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First Amendment News 289: Robert Corn-Revere, ‘Not the fairness doctrine? Perhaps not, but this is worse’ — the technology platforms debate continues

March 10, 2021

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 then replied in turn: “Krishnamurthy and Chemerinsky v. Corn-Revere — the technology platforms debate continues.” Mr. Corn-Revere closes the exchange with the reply below.


by Robert Corn-Revere

Robert Corn-RevereRobert Corn-Revere

It is always a pleasure to engage in a civil and vigorous debate with those we respect and admire, and this exchange with Dean Chemerinsky and Professor Krishnamurthy is no exception. Such rational discourse not only forces us to check our own premises, but to try to explain our reasoning to others. So here goes:

Dean Chemerinsky and Professor Krishnamurthy discount my critique of their proposal for federal regulation of internet speech as a “straw person” because they “do not argue for a fairness doctrine for the internet.” This statement is factually true: they did not call for the adoption of a law called the “fairness doctrine” to be implemented by the FCC or some other federal agency, but left those details to be worked out by The Hill’s readers. One can only shudder at the thought of what that readership might devise.

But while their proposal might not literally be the “fairness doctrine” as it existed between 1949 and 1987, neither was my analysis so literal-minded. Following their lead of invoking the fairness doctrine as precedent, I explored the history of what actually happens when you empower federal bureaucrats or private litigants to penalize media companies for their editorial choices. As nice as the theory may sound to some, it never ends well.

Dean ChemerinskyErwin Chemerinsky

So you may grant Dean Chemerinsky and Professor Krishnamurthy the point they are not proposing a “fairness doctrine,” and are only advocating “federal legislation to prevent monopoly social media platforms from discriminating against users and content on the basis of their political views.” This would be worse than the fairness doctrine, as measured by the three critical questions they posit: (1) Should social media platforms be able to exclude speech based on the political views expressed? (2) Is there a workable way to prevent social media platforms from excluding speech based on political views? (3) Would such restrictions be constitutional?

The first two of these questions merge, as we all seem to agree that private platforms are not limited by the First Amendment and are free to remove posts that “do not conform to their community standards of decency and mutual respect,” as well as those that fall in the limited categories of unprotected speech. But we part ways when it comes to the wisdom or practicality of adopting a rule that prohibits discrimination against speech based on its political content as opposed to its other characteristics (hateful views, intemperate rhetoric, etc.). How would these distinctions be drawn by the tribunal imagined (but not specified) by Dean Chemerinsky and Professor Krishnamurthy?

It is hard to imagine a decision to exclude speech for a failure to adhere to “standards of decency and mutual respect” that could not be characterized as “political discrimination.” Such questions arise frequently in First Amendment cases when governments claim to censor speech not because of its content but because of its form. California argued it could jail Paul Robert Cohen for his “Fuck the Draft” jacket not because of his political views but for his mode of expression, yet the Supreme Court disagreed, holding that “words are often chosen as much for their emotive as their cognitive force . . . which, practically speaking, may often be the more important element of the overall message sought to be communicated.” Likewise, the dissenters in Texas v. Johnson wrote that the defendant who burned an American flag was not being prosecuted for his political views but for his offensive means of expressing them.

Prasad KrishnamurthyPrasad Krishnamurthy

Just imagine the task facing the decisionmaker — whether an administrative agency or a court in a private action — under a law that prohibits “political discrimination” but allows platforms to delete posts that violate “community standards of decency and mutual respect.” Even if the conceptual tangle could be sorted out with any clarity or consistency, there would be no practical way to handle the many thousands of cases that would arise; such a law would be an open invitation for nuisance claims and political abuse. You could call it Donald Trump’s (or Josh Hawley’s) dream.

So, in answer to the question of whether social media platforms should be able “to exclude speech based on the political views expressed,” the answer is yes, if the alternative is to allow the government to become the arbiter of truth and the judge of fairness. And, as to whether there is a workable way to prevent social media platforms from excluding speech based on political views, the answer is absolutely not, as experience with the fairness doctrine suggests. The typical fairness complaint took years to resolve and was limited to programming that covered “controversial issues of public importance.” That hardly provides a workable blueprint for a law that could make a federal case out of the deletion of any stray tweet.

Finally, such a law is not supported by current constitutional doctrine. Contrary to Dean Chemerinsky and Professor Krishnamurthy’s response, I never suggested the Supreme Court has “repudiated” its decisions in Red Lion Broadcasting v. FCC or Turner Broacasting v. FCC;  I merely explained why they do not apply here because their holdings are technology-specific (as the Court explained in Reno v. ACLU).

Their claim that regulating speech on social media platforms does not present a First Amendment problem on the theory that they are not members of the “press” strangely truncates the Constitution’s reach. Except in the case of the late, great Lawrence Ferlinghetti, bookstore owners rarely write the books they sell, but the Supreme Court affirmed decades ago the First Amendment protects them nonetheless. There is no basis to believe the First Amendment would permit Congress to prohibit “political discrimination” on social media platforms any more than it could mandate “balance” in the political titles booksellers choose to stock (even if they are alleged to have monopoly power).

Again: I thank Dean Chemerinsky and Professor Krishnamurthy for their thoughtful participation in this exchange — I only wish there was more of it between members of the legal academy and the practicing bar.

Related

Minow on regulating media platforms 

Saving the News cover
In Saving the News, Martha Minow takes stock of the new media landscape. She focuses on the extent to which our constitutional system is to blame for the current parlous state of affairs and on our government’s responsibilities for alleviating the problem. As Minow shows, the First Amendment of the US Constitution assumes the existence and durability of a private industry. Although the First Amendment does not govern the conduct of entirely private enterprises, nothing in the Constitution forecloses government action to regulate concentrated economic power, to require disclosure of who is financing communications, or to support news initiatives where there are market failures. Moreover, the federal government has contributed financial resources, laws, and regulations to develop and shape media in the United States. Thus, Minow argues that the transformation of media from printing presses to the internet was shaped by deliberate government policies that influenced the direction of private enterprise. In short, the government has crafted the direction and contours of America’s media ecosystem.

Building upon this basic argument, Minow outlines an array of reforms, including a new fairness doctrine, regulating digital platforms as public utilities, using antitrust authority to regulate the media, policing fraud, and more robust funding of public media. As she stresses, such reforms are not merely plausible ideas; they are the kinds of initiatives needed if the First Amendment guarantee of freedom of the press continues to hold meaning in the twenty-first century.

Acting SG Prelogar files amicus brief in off-campus student speech case

The case is Mahanoy Area School District v. B.L. The issue raised in it according to SCOTUSblog is: “Whether Tinker v. Des Moines Independent Community School District (1969), which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”

In the amicus brief supporting the petitioner filed by Acting Solicitor General Elizabeth Prelogar, the government argued that:

A.  The First Amendment Does Not Categorically Prohibit Public-School Officials From Disciplining Students For Speech That Occurs Off Campus

B.  Off-Campus Student Speech That Threatens The School Community Or Intentionally Targets Certain Individuals, Groups, Or Discrete School Functions May Qualify As School Speech Potentially Subject To Discipline By School Officials, and

C.  This Court Should Vacate The Judgment Below

Notably, Prelogar stated that:

The United States takes no position on whether respondent’s particular posts would fall within a category of off-campus student speech that may properly be regarded as school speech, or whether, if so, they were substantially disruptive under Tinker or otherwise actionable under specific principles this Court might articulate that would be applicable here. Those questions are best addressed in the first instance by the courts below.

(Emphasis added.)

8-1: Court allows nominal-damages action to proceed in campus free speech case 

The case is Uzuegbunam & Bradford v. Preczewski, et al. The issue in the case was: “Whether a government’s post-filing change of an unconstitutional policy moots nominal-damages claims that vindicate the government’s past, completed violation of a plaintiff’s constitutional right.” Despite a claim that the action was moot, the Court in an 8-1 ruling held that: “A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.”

Kristen Waggoner of the Alliance Defending Freedom was the counsel of record for the Petitioners.

 Michael Dorf, “Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case,” Dorf on Law (March 8)

FIRE’s statement on President Biden’s Title IX executive order

This from FIRE’s March 8 press release:

Today’s executive order instructs the Department of Education to evaluate whether “suspending, revising, or rescinding” the recently enacted Title IX regulations is necessary to meet the new administration’s policy goals.

The order does not repeal the regulations, which have only been in effect since August. The regulations are the product of two years of notice and comment rulemaking as required by federal law and contain numerous good-faith compromises in response to comments from the public, victims’ rights advocates, educational institutions, and civil liberties groups like FIRE. Because of this robust participation from both the public and higher education stakeholders, these regulations will not be — and should not be — easily undone.

The regulations secured fundamental due process protections that were previously absent on too many campuses, such as the presumption of innocence, access to the evidence, and the right to ask questions of one’s accuser through an advisor. These basic American protections should not be controversial or partisan. If the Biden administration plans to rescind or replace these protections, questions must be asked: Why does the administration want to take away basic procedural protections that benefit all students in Title IX proceedings? Which provisions does the administration believe to be expendable?

FIRE will fight to preserve the regulations and the vital free speech and due process protections they contain. FIRE has been defending students’ rights for more than two decades. We’ll continue to do so, regardless of which administration is in the White House.

Brooklyn Law Review webinar symposium: ‘The Roberts Court & Free Speech’

The Roberts Court and Free Speech

John Roberts has been Chief Justice for nearly 16 years. Among the many doctrinal landmarks of his tenure has been the Court’s assertive approach to numerous free speech questions, including, among others, campaign finance and the methodology for upholding free speech claims. At the same time, in fields ranging from government employee speech to national security issues, the Court has been more accepting of government restrictions.

This Webinar symposium (with CLE credit) will examine the Roberts Court’s free speech record, by considering both the Court’s free speech expansionism and the status of speech the Court has left unprotected. It features prominent academic scholars and First Amendment practitioners who will share their knowledge about where the Court has been on free speech issues and their speculation about where it might go.

Friday, April 9, 2021 12:00 p.m. to 3:30 p.m.

Welcome Remarks

Michael T. Cahill, President, Joseph Crea Dean, and Professor of Law, Brooklyn Law School

Introduction

Geoffrey R. Stone

Session I: Overview: The Free Speech Record of the Roberts Court

Speakers

Ronald K. L. Collins, Co-director of the History Book Festival and former Harold S. Shefelman Scholar, University of Washington Law School.

David L. Hudson, Jr., Assistant Professor of Law, Belmont University College of Law

Commentators

Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP

Ellis Cose, Acclaimed author and journalist

Session II: First Amendment Expansionism and the Roberts Court Speakers

Robert Corn-Revere, Partner, Davis Wright Tremaine LLP Genevieve Lakier,

Moderator

Joel Gora, Professor of Law, Brooklyn Law School Break

Session III: Speech Left Unprotected by Roberts Court

Speakers

Helen Norton, Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law, University of Colorado Law School

Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School

Moderator

Session IV: Closing Observations

Speaker

Erwin Chemerinsky, Dean; Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Register here.

Forthcoming: Journal of Free Speech Law

Journal of Free Speech Law

Well, Professor Eugene Volokh has done it again! Along with Executive Editors Jane Bambauer and Ashutosh Bhagwat, they are about to launch the “Journal of Free Speech Law,” a peer-reviewed publication. (The the Board of Editors reads like a list of academic luminaries in the First Amendment world . . . plus a few notable judges!)

Inaugural symposium, volume 1, issue 1: “Regulating Social Media Removal Decisions?,” is scheduled to be published in July 2021. They are now accepting submissions for volume 1, issue 2 (exclusive submissions only). For announcements and links to new articles, follow them on Twitter @JournalSpeech.

VolokhProfessor Eugene Volokh (UCLA Law)

 

What we publish

  1. Articles that say something we don’t already know.
  2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
  3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
  4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause, except if they also substantially discuss religious speech.
  5. Articles about the First Amendment, state constitutional free speech provisions, federal and state statutes, common-law rules, and regulations protecting or restricting speech, or private organizations’ speech regulations.
  6. Articles about U.S. law, foreign law, comparative law, or international law.
  7. Both big, ambitious work and narrower material.
  8. Articles that are useful to the academy, to the bench, or to the bar (or if possible, to all three).
  9. Articles arguing for broader speech protection, narrower speech protection, or anything else.
Professor Jane BambauerProfessor Jane Bambauer (University of Arizona Law)

We plan to publish quickly, without interfering with the author’s style, voice, or perspective.

Submissions 
  • You can submit to the journal via Scholastica, at https://freespeechlaw.scholasticahq.com/.
  • As with many other faculty-edited journals, we require exclusive submission. Any article you submit to us must not be under consideration elsewhere.
  • In exchange, we expect to give you an answer within two weeks.
  • Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it’s the first article to discuss how case X and doctrine Y interact), please let us know.
  • Please submit articles single-spaced, in a proportionally spaced font.
  • Please make sure that the Introduction quickly and clearly explains the main claims you are making.
  • Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
  • Each article should be as short as possible, and as long as necessary.
  • Like everyone else, we like simple, clear, engaging writing.
  • We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.
Professor Ashutosh BhagwatProfessor Ashutosh Bhagwat (UC Davis School of Law)

Editing Process

  1. We will give you whatever editing feedback we came up with as we were reviewing your article. We will generally not offer line editing.
  2. We will assign a starting page number, which you can use for future citations even before it is published, and we will be prepared to immediately publish the article online and on Westlaw and likely Lexis, once the article is suitably revised and polished. (We will publish in print every several months, as enough articles are finished to form an issue.)
  3. We will defer to your authorial judgment on editing questions, except when we think accuracy or attention to counterarguments requires changes (in which case we will of course not make any changes without your approval).
  4. We expect authors who are professors at American law schools to have cite-checking and proofreading done by their own research assistants. If that is a hardship for you, please let us know.

We will have the article proofread near the end of the publishing process, just to catch any remaining glitches.

So to Speak podcast on incitement 

Professor David Hudson (Belmont Law)

There are very few exceptions to the First Amendment, and “incitement to imminent lawless action” is one of them. In the wake of former President Donald Trump’s impeachment trial over his alleged incitement of the Jan. 6 violence at the U.S Capitol, this obscure legal doctrine has captured headlines.

On today’s episode of So to Speak: The Free Speech Podcast, we discuss the incitement doctrine, and whether Trump’s Jan. 6 speech amounted to incitement, with First Amendment scholar and FIRE Legal Fellow David L. Hudson Jr. He is an Assistant Professor of Law at Belmont University and the Justice Robert H. Jackson Legal Fellow at FIRE.

More in the news

“On a recent episode of Amicus, Dahlia Lithwick talked with Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, to unpack how the scope of the First Amendment continues to grow even as it fails in the face of so many of the free speech issues we face today.”

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Cert. granted

Pending petitions

Cert. denied

First Amendment-related 

Last scheduled FAN

This article is part of First Amendment News, an editorially independent publication edited by Professor Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. Opinions expressed are those of the article's author(s) and may not reflect the opinions of FIRE or of Professor Collins.