elected representatives.
Wasn’t the Senate originally appointed by the State legislatures? Ergo an elected house and an appointed senate?
Dennis-
Sorry for distracting from the well made points in your post.
It is true that it is also not a pure republic.
Constitutional republic or representative democracy seem like better narrow terms rather than overly broad “democracy” or “republic.”
There is a growing part of the population who would prefer a direct democracy but then you run into potential problems involving tyranny of majority, etc.
I agree Pete. Thanks.
We already see the tyranny of the majority.
Is anyone really surprised?
Anyone?
… also, one can look at recent writings wanting to eliminate the electoral college (and the propensity of those writers to adhere to certain political philosophies).
More accurately, we have a Constitutional democracy, which is violated by any attempted subversion of what is required by that Constitution. That Constitution also spells out the only two ways it can be validly changed.
If you want to see examples of what a direct democracy in a nation state is like, Athens provides some well documented
examples.
“which is violated by any attempted subversion of what is required by that Constitution.”
Does your any include the power grab by the Supreme Court to re-write patent law that has been designated — by the Constitution — to be within the sole domain of the Legislative Branch?
Yes, Congress gets to write patent law [like the nearly unanimous Congressional enactment of the AIA patent law changes], but no, the Supreme Court gets to interpret those laws.
I would put to you in all seriousness that the Court’s jurisprudence on eligibility is NOT “interpretation” by any stretch of the imagination.
The history of the Act of 1952 is quite clear in the stri pping from the Supreme Court the attempted experiment of setting the definition of “invention” by Common Law evolution was nixed.
“That is obviously wrong . . . .”
One thing I learned in my first years of practice after leaving law school was to remove the word “obviously” from my vocabulary when speaking of legal conclusions. I agree that there are regulatory changes coming.
It was my one tie-in to patent law.
Two reasons I disagree that your conclusion is “obvious:”
(1) The Second Circuit recently held that Twitter is a public forum subject to the First Amendment. Thus the First Amendment required that Trump allow hostile persons to “follow” and engage with him on that platform. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019).
(2) In Marsh v. Alabama, 326 U.S. 501 (1946), the Supreme Court held that a private mining company which owned a town and its streets could not prohibit a Jehovah’s Witness from distributing religious material on its streets.
It will be interesting.
“The Second Circuit recently held that Twitter is a public forum subject to the First Amendment.”
This is incorrect. The 2nd Circuit held that Trump’s Twitter account was a public forum.
“The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum.”
First Amendment jurisprudence is a total mess! Worse than personal jurisdiction.
Soooo….
Is it still considered a public forum (given that a private actor has such power over it)?
Does that make it more or less reprehensible that a private actor has such power over the President’s public forum?
Or is there some super secret wink wink meaning to “public forum” that changes on the whims of Cancel culture?
Thanks for the mining town case. Very apt analogy.
People (including myself) have complained about the power of big tech, but there is one point that hasn’t appeared in the (mostly civil) conversation here. There are a large number of social media platforms that have all banned Trump and violent rhetoric for at least the next few weeks. According to an article in axios (link below), the following platforms have banned Trump: Reddit, Twitch, Shopify, Twitter, Google, YouTube, FaceBook, Instagram, SnapChat, TikTok, Apple, Discord, Pinterest, Amazon AWS, Stripe, Okta, and Twillio. This list is two days old, so it’s likely to be longer. Even taking into account the interrelationship between several of these different platforms, wouldn’t the existence of so many different platforms suggest there is competition in the marketplace? Based on antitrust law, of which I am not an expert, wouldn’t the existence of so many different platforms refute the idea that one company or platform controls the market?
link to axios.com
I see your point on the multiplicity of platforms (as platforms).
However, the Parler story shifts the discussion somewhat from merely a multiplicity.
There is something new and strange going on.
I think the problem is probably that we need something like the FCC for the internet.
I would like to donate to a fund that supports Parler and was hoping I could find something on this website.
Most of my retired Air Force friends are in “total Support”, as are many from the other military branches.
We’ve seen enough of this Pro-Communist activity.
Tom I’ve already joined your group, why not, everything else has gone wrong!
I think there two core issues. One is that these companies are so huge that they often make it practically impossible to compete with them. The second one is that the government has many regulations that aid these companies and have aided them grow so large. Not least of which is section 230 of the 1996 Communications Decency Act. It doesn’t make sense to say that you aren’t responsible for the content on your site but that you can monitor it and edit it for what content you want.
My guess is the fallout of this is going to be severe. We are moving to two worlds where Rs use one set of tools/stores and the Ds use another set of tools/stores. Recently, where I live, a group started only ordering from restaurants that are D owned. They investigate the owners and if they find a donation to the R party, they boycott the restaurant. For real.
When you think about it in terms of broadcast communications such as radio and TV, then you realize that the problem is that there is no government control over the content to keep things tame or within reason. And now we have these tech companies with political affiliation putting their fingers on the scale on which political party they like.
I think there is a good argument to break-up every large tech company now or pass new laws to make it illegal for Amazon and the like to turn away customers based on content. Maybe modify section 230 to add a section that it does not apply to corporations that exclude people based on political affiliation, race, religion, and so forth.
The fact is that the things the Ds said about BLM riots was worse than what Trump said. And the fact is that I live close to where BLM riots happened and there is no doubt that it was a physical threat that either the Ds were going to be elected or they were going to burn down our city. The looted several stores that I regularly go to and burned one down. They even threated to raid the area where my home is. As in there was a plan to come and attack homes in my area and loot the stores.
The Ds encouraged this disgraceful treasonous conduct. And I am a D, but would prefer a third-party form.
And be clear my neighbors and I had a sleepless night where we sat there with guns at the ready. This was Harris/Pelosi/etc.’s fault. They did that.